IN THE 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 

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN OPPOSITION TO 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ CROSS-MOTION FOR 

SUMMARY JUDGMENT 

J. Gerald Hebert (DC Bar No. 447676) 

Paul S. Ryan (DC Bar No. 502514) 

Tara Malloy (DC Bar No. 988280) 

Megan P. McAllen (DC Bar No. 1020509) 

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400 

Washington, DC 20005 

(202) 736-2200 

Scott L. Nelson (DC Bar No. 413548) 

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street NW 

Washington, DC 20009 

(202) 588-1000 

Attorneys for Plaintiffs 

 

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TABLE OF CONTENTS

Page 

TABLE OF AUTHORITIES ...................................................................................................... iii 

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

ARGUMENT ..................................................................................................................................2 

I. Chevron Deference Does Not Apply .................................................................................2 

A. The FEC Did Not Construe an Ambiguous Statutory Term That Congress 

Delegated It Authority to Interpret ..........................................................................3 

B. The Controlling Commissioners’ Interpretations Cannot Command 

Deference Because They Lack the Force of Law ....................................................6 

II. Crossroads’ Arguments Do Not Redeem the Unlawful Rationale for Dismissal .......10 

A. The Controlling Commissioners’ Rejection of a Calendar Year-Based 

Analysis of Major Purpose Was Arbitrary and Contrary to Law ..........................10 

1. “Political committee status” under FECA expressly applies to 

activity “during a calendar year” ...............................................................11 

2. There is no support for the arbitrary alternative time frame upon 

which the controlling Commissioners relied .............................................13 

B. The Controlling Commissioners’ Review of Crossroads’ “Relevant” 

Spending in Evaluating its Major Purpose Was Arbitrary and Capricious 

and Contrary to Law ..............................................................................................19 

1. The controlling Commissioners’ analysis of Crossroads’ spending 

cannot be sustained under any level of review ..........................................20 

2. Crossroads’ attack on the broader standard used by the FEC’s 

General Counsel in evaluating the group’s major purpose is 

without merit ..............................................................................................28 

C. The Record Does Not Support Crossroads’ Defense of the Controlling 

Commissioners’ Reasoning as “Comprehensive” and “Fact-Intensive” ...............33 

III. This Case Is Not Moot .....................................................................................................36 

A. Crossroads’ Argument Confuses Standing with Mootness ...................................37 

B. Crossroads Bears a Heavy Burden to Establish Mootness ....................................38 

C. Crossroads Has Not Shown That the Five-Year Limitations Period for 

Statutory Penalties Makes Effectual Relief Impossible in This Case ....................39 

1. The statute does not bar claims for equitable relief ...................................39 

2. The limitations period has not run .............................................................41 

CONCLUSION ............................................................................................................................44 

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TABLE OF AUTHORITIES 

Page

Cases: 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) ........................................................................5, 6, 21 

Am. Fed. of Govt. Employees v. Veneman, 284 F.3d 125 (D.C. Cir. 2002) .....................................7 

Am. Meat Inst. v. Dept. of Ag., 760 F.3d 18 (D.C. Cir. 2014) .........................................................5 

Anna Jacques Hosp. v. Burwell, 797 F.3d 1155 (D.C. Cir. 2015) ...................................................7 

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .....................................................37 

AstraZeneca Pharms. LP v. FDA, 713 F.3d 1134 (D.C. Cir. 2013) ..............................................38 

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

Campbell-Ewald v. Gomez, 136 S. Ct. 663 (2016) ........................................................................38 

Center for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) ...................................24 

Center for Individual Freedom, Inc. v. Tennant, 706 F.3d 270 (4th Cir. 2013) ............................30 

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

Christensen v. Harris County, 529 U.S. 576 (2000) ....................................................................7, 8 

Citizens for Responsibility and Ethics in Washington v. FEC, No. 14-1419 

(D.D.C. filed Aug. 20, 2014) ...................................................................................................26

Citizens United v. FEC, 558 U.S. 310 (2010) ....................................................................24, 25, 32

City of Arlington v. FCC, 133 S. Ct. 1863 (2013) ...........................................................................3

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .............................................................3, 9 

Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (D.C. Cir. 1998) ....................42 

Decker v. N.W. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013) .........................................................37, 38 

Entergy Servs., Inc. v. FERC, 391 F.3d 1240 (D.C. Cir. 2004) .....................................................38 

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)...............................................13, 21, 22

FEC v. Akins, 524 U.S. 11 (1998)................................................................................................5, 6

FEC v. Christian Coalition, 965 F. Supp. 66 (D.D.C. 1997) ............................................39, 40, 41 

Case 1:14-cv-00148-RJL Document 62 Filed 03/09/16 Page 3 of 52
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FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ................................................................17 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ..................................................................17 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ........................................4, 5, 20, 22 

FEC v. Nat’l Repub. Sen. Campaign Comm., 877 F. Supp. 15 (D.D.C. 1995) .......................39, 42 

FEC v. Nat’l Right to Work Comm., Inc., 916 F. Supp. 10 (D.D.C. 1996) ...................................39 

FEC v. Nat’l Rifle Ass’n, 254 F.3d 173 (D.C. Cir. 2001) ................................................................8

FEC v. Williams, 104 F.3d 237 (9th Cir. 1996) .......................................................................40, 41 

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) ...................................................................25 

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984) ...............................................38 

Fogo de Chao (Holdings) Inc. v. Dept. of Homeland Security, 

769 F.3d 1127 (D.C. Cir. 2014) .........................................................................................3, 8, 9 

Fox v. Clinton, 684 F.3d 67 (D.C. Cir. 2012) ..................................................................................8 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) ...............................................................23, 33 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) ...............................37, 38 

Gonzales v. Oregon, 546 U.S. 243 (2006) ...................................................................................7, 8 

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........................................................................29 

Hall v. Sebelius, 667 F.3d 1293 (D.C. Cir. 2012) ............................................................................7 

Honeywell Int’l, Inc. v. NRC, 628 F.3d 568 (D.C. Cir. 2010) .................................................37, 38 

Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010)..................................24, 30 

Human Life of Wash. Inc. v. Brumsickle, No. 08-cv-0590, 2009 WL 62144 

(W.D. Wash. Jan. 8, 2009) .......................................................................................................30 

In re Nat’l Cong. Club, 1984 WL 148396 (D.C. Cir. 1984) ..........................................................43 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) .......................................................................7, 8 

Johnson v. SEC, 87 F.3d 484 (D.C. Cir. 1996) ..............................................................................39 

Kifafi v. Hilton Hotels Retirement Plan, 701 F.3d 718 (D.C. Cir. 2012) ......................................38 

Lacson v. Dept. of Homeland Sec., 726 F.3d 170 (D.C. Cir. 2013)...............................................18 

Case 1:14-cv-00148-RJL Document 62 Filed 03/09/16 Page 4 of 52
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LaRoque v. Holder, 679 F.3d 905 (D.C. Cir. 2012) ......................................................................37

Loughlin v. United States, 393 F.3d 155 (D.C. Cir. 2004) ............................................................37 

Mayo Foundation for Med. Educ. & Research v. United States, 562 U.S. 44 (2011) .................7, 8 

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

McDonald Partners, Inc. v. NLRB, 331 F.3d 1002 (D.C. Cir. 2003) ..............................................5 

Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012) ..........................................................................7 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ......................13

Motion Picture Ass’n of America, Inc. v. FCC, 309 F.3d 796 (D.C. Cir. 2002) .............................8 

Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394 (9th Cir. 1980)..............................41, 42 

Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) .........................................................5 

Nat’l Org. for Marriage, Inc. v. Daluz, 654 F.3d 115 (1st Cir. 2011) ...........................................30 

Nat’l Org. for Marriage, Inc. v. McKee, 649 F.3d 34 (1st Cir. 2011) ...............................23, 24, 30 

Negusie v. Holder, 555 U.S. 511 (2009) ......................................................................................3, 5 

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) .............................22, 23 

New York New York LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002) ................................................5 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ...................................22 

Northeast Beverage Corp. v. NLRB, 554 F.3d 133 (D.C. Cir. 2009) ..............................................5 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .......................................................................14, 20

Pub. Citizen, Inc. v. Dept. of Health & Human Servs., 332 F.3d 654 (D.C. Cir. 2003) ..............7, 8 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012), ...........................23, 32, 33 

Riordan v. SEC, 627 F.3d 1230 (D.C. Cir. 2010) ..............................................................39, 40, 41 

Sea-Land Serv., Inc. v. Dept. of Transp., 137 F.3d 640 (D.C. Cir. 1998) ...................................3, 4 

Seattle Audubon Soc’y v. Robertson, 931 F.2d 590 (9th Cir. 1991) ..............................................41 

SEC v. Brown, 740 F. Supp. 2d 148 (D.D.C. 2010) ......................................................................39 

SEC v. Chenery Corp., 318 U.S. 80 (1943) ...................................................................................18 

Case 1:14-cv-00148-RJL Document 62 Filed 03/09/16 Page 5 of 52
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Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ...................................................................35, 36 

Sottera, Inc. v. FDA, 627 F.3d 891 (D.C. Cir. 2010) .......................................................................8 

United States v. Banks, 115 F.3d 916 (11th Cir. 1997) .................................................................40 

United States v. Mead Corp., 533 U.S. 218 (2001) .............................................................3, 7, 8, 9 

United States v. Midwest Generation, LLC, 720 F.3d 644 (7th Cir. 2013) ...................................40 

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) ..................................................5, 6 

United States v. Telluride Co., 146 F.3d 1241 (10th Cir. 1998) ....................................................40 

Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 (2d Cir. 2014) .....................24, 29, 30 

W. Minn. Mun. Power Agency v. FERC, 806 F.3d 588 (D.C. Cir. 2015) ........................................3 

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) ........................................24 

Yamada v. Snipes, 786 F.3d 1182 (9th Cir.) ..................................................................................30 

Statutes and Regulations:

Federal Election Campaign Act, as amended (“FECA”) ...................................................... passim

28 U.S.C. § 2462 ....................................................................................................39, 40, 41, 43, 44 

52 U.S.C. § 30101(4)(A)..........................................................................................................11, 12 

52 U.S.C. § 30101(20)(A)(iii)........................................................................................................29 

52 U.S.C. § 30103(a) .....................................................................................................................14 

52 U.S.C. § 30106(c) .......................................................................................................................9 

52 U.S.C. § 30107(a)(8) ...................................................................................................................9 

11 C.F.R. § 102.3(a)(1) ..................................................................................................................43 

Administrative Materials: 

FEC Advisory Opinion 1996-3 (Apr. 19, 1996) ......................................................................15, 16 

Final Rules on Political Committee Status, Definition of Contribution, and Allocation 

for Separate Segregated Funds and Nonconnected Committees, 

69 Fed. Reg. 68,056 (Nov. 23, 2004).......................................................................................36 

First General Counsel’s Report, MUR 4940 (Dec. 19, 2000) (Campaign for America) .........30, 31 

Case 1:14-cv-00148-RJL Document 62 Filed 03/09/16 Page 6 of 52
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Second General Counsel’s Report, MUR 5751 (July 13, 2006) 

(The Leadership Forum) ..........................................................................................................15 

Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) (Supplemental 

Explanation and Justification).......................................................................................... passim

Statement of Reasons of Commissioners McGahn, Hunter and Petersen, MUR 6081 

(July 25, 2013) (American Issues Project) .........................................................................17, 18 

Statement of Reasons of Commissioners Petersen and Hunter, MUR 5842 (June 10, 

2009) (Economic Freedom Fund) ......................................................................................17, 18 

Statement of Reasons of Commissioners Petersen, Hunter, McGahn, MUR 5541 (Jan. 

