Allen Dickerson (pro hac vice)

Tyler Martinez (pro hac vice)

Owen Yeates (Utah Bar No. 13901)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

tmartinez@ifs.org

oyeates@ifs.org

Scott C. Williams (Utah Bar. No. 6687)

SCOTT C. WILLIAMS, LLC

43 East 400 South

Salt Lake City, Utah 84111

Telephone: 801.220.0700

Facsimile: 801.364.3232

scwlegal@gmail.com

Scott E. Thomas

BLANK ROME, LLP

1825 Eye Street N.W.

Washington, D.C. 20006

Telephone: 202.420.2601

Facsimile: 202.420.2201

sthomas@blankrome.com

Counsel for Defendant John Swallow

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

FEDERAL ELECTION COMMISSION,

Plaintiff,

v.

JEREMY JOHNSON and 

JOHN SWALLOW,

Defendants.

Case No. 2:15-cv-00439-DB

DEFENDANT

JOHN SWALLOW’S

REPLY MEMORANDUM

District Judge Dee Benson

Case 2:15-cv-00439-DB Document 104 Filed 12/04/17 Page 1 of 14
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TABLE OF CONTENTS

Introduction......................................................................................................................................1

Argument .........................................................................................................................................2

I. The FEC’s regulation fails under Chevron Step One. ...................................................2

II. Central Bank of Denver controls this case, and the FEC’s authority to the contrary is 

inapposite. ......................................................................................................................4

III. The Commission’s imposition of secondary liability for providing advice is not a 

“reasonable” construction of the statute. .......................................................................6

IV. The proper standard of review for Mr. Swallow’s constitutional claim is strict

scrutiny...........................................................................................................................8

Conclusion .....................................................................................................................................10

Certificate of Service .....................................................................................................................12

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Introduction

The FEC claims that it has “consistently and repeatedly enforced” the “helping and 

assisting” regulation at issue here. FEC Response1at ix. But the Commission did not cite, nor 

could Mr. Swallow find, any enforcement action before a federal court. The FEC’s “consistent and 

repeated” enforcement is limited to its own internal processes, id. at ix,

2

and this appears to be the 

first true contest concerning the legal sufficiency of 11 C.F.R. § 110.4(b)(1)(iii). 

In the end, this Court must dismiss the Amended Complaint3unless the FEC can win on 

all of the following four points: (1) the plain text of the statute must be ambiguous, despite the 

FEC’s reliance on cases holding that the statute unambiguously reaches only the true sources of 

financial contributions; (2) the FEC must establish that the Supreme Court’s holding in Central 

Bank of Denver does not apply; (3) the FEC’s regulation must be a reasonable construction of 52 

U.S.C. § 30122; and (4) the FEC must either survive strict scrutiny, or explain why and how its 

regulation survives a lower standard of scrutiny. As discussed below, the FEC has failed to meet 

its burden on any of these points, much less all four. 

 

1 Pl. FEC Cross Motion for Partial J. on the Pleadings (Nov. 20, 2017), ECF No. 102; Pl. FEC’s 

Mem. In Opp. To Def. John Swallow’s Mots. to Dismiss and for J on the Pleadings and in Supp. 

of Cross-Motion for Partial J. on the Pleadings (Nov. 20, 2017), ECF No. 103 (“FEC Response”).

2 The bootstrapping use of Matters Under Review (“MURs”) is unpersuasive. MURs are not 

judicial determinations of liability, but merely the Commission’s own determination that it has

either “reason to believe” or “probable cause” that a violation occurred. See 52 U.S.C. 

§§ 30109(a)(2) and (a)(3). If the Commission cannot obtain a voluntary settlement (termed 

“conciliation”), only then may the FEC bring a civil action in district court. 52 U.S.C. 

§ 30109(a)(6)(A). 

3 The FEC argues that a Federal Rule of Civil Procedure 12(b)(6) motion is untimely. FEC 

Response at 1. Nevertheless, the Parties agree that the standard of review, and the remedy, are the 

same under 12(b)(6) and 12(c). Swallow Mot. at 1; FEC Response at 1.

Case 2:15-cv-00439-DB Document 104 Filed 12/04/17 Page 3 of 14
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Argument

I. The FEC’s regulation fails under Chevron Step One.

The FEC’s Chevron Step One argument overreaches the precedent it cites. Those decisions 

explicitly hold that 52 U.S.C. § 30122 is unambiguous. And the Courts of Appeals have indicated 

that the plain language at issue here precludes liability beyond the true sources of financial 

contributions. Both points are fatal to the FEC’s Chevron Step One defense. 

