UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

PUBLIC CITIZEN, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-148 (RJL) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) SUPPLEMENTAL MEMORANDUM 

STRATEGIES, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S SUPPLEMENTAL MEMORANDUM 

IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

In its summary judgment memoranda and at oral argument, the Federal Election 

Commission (“FEC” or “Commission”) explained why the Court should grant summary 

judgment to the Commission. The Federal Election Campaign Act’s (“FECA” or “Act”) 

contrary-to-law standard is highly deferential and the controlling FEC Commissioners’ reasons 

for voting to dismiss plaintiffs’ administrative complaint against Crossroads Grassroots Policy 

Strategies (“Crossroads”) — explained at length in these three Commissioners’ statement of 

reasons (AR 400-28) — was clearly not arbitrary or contrary to any FEC precedents or settled 

law. It was also a reasonable exercise of prosecutorial discretion. (FEC’s Mem. of P. & A. in 

Supp. of its Cross-Mot. for Summ. J. and in Opp’n to Pls.’ Mot. for Summ. J. at 18-50 (Docket 

No. 32) (“FEC Mem.”); FEC’s Reply in Supp. of its Cross-Mot. for Summ. J. at 1-30 (Docket 

No. 65) (“FEC Reply”); Transcript of Mot. Hearing Before the Hon. Richard J. Leon, United 

States District Judge at 18-29, 44-46 (Aug. 2, 2016) (“Tr.”).) 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 1 of 14
2 

Plaintiffs have failed to rebut these essential points. No argument they have advanced 

either in their oral presentation — the focus of this supplemental brief — or in any of their three 

earlier briefs provides a sound basis upon which the Court may find in their favor. Their request 

that the Court substitute its own judgment in reviewing the controlling Commissioners’ 

statement runs contrary to ordinary principles of agency deference. It also runs contrary to the 

binding, settled law establishing the deference that this Court must accord the controlling 

Commissioners’ statement in this particular context. On the merits, plaintiffs have failed to show 

any way in which these Commissioners’ approach to evaluating Crossroads’s major purpose was 

arbitrary, capricious, or contrary to law or precedent. Plaintiffs also have no answer to the 

controlling Commissioners’ alternative analyses, which show that they would have reached the 

same conclusion even had they agreed with aspects of the approach that plaintiffs prefer. And 

plaintiffs’ principal response to the Commissioners’ invocation of prosecutorial discretion is only 

to observe, correctly, that this independent rationale was explained briefly. That complaint is 

unpersuasive. The Court should grant summary judgment to the FEC. 

I. THE COURT MUST ACCORD CHEVRON DEFERENCE TO THE 

CONTROLLING COMMISSIONERS’ DISMISSAL DECISION 

A. The Limited and Deferential Contrary-To-Law Standard Is Settled Law 

As explained in the FEC’s opening brief, Congress’s design of the FEC’s enforcement 

process includes, in addition to a detailed and relatively formal process with several clearly 

defined stages, a provision allowing any person to file an administrative complaint with the 

Commission alleging a violation of the Act. FEC Mem. at 3-4; 52 U.S.C. § 30109(a)(1); 11 

C.F.R. § 111.4. If, as is the case here, the complainants are unsatisfied by the FEC’s decision not 

to investigate or otherwise pursue the alleged violations, Congress provided a procedure for 

“limited” judicial review. FEC Mem. at 3-4; 52 U.S.C. § 30109(a)(8); Common Cause v. FEC, 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 2 of 14
3 

842 F.2d 436, 448 (D.C. Cir. 1988); Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 

1131, 1135 n.5 (D.C. Cir. 1987) (“DCCC”) (explaining that “[i]n the absence of prior 

Commission precedent . . . , judicial deference to the agency’s initial decision or indecision 

would be at its zenith”). As then-Judge Ruth Bader Ginsburg noted almost thirty years ago, 

citing and quoting the complainants’ brief, “where [a] deadlock reflects genuine uncertainty 

about the law, [a] court should be loath to intervene”; judicial intervention is there for instances 

“where [the] Commission is unable or unwilling to apply ‘settled law to clear facts’” or acts 

arbitrarily. DCCC, 831 F.2d at 1135 n.5; accord Tr. at 21:14-16 (“THE COURT: So if it’s a 

close question, tie goes to the deciders. MR. KITCHER: Absolutely. . . .”). 