22, 2009) (The November Fund) .............................................................................................17 

Statement of Reasons of Commissioners Petersen, Hunter and McGahn, MURs 5977 

& 6005 (May 1, 2009) (American Leadership Project) .....................................................18, 33 

Supplemental Statement of Reasons of Commissioner Walther, MUR 6396 (Dec. 30, 

2014) (Crossroads GPS), eqs.fec.gov/eqsdocsMUR/14044364941.pdf ..................................10 

Litigation Materials: 

Brief of Appellees FEC and U.S. Dept. of Justice at 59–60, Real Truth About Obama 

v. FEC, 681 F.3d 544 (4th Cir. 2012) (No. 11-1760) ........................................................32, 33 

FEC Reply in Support of Motion to Dismiss, Citizens for Responsibility and Ethics in 

Washington (CREW) v. FEC, No. 14-1419 (D.D.C. Dec. 16, 2014) .....................................3, 9 

Other Authorities: 

Center for Responsive Politics, 60 Plus Ass’n Outside Spending Summary 2010, 

https://www.opensecrets.org/outsidespending/detail.php?cmte=

60+Plus+Assn&cycle=2010 (last visited Mar. 9, 2016) ..........................................................26 

Center for Responsive Politics, American Action Network Outside Spending Summary 

2010, https://www.opensecrets.org/outsidespending/detail.php?cmte=

American+Action+Network&cycle=2010 (last visited Mar. 9, 2016) ....................................26 

Center for Responsive Politics, Americans for Tax Reform Outside Spending 

Summary 2010, http://www.opensecrets.org/outsidespending/detail.

php?cmte=C90011289&cycle=2010 (last visited Mar. 9, 2016). ............................................27 

Center for Responsive Politics, Center for Individual Freedom Outside Spending 

Summary 2010, http://www.opensecrets.org/outsidespending/detail.php?cmte=

C30001747&cycle=2010 (last visited Mar. 9, 2016)...............................................................27 

Case 1:14-cv-00148-RJL Document 62 Filed 03/09/16 Page 7 of 52
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Center for Responsive Politics, Crossroads GPS Organization Summary, 

https://www.opensecrets.org/outsidespending/nonprof_contrib_summ.php?id=

272753378 (last visited Mar. 9, 2016) .....................................................................................19 

Center for Responsive Politics, Crossroads GPS Outside Spending Summary 2012 

https://www.opensecrets.org/outsidespending/detail.php?cmte=

C90011719&cycle=2012 (last visited Mar. 9, 2016)...............................................................14 

Center for Responsive Politics, Republican Jewish Coalition Outside Spending 

Summary 2010, https://www.opensecrets.org/outsidespending/detail.php?cmte=

C90012063&cycle=2010 (last visited Mar. 9, 2016)...............................................................27 

Response and Supplemental Materials, Application for Recognition of Exemption of 

Crossroads GPS (27-2753378) (May 21, 2012) ................................................................34, 35 

Revised Protest Letter, Application for Recognition of Exemption of Crossroads GPS 

(27-2753378) (Feb. 28, 2014) ............................................................................................27, 28 

Robert Maguire, How Crossroads GPS beat the IRS and became a social welfare 

group, Center for Responsive Politics (Feb. 12, 2016), http://www.opensecrets.

org/news/2016/02/how-crossroads-gps-beat-the-irs-and-became-a-social-welfaregroup/ .................................................................................................................................27, 35 

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INTRODUCTION 

Plaintiffs’ summary judgment memorandum contains a full account of the procedural 

background and factual record in this case. The essential facts material to the issues presented 

remain undisputed. In considering whether to investigate Defendant-Intervenor Crossroads 

Grassroots Policy Strategies (“Crossroads”), the Federal Election Commission (“FEC”) had 

before it a record showing that: 

• In 2010, Crossroads spent approximately $15.4 million on communications 

that expressly advocated the election or defeat of federal candidates. AR 345–

46. 

• During the same year, in the period preceding the November congressional 

elections, Crossroads spent another $5.4 million on non-express advocacy 

communications that criticized or opposed clearly identified federal 

candidates. AR 356. 

• Crossroads also made grants of approximately $15.9 million to other 

organizations; many of those organizations in turn made substantial 

disbursements for express advocacy and electioneering communications. AR 

347 n.16. 

• Crossroads claimed to have spent a total of approximately $39.1 million in 

2010, AR 345; thus its spending on express advocacy and other 

advertisements regarding candidates alone accounted for approximately 53 

percent of its total spending. AR 365–66. 

• Crossroads’ fiscal year ended on May 31, 2011; in the months of 2011 that it 

included in that fiscal year, Crossroads said that it spent another $3 million on 

non-electoral activities. AR 401. 

• Persons associated with Crossroads made repeated statements reported in 

various media indicating that the purpose of the group was to provide a 

vehicle for electoral spending without donor disclosure that would parallel the 

efforts of Crossroads’ sister organization, the Super PAC American 

Crossroads. AR 11–14, 344–45. 

The three FEC Commissioners who voted not to find reason to believe that Crossroads 

may have violated the political committee registration and reporting requirements managed to 

arrive at the conclusion that Crossroads could not be a political committee only by rejecting the 

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recommendation of the FEC’s General Counsel and previous precedents of the Commission and 

instead: (1) determining that all Crossroads’ electoral spending except express advocacy must be 

disregarded in considering its major purpose; (2) concluding that the FEC is required to assess an 

organization’s major purpose based on spending in its self-defined fiscal year rather than in the 

calendar year in which it has allegedly violated the political committee registration and reporting 

requirements; (3) ignoring altogether the grants made by the organization to other political 

spending groups; and (4) disregarding all statements evidencing the organization’s purpose to 

influence federal elections except its self-serving, “official” statements of purpose. 

The votes of the three controlling Commissioners allowed one of the nation’s leading 

political-spending nonprofit groups to escape the reporting and disclosure obligations that federal 

law imposes on groups that engage in such spending and have the major purpose of influencing 

elections. Crossroads’ attempt to defend the Commissioners’ votes, which largely parrots the 

FEC’s, is unavailing. Contrary to Crossroads’ arguments, the Commissioners’ reasoning is not 

entitled to Chevron deference, and both the fiscal-year time frame they imposed on the majorpurpose determination and their view that only express advocacy may be considered in 

determining a group’s major purpose are contrary to law. And Crossroads’ new argument that 

there is no remaining case or controversy rests on a flawed understanding of the relevant statute 

of limitations and fails to meet its burden of showing mootness. 

ARGUMENT

I. Chevron Deference Does Not Apply. 

Crossroads relies heavily on the argument that the legal views underlying the controlling 

Commissioners’ vote not to investigate are entitled to Chevron deference. That argument fails for 

two reasons. First, the controlling Commissioners were not exercising gap-filling authority 

delegated by Congress to construe ambiguous statutory terms. Rather, their votes reflected their 

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views about the proper application of a judicially-created limitation on the statute restricting 

political committee status to groups whose “major purpose” is supporting or opposing 

candidates. When agencies construe judicial opinions rather than statutory provisions as to which 

Congress has delegated them interpretive authority, they receive no Chevron deference. See, e.g., 

Negusie v. Holder, 555 U.S. 511, 518–23 (2009). 

Second, as the D.C. Circuit has recently made clear, the Supreme Court’s limitation of 

Chevron deference to statutory constructions that have the “force of law,” United States v. Mead 

Corp., 533 U.S. 218, 226–27 (2001), means that an agency’s legal interpretations that lack 

precedential force and have no binding effect beyond the parties to the matter in which they are 

issued do not receive Chevron deference. Fogo de Chao (Holdings) Inc. v. Dept. of Homeland 

Security, 769 F.3d 1127, 1137 (D.C. Cir. 2014). The FEC has recently admitted that its deadlock 

votes lack the precedential effect essential to actions with the force of law under Mead and Fogo 

de Chao: “[S]tatements from declining-to-go-ahead Commissioners in three-three dismissals are 

‘not law’ and . . . such statements ‘would not be binding legal precedent or authority for future 

cases.’” FEC Reply in Support of Motion to Dismiss, at 4, Citizens for Responsibility and Ethics 

in Washington (CREW) v. FEC, No. 14-1419 (D.D.C. Dec. 16, 2014) (emphasis added by FEC) 

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

A. The FEC Did Not Construe an Ambiguous Statutory Term That Congress 

Delegated It Authority to Interpret. 

As the Supreme Court and D.C. Circuit have repeatedly explained, Chevron deference 

depends on whether Congress, by employing an ambiguous statutory term, delegated authority to 

the agency to resolve that ambiguity. See, e.g., City of Arlington v. FCC, 133 S. Ct. 1863, 1868, 

1874 (2013); W. Minn. Mun. Power Agency v. FERC, 806 F.3d 588, 591–93 (D.C. Cir. 2015). 

“[Chevron] deference comes into play, of course, only as a consequence of statutory ambiguity, 

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and then only if the reviewing court finds an implicit delegation of authority to the agency.” SeaLand Serv., Inc. v. Dept. of Transp., 137 F.3d 640, 645 (D.C. Cir. 1998). Crossroads’ repeated 

assertions that the controlling Commissioners’ legal views are entitled to Chevron deference 

sidestep this fundamental principle by failing, at any point, to identify the ambiguous statutory 

term the Commissioners supposedly construed. The reason for the omission is apparent: The 

Commissioners were not construing any provision of the statute, but instead based their votes on 

their views of the “major purpose” requirement for political committee status, an extra-textual 

limiting construction placed on the political committee definition in the Federal Election 

Campaign Act, as amended (“FECA”), by the Supreme Court, for reasons of constitutional 

avoidance, in Buckley v. Valeo, 424 U.S. 1, 79 (1976). 

Buckley imposed the major purpose limitation not as a construction of the statute’s 

language, but because of perceived problems of vagueness and overbreadth that might result 

from application of the statute’s literal terms, under which “‘political committee’ is defined only 

in terms of amount of annual ‘contributions’ and ‘expenditures,’ and could be interpreted to 

reach groups engaged purely in issue discussion.” Id. To avoid those problems while still 

“fulfill[ing] the purposes of the Act,” the Court held that political committees “need only 

encompass organizations that are under the control of a candidate or the major purpose of which 

is the nomination of election of a candidate.” Id. 

The controlling Commissioners here likewise were not construing ambiguous statutory 

language. As the FEC has acknowledged, they were “applying the major-purpose test” 

established in “Buckley and its progeny,” FEC Mem. Supp. Cross-Mot. for Summ. J. and in 

Opp’n to Pls.’ Mot. for Summ. J. 34 (Dkt. No. 32), based upon their views of “the ‘reasons that 

the Court in Buckley and [FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) 

Case 1:14-cv-00148-RJL Document 62 Filed 03/09/16 Page 12 of 52
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(“MCFL”)] narrowed the statutory definition of political committee,’” id. at 31, their 

interpretation of “the judicial opinions considering the test,” id., and “First Amendment concerns 

that have been expressed by various courts and commentators,” id. at 29. Crossroads 

acknowledges the same point when it observes that “the major-purpose test is a product of later 

Supreme Court interpretation, not congressional drafting.” Crossroads GPS Mem. Supp. CrossMot. for Summ. J. and in Opp’n to Pls.’ Mot. for Summ. J. 21 (Dkt. No. 60) (“Crossroads S.J. 

Mem.”). 

Chevron, which is premised on congressional delegation of authority to give authoritative 

constructions to ambiguous statutory language, does not require or permit deference to an 

agency’s interpretation of judicial opinions, and still less to its views of the constitutional issues

underlying them. In Negusie v. Holder, for example, the Supreme Court rejected a plea for 

deference to an agency decision that was based not on the agency’s construction of ambiguous 

statutory language, but on its interpretation of a prior Supreme Court decision. See 555 U.S. at 

521. The D.C. Circuit has likewise repeatedly held that courts “are not obligated to defer to an 

agency’s interpretation of Supreme Court precedent under Chevron or any other principle.” Univ. 

of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002) (quoting Akins v. FEC, 101 F.3d 

731, 740 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11 (1998)); accord, 

New York New York LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002) (same); see also Nat’l 

Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 959 n.17 (D.C. Cir. 2013), overruled on other grounds, 

Am. Meat Inst. v. Dept. of Ag., 760 F.3d 18 (D.C. Cir. 2014); McDonald Partners, Inc. v. NLRB, 

331 F.3d 1002, 1005 (D.C. Cir. 2003); Northeast Beverage Corp. v. NLRB, 554 F.3d 133, 138 

n.* (D.C. Cir. 2009). In particular, the D.C. Circuit has emphasized that this principle applies to 

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agency interpretations of Supreme Court decisions that, like Buckley, impose limiting 

constructions based on constitutional avoidance. See Great Falls, 278 F.3d at 1340. 

Tellingly, the D.C. Circuit announced this principle in its en banc opinion in Akins v. 

FEC, which concerned the exact issue in this case: whether the FEC’s interpretation of the major 

purpose test is entitled to Chevron deference. Although the Supreme Court vacated Akins on 

other grounds, 524 U.S. at 28–29, the D.C. Circuit’s subsequent reliance on Akins to reject 

claims for Chevron deference to agency interpretations of judicial opinions (see, e.g., Great 

Falls, 278 F.3d at 1341) leaves no doubt that Akins’ view of Chevron is still intact. Akins’ 

analysis of the deference question at issue here thus remains persuasive: 

We think the FEC’s plea for deference is doctrinally misconceived. It is 

undisputed that the statutory language is not in issue, but only the limitation—or 

really the extent of the limitation—put on this language by Supreme Court 

decisions. We are not obliged to defer to an agency’s interpretation of Supreme 

Court precedent under Chevron or any other principle. The Commission’s 

assertion that Congress and the Court are equivalent in this respect is inconsistent 

with Chevron’s basic premise. Chevron recognized that Congress delegates 

policymaking functions to agencies, so deference by the courts to agencies’ 

statutory interpretations of ambiguous language is appropriate. But the Supreme 

Court does not, of course, have a similar relationship to agencies, and agencies 

have no special qualifications of legitimacy in interpreting Court opinions. There 

is therefore no reason for courts—the supposed experts in analyzing judicial 

decisions—to defer to agency interpretations of the Court’s opinions. This is 

especially true where, as here, the Supreme Court precedent is based on 

constitutional concerns, which is an area of presumed judicial competence. 