To establish discretion to prohibit additional conduct, the FEC must demonstrate that the

underlying statute is ambiguous. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 

545 U.S. 967, 980 (2005). But the controlling opinions the FEC cites hold that § 30122 is 

unambiguous. See United States v. Boender, 649 F.3d 650, 661 (7th Cir. 2011) (holding that “the 

meaning of § [30122 is] unambiguous based on the text itself”); United States v. O’Donnell, 608 

F.3d 546, 549 (9th Cir. 2010) (holding that § 30122 “unambiguously applies to straw donor 

contributions”); United States v. Suarez, No. 5:13 CR 420, 2014 U.S. Dist. LEXIS 63681, at *11

(N.D. Ohio May 8, 2014) (holding that “the statutory language at issue is clear and unambiguous”); 

United States v. Danielczyk, 788 F. Supp. 2d 472, 485 (E.D. Va. 2011) (holding statute

unambiguous under “traditional canons”), rev’d in part on other grounds 683 F.3d 611 (4th Cir. 

2012); see also Fed. Election Comm’n v. Weinsten, 462 F. Supp. 243, 250 (S.D.N.Y. 1978).

4

Furthermore, the controlling opinions the FEC cites are either irrelevant or preclude the 

 

4

Indeed, the FEC has previously argued that the language of § 30122 is so clear that willful 

violations of the statute merit enhanced criminal penalties. See United States v. Danielczyk, 917 F. 

Supp. 2d 573, 577 (E.D. Va. 2013). The FEC is not bound by its past litigation strategy. 

Nonetheless, it is disconcerting that the FEC believes the statute is ambiguous when it wants to 

pull in more violators, yet clear when it wants to punish those people more severely.

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Commission’s arguments. Those cases had nothing to do with liability for speech, or for “helping 

and assisting” in a conduit scheme. Instead, they concerned whether § 30122 applied to the original 

source of funds used in conduit schemes. See Boender, 649 F.3d at 660; O’Donnell, 608 F.3d at 

549-50; Danielczyk, 788 F. Supp. 2d at 479; Suarez, 2014 U.S. Dist. LEXIS 63681, at *3.

5 And, 

in upholding liability for the limited, true donor class, the Courts of Appeals have held that § 30122 

is unambiguous in ways that preclude the FEC’s regulation. In Boender, for example, the Seventh 

Circuit looked to the plain meaning of § 30122, stating that “[t]o ‘make a contribution’ is of course 

to ‘contribute.’” 649 F.3d at 660. And the person making a contribution is “the source of the gift, 

not any intermediary who simply conveys the gift.” Id.; see also United States v. Whittemore, 776 

F.3d 1074, 1079 (9th Cir. 2015) (“To identify the individual who has made the contribution, we 

must look past the intermediary’s essentially ministerial role . . . .”); O’Donnell, 608 F.3d at 550 

(noting that, based on the gift analogy, a court “must look past” “the person who actually transmits 

the money[, who] acts merely as a mechanism”).6If the relevant statutory language unambiguously 

fails to reach intermediaries who actually touch the contribution, it certainly cannot reach 

defendants whose conduct involves only advice and other speech.

Thus, the cases the FEC cites not only fail to support its Chevron Step One argument, but 

foreclose the FEC’s regulation altogether.

 

5 Even if these cases had touched on secondary liability, they involved criminal, grand jury 

indictments under § 30122, for which secondary liability would be implicit under 18 U.S.C. § 2. 

6 While the FEC wishes to extend the Danielczyk and Boender district courts’ broad language 

regarding primary liability to sustain secondary liability, there is no indication that the courts 

foresaw that result, or that such dictum would be persuasive. As noted above, the Seventh Circuit 

in Boender limited liability under the “make a contribution” clause to the sources of the money. 

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II. Central Bank of Denver controls this case, and the FEC’s authority to the contrary 

is inapposite. 

Central Bank of Denver explicitly addresses whether statutory silence authorizes secondary 

labiality. The Supreme Court could not have been clearer: 

Congress has not enacted a general civil aiding and abetting statute -- either for 

suits by the Government (when the Government sues for civil penalties or injunctive 

relief) or for suits by private parties.

Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 182 (1994) 

(“Central Bank”) (emphasis added).7 Mr. Swallow’s Motion examined both Central Bank and the 

lower courts’ applications of that decision to other statutes. Swallow Mot.8at 3-8. Contrary to the 

Commission’s assertions, FEC Response at 17-18, Central Bank covered both private suits and

civil claims brought by the Securities and Exchange Commission (“SEC”). 511 U.S. at 182.