In the forty years since Congress established the section 30109(a)(8) review process, the 

Supreme Court and D.C. Circuit have directly addressed it on several occasions and have, in a 

series of decisions, established certain black-letter law propositions. These include: (1) the 

requirement that declining-to-go-forward Commissioners must articulate their reasons for 

dismissing a complaint in a statement of reasons, DCCC, 831 F.2d at 1134-35; Common Cause, 

842 F.2d at 449; (2) that these Commissioners are the “controlling group” for purposes of 

judicial review, FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 

1992) (“NRSC”); (3) that courts review such statements of controlling Commissioners using the 

principles of deference “[o]rdinarily” applying, id.; and (4) that, due to the relatively formal 

nature of the FEC’s enforcement process, the level of deference owed when the controlling 

Commissioners are interpreting one of the Act’s provisions, as here, is Chevron deference, In re 

Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000). (FEC Mem. at 4-5, 18-26.) 

In accordance with the D.C. Circuit’s instructions, this Court’s opinion in Akins v. FEC

summarized the judicial task correctly. 736 F. Supp. 2d 9, 16-17 (D.D.C. 2010) (relying on FEC 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 3 of 14
4 

v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) (“DSCC”) and Orloski v. 

FEC, 795 F.2d 156, 161, 167 (D.C. Cir. 1986)). There, as here, the Commissioners’ dismissal 

must be sustained unless it was based on (1) an “‘impermissible interpretation’” of FECA or, 

(2) even “‘under a permissible interpretation of the statute, was arbitrary or capricious, or an 

abuse of discretion.’” Id. (quoting Orloski, 795 F.2d at 161). The contrary-to-law standard is 

“‘extremely deferential’” and “‘requires affirmance if a rational basis for the agency’s decision is 

shown.’” Id. (quoting Orloski, 795 F.2d at 167). 

B. Plaintiffs’ Two Arguments Against According the Controlling Statement of 

Reasons Chevron Deference Are Meritless 

Notwithstanding the foregoing settled law, plaintiffs have asked the Court to scrutinize 

the controlling Commissioners’ statement using a lesser degree of deference. At argument, they 

submitted that “at the end of the day, with all the briefing in hand,” there are “two fundamental 

reasons why [the controlling Commissioners’ dismissal] determination is not entitled to Chevron

deference.” (Tr. at 6:16-19.) Plaintiffs argued that (1) “[t]he deadlocked Commission’s 

statements about major purpose do not establish a rule of law that appl[ies] in any case other than 

this one” and (2) “what the Commission was doing here was not an exercise of . . . interpretive 

discretion delegated to it by Congress in construing ambiguous statutory language.” (Id. at 6:22-

24, 9:16-19.) Both arguments are incorrect. 

1. The Controlling Dismissal Decision Is Entitled to Chevron Deference Because 

it Has the Force of Law 

As the Commission explained at argument, although the D.C. Circuit’s decision in 

Common Cause “makes clear that when there’s an absence of a four-Commissioner majority, the 

decision of the controlling group is non-precedential,” Tr. at 22:18-20; Common Cause, 842 F.2d 

at 449 n.32, the Court’s later decision in In re Sealed Case also “makes clear that, like any other 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 4 of 14
5 

no-action decision, when the Commission is prevented from moving forward on an enforcement 

matter, that[] ‘precludes further enforcement’” (Tr. at 22:21-24 (quoting In re Sealed Case, 223 

F.3d at 780)). That legal preclusion of further enforcement is force of law and it is why In re 

Sealed Case wholly disposes of plaintiffs’ argument. In an extended discussion in that decision, 

see 223 F.3d at 779-81, the Court of Appeals carefully analyzed FECA’s relatively formal 

enforcement process and concluded that it “is part of a detailed statutory framework for civil 

enforcement and is analogous to a formal adjudication, which itself falls on the Chevron side of 

the line,” id. at 780. Importantly, the Court of Appeals explained that “[i]f courts do not accord 

Chevron deference to a prevailing decision that specific conduct is not a violation, parties may be 

subject to criminal penalties where Congress could not have intended that result.” Id.; Tr. at 

21:1-7; see also FEC Mem. at 23-25; FEC Reply at 9-12.

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127 (D.C. Cir. 