101 F.3d at 740. Not having enacted the major purpose requirement, Congress could not have 

delegated to the FEC the authority to construe its meaning, and the FEC has no claim to authority 

to interpret judicial decisions or their underlying constitutional bases. 

B. The Controlling Commissioners’ Interpretations Cannot Command 

Deference Because They Lack the Force of Law. 

Crossroads’ deference arguments fail for another, independent reason: the legal positions 

underlying the controlling Commissioners’ votes cannot receive Chevron deference because they 

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7 

lack the force of law. In United States v. Mead Corp., the Supreme Court significantly clarified 

the parameters of Chevron deference by limiting it to circumstances where “Congress delegated 

authority to the agency generally to make rules carrying the force of law, and . . . the agency 

interpretation claiming deference was promulgated in the exercise of that authority.” 533 U.S. at 

226–27. Both the Supreme Court and the D.C. Circuit have, since Mead, confined Chevron

deference to agency legal interpretations carrying the force of law. See, e.g., Mayo Foundation 

for Med. Educ. & Research v. United States, 562 U.S. 44, 57 (2011); Gonzales v. Oregon, 546 

U.S. 243, 255–56 (2006); Anna Jacques Hosp. v. Burwell, 797 F.3d 1155, 1166 (D.C. Cir. 2015); 

Miller v. Clinton, 687 F.3d 1332, 1340–41 (D.C. Cir. 2012); Hall v. Sebelius, 667 F.3d 1293, 

1299 (D.C. Cir. 2012); Pub. Citizen, Inc. v. Dept. of Health & Human Servs., 332 F.3d 654, 659–

60 (D.C. Cir. 2003); Am. Fed. of Govt. Employees v. Veneman, 284 F.3d 125, 129 (D.C. Cir. 

2002). 

Crossroads does not contend that the legal interpretations underlying the controlling 

Commissioners’ votes have the “force of law,” but it argues that this Court is bound by the D.C. 

Circuit’s decision in In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000), to defer to legal positions 

taken by no-voting Commissioners in three-three deadlocks. As explained in plaintiffs’ earlier 

submissions, Sealed Case is distinguishable because of its unique procedural posture. See Pub. 

Cit. Reply/Opp’n to FEC 3–5 (Dkt. No. 38). More importantly, Sealed Case was decided before 

the shift in Chevron deference doctrine worked by Mead’s holding that agency legal 

interpretations that lack the force of law are “beyond the Chevron pale.” 533 U.S. at 234. 

Crossroads asserts that Sealed Case came after the Supreme Court’s ruling in Christensen 

v. Harris County, 529 U.S. 576 (2000), which “foreshadow[ed]” Mead. Crossroads S.J. Mem. 

17. But while Christensen noted that certain agency actions lacking the force of law were not 

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entitled to deference, see 529 U.S. at 587, it was Mead that expressly limited deference to agency 

interpretations promulgated in the exercise of authority to announce rules with the force of law. 

533 U.S. at 226–27. Thus, both Supreme Court and D.C. Circuit opinions consistently identify 

Mead as the source of the clarification that only interpretations with the force of law receive 

deference. See, e.g., Mayo, 562 U.S. at 57; Gonzales, 546 U.S. at 255–56; Fox v. Clinton, 684 

F.3d 67, 76 (D.C. Cir. 2012); Sottera, Inc. v. FDA, 627 F.3d 891, 903 (D.C. Cir. 2010); Pub. 

Citizen, 332 F.3d at 659; Motion Picture Ass’n of America, Inc. v. FCC, 309 F.3d 796, 801 (D.C. 

Cir. 2002); Am. Fed. of Govt. Employees, 284 F.3d at 129; see also Mead, 533 U.S. at 239 

(Scalia, J., dissenting) (“Today’s opinion makes an avulsive change in judicial review of federal 

administrative action.”). 

Sealed Case, issued without the benefit of Mead, considered only whether FEC probable 

cause determinations had some “legal effect,” not whether such determinations, when arrived at 

by three-three deadlocks, actually resulted in legal interpretations with the “force of law.” See

223 F.3d at 780. By contrast, in an opinion issued a week after Mead was decided, the D.C. 

Circuit determined that FEC advisory opinions were entitled to Chevron deference because “they 

have binding legal effect on the Commission” in that they provide a safe harbor against FEC 

enforcement to any person who relies on them in a “materially indistinguishable” transaction. 

FEC v. Nat’l Rifle Ass’n, 254 F.3d 173, 185 (D.C. Cir. 2001) (emphasis added). Deadlocked 

Commission votes have no such binding legal effect.1

A recent D.C. Circuit decision, combined with admissions made by the FEC, leaves no 

remaining doubt that binding precedent forecloses affording Chevron deference to the legal 

 

1

 The court in NRA noted that Sealed Case had said that probable cause determinations had 

sufficient “legal effect” to merit deference under Christensen, see id., but NRA itself did not address 

whether deadlocked probable cause determinations had the force of law comparable to that of an advisory 

opinion—and neither case addressed “reason to believe” determinations. 

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interpretations underlying the votes of three Commissioners in a deadlocked enforcement 

decision. In Fogo de Chao, the D.C. Circuit applied Mead to hold that “the expressly nonprecedential nature” of a decision “conclusively confirms” that it is not an exercise of authority 

“to make rules carrying the force of law” that are entitled to deference under Mead. 769 F.3d at 

1137. A determination whose “binding character as a ruling stops short of third parties” does not, 

the court held, “set a rule of law with any force” that merits deference under Mead. Id.

2

Fogo de Chao is fatal to any claim of Chevron deference here, in light of the FEC’s 

recent admission that Commission deadlocks cannot establish rules with precedential effect: 

[L]egal analyses articulated by a group of three FEC Commissioners in such a 

statement of reasons, or anywhere else, could not amount to an agency policy or 

regulation, de facto or otherwise. Under FECA’s plain language, a group of three 

Commissioners lacks the power to conduct the kind of rulemaking or to establish 

the policy change that plaintiffs allege. See 52 U.S.C. § 30106(c) (explaining 

four-vote requirement for Commission actions and expressly referencing 

rulemaking authority); id. § 30107(a)(8) (describing FEC rulemaking authority). 

The Court of Appeals has thus explained that these required statements from 

declining-to-go-ahead Commissioners in three-three dismissals are “not law” and 

that such statements “would not be binding legal precedent or authority for future 

cases.” Common Cause, 842 F.2d [at 449 & n.32] (emphasis added). The statute 

explicitly requires that decisions of the Commission “with respect to the exercise 

of its duties and powers under the provisions of th[e] Act shall be made by a 

majority vote of the members of the Commission,” and that certain specified 

actions require “the affirmative vote of 4 members of the Commission.” 52 U.S.C. 

§ 30106(c) (emphasis added); id. § 30107(a)(8) (rulemaking authority). 

FEC CREW Reply, at 4 (parallel citations omitted). The FEC’s admissions, together with the 

D.C. Circuit’s recent definitive limitation of Mead to precedential legal rulings, foreclose the 

possibility that the controlling Commissioners’ views reflect exercises of authority to establish 

rules with the “force of law.” 

 

2

 Fogo de Chao was decided on the same day our opposition/reply brief responding to the FEC’s 

brief was filed, too late to be included in that brief. 

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II. Crossroads’ Arguments Do Not Redeem the Unlawful Rationale for Dismissal. 

As a threshold matter, that the controlling group reached beyond the preliminary “reason 

to believe” inquiry to make a final determination of political committee status was itself contrary 

to law.3

 Rather than applying the legal standard applicable to this stage of the Commission’s 

enforcement process—whether there was “reason to believe” that a violation “may” have 

occurred—the controlling group found conclusively that Crossroads “was not required to register 

with the committee and file reports . . . as a political committee.” AR 427. 

According to Crossroads, the controlling Commissioners’ premature “major purpose” 

determination is justifiable for “two independent reasons,” both of which plaintiffs “must 

negate” to prove that the dismissal was contrary to law: first, the controlling Commissioners 

were justified in rejecting the statutory calendar-year analysis; and second, their limitation of the 

relevant “universe” of Crossroads’ spending to “express advocacy” was warranted. Crossroads 

S.J. Mem. 30. Contrary to Crossroads’ argument, both aspects of the controlling Commissioners’ 

explanation are arbitrary and capricious and contrary to law. 

A. The Controlling Commissioners’ Rejection of a Calendar Year-Based 

Analysis of Major Purpose Was Arbitrary and Contrary to Law. 

Because the controlling Commissioners’ determinations concerning the major purpose 

standard are not entitled to Chevron deference, the relevant question here is not whether FECA 

“unambiguously bars the Commission” from considering activity beyond a single calendar year 

to “determine” a group’s major purpose. See Crossroads S.J. Mem. 2. Instead, the appropriate 

inquiry is whether, in rejecting the “calendar year” analysis provided by the statutory definition 

of “political committee,” the controlling Commissioners departed from the only relevant 

 

3

 See, e.g., Supplemental Statement of Reasons of Commissioner Walther, MUR 6396 (Dec. 30, 

2014) (Crossroads GPS), eqs.fec.gov/eqsdocsMUR/14044364941.pdf. See also Pub. Cit. Reply/Opp’n to 

FEC 14–15. 

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statutory text—they plainly did—and whether they provided a reasoned justification for doing 

so, which they did not. The controlling Commissioners’ categorical rejection of the “short” time 

frame provided in FECA in favor of another “short” time frame that lacks any statutory 

foundation, let alone administrable standards or agency precedent, was contrary to law and 

arbitrary. 

1. “Political committee status” under FECA expressly applies to activity 

“during a calendar year.” 

FECA defines “political committee” to mean “any committee, club, association or other 

group of persons which receives contributions aggregating in excess of $1,000 during a calendar 

year or which makes expenditures aggregating in excess of $1,000 during a calendar year.” 52 

U.S.C. § 30101(4)(A) (emphasis added). The FEC Office of General Counsel (“OGC”) evaluated 

Crossroads’ political committee status under a calendar year standard, with respect to both the 

$1,000 “expenditure” threshold and the “major purpose” test, reasoning that a calendar year, “not 

a self-selected fiscal year, provides the firmest statutory footing for the Commission’s ‘major 

purpose’ determination—and is consistent with FECA’s plain language.” AR 363–64. 

The controlling Commissioners, however, took the view that their determination of 

Crossroads’ major purpose must be based on its activities in the course of its own fiscal year 

rather than during a calendar year, rejecting a calendar-year focus as “myopic” and “distorted.” 

AR 419–20. According to Crossroads, the controlling Commissioners premised this conclusion 

on a lack of statutory support for the OGC’s calendar-year analysis. See Crossroads S.J. Mem. 12 

(citing AR 419 and noting that the controlling Commissioners found “no support in FECA” for 

OGC’s calendar-year approach). In fact, the controlling Commissioners acknowledged that the 

only statutory reference on this point is to a “calendar year,” but dismissed that fact as either 

irrelevant or, if relevant, unconstitutional under Buckley. AR 420 n.87. They rejected applying 

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the statute’s unambiguous calendar-year metric because, in their estimation, any time frame “in 

contravention to a group’s organizational model” would be “incomplete” and would “ignore[] 

the point of the major purpose test.” AR 419. 

But “Buckley and its progeny” have never compelled any particular time frame for the 

analysis of major purpose, and the controlling group’s invocation of this precedent does not 

justify “ignor[ing]” the statute. Id. When the Supreme Court created the major purpose test, it 

said nothing whatsoever about displacing FECA’s designation of “calendar year” as the relevant 

time period for determining whether a group is a political committee. Crossroads expends 

significant energy debating the obvious—and undisputed—fact that Congress did not specify the 

scope of the major purpose test “five years before that test was established” by the Supreme 

Court. Crossroads S.J. Mem. 21. True enough. But this case also involves the application of the 

statutory political committee definition, 52 U.S.C. § 30101(4)(A), to which the major-purpose 

test has been added by judicial construction. That the major purpose test was a “product of later 

Supreme Court interpretation” rather than “congressional drafting,” Crossroads S.J. Mem. 21, 

does not somehow mean that the statutory “political committee” definition is irrelevant to the 

implementation of the major purpose test. Neither Buckley nor any judicial decision since 

Buckley said anything about a need to alter the federal definition’s temporal scope, or otherwise 

applied any temporal requirement to the “major purpose” limitation. Accordingly, the political 

committee definition’s explicit “calendar year” language is not just the best, but the only, 

statutory authority on this question, and the controlling group’s refusal to give effect to this plain

statutory language was contrary to law. 

Crossroads defends the controlling Commissioners’ action by echoing their assertion that 

the OGC’s fidelity to the statutory “calendar year” standard amounted to “introduc[ing] a new 

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legal norm”: “that a calendar year and only a calendar year is the necessary time frame for 

determining an organization’s political committee status.” AR 515. This charge is inaccurate. 