The best case the FEC offers in response is United States v. O’Hagan, 521 U.S. 642, 664

(1997), in what can—at best—be characterized as an off-hand discussion of Central Bank. FEC 

Response at 18 (quoting O’Hagan, 521 U.S. at 664 (“Central Bank’s discussion concerned only 

private civil litigation . . . .”)). The O’Hagan passage’s use of the word “only” is the linchpin of 

the FEC’s assertion that O’Hagan overruled the holding of Central Bank of Denver. But it is a 

bedrock principle that lower courts are to wait for the explicit command of the Supreme Court that 

its prior holding is overruled, especially where the earlier case is on point. See Agostini v. Felton, 

521 U.S. 203, 237 (1997) (“[W]e do not hold[] that other courts should conclude our more recent 

cases have, by implication, overruled an earlier precedent”). 

 

7 Even assuming the Central Bank passage is “dicta,” however, the lower courts “are bound by 

Supreme Court dicta almost as firmly as by the Court’s outright holdings.” Peterson v. Martinez, 

707 F.3d 1197, 1210 (10th Cir. 2013) (quotation marks and citation omitted).

8 Mot. to Dismiss, Mot. for J. on the Pleadings, and Mem. In Supp., ECF No. 98 (“Swallow Mot.”).

Case 2:15-cv-00439-DB Document 104 Filed 12/04/17 Page 6 of 14
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This is especially true where the facts of the latter case are so distinguishable. Rodriguez 

de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this 

Court . . . appears to rest on reasons rejected in some other line of decisions . . . follow the case 

which directly controls”). O’Hagan was a criminal case. 521 U.S. at 648 (noting multiple changes 

filed). And there is a general criminal statute proscribing aiding and abetting—one explicitly noted 

by Central Bank as irrelevant in the civil context. 511 U.S. at 190 (refusing to use 18 U.S.C. § 2 

to create civil secondary liability). Furthermore, O’Hagan came down in 1997, more than a year 

after adoption of language now codified at 15 U.S.C. § 78t(e), which provided the SEC with the 

explicit authority it lacked in Central Bank.

9 Thus, at the time of O’Hagan, Central Bank’s effect

on civil claims had been changed, not because of a shift in case law, but by statutory amendment. 

If Congress wishes, it may similarly amend the federal campaign finance laws. 

None of the Commission’s other string-cited cases are helpful, and many are no longer 

good law.10 This Court is thus left with two choices: either apply the on-point language from

Central Bank, or accept the FEC’s invitation to substitute an implicit statement about the scope of 

that holding in a later case in a distinguishable context. The former is the correct path.

 

9

See Swallow Mot. at 5 n.7 (noting change in the statute). Indeed, the FEC’s case, SEC v. 

Buntrock, bolsters Mr. Swallow’s reading of Central Bank by recognizing that Congress was 

forced to specifically grant the SEC the power to bring suits for secondary liability. No. 02 C 2180, 

2004 U.S. Dist. LEXIS 9495, at *22 (N.D. Ill. May 25, 2004) (unpublished). 

10 At page 18, the FEC’s brief cites cases that have been superseded by later authority. For example, 

the Second Circuit, which covers the Eastern District of New York, explicitly denied secondary 

civil liability in the Anti-Terrorism Act (“ATA”). Terrorist Attacks on September 11, 2001 v. Al 

Rajhi Bank (In re Terrorist Attacks on September 11, 2001), 714 F.3d 118, 123 (2d Cir. 2013). So 

Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571 (E.D.N.Y. 2005), decided eight years earlier, is not 

good law. Similarly, two recent cases—Owens v. BNP Paribas, S.A., 235 F. Supp. 3d 85, 93-94 

(D.D.C. 2017) and Shatsky v. PLO, No. 02-2280, 2017 U.S. Dist. LEXIS 94946, *22, 103 Fed. R. 

Evid. Serv. (Callaghan) 923 (D.D.C. 2017)—were decided years after Wultz v. Islamic Republic 

of Iran, 755 F. Supp. 2d 1 (D.D.C. 2010). Those later cases apply Central Bank to the ATA.

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III. The Commission’s imposition of secondary liability for providing advice is not a 

“reasonable” construction of the statute.