2014) (“Fogo De Chao”) and United States v. Mead Corp., 533 U.S. 218 (2001), which plaintiffs 

cited at oral argument (Tr. at 7:7-8:17), are not to the contrary. In Fogo De Chao, the challenged 

“decision, and any legal interpretations contained within it,” were not entitled to Chevron

deference because they “were the product of informal adjudication within the [agency], rather 

than a formal adjudication or notice-and-comment rulemaking.” 769 F.3d at 1136 (emphases 

added); see also Tr. at 23:23-25 (noting that the Fogo de Chao case that was cited by plaintiffs 

concerned a different agency and involved informal agency action). Similarly, in Mead, the 

Supreme Court held that tariff classifications made by dozens of different Customs offices, 

mostly “contain[ing] little or no reasoning,” were not entitled to Chevron deference because they 

were too far “removed not only from notice-and-comment [rulemaking] process” but also other 

indicia that Congress intended deference. 533 U.S. at 224, 231. 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 5 of 14
6 

In In re Sealed Case, in contrast, the D.C. Circuit expressly considered whether 

controlling statements by declining-to-go-ahead FEC Commissioners in cases like this one were 

like the “interpretations” discussed in Christensen v. Harris County, 529 U.S. 576 (2000), a case 

that preceded Mead. The Court of Appeals concluded that the FEC statements were not like 

such interpretations; instead, they fell on the “Chevron side of the line.” 223 F.3d at 780; 

compare Fogo De Chao, 769 F.3d at 1136-37 (explaining that it was “[t]he absence of those 

relatively formal administrative procedure[s] that tend[] to foster the fairness and deliberation 

that should underlie a pronouncement of legal interpretation” that “weighs against the application 

of Chevron deference” (internal quotation marks and citation omitted)); Mead, 533 U.S. at 230 

(“It is fair to assume generally that Congress contemplates administrative action with the effect 

of law when it provides for a relatively formal administrative procedure tending to foster the 

fairness and deliberation that should underlie a pronouncement of such force.”); see also Tr. at 

23:14-22 (MR. KITCHER: “Chevron Deference is also perfectly consistent with Mead in this 

case. . . . [T]his is an adjudication that falls on the Chevron side of the line, due to the agency’s 

inherently and relatively formal adjudicative process. That is why the decision has force of 

law.”). Irrespective of whether the controlling dismissal decision is binding in future FEC 

enforcement matters, the Court is required to follow In re Sealed Case, which held that such 

dismissal decisions carry “‘the force of law’” because they “preclude coercive Commission 

action in a partisan situation.” In re Sealed Case, 223 F.3d at 780 (quoting and contrasting 

Christensen, 529 U.S. 587); Tr. at 20:22-25 (explaining that Congress’s “design [of the FEC] 

ensures that when the agency decides issues charged with the dynamics of party politics under 

the pressure of an impending election, it does so both with care and legitimacy.”). 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 6 of 14
7 

2. The Controlling Dismissal Decision Is Entitled to Chevron Deference Because 

the Commissioners Were Interpreting FECA and the FEC’s Supplemental 

Explanation and Justification 

Plaintiffs’ argument that the controlling Commissioners were not interpreting FECA (Tr. 

at 9:14-24) is incorrect. The central question before the agency was whether there was reason to 

believe that Crossroads was a political committee. “‘Political committee,’” as the Commission 

pointed out at argument, “is a term that appears in [FECA].” Tr. at 24:7-9; 52 U.S.C. 

§ 30101(4)(A). The Supreme Court’s limiting construction of that defined term in Buckley v. 

Valeo, 424 U.S. 1, 79 (1976) (per curiam), establishes that the statutory definition means “what 

the Supreme Court has said” it means. (Tr. at 24:17-19.) Here, in determining that there was 

insufficient reason to believe that Crossroads was a political committee, the controlling 

Commissioners were interpreting section 30101(4)(A). 

If that were not enough, the FEC itself also explicitly embraced the major-purpose test in 

its 2007 Supplemental Explanation and Justification. Rules and Regulations: Political 

Committee Status, 72 Fed. Reg. 5595, 5597 (Feb. 7, 2007) (“Supplemental E&J”). Tellingly, 

plaintiffs’ opening brief recognized that “if there is any agency determination to which this Court 

should defer under Chevron, it is the ‘major purpose’ construction adopted by a majority of the 

Commission in the [Supplemental E&J].” (Pls.’ Mem. of P. & A. in Supp. of Pls.’ Mot. for 

Summ. J. at 16 n.2 (Docket No. 23).) Thus, although the “‘major purpose’ test has never been 

codified in a regulation, [it] is applied by the FEC in its enforcement actions against individual 

organizations.” Shays v. FEC, 511 F. Supp. 2d 19, 23 (D.D.C. 2007). The FEC’s applications of 

the major-purpose test accordingly warrant deference. 