First, adhering to the express statutory language that the Commission is bound to implement 

cannot be tantamount to the “introduction of a new legal norm.” Second, employing a calendar 

year standard is fully consistent with the Commission’s approach to political committee status in 

prior enforcement proceedings—and a fiscal year standard is not. The controlling 

Commissioners’ reliance on Crossroads’ self-defined fiscal year for the major-purpose analysis 

thus deviates from FEC policy. If an agency changes its position, it must acknowledge that it has 

done so and provide reasons for the new policy. See Motor Vehicle Mfrs. Ass’n v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 41–42 (1983); FCC v. Fox Television Stations, Inc., 556 U.S. 

502, 515 (2009). The controlling Commissioners have failed to do so here. 

2. There is no support for the arbitrary alternative time frame upon 

which the controlling Commissioners relied. 

While the controlling Commissioners derided the OGC’s analysis for “superficially 

attempt[ting] to root itself in the statute,” their alternative approach—which would reject looking 

beyond “time periods other than those utilized by the group in question”—is completely 

untethered from the statute. AR 419–20. For its part, Crossroads is vague about the standard the 

controlling Commissioners actually applied, suggesting that they weighed spending “through a 

range of lenses” but ultimately calling the question “mostly academic,” Crossroads S.J. Mem. 24, 

apparently unwilling to defend the fiscal-year standard it called for during administrative 

proceedings. See AR 33, AR 92. But the controlling Commissioners specifically advocated 

limiting the major purpose analysis to whatever time period is “utilized by the group in question” 

or is consistent with the group’s “organizational model,” AR 419—i.e., its fiscal year. 

Crossroads’ failure to identify previous Commission actions using that metric as the exclusive 

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basis for a major purpose determination underscores that there is no legal support for this 

temporal standard. 

Moreover, the fiscal year is self-evidently manipulable and arbitrary, and therefore 

“unduly compromise[s] the Act’s purposes” and “create[s] the potential for gross abuse.” Orloski 

v. FEC, 795 F.2d 156, 165 (D.C. Cir. 1986). Given an organization’s ability to determine and 

change its own fiscal year—as Crossroads itself did in 2011 (AR 364), allowing it to use three

different fiscal-year periods in its first few years of existence, see AR 240, AR 293—a fiscalyear standard would enable such a group to evade federal law political committee status and 

attendant disclosure obligations. A fiscal-year standard would also greatly complicate 

administration of the Act, as it would never be possible to know whether a group was required to 

report its activities during an election year without knowing what it might do in the future. 

Political committees are required to register within ten days of becoming a committee. 52 U.S.C. 

§ 30103(a). But under the open-ended major-purpose test advocated in the controlling group’s 

Statement of Reasons, only organizations that freely admit to satisfying the major purpose test 

would be required to register. Any other organization could simply claim that its future plans did 

not include any election advocacy, so it would be “unfair” to impose political committee status.4

 

4

 Notwithstanding Crossroads’ statements to the contrary, plaintiffs do not contend that FECA 

“unambiguously bars the Commission from examining an entity’s overall spending” in all circumstances. 

Crossroads S.J. Mem. 2. Nor did the OGC “intentionally omit[] Crossroads’ spending” in 2011, as 

Crossroads asserts. Id. at 10. Instead, its First General Counsel’s Report reasonably focused on the period 

for which Crossroads provided specific information and concluded that its spending during that time was 

“alone sufficient” to warrant further investigation. AR 356. Nor have plaintiffs ever argued that the 

Commission was “required” to “ignore available information” in the record. Crossroads S.J. Mem. 20. 

Indeed, if the agency was bound to consider all of the information before it at the time of its decision—

which was not issued until December 2013—the appropriate time frame necessarily extends beyond 2011. 

In 2012, Crossroads reported approximately $71 million in independent expenditures to the FEC. Center 

for Responsive Politics (“CRP”), Crossroads GPS Outside Spending Summary 2012, https://www.

opensecrets.org/outsidespending/detail.php?cmte=C90011719&cycle=2012 (last visited Mar. 9, 2016). 

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As support for the controlling group’s reliance on the organization’s fiscal year, 

Crossroads lists a variety of enforcement cases, none of which supports the controlling group’s 

reasoning. For example, Crossroads—like the controlling Commissioners, see AR 421—cites 

MUR 5751 (The Leadership Forum) (“TLF”) as support for rejecting a calendar-year analysis 

because, in analyzing whether TLF violated the Act, the OGC cited tax filings showing the 

group’s receipts and disbursements between 2002 and 2006. Crossroads S.J. Mem 22. But the 

OGC did not reach the “major purpose” question, because it concluded—after an investigation

authorized by the Commission’s prior finding that TLF may have violated the Act based on its 

organizational statements of purpose—that none of TLF’s 2004 public communications 

contained express advocacy or even identified a federal candidate, so the $1,000 statutory 

threshold was not satisfied. See Second General Counsel’s Report, at 2, 5–6, MUR 5751 (July 

13, 2006), http://eqs.fec.gov/eqsdocsMUR/00005930.pdf. 

In another such “example,” Crossroads highlights “parallels” between the controlling 

Commissioners’ reasoning and the analysis contained in FEC Advisory Opinion 1996-3 (Apr. 

19, 1996), alleging that the similarities “are hard to miss.” Crossroads S.J. Mem. 23. This 

“[s]trikingly” similar advisory opinion, id. at 22, involved a foundation created to receive, and 

entirely funded by, a single testamentary distribution. In 1990, its first year of existence, the 

foundation spent less than half of its $3,137 in total outlays on contributions to federal and state 

candidates. Adv. Op. 1996-3, at 2. As Crossroads notes, the Commission gave that minimal 

spending little weight because “‘it occurred in the initial year of the Foundation’s 

establishment.’” Crossroads S.J. Mem. 22–23. Therefore, to assess its major purpose, the 

Commission “look[ed] beyond” 1990, analyzing the foundation’s activity within each of the 

following five calendar years—ultimately finding it significant that although the absolute 

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quantity of annual campaign spending remained more or less constant, its overall outlays in each 

of the five years (about $48,000 per year, on average) dwarfed the $3,137 spent in 1990. See

Adv. Op. 1996-3, at 3 (further noting that campaign spending in “Congressional election years,” 

as a proportion of total yearly spending, remained roughly consonant with non-election year 

activity). 

Even if the opinion had looked only at the foundation’s first year, it does not appear that 

the outcome would have been any different. In analyzing the foundation’s major purpose, the 

Commission found it relevant that none of the foundation’s other spending was “in any way 

related to election campaigns,” or used to distribute “materials that feature candidates or 

Members of Congress.” Id. Moreover, the Commission actually considered—unlike the 

controlling Commissioners in this case, see Section II.B.1, infra—how grants made to other 

organizations, if ultimately spent for campaign activity, impacted its major-purpose analysis. See 

id. at 4 n.3 (noting that some grant funds were expended for the benefit of the Democratic 

Socialists of America and the Communist Party, but that neither Party nominated candidates in 

the relevant years). At most, therefore, Advisory Opinion 1996-3 stands for the proposition that 

an organization’s entire history can be looked to for guidance if evidence confined to a single 

calendar year seems inadequate to characterize its purposes; it certainly does not in any way 

suggest that the fiscal year analysis applied in this case was correct.

Each of the other political committee status MURs that Crossroads offers as justifications 

for rejecting a calendar-year approach looked to activity over multiple years bounded by 

calendar years or by election cycles. See Crossroads S.J. Mem. 22–23. None refers to a fiscal 

year that does not coincide with a calendar year, and insofar as the Commission has considered 

“election cycles” in past political committee status determinations, “election cycle” was not the 

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time frame used in this case; if it had been, it would have produced exactly the same result as a 

calendar-year analysis because the election cycle ended in 2010. 

Crossroads also duplicates the controlling Commissioners’ misplaced reliance on FEC v. 

GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996), and FEC v. Malenick, 310 F. Supp. 2d 230 

(D.D.C. 2004). First, Crossroads posits that the district court decision in Malenick supports the 

controlling Commissioners’ analysis because the court “look[ed] to contributions in 1995 and 

1996.” Crossroads S.J. Mem. 22. But Malenick held that the organization was a political 

committee because its “major purpose was the nomination or election of specific candidates in 

1996.” 310 F. Supp. 2d at 237 (emphasis added). See also id. at 236 n.8 (finding evidence 

insufficient to establish that the organization accepted $1,000 in contributions “during the 1995 

calendar year”). And GOPAC looked to an organization’s spending in the election cycle from 

1989 to 1990, even though the group was formed in 1979, because the allegation was that its 

major purpose in that cycle was influencing three specific elections. See 917 F. Supp. at 853. 

These cases cannot supply the requisite reasoned justification for supplanting clear statutory 

language with controlling Commissioners’ unfounded “fiscal year” standard. 

Finally, Crossroads, like the controlling Commissioners,

5

 purports to rely on past 

statements of reasons in matters that deadlocked. See, e.g., Crossroads S.J. Mem. 22 (citing 

 

5

 See AR 421, AR 423 (citing Statement of Reasons of Commissioners McGahn, Hunter and 

Petersen, MUR 6081 (July 25, 2013) (American Issues Project)); AR 425 (citing Statement of Reasons of 

Commissioners Petersen, Hunter, McGahn, MUR 5541 (Jan. 22, 2009) (The November Fund)). The 

controlling Commissioners cited the statement from MUR 6081 as support for the proposition that “the 

Commission’s past political committee status MURs are assailable on other grounds.” AR 421. In MUR 

6081, three Commissioners denounced several cases discussed in its 2007 Supplemental Explanation and 

Justification, see Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) (“SE&J”), for having 

“strayed from the confines of the major purpose limitation,” and claimed they were therefore “of limited 

precedential value with respect to the type of spending examined as part of a major purpose inquiry.” Id.

at 7 & n.21 (citing MURs 5511 and 5525). But the Commission justified its decision not to engage in 

rulemaking in 2007 by express reference to these MURs, which its SE&J offered up as representative 

applications of the Commission’s approach to major-purpose determinations that would “provide[] 

considerable guidance to all organizations” and “reduce any claim of uncertainty.” 72 Fed. Reg. at 5595, 

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Statement of Reasons of Commissioners Petersen and Hunter, MUR 5842 (June 10, 2009) 

(Economic Freedom Fund)); see also id. at 38 (citing Statement of Reasons of Commissioners 

Petersen, Hunter and McGahn, MURs 5977 & 6005 (May 1, 2009) (American Leadership 

Project)). But, as the FEC itself has admitted, see supra Section I.B, the statements of reasons 

generated by deadlock dismissals are not official positions of the FEC, and they do not provide 

authority upon which the controlling Commissioners can justify their decision. 

The statutory text and purpose, prior Commission actions, and common sense all 

demonstrate that a calendar-year analysis was the correct approach in this case. But even if 

Crossroads were correct that an alternative approach focusing either on election cycles or on a 

group’s entire history could also reflect a lawful way of determining major purpose, that would 

not provide a basis for upholding the controlling Commissioners’ insistence on an unprecedented 

and blinkered examination only of the organization’s self-selected fiscal year. Of course, under 

the principle of SEC v. Chenery Corp., 318 U.S. 80 (1943), this Court can “sustain an agency 

action only upon a ground upon which the agency itself relied.” Lacson v. Dept. of Homeland 

Sec., 726 F.3d 170, 177 (D.C. Cir. 2013). The controlling Commissioners did not consider 

Crossroads’ entire history: They did not address its extensive spending in the 2012 elections even 

though the dismissal occurred well after the conclusion of that election cycle and they 

acknowledged that “[i]t ma[de] little sense to blind [them]selves to such spending.” AR 423. 

Thus, if Crossroads’ view of the time frame for major purpose determinations were correct, a 

 

5604. The fact that three Commissioners later opined that these MURs were based on “erroneous legal 

theories,” id. at 7 n.21, is not authority upon which the controlling Commissioners can justify their 

reasoning as to Crossroads in this case. 

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remand would be required for the FEC to consider its subsequent electoral spending—which 

would now include Crossroads’ spending in the 2012, 2014, and 2016 elections.6

 

B. The Controlling Commissioners’ Review of Crossroads’ “Relevant” 

Spending in Evaluating its Major Purpose Was Arbitrary and Capricious 

and Contrary to Law.

At the heart of this case is the standard that should be applied in determining what types 

of spending conducted by Crossroads constitute “federal campaign activity” for the purpose of 

analyzing whether the group’s major purpose was campaign-related. 

To determine whether there was reason to believe Crossroads had the requisite “major 

purpose,” the OGC calculated that the group in 2010 spent “approximately $20.8 million on the 

type of communications that the Commission considers to be federal campaign activity—

approximately $15.4 million on express advocacy communications and $5.4 million on nonexpress advocacy communications that criticize or oppose a clearly identified federal candidate.” 