Even presuming, arguendo, that the Commission is correct that “make a contribution” is 

ambiguous, 11 C.F.R. § 110.4(b)(1)(iii) still fails under Chevron’s Second Step. While “a court 

may not substitute its own construction,” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 

(1984), this deference is contingent upon the Commission selecting a “reasonable” reading of an

ambiguous statute. Brand X, 545 U.S. at 980. So even if, arguendo, the phrase “make a 

contribution” creates some ambiguity in the statutory scheme, the FEC nevertheless does not have 

carte blanche to give the ambiguous language any meaning it chooses. 

The FEC has a history of failing Step Two by providing unreasonable definitions for plain 

words. See, e.g., Shays v. Fed. Election Comm’n, 337 F. Supp. 2d 28, 76 (D.D.C. 2004) (striking 

FEC regulation under Chevron Step Two because “the FEC’s definition of the term ‘direct’ as 

meaning ‘to ask’ is a definition foreign to every dictionary brought before this Court”). The same 

is true here, which is why “make a contribution” has been understood to unambiguously reach the 

true sources of financial contributions, and no further. See supra at 2.

Even the unpublished, default judgment in Federal Election Commission v. Rodriguez, 

upon which 11 C.F.R. § 110.4(b)(1)(iii) relied, involved Mr. Rodriguez “approach[ing] various 

individuals and solicit[ing] contribution[s] to the Carter/Mondale Presidential Committee. [Mr. 

Rodriguez] promised each individual that he would be reimbursed for the contribution. [Mr. 

Rodriguez] subsequently reimbursed each individual for his contribution.” Amend. Cmplt at 5, 

¶ 15, Fed. Election Comm’n v. Rodriguez, Case No. 86-687 (M.D. Fla. May 9, 1988).11

 

11 Kindly made available by the Commission at:

https://transition.fec.gov/law/litigation/rodriguez_fec_mot_reopen.pdf

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Mr. Rodriguez “made a contribution” by controlling the money. A principal can “make” a 

contribution through an agent precisely because of such control. But, crucially, that is because the 

statutory language in unambiguous in that context. By contrast, in what sense would a principal be 

merely “helping and assisting” the agent to do what he or she was instructed to do? Such a reading 

is unreasonable, and Rodriguez cuts against the Commission, not for it.12 As Mr. Swallow never 

had agency or control over illegally contributed funds, he did not “make a contribution” within a 

reasonable construction of 52 U.S.C. § 30122.

13

Moreover, 52 U.S.C. § 30122 establishes liability for one and only one category of people 

“helping and assisting” others to make illegal conduit contributions. Those who “knowingly permit 

[their] name[s] to be used to effect such a contribution” are also liable. Congress’s decision to 

specifically state which individuals, beyond the unambiguous class of contributors, were covered, 

further demonstrates that the FEC’s decision to go further is an unreasonable reading of the statute. 

 

12 Because the Commission’s Explanation and Justification regarding 11 C.F.R. § 110.4(b)(1)(iii) 

merely relied upon the easily-distinguished Rodriguez, it adds nothing, and certainly provides no 

evidence that the underlying regulation is a reasonable interpretation of the statute.

13 The FEC suggests that Mr. Swallow’s additional argument, that § 110.4(b)(1)(iii) violated “the 

notice procedures required by the APA,” is barred by the general statute of limitations, FEC 

Response at 25, and that this limitation is jurisdictional, cherry picking out-of-circuit or 

unpublished authority. FEC Response at 26 n.26. But courts in the Tenth Circuit have held “that 

[§ 2401(a)] is not” jurisdictional. Rocky Mt. Wild v. Walsh, 216 F. Supp. 3d 1234, 1246 n.7 (D.

Colo. 2016) (collecting cases). And equitable tolling is even more appropriate here: Mr. Swallow 

has not attempted to bring a claim against the FEC when all its evidence is spoiled, but is instead 

defending himself, not even from a continuing injury, but from a new claim by the FEC so obscure 

and unexpected that it can point to no other instance of similar civil enforcement. Cf. Ford Motor 

Co. v. United States Dep’t of Homeland Sec., No. 05-73860, 2006 U.S. Dist. LEXIS 59465, at *15 

(E.D. Mich. Aug. 23, 2006) (unpublished) (permitting challenge to notice). Thus, it is appropriate 

to follow the general practice of equitable tolling. See Rotella v. Wood, 528 U.S. 549, 560 (2000); 

Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 826 (10th Cir. 2014). But, even 

if equitable tolling did not apply to the regulation’s procedural invalidity under the APA, the FEC 

does not dispute that it would apply to the regulation’s substantive infirmities addressed here.