By contrast, plaintiffs’ reliance at argument (Tr. at 10:18-11:3) on the D.C. Circuit’s 

vacated opinion in Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc), vacated on other 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 7 of 14
8 

grounds sub nom. FEC v. Akins, 524 U.S. 11 (1998) remains unsound. As previously explained, 

that decision is non-precedential and the question it would have left open about whether the 

major-purpose test categorically applies has been clearly resolved by a number of subsequent 

court decisions and FEC determinations. (Tr. at 25:11-26:5; FEC Reply at 8 (collecting cases).) 

That is why “all parties here agree that the major-purpose test applies.” (Tr. at 25:7-8.) 

Plaintiffs reliance on FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) (“GOPAC”), 

which they highlighted at argument as supposedly supportive of reduced deference (Tr. at 11:4-

14), is similarly unsound. GOPAC supports the Commission, not plaintiffs. In that case, the 

court distinguished between the context at issue there, in which the FEC had instituted a court 

action against the organization, and this situation, in which the FEC’s dismissal of an 

administrative complaint is being challenged by the complainants. GOPAC, 917 F. Supp. at 860-

61. It is this latter context, which the court was contrasting, in which the court correctly 

explained that section 30109(a)(8) is “[t]he statutory provision entitling the Commission to 

deference” and “relates only to ‘the Commission’s dismissal of a complaint[, which] should be 

reversed only if ‘contrary to law.’” Id. at 860 (quoting DSCC, 454 U.S. at 37). Accordingly, to 

paraphrase the GOPAC court, “the Commission’s interpretation of ‘political committee’ is . . . 

entitled to deference by statute” here, id. at 860-61 (emphasis added), namely by the contrary-tolaw standard established in section 30109(a)(8)(C). (See FEC Mem. at 26 (citing GOPAC as an 

example of a court acknowledging the deference applicable in section 30109(a)(8) dismissal 

cases such as this one).) 

C. The Government’s Interest in Disclosure Does Not Reduce Plaintiffs’ Burden 

or Alter the Standard of Review 

Plaintiffs’ argument that Congress’s creation of other disclosure regimes affects the issue 

in this case (Tr. at 12:14-13:4) continues to be erroneous. As the Commission has explained, the 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 8 of 14
9 

constitutionality of the different disclosure programs Congress and the FEC have established — 

such as the event-driven reporting requirements that are distinct from the disclosures that 

political committees must make (FEC Mem. at 5-10), and pursuant to which Crossroads has filed 

certain FEC reports (id. at 13) — neither alters the standard of review in this case nor required 

the agency to perform the major-purpose test in the manner that plaintiffs prefer. (Id. at 26-27; 

FEC Reply at 12-14; Tr. at 26:10-20.) The question here is whether there was reason to believe 

Crossroads is a political committee, not whether, assuming Crossroads were such a committee, 

requiring it to make political-committee disclosures would be constitutional. 

II. THE CONTROLLING COMMISSIONERS’ DISMISSAL DECISION WAS NOT 

CONTRARY TO LAW AND SHOULD BE SUSTAINED 

The controlling Commissioners’ decision should be upheld. (FEC Mem. at 28-48; FEC 

Reply at 15-28; Tr. at 26:21-29:9.) The simple reason the Court should grant summary judgment 

to the FEC is that, in light of the foregoing standard, “[p]laintiffs have failed to identify any law 

to which the controlling dismissal decision is contrary.” (Tr. at 20:1-2.) In their statement, the 

controlling Commissioners reasonably analyzed Crossroads’s central organizational purpose and 

comparative spending in light of the law, FEC precedents, and the full undisputed factual record 

that was before the agency. Their approach of evaluating Crossroads’s most relevant 

organizational documents (FEC Mem. at 35-37; FEC Reply at 18-20), and comparing its most 

relevant electoral spending on express advocacy (or its functional equivalent) to its other 

spending in its first fiscal year (FEC Mem. at 37-46; FEC Reply at 20-28), is not in conflict with 

any judicial decision or other law requiring the test to be performed another way. Nor was it 

arbitrary; in fact, it is consistent with the ways several courts addressed a number of similar 

issues in analogous contexts, as explained further below. 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 9 of 14
10 

At argument, plaintiffs contended that the controlling Commissioners’ allegedly 

mechanical approach contravened the approach the FEC had itself advanced in Real Truth About 