AR 365. Because this $20.8 million represented approximately 53 percent of the total $39.1 

million Crossroads reported spending during 2010, the OGC concluded that Crossroads met the 

major purpose test for political committee status. AR 365–66. The OGC further noted that 

Crossroads’ 2010 Tax Return stated that it gave grants totaling approximately $15.9 million to 

other nonprofit organizations, AR 347 n.16, at least five of which reported making independent 

expenditures or electioneering communications in 2010, see Section II.B.2 infra. It made no 

findings regarding these grants with respect to Crossroads’ major purpose. 

 

6

 From 2010 to 2014, Crossroads reported approximately $114 million of spending to the FEC, 

making it the top election spender among non-disclosing nonprofit groups in this time period. See CRP, 

Crossroads GPS Organization Summary, https://www.opensecrets.org/outsidespending/nonprof_contrib_

summ.php?id=272753378 (last visited Mar. 9, 2016). In addition, its grant recipients spent $73.4 million 

on FEC-reportable communications in that period, of which $28.6 million was mathematically 

attributable to Crossroads GPS. Id. 

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The controlling Commissioners objected to the inclusion of the $5.4 million of nonexpress advocacy communications that promoted or opposed a candidate in the calculation of 

total federal campaign activity, arguing that the OGC’s approach is “inconsistent with Buckley’s 

limiting construction” and “not supported by the relevant case law and is, in fact, contrary to it.” 

AR 417, 419. Crossroads now defends that exclusion, and, in addition, argues that the $15.9 

million in grants to politically-active nonprofits should not be counted towards Crossroads’ 

federal campaign activity. But the controlling Commissioners’ stance represents a departure from 

the Commission’s longstanding approach to major-purpose determinations and cannot be 

defended regardless of the level of deference applied, as it “unduly compromise[s] the Act’s 

purposes” and “create[s] the potential for gross abuse.” Orloski, 795 F.2d at 165. 

1. The controlling Commissioners’ analysis of Crossroads’ spending 

cannot be sustained under any level of review. 

Crossroads’ attempt to defend the controlling Commissioners’ legal approach to 

analyzing its spending rests largely on its assertion that the Commissioners’ views are subject to 

an “extremely deferential” standard of review under Chevron, Crossroads S.J. Mem. 27–28, but, 

as explained above, Chevron does not apply here. Considered, as it must be, without the thumb 

on the scales of Chevron deference, the controlling Commissioners’ analysis of Buckley and 

subsequent case law is contrary to law.

The controlling Commissioners interpreted Buckley’s major purpose test to require the 

application of an express advocacy standard in the analysis of whether a group’s “independent 

spending [is] so extensive that the organization’s major purpose may be regarded as campaign 

activity.” MCFL, 479 U.S. at 262. The sole justification they provided for this approach—and for 

their break from the Commission’s past policy of considering all “non-express advocacy 

communications that criticize or oppose a clearly identified federal candidate” in this analysis, 

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21 

see AR 365—was their interpretation of the “relevant case law,” in particular a 2010 decision by 

the Tenth Circuit Court of Appeals. AR 406–07, AR 413, AR 416. Thus, the controlling 

Commissioners were doubly outside the area of the FEC’s delegated role: they based their 

dismissal of the complaint on their analysis of a judicial test—the “major purpose” test—in light 

of recent judicial decisions. They have “no special qualifications of legitimacy” in this arena, 

Akins, 101 F.3d at 740. 

But even if Chevron deference were accorded to the legal reasoning underlying the 

controlling Commissioners’ decision, the decision lacks even a rational basis for three reasons: 

(1) The controlling Commissioners misapprehend the relevant judicial authority, 

and in particular, fail to appreciate that the Supreme Court criticized the 

express advocacy test as “functionally meaningless” in determining the 

boundaries of permissible campaign finance regulation. A misunderstanding 

of Supreme Court precedent is not a “rational basis” for agency action. 

(2) The controlling Commissioners’ analysis is incomplete even as measured by 

their adopted standard. They failed to consider whether Crossroads’ spending 

on ads that criticized federal candidates and aired more than 30 days before a 

primary or 60 days before a general election constituted the “functional 

equivalent” of express advocacy. 

(3) The controlling Commissioners failed to consider whether Crossroads’ other 

spending, specifically its grants to other nonprofit organizations, may have 

reflected a purpose of engaging in federal campaign activity by supporting the 

recipient groups’ campaign-related spending. 

Crossroads begins its attempt to defend the controlling Commissioners’ by misstating the 

legal test applicable to the review of their decision to depart from the FEC’s existing policy. 

Citing Fox Television, 556 U.S. at 515, Crossroads asserts that the controlling Commissioners 

need only “display awareness that it is changing position,” and have no obligation to “‘provide 

reasons’ for their competing interpretation.” Crossroads S.J. Mem. 37. But Crossroads’ argument 

is contradicted by the very Supreme Court decision it cites: Fox Television goes on to make clear 

that when an agency changes its policy, “of course the agency must show that there are good 

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22 

reasons for the new policy.” 556 U.S. at 515 (emphasis added). It is untenable to claim that 

reasoned agency decision-making can permissibly proceed without any reasons whatsoever. 

Crossroads’ insistence that FEC policy can be altered without justification seeks to direct 

attention away from the controlling Commissioners’ wholly inadequate reasoning for their 

change of course. The chief reason those Commissioners’ views do not pass muster under even 

deferential review is their failure to provide any legal support for their position. As Crossroads 

acknowledges, plaintiffs have devoted many pages to “exhaustively” distinguishing the 

“precedent cited in the Commissioners’ statement of reasons,” see Crossroads S.J. Mem. 32 

(citing Pls.’ Mem. Supp. Mot. for Summ. J. 33–36); see also Pub. Cit. Reply/Opp’n to FEC 7–

14. And Crossroads makes no attempt to resurrect Buckley or any of the other decisions cited by 

the controlling Commissioners as a basis for the dismissal. AR 405–09. Its reticence is wellfounded: none of these cases held that the “major purpose” analysis must be limited to a review 

of express advocacy spending. Indeed, some indicate the opposite. See, e.g., MCFL, 479 U.S. at 

262 (describing political committees as “those groups whose primary objective is to influence 

political campaigns”) (emphasis added); North Carolina Right to Life, Inc. v. Leake, 525 F.3d 

274, 288 (4th Cir. 2008) (holding that, under Buckley, “an entity must have ‘the major purpose’ 

of supporting or opposing a candidate to be designated a political committee”) (emphasis added). 

The only case Crossroads offers in support of the controlling Commissioners is New 

Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) (“NMYO”), which mentioned 

that one approach to the major-purpose analysis was to compare “the organization’s 

electioneering spending with overall spending to determine whether the preponderance of 

expenditures is for express advocacy or contributions to candidates.” Id. at 678. But the 

dispositive issue in the case was the failure of New Mexico’s statutory definition of “political 

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23 

committee” to include any major purpose test at all.7

 The Tenth Circuit did not purport to review 

the constitutionality of including a group’s non-express advocacy in calculating its 

“electioneering spending,” and indeed, three years later, it upheld the broader approach set forth 

in the FEC’s 2007 SE&J in Free Speech v. FEC, 720 F.3d 788, 797–98 (10th Cir. 2013), cert. 

denied, 134 S. Ct. 2288 (May 19, 2014). To Crossroads’ credit, it acknowledges that NMYO does 

not “compel” the controlling Commissioners’ use of an express advocacy standard. Crossroads 

S.J. Mem. 32. Instead, it argues merely that the Tenth Circuit decision is an “example[] of 

courts’ adopting a First Amendment-sensitive approach similar to” that of the controlling 

Commissioners. Id. But a single allegedly “similar” case is hardly a reasonable basis for the 

controlling Commissioners’ break with Commission policy and adoption of a standard that 

frustrates the goal of meaningful transparency in campaign-related spending. 

The inadequacy of NYMO as a basis for the controlling Commissioners’ approach is 

underscored by the great weight of current case law holding that political committee status is not 

restricted by the express advocacy standard. First, the FEC’s broader policy of analyzing “federal 

campaign activity” has been upheld by two courts of appeals against constitutional challenge. 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544, 556 (4th Cir. 2012) (formerly known as 

Real Truth About Obama, Inc. v. FEC), cert. denied, 133 S. Ct. 841 (2013); Free Speech, 720 

F.3d at 797–98. And an additional four Circuits have upheld state laws that classify a group as a 

“political committee” based on non-express advocacy spending. Nat’l Org. for Marriage, Inc. v. 

McKee, 649 F.3d 34, 62–63 (1st Cir. 2011) (rejecting vagueness challenge to Maine definition of 

 

7

 The election-related activity at issue involved two organizations, NMYO and Southwest 

Organizing Project (“SWOP”), which respectively spent $15,000 and $6,000—of annual budgets totaling 

$225,000 and $1.1 million—on direct mail campaigns that mentioned candidates in 2008. Neither made 

any express advocacy expenditures, and there was no suggestion that even their non-express advocacy 

communications mentioning candidates came close to constituting the major part of their activities. 611 

F.3d at 671. 

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24 

PAC that included terms “promoting” and “defeating”), cert. denied, 132 S. Ct. 1635 (2012); 

Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 134 (2d Cir. 2014) (“VRTL”) 

(rejecting argument that “the phrases ‘supporting or opposing’ . . . are unconstitutionally vague 

as used in the PAC definition”), cert. denied, 135 S. Ct. 949 (2015); Center for Individual 

Freedom v. Madigan, 697 F.3d 464, 485–86 (7th Cir. 2012) (rejecting challenge to Illinois law 

that required groups that spent over $3,000 “on behalf of or in opposition to” any candidate or 

ballot question to register and report as a political committee)8

; Human Life of Wash. Inc. v. 

Brumsickle, 624 F.3d 990, 997 (9th Cir. 2010) (upholding state law defining political committees 

to include group that spend “in support of, or opposition to, any candidate or any ballot 

proposition”), cert. denied, 562 U.S. 1217 (2011). 

The consensus in these courts of appeals on this issue reflects the Supreme Court’s 

disavowal of the “express advocacy” standard for the purpose of delineating what 

communications can permissibly be subject to regulation. As reviewed in greater detail in Public 

Citizen’s previous submissions, see Pub. Cit. Reply/Opp’n to FEC 7–11, the Supreme Court’s 

decision in McConnell v. FEC, 540 U.S. 93 (2003), made clear that the express advocacy test 

was “functionally meaningless” in distinguishing election-related speech from issue advocacy. 

Id. at 193. In Citizens United v. FEC, 558 U.S. 310 (2010), the Court then explicitly rejected the 

 

8

 Crossroads claims that a different Seventh Circuit decision, Wisconsin Right to Life, Inc. v. 

Barland, 751 F.3d 804 (7th Cir. 2014), also supports aspects of the controlling Commissioners’ approach, 

see Crossroads S.J. Mem. at 29, 36, but this decision post-dated the dismissal and could not have 

provided grounds for the decision. Further, Barland considered a Wisconsin state “political committee”

law that differed from current federal law in multiple material respects: (1) the state definition of 

“political committee” included no major purpose test; and (2) the state law instead premised committee 

status upon a low $300 threshold for “contributions” or “disbursements” made for a “political purpose.” 

751 F.3d at 812, 816, 817–18. It is fair to say that any reservation the Seventh Circuit may have expressed 

about this state law has but the most tenuous connection to the controlling Commissioners’ construction 

of federal law here. Moreover, the Seventh Circuit also explicitly stated that non-express advocacy could 

be subject to disclosure, noting that that Citizens United held (as had the Seventh Circuit itself in an 

earlier decision) “that the ‘distinction between express advocacy and issue discussion does not apply in 

the disclosure context.’” Id. at 836 (quoting Madigan, 697 F.3d at 484). 

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“contention that the disclosure requirements must be limited to speech that is the functional 

equivalent of express advocacy.” Id. at 369. Furthermore, according to the Supreme Court, in 

addition to not being constitutionally compelled, adherence to the express advocacy test also 

frustrates the achievement of political transparency. The McConnell Court noted that because 

federal disclosure requirements for independent spending were limited to express advocacy prior 

to amendment by the 2002 McCain-Feingold Act, corporations and unions could “fund broadcast 

advertisements designed to influence federal elections” “while concealing their identities from 

the public” and “hiding behind dubious and misleading names like . . . ‘The Coalition-Americans 

Working for Real Change’ (funded by business organizations opposed to organized labor) [and] 

‘Citizens for Better Medicare’ (funded by the pharmaceutical industry).” 540 U.S. at 196–97. In 

an analogous manner, the controlling Commissioners’ insistence on importing an express 

advocacy limitation into the “major purpose” inquiry stymies the goal of obtaining disclosure of 

the identities of those who fund advocacy for or against the election of federal candidates. 