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IV. The proper standard of review for Mr. Swallow’s constitutional claim is strict 

scrutiny.

Even assuming a valid regulation, the Constitution requires that the FEC’s efforts to 

regulate Mr. Swallow’s speech survive strict scrutiny, which they cannot do.

The Commission posits that this enforcement action is about “contribution limits . . . and 

disclosure requirements,” which necessitate the application of a lower standard of scrutiny. FEC 

Response at 4.14 That may be true as regards Mr. Johnson, but the FEC fails to allege that any of

Mr. Swallow’s money was inaccurately reported, was contributed to a candidate in excess of limits, 

or was used to reimburse a contribution to complete a straw donor scheme. So the FEC has failed 

to show how its pursuit of Mr. Swallow advances any disclosure interest.

Instead of following Mr. Swallow’s money, the Commission has targeted his speech—

political information he is alleged to have spoken. And the distinction between political speech 

and political association is the distinction between the application of strict scrutiny and the 

application of a lower standard of review. Williams-Yulee v. The Fla. Bar, 135 S. Ct. 1656, 1665 

(2015) (“The ‘closely drawn’ standard is a poor fit . . . . Here, [Defendant] does not claim” the law 

“violates h[is] right to free association; []he argues that it violates h[is] right to free speech”).

If the FEC went after Mr. Swallow for merely encouraging Mr. Johnson to “raise the 

 

14 The Commission is correct: contribution limits, standing alone, are reviewed under “closely 

drawn” scrutiny. But that is not synonymous with intermediate scrutiny. FEC Response at 3, 5, 6. 

Closely drawn scrutiny requires “a means narrowly tailored to achieve the [government’s] desired 

objective,” and is stricter than intermediate scrutiny. McCutcheon v. Fed. Election Comm’n, 134 

S. Ct. 1434, 1457 (2014); cf. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 386 (2000) (noting 

that the Supreme Court “explicitly rejected . . . intermediate scrutiny for communicative action” 

and therefore contribution limits (discussing Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) and 

United States v. O’Brien, 391 U.S. 367 (1968)). Even if closely drawn scrutiny applies, however, 

the government still carries the burden of showing both interest and tailoring, a burden it has failed 

to carry. Swallow Mot. at 20, n.21

Case 2:15-cv-00439-DB Document 104 Filed 12/04/17 Page 10 of 14
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money” to help elect Mike Lee to the Senate because “he’s gonna be choosing the next U.S. 

Attorney,” no one would doubt that strict scrutiny would apply. Citizens United v. Fed. Election 

Comm’n, 558 U.S. 310, 340 (2010) (applying strict scrutiny to ban on speech opposing presidential 

candidate); Eu v. San Francisco Democratic Campaign Comm., 489 U.S. 214, 223 (1989) (“‘[T]he 

First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign 

for political office” (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971))). Indeed, the 

effect of political appointments is typical of political speech aired during an election campaign.15

Nevertheless, such speech is the core of the FEC’s complaint against Mr. Swallow, the 

remainder of which is little more than “labels and conclusions,” Bell Atlantic Co. v. Twombly, 550 

U.S. 544, 555 (2007), and “entirely conclusory” claims “not entitled to the assumption of truth.” 

Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). The amended complaint 

repeatedly avers little more than that “Swallow solicited Johnson” to conduct illegal activity during 

the Shurtleff and Lee campaigns, Amended Cmplt. at 6, ¶ 20; id. at 8 ¶ 27. The specifics given, by 

contrast, specifically concern persuasive speech about why electing Mike Lee would help Mr. 

Johnson’s business interests. Amended Cmplt. at 8-9, ¶ 30. The Commission contends that by 

merely proffering window dressing about the alleged initiation of a conspiracy, Mr. Swallow’s 

political speech loses its constitutional protection.

But the FEC must do more than marry specificity about undoubtedly legal, protected 

 

15 The National Rifle Association, for example, ran ads encouraging a vote against Hillary Clinton 

on the ground that her replacement pick for the Supreme Court seat vacated by Justice Antonin 

Scalia’s passing would undermine the Second Amendment. See CSPAN, Presidential Campaign 

Ads, https://www.c-span.org/video/?417644-1/presidential-campaign-ads at 1:31 (Reproducing 

NRA-ILA “Four Justices” Ad (“What’s at stake in this election? . . . The Supreme Court . . . ”)).