Abortion, Inc. v. FEC, 681 F.3d. 544, 556 (4th Cir. 2012) (“RTAA”). (Tr. at 5:3-12.) This is 

incorrect. In RTAA, the Fourth Circuit rejected a challenge to the Commission’s “sensible” and 

“flexibl[e] . . . case-by-case” method of determining an organization’s major purpose. 681 F.3d 

at 556, 558; accord Supplemental E&J, 72 Fed. Reg. at 5602 (“[A]ny list of factors developed by 

the Commission would not likely be exhaustive . . . , as evidenced by the multitude of fact 

patterns at issue in the Commission’s enforcement matters considering the political committee 

status of various entities.”). The controlling Commissioners’ approach was consistent with 

RTAA and far more nuanced and “flexible” than plaintiffs’ characterization suggests. (Tr. at 

44:24-25.) Those Commissioners even undertook several “alternative analyses,” in which they 

factored in certain aspects of the analysis that plaintiffs prefer, such as broader conceptions of 

relevant spending or shorter time periods. (Id. at 45:1-6; FEC Mem. at 46-47; FEC Reply at 27-

28.) But even using these different approaches, the controlling Commissioners found that 

Crossroads did not “get across the [political committee] line.” Tr. at 45:1-6; see also infra p. 11. 

Plaintiffs also erred in arguing that the controlling Commissioners “were simply wrong in 

believing that they were compelled by the case law on major purpose to limit their consideration 

to express advocacy.” (Tr. at 14:16-21.) Contrary to this gloss, however, the controlling 

statement does not reflect that the Commissioners believed themselves to be “compelled” (id.) to 

limit their consideration in this way. While the Commissioners noted that “[c]ourts that have 

examined spending ratios in political committee cases have focused on express advocacy 

spending,” their conclusion was that express advocacy and its functional equivalent were the 

most relevant kinds of spending. (AR 413-14.) Importantly, the court opinions considering nonCase 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 10 of 14
11 

FECA, state disclosure regimes that plaintiffs view as supportive of the broader spending 

analysis they prefer (see Tr. at 13:22-14:15) do not establish that the controlling analysis was 

improper. As the Commission observed in its reply brief, “[i]t is one thing to show that an 

approach is permissible; it is quite another to show that it is required.” (FEC Reply at 17.) The 

contrary-to-law standard requires plaintiffs to show not only that their preferred approach is 

acceptable but that the Commission was compelled to use it. That is a showing that plaintiffs 

cannot make. (Tr. at 27:5-11 (MR. KITCHER: “[N]o court has said that certain types of nonexpress advocacy, be it a [PASO]1

 communication or electioneering communication[,] must be 

counted . . . in the . . . analysis.”).) 

Furthermore, not only did the controlling Commissioners not actually view themselves as 

compelled only to use express advocacy as a constitutional matter, but, again, in their alternative 

analyses they treated some of Crossroads’s non-express advocacy spending as relevant, just as 

plaintiffs urge. In one such alternative approach, for example, they included Crossroads’s nonexpress advocacy electioneering communications. (AR 424.) But even using this alternative 

framework — which also employed the shorter, calendar-year time period plaintiffs prefer — the 

Commissioners found that “Crossroads [] still would not be considered a political committee” 

because its relevant spending would still only be “42 percent of [its] total spending.” (Id.) This 

percentage, they wrote, was “significantly lower than the percentages found in the [enforcement 

matters] summarized in the 2007 [Supplemental E&J], when the Commission determined that 

political committee status existed.” (Id.) 

 

1

 “PASO” communications are non-express advocacy communications that “refer[] to a 

clearly identified candidate for Federal office” and “promote[],” “support[],” “attack[],” or 

“oppose[]” a candidate for that office. 52 U.S.C. § 30101(20)(A)(iii). 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 11 of 14
12 

Plaintiffs’ attempts to discredit the judicial decisions the controlling Commissioners cited 

in support of their manner of identifying Crossroads’s relevant electoral spending (Tr. at 14:22-

15:17) are likewise unavailing. In New Mexico Youth Organized v. Herrera, the Tenth Circuit 

considered whether an organization spent “a preponderance of its expenditures on express 

advocacy or contributions to candidates.” 611 F.3d 669, 678 (10th Cir. 2010) (emphasis added). 

In GOPAC, the court concluded that the organization was not a political committee, in part by 

dismissing the relevance of a letter which, though mentioning the name of a federal candidate, 

“[did] not advocate his election or defeat, nor was . . . directed at [his] constituents.” 917 F. 