Second, the controlling Commissioners’ approach does not clear even “extremely 

deferential” review because they failed to assess whether any of Crossroads’ advertisements 

were the “functional equivalent” of express advocacy. Thus, even as measured by their chosen 

standard, their analysis of Crossroads’ spending was fatally incomplete. Nowhere in their 

statement of reasons did they review the $5.4 million in ads that “criticize or oppose a clearly 

identified federal candidate” to determine if any met the standard for the “functional equivalent 

of express advocacy.” See, e.g., FEC v. Wisconsin Right to Life, 551 U.S. 449, 469–70 (2007). 

Crossroads neither addresses this failure, nor defends it. 

Finally, as Crossroads acknowledges, the controlling Commissioners conducted no 

analysis of whether Crossroads’ $15.9 million in grants to other nonprofit organizations as 

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26 

reported in its 2010 Tax Return constituted federal campaign activity. Crossroads justifies this 

failure based on the allegation that each grant was sent with an accompanying “letter of 

transmittal stating that the funds are to be used only for exempt purposes, and not for political 

expenditures.” Crossroads S.J. Mem. 42 (citing AR 279, 326, 347). However, Crossroads makes 

no claim that it conducted any type of due diligence to ensure that the grantees in fact did not use 

their transfers for political expenditures, and there is no basis without further inquiry for 

concluding that these purported restrictions were anything more than fig leaves. The controlling 

Commissioners in turn made no attempt to corroborate any of Crossroads’ allegations regarding 

its grantees’ use of its transfers. 

The Commissioners’ failure was all the more glaring because the recipient groups spent 

massive amounts on express advocacy and electioneering communications in 2010, a fact within 

the Commission’s knowledge because the recipients reported the spending to the FEC. 

Examples include: 

• 60 Plus Association received $50,000 from Crossroads according to its 2010 

Tax Return (AR 277) and reported spending $6,719,073 on independent 

expenditures and $397,838 on electioneering communications in 2010.9

• American Action Network received $500,000 from Crossroads (AR 277) and 

reported spending $19,121,624 on electioneering communications and 

$4,031,977 on express advocacy in 2010,10 giving rise to litigation regarding 

whether it also should have registered as a federal political committee. CREW 

v. FEC, No. 14-1419 (D.D.C. filed Aug. 20, 2014). 

 

9

 See CRP, 60 Plus Ass’n Outside Spending Summary 2010, https://www.opensecrets.org/

outsidespending/detail.php?cmte=60+Plus+Assn&cycle=2010 (last visited Mar. 9, 2016). Spending 

figures for all grantees can also be found by accessing the FEC’s online “Candidate and Committee 

Viewer,” http://www.fec.gov/finance/disclosure/candcmte_info.shtml, and searching for each group’s 

name and the election cycle (2010). 

10

 See CRP, American Action Network Outside Spending Summary 2010, https://www.opensecrets.

org/outsidespending/detail.php?cmte=American+Action+Network&cycle=2010 (last visited Mar. 9, 

2016). 

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• Americans for Tax Reform received $4 million from Crossroads (AR 277) 

and reported spending $4,160,299 on independent expenditures in 2010.11

 

• The Center for Individual Freedom received a $2.75 million from Crossroads 

(AR 277)—amounting to almost half of CIF’s total revenue for that tax year—

and also reported spending more than $2,500,610 on electioneering 

communications in 2010.12

• Republican Jewish Coalition received $250,000 from Crossroads (AR 278) 

and reported spending $1,143,465 on independent expenditures in 2010.13

Even applying the controlling Commissioners’ chosen “express advocacy” standard to an 

assessment of Crossroads’ major purpose, it was necessary to evaluate whether Crossroads’ 

grants financed communications by Americans for Tax Reform and other recipients that 

constituted express advocacy or its functional equivalent. Indeed, it does not appear that the 

controlling Commissioners weighed the significance of these grants at all; their Statement of 

Reasons refers to them only as part of a recitation of facts (AR 402), and contains no further 

discussion or analysis. Had the Commissioners undertaken even the most minimal of inquiries, 

they would have learned, as the IRS did, that Crossroads could not produce and “may not have 

sent” transmittal letters to four of its twelve 2010 grantees: 60 Plus Association, American 

Action Network, Americans for Tax Reform (as to its first grant of $1,300,000), and Republican 

Jewish Coalition (as to its second grant of $100,000). See Revised Protest Letter, Application for 

Recognition of Exemption of Crossroads GPS (27-2753378) (Feb. 28, 2014).14 Notably, these 

 

11

 See CRP, Americans for Tax Reform Outside Spending Summary 2010, http://www.opensecrets.

org/outsidespending/detail.php?cycle=2010&cmte=C90011289 (last visited Mar. 9, 2016). 

12

 See CRP, Center for Individual Freedom Outside Spending Summary 2010, http://www.

opensecrets.org/outsidespending/detail.php?cmte=C30001747&cycle=2010 (last visited Mar. 9, 2016). 

13

 See CRP, Republican Jewish Coalition Outside Spending Summary 2010, https://www.

opensecrets.org/outsidespending/detail.php?cmte=C90012063&cycle=2010 (last visited Mar. 9, 2016). 

14 The Revised Protest Letter is available via CRP’s website at https://www.documentcloud.org/

documents/2713778-Revised-Protest-2-28-2014.html. See generally Robert Maguire, How Crossroads 

GPS beat the IRS and became a social welfare group, CRP (Feb. 12, 2016), http://www.opensecrets.org/

news/2016/02/how-crossroads-gps-beat-the-irs-and-became-a-social-welfare-group/. Although the IRS 

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four entities were also the only four Crossroads grantees in 2010 that reported spending 

significant amounts on independent expenditures in that election cycle: collectively, they 

reported spending more than $16 million on express advocacy alone. Although of course the IRS 

documents are not part of the administrative record in this case, the very fact that this 

information is not present underscores how inadequate—or better put, nonexistent—the 

controlling Commissioners’ review of this grant-making activity was. Crossroads’ invocation of 

the “letters of transmittal” in no way justifies the controlling Commissioners’ abdication of their 

responsibility to address this $15.9 million of Crossroads’ spending in their analysis of the 

group’s major purpose. 

2. Crossroads’ attack on the broader standard used by the FEC’s 

General Counsel in evaluating the group’s major purpose is without 

merit. 

Crossroads devotes a number of pages to inveighing against “Public Citizen’s broad 

vision of ‘federal campaign activity,’” which it alleges improperly encompasses electioneering 

communications and communications that “promote-attack-support-oppose” federal candidates. 

Crossroads S.J. Mem. 26.15 But this is not a standard that plaintiffs have invented. It was the 

standard applied by the OGC in its First General Counsel’s Report and reflects the 2007 SE&J 

and the FEC’s enforcement history. See AR 356 (“In past enforcement actions, the Commission 

has determined that funds spent on communications that support or oppose a clearly identified 

 

made an initial finding that Crossroads was not entitled to exempt status, upon Crossroads’ protest, this 

finding was subsequently reversed. No reasons for the reversal were released. Id. 

15 Crossroads attempts to sow confusion by claiming that “Public Citizen does not appear to argue 

that the controlling Commissioners should have counted all electioneering communications toward 

Crossroads’ major purpose.” Crossroads S.J. Mem. at 39. But Public Citizen has from the outset made 

clear that it supports the OGC’s approach to the major purpose analysis as set forth in the First General 

Counsel Report—which obviously “counted” Crossroads’ electioneering communications in the group’s 

federal campaign activity. See, e.g., Pub. Cit. Reply/Opp’n to FEC 15, 20. As for Crossroads’ assertion 

that Public Citizen’s previous comments about the major purpose test are inconsistent with its position in 

this case, that argument was also thoroughly refuted in our Reply/Opposition to the FEC, at 23–24. 

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29 

federal candidate, but do not contain express advocacy, should be considered in determining 

whether that group has federal campaign activity as its major activity.”). And this standard relies 

on definitions that have been upheld by the Supreme Court against vagueness and overbreadth 

challenges on multiple occasions. 

Crossroads asserts that a “promote-attack-support-oppose” standard “raises obvious 

vagueness problems,” Crossroads S.J. Mem. 31, but simultaneously acknowledges that the only 

Supreme Court case to have reviewed this standard upheld it. Reviewing one prong of the 

definition of “federal election activity,” 52 U.S.C. § 30101(20)(A)(iii), the Court in McConnell

concluded that words like “‘promote,’ ‘oppose,’ ‘attack,’ and ‘support’ [PASO] . . . ‘provide 

explicit standards for those who apply them’ and ‘give the person of ordinary intelligence a 

reasonable opportunity to know what is prohibited.’” 540 U.S. at 170 n.64 (quoting Grayned v. 

City of Rockford, 408 U.S. 104, 108–09 (1972)). Crossroads attempts to sidestep this precedent 

by claiming that the Supreme Court upheld this provision only with respect to political parties. 

See Crossroads S.J. Mem. 33. But § 30101(20)(A)(iii), by its terms, applied only to parties; the 

Supreme Court did not require this limit as a narrowing construction. It merely noted that any 

vagueness concerns regarding the “promote-attack-support-oppose” language were particularly 

attenuated in connection to parties “since actions taken by political parties are presumed to be in 

connection with election campaigns.” 540 U.S. at 170 n.64. But “McConnell indicates that the 

result did not depend on the presumption,” VRTL, 758 F.3d at 129, and consequently its approval 

of “promote-attack-support-oppose” language was not limited to parties, as Crossroads suggests. 

A string of recent appellate decisions have rejected Crossroads’ reading of McConnell

and have sustained “promote-attack-support-oppose” language in various disclosure laws 

applicable to non-party speakers. The Second Circuit, for example, recently rejected a vagueness 

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30 

claim involving a Vermont statute applicable to independent groups containing analogous 

terminology, i.e., “promotes,” “supports,” “attacks,” and “opposes,” noting that “the Supreme 

Court explained that these terms are not unconstitutionally vague in a similar context.” VRTL, 

758 F.3d at 128–29 (citing McConnell, 540 U.S. at 170 n. 64). The First, Fourth and Ninth 

Circuits have followed suit. See McKee, 649 F.3d at 62–64 (1st Cir. 2011) (rejecting vagueness 

challenge to Maine law containing the words “promoting,” “support,” and “opposition,” and 

noting that “McConnell remains the leading authority relevant to interpretation of the terms 

before us”); Nat’l Org. for Marriage v. Daluz, Inc., 654 F.3d 115, 120 (1st Cir. 2011) (rejecting a 

vagueness challenge to Rhode Island law containing the phrase “to support or defeat a 

candidate”); Center for Individual Freedom, Inc. v. Tennant, 706 F.3d 270, 287 (4th Cir. 2013) 

(holding that “pursuant to McConnell, the words ‘promote’ and ‘oppose’” in a disclosure law are 

not vague); Yamada v. Snipes, 786 F.3d 1182, 1192–93 (9th Cir.) (holding that “McConnell

supports the conclusion” that a Hawaii law using terminology such as “advocates or supports” 

and “opposition” to define political advertisements that are subject to disclosure requirements is 

not vague), cert. denied sub nom. Yamada v. Shoda, 136 S. Ct. 569 (2015); Human Life, No. 08-

cv-0590, 2009 WL 62144, at *14–*15 (W.D. Wash. Jan. 8, 2009) (citing McConnell to uphold 

state statute defining “political committee” as a group that receives contributions or makes 

expenditures “in support of, or opposition to, any candidate or any ballot proposition”), aff’d, 

624 F.3d 990 (9th Cir. 2010)). 

Nevertheless, Crossroads attempts to prove that the “promote-attack-support-oppose” 

standard “can both inculpate and exonerate similarly situated speakers” by plucking two ads out 

of two different enforcement actions, seemingly at random, and then alleging that the 

Commission’s different treatment of these ads demonstrates the unworkability of the standard. 

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31 

Crossroads S.J. Mem. 31 (citing First General Counsel’s Report, MUR 4940 (Dec. 19, 2000) 

(Campaign for America)). But this conclusion begs so many questions as to be meaningless. 

There is no reason to believe that the 1998 ad referencing former Speaker Gingrich that was the 

subject of MUR 4940 and Crossroads’ 2010 ad referencing former Representative Sestak were 

“similarly situated”: they concerned different subject matters, referenced different candidates and 

ran at different times during different elections. That Crossroads believes them similar does not 

make them so. More importantly, the Commission’s current approach to major-purpose 

determinations, which includes analysis of a group’s electioneering communications and 

“promote-attack-support-oppose” communications, reflects its policy statement in the 2007 

SE&J. There is no reason to think that the Commission analyzed a Gingrich ad that predated the 

SE&J by almost 10 years with reference to this standard, so the analysis of MUR 4940 is 

irrelevant to this case. 

Crossroads also objects to the OGC’s inclusion of electioneering communications in the 

calculus of its federal campaign activity, arguing that “there is no reason to think Congress 

intended even electioneering communications to count toward a group’s major purpose.” 

