Lisa J. Stevenson, Acting General Counsel (lstevenson@fec.gov)

Kevin Deeley, Associate General Counsel (kdeeley@fec.gov)

Kevin P. Hancock, Acting Assistant General Counsel (khancock@fec.gov)

Sana Chaudhry, Attorney (schaudhry@fec.gov)

FOR THE PLAINTIFF

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650 

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

_______________________________________

)

FEDERAL ELECTION COMMISSION, )

)

Plaintiff, ) Case No. 2:15-cv-00439-DB

)

v. ) MEMORANDUM IN OPPOSITION

) TO MOTIONS TO DISMISS AND

JEREMY JOHNSON, et al., ) IN SUPPORT OF CROSS-MOTION

)

Defendants. ) District Judge Dee Benson

 )

PLAINTIFF FEC’S MEMORANDUM IN OPPOSITION TO DEF. JOHN SWALLOW’S 

MOTIONS TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS AND IN 

SUPPORT OF CROSS-MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 1 of 48
i

TABLE OF CONTENTS

BACKGROUND .......................................................................................................................v

I. STATUTORY AND REGULATORY BACKGROUND.............................................v

A. Plaintiff Federal Election Commission and FECA............................................v

B. The Prohibition on Making Contributions in the Name of Another..................v

1. 52 U.S.C. § 30122..................................................................................v

2. 11 C.F.R. § 110.4(b)(1)(iii)................................................................. vii

II. FACTUAL BACKGROUND........................................................................................x

A. Defendant John Swallow ...................................................................................x

B. Defendant Jeremy Johnson .............................................................................. xi

C. Swallow Knowingly Helped and Assisted Johnson in Making

Approximately $50,000 of Conduit Contributions in 2010 ........................... xii

D. The FEC’s Administrative Enforcement Proceedings Against Swallow ...... xiv

ARGUMENT.............................................................................................................................1

I. STANDARD OF REVIEW...........................................................................................1

II. THE FEC HAS STATED A PLAUSIBLE CLAIM AGAINST SWALLOW..............2

III. THE REGULATION IS CONSTITUTIONAL.............................................................3

A. Intermediate Scrutiny Applies to the Regulation Not Strict Scrutiny................3

B. The Regulation Is Substantially Related and Closely Drawn to the

Government’s Important Pro-Disclosure and Anti-Circumvention

Interests..............................................................................................................7

C. The Regulation Is Not Unconstitutionally Vague............................................11

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 2 of 48
ii

IV. THE REGULATION IS VALID UNDER CHEVRON’S HIGHLY

DEFERENTIAL STANDARD OF REVIEW.............................................................14

A. The Statute Does Not Unambiguously Foreclose the

FEC’s Interpretation.........................................................................................14

1. The Statute Is Broad Enough to Apply to Multiple

Ways to “Make” a Contribution in the Name of Another ...................14

2. The FEC’s Reasonable Implementation of Section 30122’s

Broad Language Is Distinguishable from Past Efforts to Obtain

Private Rights of Action Under Narrower Statutes .............................17

B. The Commission’s Interpretation Is Reasonable and 

Warrants Judicial Deference ............................................................................19

V. THE REGULATION IS NOT ARBITRARY AND CAPRICIOUS...........................23

A. The Regulation Satisfies the “Reasoned Decisionmaking” 

Requirement of State Farm..............................................................................23

B. Swallow’s Procedural Challenge Should Be Rejected ....................................25

1. The Applicable Statute of Limitations Has Expired............................25

2. Swallow’s Procedural Challenge Lacks Merit.....................................26

VI. SWALLOW IS NOT ENTITLED TO VACATUR ....................................................29

CONCLUSION........................................................................................................................30

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 3 of 48
iii

The Court should deny defendant John Swallow’s Motion to Dismiss and Motion for 

Judgment on the Pleadings. (See Docket No. 98.) Swallow’s motion to dismiss is untimely and 

barred by this Court’s September 20, 2017 stay order. His motion for judgment on the pleadings 

also fails. Plaintiff Federal Election Commission (“FEC” or “Commission”) has pleaded a morethan-plausible cause of action that Swallow violated the Federal Election Campaign Act’s 

(“FECA”) ban on making contributions in the name of another. See 52 U.S.C. § 30122. As the 

complaint alleges in detail, Swallow was a campaign fundraiser who recruited wealthy Utah 

businessman Jeremy Johnson to contribute more than 20 times FECA’s $2,400 limit to a U.S. 