Supp. at 863 (emphasis added); accord FEC v. Malenick, 310 F. Supp. 2d 230, 235 (D.D.C. 

2004) (considering communications “advocat[ing] for the election of specific federal candidates” 

in determining group’s major purpose). And in Wisconsin Right to Life, Inc. v. Barland, which 

post-dated the controlling decision, the court explained that imposing political-committee 

registration and reporting requirements on “groups that engage in express election advocacy as 

their major purpose . . . is a relevantly correlated and reasonably tailored means of achieving the 

public’s informational interest,” but it rejected the imposition of such requirements “on issueadvocacy groups that only occasionally engage in express advocacy.” 751 F.3d 804, 841 (7th 

Cir. 2014); Tr. at 27:25-28:8. Contrary to plaintiffs’ suggestion at oral argument (Tr. at 15:11-

17), these decisions are consistent with the controlling Commissioners’ First-Amendmentsensitive approach to determining a group’s major purpose.2

 

2

 In the FEC’s opening brief, it also showed that the controlling Commissioners’ approach 

is consistent with the Supreme Court’s decisions in Buckley and FEC v. Mass. Citizens for Life, 

Inc., 479 U.S. 238 (1986), the Court of Appeals’s decision in FEC v. Machinists Non-Partisan 

Political League, 655 F.2d 380 (D.C. Cir. 1981), and even with Public Citizen’s own previous 

comments on the question. (FEC Mem. at 29-31, 38.)

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 12 of 14
13 

Finally, plaintiffs’ claim that the controlling Commissioners used a “gerrymandered time 

frame” (Tr. at 5:18) is incorrect for two reasons. First, as noted at argument, no case or other law 

compels the use of a calendar-year time period for evaluating an organizations’ major purpose, 

as opposed to the broader record the controlling Commissioners reviewed. (Tr. at 28:9-29:1.) 

Second, the use of a fiscal-year time period is practical, because “the numbers that make up this 

ratio often come from things like tax returns. And tax returns, of course, are filed based on when 

an organization completes its fiscal year. Budgeting, organizational priorities are also often 

organized around a fiscal year. . . .” (Id. at 29:2-9.) For these reasons, it was clearly not contrary 

to law for the controlling Commissioners to look beyond the first six months of Crossroads’s 

existence in evaluating its spending. (FEC Mem. at 42-46; FEC Reply at 24-27.) 

III. THE DISMISSAL DECISION WAS A REASONABLE EXERCISE OF 

PROSECUTORIAL DISCRETION 

The Commission has separately explained why the dismissal decision was independently 

justified by the agency’s broad prosecutorial discretion. (FEC Mem. at 49-50; FEC Reply at 28-

30; Tr. at 29:10-24.) Plaintiffs argued that this rationale was just a “throw-away footnote” and 

not “a real sustainable [exercise of enforcement] discretion.” (Tr. at 43:21-44:15.) But that 

argument ignores that the controlling Commissioners’ succinct explanation of their exercise of 

prosecutorial discretion in the final footnote of the controlling statement of reasons crossreferenced the Commissioners’ notice and due process concerns, which they detailed at earlier 

points in their statement. (See FEC Reply at 29.) The brevity with which the Commissioners 

explained their rationale for exercising prosecutorial discretion does not render that rationale 

invalid or reduce its force. 

Plaintiffs are also incorrect in arguing that the allegedly “erroneous ground” upon which 

the controlling Commissioners’ major-purpose determination was premised also supposedly 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 13 of 14
14 

dooms their prosecutorial-discretion rationale. (Tr. at 44:2-7.) This argument fails to recognize 

the distinct bases for dismissal that the controlling Commissioners articulated. Unlike their 

substantive assessment of Crossroads’s major purpose, the Commissioners’ prosecutorial 

discretion rationale was based on their concern about whether it would have been fair to exercise 

the agency’s enforcement authority in a way that those Commissioners believed the potentially 

regulated community would not have expected. 

CONCLUSION 

For the foregoing reasons, and for the reasons set out in the FEC’ memoranda and oral 

presentation, the Court should grant summary judgment to the Commission. 

 Respectfully submitted, 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

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

Acting Assistant General Counsel 

echlopak@fec.gov 

September 6, 2016 

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

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

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

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:14-cv-00148-RJL Document 76 Filed 09/06/16 Page 14 of 14