Case 2:15-cv-00439-DB Document 104 Filed 12/04/17 Page 11 of 14
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political speech with vaguely pleaded accusations in order to evade the burdens of strict scrutiny.16

See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the 

framework of a complaint, they must be supported by factual allegations”); see also United States 

v. Rufai, 732 F.3d 1175, 1188 (10th Cir. 2013) (cautioning against “piling inference upon 

inference”). As it has not done so, strict scrutiny applies, and the Commission’s effort to regulate 

Mr. Swallow’s speech cannot withstand it. Swallow Mot. at 22-23.

17

Conclusion

For the reasons given here and in Mr. Swallow’s Motion, this Court should deny the FEC’s 

cross-motion, grant judgment on the pleadings, and vacate18 11 C.F.R. § 110.4(b)(1)(iii).

Respectfully submitted,

/s/ Allen Dickerson

Allen Dickerson (pro hac vice)

 

16 Even the quotes from a putative email sent by Mr. Swallow in 2010 regarding bounced checks, 

Amend Cmplt. at 9, ¶ 33, which has never been provided to Mr. Swallow despite an administrative 

enforcement proceeding and criminal trial, comes from nothing more than hearsay, and can

nevertheless easily be read as innocent, protected speech concerning the everyday mechanics of a 

campaign. 

17 Even if 11 C.F.R. § 110.4(b)(1)(iii) remains in effect for true conduit contribution schemes, the 

First Amendment requires a narrowing construction limiting its scope to the contexts the FEC has 

relied upon: situations where money changes multiple hands on its way to the relevant candidate, 

and not where speech or advice is the only connection to that scheme. Virginia v. Am. Booksellers 

Ass’n, 484 U.S. 383, 397 (1988) (“It has long been a tenet of First Amendment law that in 

determining a facial challenge to a statute, if it be ‘readily susceptible’ to a narrowing construction 

that would make it constitutional, it will be upheld.”) (citation omitted).

18 The FEC argues that Mr. “Swallow is not entitled to vacatur.” FEC Response at 29. Mr. Swallow 

is entitled to dismissal of the FEC’s claims against him, which are based on a regulation that is 

ultra vires and contrary to statute. As this case demonstrates, the FEC does not require this 

regulation in cases involving actual conduit contribution schemes, and cannot be trusted to avoid 

using this regulation to chill speech. Moreover, there is little reason to believe a remand would be 

fruitful. See Shays v. Fed. Election Comm’n, 528 F.3d 914, 931 (D.C. Cir. 2008) (detailing repeated 

judicial remands to the agency where the Commission failed to substantively correct 

administrative law errors noted in the Shays line of cases). Accordingly, vacatur, while 

discretionary, is warranted.

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Scott C. Williams (Utah Bar. No. 6687)

SCOTT C. WILLIAMS, LLC

43 East 400 South

Salt Lake City, Utah 84111

Telephone: 801.220.0700

Facsimile: 801.364.3232

scwlegal@gmail.com 

Scott E. Thomas

BLANK ROME, LLP

1825 Eye Street N.W.

Washington, D.C. 20006

Telephone: 202.420.2601

Facsimile: 202.420.2201

sthomas@blankrome.com 

Tyler Martinez (pro hac vice)

Owen Yeates (Utah Bar No. 13901)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

tmartinez@ifs.org

oyeates@ifs.org

Counsel for Defendant John Swallow

Dated: December 4, 2017

Case 2:15-cv-00439-DB Document 104 Filed 12/04/17 Page 13 of 14
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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing using the court’s CM/ECF system. 

A Notice of Docket Activity will be emailed to all registered attorneys currently participating in 

this case, constituting service on those attorneys:

For Plaintiff FEC

Lisa Stevenson

lstevenson@fec.gov

Sana Chaudhry

schaudhry@fec.gov

Claudio J. Pavia

cpavia@fec.gov

Harry J. Summers

hsummers@fec.gov

Kevin Deeley

kdeeley@fec.gov

Kevin Paul Hancock

khancock@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street N.W.

Washington, D.C. 20463

Phone: 202.694.1650

For Defendant Jeremy Johnson

John D. Lauritzen

jd.lauritzen@chrisjen.com

Karra J. Porter

karra.porter@chrisjen.com

CHRISTENSEN & JENSEN, PC

257 East 200 South, Suite 1100

Salt Lake City, UT 84111

Phone: 801.323.5000

Dated: December 4, 2017

/s/ Allen Dickerson

 Allen Dickerson

Case 2:15-cv-00439-DB Document 104 Filed 12/04/17 Page 14 of 14