Crossroads S.J. Mem. 36. The very nature of this argument betrays the confusion in Crossroads’ 

analysis of the major purpose test. This test is a judicially-created standard. Congress has never 

“intended” to “count” any particular type of communication to a group’s major purpose because 

it did not create the test, nor has it adopted the test into FECA or otherwise addressed the test in 

legislation. Crossroads’ focus on Congressional intent with respect to electioneering 

communications underscores that the controlling Commissioners’ analysis of the major purpose 

test is neither within its zone of regulatory authority, nor deserving of deference. 

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32 

Further, Crossroads does not attempt to argue that the electioneering communications 

definition is overbroad or vague—which is unsurprising, as the Supreme Court has twice rejected 

such challenges. McConnell, 540 U.S. at 194–202; Citizens United, 558 U.S. at 369. Crossroads 

suggests, however, that this category of speech is only appropriate in “a narrowly tailored, eventdriven reporting regime.” Crossroads S.J. Mem. 36. But this ignores that the Supreme Court 

twice found the definition of “electioneering communications” an appropriate boundary for 

delineating the appropriate scope of disclosure—while simultaneously criticizing the express 

advocacy “line” that the controlling Commissioners adopted in their decision. The Court in no 

way limited its approval of the “electioneering communications” definition to the specific 

reporting mechanism set forth in the federal statute, and Crossroads can reference no statement 

in McConnell or Citizens United to the contrary. 

Finally, Crossroads argues that the standard applied in the First General Counsel’s Report 

did not rise to the level of a Commission “‘policy’ on the question whether express advocacy or 

some other category of spending should count toward an organization’s major purpose.” 

Crossroads S.J. Mem. 37–38. But the 2007 SE&J makes clear that the FEC’s established 

procedure for determining an organization’s major purpose considers the organization’s “federal 

campaign activity”—a term the FEC construes to encompass “funds spent on communications 

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

advocacy.” AR 356. See also 72 Fed. Reg. at 5605 (considering the proportion of spending 

related to “federal campaign activity” compared to the proportion spent on “activities that [a]re 

not campaign related”). Indeed, the FEC acknowledges in its papers here that that it has 

defended—successfully—this broader approach to major-purpose determinations as its “policy” 

in multiple courts of appeals against constitutional challenge. See, e.g., Brief of Appellees FEC 

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33 

and U.S. Dept. of Justice at 59–60, Real Truth About Obama v. FEC, 681 F.3d 544 (4th Cir. 

2012) (No. 11-1760) (arguing that neither “law nor logic” supports plaintiffs’ claim that FEC 

may consider only spending on “magic-words express advocacy” and “contributions to 

candidates” in major purpose inquiry under 2007 SE&J); Free Speech, 720 F.3d at 797–98. 

Crossroads also complains that the FEC has no “settled course of adjudication” on the 

major purpose inquiry, but points to enforcement actions and litigation preceding the 2007 SE&J 

as support for this proposition. Indeed, most of the cited authority is drawn from the 1990s. Even 

if there were inconsistencies in the FEC’s analysis of major purpose prior to the 2007 SE&J, it 

does not follow that the FEC did not establish a policy on this issue in the SE&J and adhere to 

that policy in enforcement proceedings thereafter. The only “authority” cited by Crossroads in 

the Commission’s post-2007 docket was another Statement of Reasons in a deadlocked 

enforcement case authored by several of the same Commissioners in the control group here. 

Crossroads S.J. Mem. 38 (citing Statement of Reasons of Commissioners Petersen, Hunter, and 

McGahn, MURs 5977 & 6005). That statement stands for nothing but that three Commissioners 

broke from Commission policy in another enforcement action. 

C. The Record Does Not Support Crossroads’ Defense of the Controlling 

Commissioners’ Reasoning as “Comprehensive” and “Fact-Intensive.” 

Crossroads repeatedly characterizes the controlling Commissioners’ analysis as 

“inclusive” and “fact-dependent,” see, e.g., Crossroads S.J. Mem. 8, 14, 24, 40, but the record in 

this case does not support that characterization. Instead, the controlling Commissioners explicitly 

disavowed, and/or silently ignored, information in the record that the Commission has long 

considered relevant to the analysis of major purpose. 

For instance, the controlling Commissioners did not comprehensively analyze the record 

in determining Crossroads’ “central organizing purpose,” instead denouncing any consideration 

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34 

of Crossroads’ public statements to the extent the information was drawn from media reports. 

According to Crossroads, the controlling Commissioners fully “explained why the media reports 

were inaccurate and thus entitled to less weight.” Crossroads S.J. Mem. 41. In fact, the 

controlling Commissioners addressed only one of the media reports specifically, and their overall 

analysis was limited to a finding that Crossroads had “adequately explained” why the articles did 

not “transform Crossroads into a political committee.” AR 411. At the preliminary reason to 

believe stage, it was plainly unreasonable to discount Crossroads’ statements in all media 

reports, particularly as to statements that Crossroads did not address or disavow. 

For instance, Crossroads’ submission to the FEC criticized one of the articles solely 

because it “refer[red] to American Action Network as ‘a Crossroads affiliate,’” and appeared to 

include “non-express advocacy communications” in reporting that Crossroads “sank $17 million 

into ads and turnout communications.” AR 235 (discussing Jeanne Cummings, GOP groups 

coordinated spending, Politico, Nov. 3, 2010 (AR 204–09)). American Action Network —one of 

Crossroads’ 2010 grantees—reported $4,031,977 in independent expenditures to the 

Commission in 2010, as well as $19,121,624 of electioneering communications. See n.10 supra. 

But neither Crossroads nor the controlling Commissioners addressed any of the other statements 

in the article, including its reporting of apparent coordination of spending between Crossroads 

and certain of its 2010 grantees. Indeed, Crossroads itself included an extract from the article 

highlighting the close coordination among spending groups in the 2010 elections in a “2010–11 

Interim Performance Report” it sent to donors: 

[A] cadre of big-money Republican outside groups worked together to spend 

millions to take down the Democratic House majority, carefully coordinating their 

ad buys and political messages through a series of regular meetings and phone 

calls aimed at picking off selected Democrats. The groups – including familiar 

names like the U.S. Chamber of Commerce and American Crossroads – shared 

their target lists and TV-time data to ensure vulnerable Democrats got the full 

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brunt of GOP spending. Republican groups had never coordinated like this 

before . . . The joint efforts were designed to spread the damage to as many of the 

majority Democrats as possible, without wasting money by doubling-up in races 

where others were already playing. 

Resp. and Suppl. Materials, Ex. 3-a-2, Crossroads IRS Application (May 21, 2012).16 Its use of 

the article in its donor report both belies its claims that the article is unreliable, and raises 

questions regarding the coordination of express advocacy communication between Crossroads 

and grantees such as American Action Network. The controlling Commissioners’ failed to even 

address, let alone explain, why these uncontroverted statements did not merit further review. 

In short, the controlling Commissioners unreasonably discounted or ignored the evidence 

of Crossroads’ purposes in the articles describing its activities, and instead placed neardispositive weight on Crossroads’ self-serving, self-generated articles of incorporation, mission 

statement, website and other documents as determinative of the group’s central organizational 

purpose. Their rationale cannot be squared with the FEC’s longstanding approach to political 

committee status determinations. The full Commission has characterized that approach as both 

flexible and comprehensive, and expressly noted that evaluating major purpose “requires the 

Commission to conduct investigations into the conduct of specific organizations that may reach 

well beyond publicly available advertisements.” SE&J at 5601; see also id. at 5605 (noting 

“comprehensive analysis required to determine an organization’s major purpose”). The FEC 

defended its decision to make case-specific political committee status determinations in Shays v. 

FEC, 511 F. Supp. 2d 19 (D.D.C. 2007), on the basis that the “major purpose” doctrine “requires 

the flexibility of a case-by-case analysis of an organization’s conduct,” including not only the 

“the content of [a group’s] public statements,” but also the “internal statements of the 

 

16 Available via CRP’s website at http://www.documentcloud.org/documents/2712075-Applicationfor-Recognition-of-Exemption-and.html. See generally Maguire, How Crossroads GPS beat the IRS, 

http://www.opensecrets.org/news/2016/02/how-crossroads-gps-beat-the-irs-and-became-a-social-welfaregroup/. 

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36 

organization,” and “the organization’s fundraising appeals.” Id. at 29 (emphasis added). The 

district court approved that approach, noting that “Buckley established the major purpose test, but 

did not describe its application in any fashion.” Id. The controlling Commissioners have offered 

no justification for their retreat from this more comprehensive approach to the review of “central 

organizational purpose,” an approach that is particularly appropriate at the reason-to-believe 

stage. 

Finally, neither the Commission nor the Supreme Court has ever ruled that a “major 

purpose” finding requires an organization to spend a majority of its total budget directly on 

federal campaign activity, let alone that the inquiry is contingent on whether the group meets a 

50 percent threshold of express advocacy expenditures. Indeed, the Commission was asked to 

adopt a 50 percent expenditure threshold, and expressly declined to do so. See Final Rules on 

Political Committee Status, Definition of Contribution, and Allocation for Separate Segregated 

Funds and Nonconnected Committees, 69 Fed. Reg. 68,056, 68,064–65 (Nov. 23, 2004). 

Ultimately, under the controlling Commissioners’ analysis, the only permissible basis for 

a finding of major purpose is (1) total spending on federal express-advocacy expenditures, but 

only if that spending amounts to at least 50 percent of the group’s budget over whatever time 

period is consistent with the group’s chosen “organizational model,” which it is free to change at 

any time; or (2) a voluntary, official admission of having the necessary “major purpose.” The 

Commission has never interpreted the major purpose test as setting such an impossible bar, nor 

has any court. 

III. This Case Is Not Moot. 

Crossroads asserts that its appeal of this Court’s denial of intervention, and its subsequent 

litigation over access to the withdrawn version of the general counsel’s report recommending a 

finding of reason to believe, ran out the clock on the applicable statute of limitations for any 

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37 

enforcement action against it. Thus, Crossroads argues, the plaintiffs now lack “standing” to 

pursue this action because, regardless of the outcome of this case, the FEC can no longer proceed 

against it. Crossroads’ argument begins by confusing mootness and standing, and thus 

misallocating the burden of proof, and proceeds to misconstrue the statute of limitations on 

which Crossroads relies. Because Crossroads has not shown that claims against it would be 

barred by the statute of limitations, this case is not moot. 

A. Crossroads’ Argument Confuses Standing with Mootness. 

Crossroads does not contend that the plaintiffs lacked standing when they filed suit—that 

is, that they lacked an injury caused by the FEC’s action that could be redressed by the Court. It 

concedes that their showing of injury, causation, and redressability as of the time they brought 

this action coincides with the requisites for standing in suits of this type established by the 

Supreme Court’s decision in Akins. See Crossroads S.J. Mem. 45. Crossroads asserts, however, 

that “the facts are different now” and that the plaintiffs no longer have standing because the 

passage of time prevents effective redress. Id. at 46. 

Crossroads’ argument “confuses standing with mootness.” Loughlin v. United States, 393 

F.3d 155, 169 (D.C. Cir. 2004). Mootness doctrine, not standing doctrine, enforces the Article III 

requirement that a case or controversy “must continue throughout [the litigation’s] existence.” 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000) (quoting Arizonans 

for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)); see also, e.g., Decker v. N.W. 

Envtl. Def. Ctr., 133 S. Ct. 1326, 1335 (2013). An assertion that changed circumstances since the 

filing of an action make it impossible for a court to grant effective relief is not, as Crossroads 

argues, a standing argument, but one of mootness: “[m]ootness doctrine encompasses the 

circumstances that destroy the justiciability of a suit previously suitable for determination.” 

Loughlin, 393 F.3d at 169 (alteration in original) (citation omitted). Thus, “where litigation poses 

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a live controversy when filed,” it is “mootness doctrine” that “requires a federal court to refrain 

from deciding it if events have so transpired that the decision will neither presently affect the 

parties’ rights nor have a more-than-speculative chance of affecting them in the future.” LaRoque 

v. Holder, 679 F.3d 905, 907 (D.C. Cir. 2012) (brackets and citation omitted). In particular, 

claims that a court cannot grant effectual relief “because a period or deadline has passed” present 

issues of mootness, not standing. Honeywell Int’l, Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 

2010); see also AstraZeneca Pharms. LP v. FDA, 713 F.3d 1134, 1138 (D.C. Cir. 2013). 

B. Crossroads Bears a Heavy Burden to Establish Mootness. 

The proper characterization of the issue makes a difference because, as Judge Tatel has 

observed, standing and mootness “are cousins, not twins.” Entergy Servs., Inc. v. FERC, 391 

F.3d 1240, 1255 (D.C. Cir. 2004) (concurring opinion). As the Supreme Court has emphasized, 

the two doctrines are significantly different, and the greater flexibility of mootness doctrine 

reflects that “by the time mootness is an issue, the case has been brought and litigated, often (as 

here) for years,” and “[t]o abandon the case at an advanced stage may prove more wasteful than 

frugal.” Laidlaw, 528 U.S. at 191–92. Thus, while the burden of proving standing rests on the 

plaintiff, “[t]he initial ‘heavy burden’ of establishing mootness lies with the party asserting a 

case is moot.” Honeywell, 628 F.3d at 576 (citation omitted); see also Kifafi v. Hilton Hotels 

Retirement Plan, 701 F.3d 718, 724 (D.C. Cir. 2012); Firefighters Local Union No. 1784 v. 

Stotts, 467 U.S. 561, 569–70 (1984). A party carries that burden, moreover, only by 

demonstrating that it is “impossible for a court to grant any effectual relief whatever to the 

prevailing party.” Campbell-Ewald v. Gomez, 136 S. Ct. 663, 669 (2016) (citation omitted); see 

also Decker, 133 S. Ct. at 1335; AstraZeneca, 713 F.3d at 1138; Honeywell, 628 F.3d at 576. 

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C. Crossroads Has Not Shown That the Five-Year Limitations Period for 

Statutory Penalties Makes Effectual Relief Impossible in This Case. 

Crossroads falls far short of carrying its burden. Its statute of limitations argument fails to 

establish that the FEC would be barred from pursuing claims against it if this court found that its 

decision not to investigate were contrary to law, for several reasons. 

1. The statute does not bar claims for equitable relief. 

The statute on which Crossroads relies, 28 U.S.C. § 2462, provides a five-year limitations 

period only for “an action, suit or proceeding for the enforcement of any civil fine, penalty, or 

forfeiture, pecuniary or otherwise.”17 As the D.C. Circuit has held, however, § 2462 bars only 

actions by the government to impose “punishment,” Johnson v. SEC, 87 F.3d 484, 488 (D.C. Cir. 

1996), and not to actions brought for “purely remedial and preventative” relief, such as ceaseand-desist orders or other equitable relief to remedy or prevent violations. Riordan v. SEC, 627 

F.3d 1230, 1234 (D.C. Cir. 2010); see also SEC v. Brown, 740 F. Supp. 2d 148, 156–57 (D.D.C. 

2010). Thus, as Crossroads itself acknowledges, district courts in the District of Columbia have 

held that the FEC is not barred from seeking equitable relief to remedy FECA violations even 

where penalties for those violations would be barred by § 2462. FEC v. Christian Coalition, 965 

F. Supp. 66, 71–72 (D.D.C. 1997); FEC v. Nat’l Repub. Sen. Campaign Comm., 877 F. Supp. 15, 

20–21 (D.D.C. 1995).18 And Crossroads does not contest that equitable relief to remedy 

violations of political committee registration and reporting requirements by ordering compliance 

is available under FECA. 

 

17 Crossroads points out that the FEC General Counsel’s Report includes on its first page the 

notation “EXPIRATION OF SOL: 9/1/2014.” Crossroads S.J. Mem. 47. However, a five-year limitations 

period for any claims against Crossroads could not have expired before 2015. 

18 Crossroads cites FEC v. Nat’l Right to Work Comm., Inc., 916 F. Supp. 10 (D.D.C. 1996), as a 

counterexample. The court’s opinion in that case suggested the possibility that equitable relief might be 

barred, but ultimately denied relief on the ground that “injunctive relief [was] both unnecessary and 

unwarranted at this time” because the government had not shown any likelihood that the defendant would

again engage in the unlawful surveillance of campaign opponents of which it was accused. Id. at 15. 

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Crossroads argues, however, that under the Ninth Circuit’s ruling in FEC v. Williams, 

104 F.3d 237 (9th Cir. 1996), § 2462 precludes equitable relief for FECA violations as to which 

its five-year limitations period would bar an action seeking penalties. Williams based its holding 

on the so-called “concurrent remedy” doctrine, under which “equity will withhold its relief in 

such a case where the applicable statute of limitations would bar the concurrent legal remedy,” 

or, “[i]n other words, because the claim for injunctive relief is connected to the claim for legal 

relief, the statute of limitations applies to both.” See id. at 240 (citation omitted). 

Williams, however, is not the law of this Circuit, and Judge Joyce Hens Green declined to 

adopt its cursory analysis of the concurrent remedy doctrine in Christian Coalition. There, she 

extensively addressed the inapplicability of that doctrine to cases where equitable relief is not 

based on “concurrent” equitable jurisdiction to supplement or facilitate legal relief, but where 

“the nature of the remedy is an injunction that is independent of the legal relief available”—as 

under FECA, where the FEC “has the authority to seek injunctive relief wholly separate and 

apart from its authority to seek a legal remedy.” 965 F. Supp. at 71–72. Moreover, Williams has 

been widely criticized, and explicitly rejected by two circuits, for its failure to recognize that 

actions brought by the government in its sovereign capacity to seek penalties or injunctive relief 

are not subject to the concurrent legal remedy doctrine, and thus that injunctive claims may 

proceed even where penalties are time-barred. See United States v. Telluride Co., 146 F.3d 1241, 

1248–49 (10th Cir. 1998); United States v. Banks, 115 F.3d 916, 919 (11th Cir. 1997), cert. 

denied, 522 U.S. 1075 (1998).19 Most tellingly, Williams’ holding is squarely at odds with the 

 

19 Crossroads asserts that “circuits are split on whether Williams’ concurrent equitable remedies 

doctrine applies to government actions for equitable relief,” and cites United States v. Midwest 

Generation, LLC, 720 F.3d 644, 647–48 (7th Cir. 2013) as the lone decision on Williams’ side of the 

“split.” Crossroads S.J. Mem. 48. But the Seventh Circuit’s opinion in Midwest does not mention either 

Williams or the concurrent remedy doctrine, nor does it contain any discussion of whether or under what 

circumstances § 2462 bars injunctive relief or other equitable remedies. The decision is best read as a 

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D.C. Circuit’s decision in Riordan, where the D.C. Circuit held that § 2462 did not bar the SEC’s 

claims for remedial equitable relief even though it would bar claims for civil penalties arising 

from the same violations. See 627 F.3d at 1234–35. 

Crossroads asserts that it does not matter whether Williams is correct or would be 

followed by courts in this Circuit because, “since Williams was decided, the FEC has not sought 

equitable remedies where actions for civil penalties have become time-barred.” Crossroads S.J. 

Mem. 49. That unsubstantiated statement is contradicted by Christian Coalition, where the FEC 

did just that. Crossroads’ opinion that it is unlikely that the FEC would do so in this case falls far

short of carrying its burden of demonstrating that it is now impossible for this Court to grant 

effectual relief. Indeed, if the FEC on remand were to decide not to pursue this case because 

equitable relief would be time-barred, that decision itself would be contrary to law and subject to 

judicial review. The possibility that the FEC might take another unlawful position (which itself 

could be judicially corrected) does not make effectual judicial relief in this case impossible. 

2. The limitations period has not run. 

Even if § 2462 would apply to potential claims for equitable relief as well as penalties, 

the five-year period should not be viewed as having expired in this case, for three reasons. First, 

the filing of this action itself should stop the running of the statute during its pendency. The 

filing of a legal proceeding that is a necessary prerequisite to the filing of an action subject to a 

statute of limitations periods may, in appropriate circumstances, suspend the running of a 

limitations period. See, e.g., Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394, 396–400 

(9th Cir. 1980); see also Seattle Audubon Soc’y v. Robertson, 931 F.2d 590, 596–97 (9th Cir. 

 

holding about the nature of violations of the particular Clean Air Act provisions at issue in the case, 

which the court viewed as incompatible with any relief other than penalties for past violations that were 

time-barred in that case. 

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1991). Here, in light of the Commission’s deadlock, the filing and successful prosecution of this 

action is a necessary prerequisite to the filing of an action against Crossroads based on the 

alleged violations at issue. Moreover, the filing of this action has fulfilled the purpose of the 

statute of limitations by providing Crossroads with notice of the potential claims against it well 

within the limitations period (as evidenced by Crossroads’ filing of its motion to intervene little 

more than two months after the complaint was filed, and before the FEC filed its answer). See 

Mt. Hood, 616 F.2d at 400–01.20

Second, if this case ultimately resulted in the initiation of an action against Crossroads by 

the FEC, Crossroads would be equitably estopped from asserting a limitations defense because 

the delay in resolution of this action was of its own making. As the D.C. Circuit has explained, 

“equitable estoppel in the statute of limitations context prevents a defendant from asserting 

untimeliness where the defendant has taken active steps to prevent the plaintiff from litigating in 

time.” Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1998). 

Here, Crossroads sought intervention on the assurance that its involvement “threatens no 

prejudice to the FEC or to the plaintiffs in this action.” Crossroads Mot. to Intervene 4 (Dkt. No. 

8). The plaintiffs, for their part, sought to avoid any delay by not contesting Crossroads’ right to 

intervene either in this Court or on appeal, while at the same time objecting to any delays in this 

litigation that might result from the FEC’s decision to contest intervention. When Crossroads 

appealed the denial of its motion, it sought and obtained a stay of the action from the court of 

appeals, over plaintiffs’ objection that it could adequately protect its rights pending appeal by 

presenting its arguments to this court as an amicus curiae, and it again represented that “no 

 

20 In FEC v. Nat’l Repub. Sen. Comm., 877 F. Supp. 15, 19 (D.D.C. 1995), the court held that an 

FEC investigation did not stop the running of the statute because it lacked “adjudicatory procedures,” but 

the court did not address whether the commencement of a suit such as this one would have a tolling 

effect. 

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party . . . could point to any prejudice it would suffer by suspending the proceeding until all 

interested parties are present.” Crossroads Mot. for Stay 19, No. 14-5199 (D.C. Cir. Sept. 12, 

2014). Moreover, after the case returned to this Court, Crossroads litigated for several months 

over access to the withdrawn general counsel’s report, which it claimed was essential to its 

defense of this action, before the parties could resume summary judgment briefing. 

The plaintiffs do not begrudge Crossroads its right to appeal the denial of intervention, 

nor did they resist its efforts to supplement the record. But having insisted that its “right to 

appear as a party” take precedence over “expediting . . . judicial action” (Crossroads Stay Reply 

10, No. 14-5199 (D.C. Cir. Oct. 3, 2014)), and having successfully taken steps to prevent timely 

litigation of this case while insisting that those steps would do nothing but ensure its right to 

participate, Crossroads cannot now claim to have run out the clock on the underlying allegations 

that it violated the law.21

Finally, if, as the plaintiffs allege, Crossroads should have registered as a political 

committee in 2010, it would have had reporting obligations under FECA not only in the fall of 

2010, but thereafter until its status was terminated based upon a demonstration that it “will no 

longer receive any contributions or make any disbursements that would otherwise qualify it as a 

political committee.” 11 C.F.R. § 102.3(a)(1). Crossroads has not argued, let alone shown, that if 

it were required to register in 2010, it would have been able to terminate its political committee 

status in order to avoid reporting requirements for time periods that would fall within the fiveyear limitations period under § 2462. Because a finding that Crossroads’ failure to register in 

 

21 Crossroads suggests that Public Citizen should have brought a delay suit against the FEC instead 

of waiting for its decision. That argument overlooks that a successful delay action requires much more

than a mere failure of the agency to act within 120 days, see In re Nat’l Cong. Club, 1984 WL 148396, at 

*1 (D.C. Cir. 1984), and filing such an action likely would only have contributed to delay. Public Citizen 

acted responsibly in allowing the FEC to reach a decision and then challenging it well within the 5-year 

period. And, of course, Public Citizen had no way of knowing that the OGC spent more than a year 

revising its report and interacting with Crossroads. See Crossroads S.J. Mem. 47 n.16. 

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2010 was unlawful would lead to the conclusion that Crossroads engaged in ongoing reporting 

violations within the limitations period, § 2462 would not bar all possible relief even under 

Crossroads’ broad view of the statute. 

In sum, the case or controversy over Crossroads’ status remains very much alive, and 

Crossroads has not carried its burden of demonstrating mootness by showing that § 2642 makes 

it impossible for this Court to grant any effectual relief in this case.

CONCLUSION 

This Court should grant plaintiffs’ motion for summary judgment; deny Crossroads’ 

cross-motion for summary judgment; declare that the FEC’s dismissal of plaintiffs’ 

administrative complaint is contrary to law and arbitrary and capricious; and direct the 

Commission to conform with such declaration within 30 days. 

 Dated: March 9, 2016 

Respectfully submitted, 

/s/ J. Gerald Hebert 

J. Gerald Hebert (DC Bar No. 447676) 

Paul S. Ryan (DC Bar No. 502514) 

Tara Malloy (DC Bar No. 988280) 

Megan P. McAllen (DC Bar No. 1020509) 

CAMPAIGN LEGAL CENTER

1411 K Street NW 

Washington, DC 20005 

(202) 736-2200 

Scott L. Nelson (DC Bar No. 413548) 

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW 

Washington, DC 20009 

(202) 588-1000 

Attorneys for Plaintiffs

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