Senate candidate. Swallow convinced Johnson that he might receive political favors in exchange 

for his money, instructed Johnson on how to illegally use straw donors to evade FECA’s 

contribution limits, and then helped complete some of those illicit contributions. By initiating, 

instigating, and significantly participating in this scheme, Swallow violated section 30122 under 

its implementing regulation that prohibits any person from knowingly helping or assisting a 

contribution in the name of another. See 11 C.F.R. § 110.4(b)(1)(iii).

The third affirmative defense of Swallow’s answer, which attacks the FEC’s regulation 

under the Constitution and the Administrative Procedure Act (“APA”), lacks merit and is 

insufficient as a matter of law. The regulation, which the FEC has consistently enforced since its 

promulgation in 1989, is constitutional. Like the statute it implements, the regulation promotes 

the important and long-recognized government interests in disclosure of the true sources and 

amounts of campaign contributions and preventing circumvention of FECA’s contribution limits. 

Even though it is well established that disclosure requirements and contribution limits under 

FECA are subject to an intermediate level of constitutional scrutiny, Swallow asks this Court to 

ignore decades of judicial precedent and apply strict scrutiny. Under the correct level of scrutiny

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 4 of 48
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section 110.4(b)(1)(iii) is sufficiently tailored and does not threaten to chill lawful political 

speech since it applies only to knowing participation in illegal schemes. 

The regulation is also within the broad statutory authority Congress has delegated to the 

Commission. Contrary to Swallow’s arguments, the FEC’s interpretation of the statute is 

supported by the plain language of section 30122, the purpose and history of the statute, the 

judicial deference due to the FEC’s regulations, the regulation’s background, and the applicable 

case law. Section 30122 uses broad and undefined language, which several courts have held 

includes multiple methods of making contributions in the name of another, including conduit 

schemes. The regulation reasonably fills the statutory gap by prohibiting knowingly helping or 

assisting in conduit contribution schemes as an additional method of violation. Section 

110.4(b)(1)(iii) is thus a reasonable exercise of the FEC’s authority on how best to ensure 

disclosure and fight corruption and its appearance.

Finally, Swallow has failed to meet the heavy burden of establishing that section 

110.4(b)(1)(iii) is arbitrary and capricious. Swallow’s substantive challenge to the promulgation 

of the regulation falls short because the Commission provided a sufficient basis for its reasoning, 

clearly setting out its analytical path in the rulemaking. His procedural challenge to the agency’s 

Notice of Proposed Rulemaking should also be denied. The statute of limitations for that 

challenge expired more than 20 years ago, and in any event, the FEC’s notice was sufficient. 

For all these reasons and the reasons discussed below, the Court should deny Swallow’s 

motions. The Court should also grant the FEC’s cross-motion for judgment on the pleadings 

against Swallow’s third affirmative defense, because his constitutional and APA challenges to 

the FEC’s regulation are insufficient as a matter of law.

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 5 of 48
v

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND

A. Plaintiff Federal Election Commission and FECA

Plaintiff FEC is a six-member independent federal agency that is responsible for 

administering, interpreting, and civilly enforcing FECA, 52 U.S.C. §§ 30101-46. FECA was

enacted in significant part to “limit the actuality and appearance of corruption resulting from 

large individual financial contributions.” Buckley v. Valeo, 424 U.S. 1, 26 (1976) (per curiam). 

To that end, FECA limits the dollar amounts of contributions to candidates for federal office, 

political parties, and political committees. See 52 U.S.C. § 30116(a). FECA also prohibits 

contributions from certain sources, including foreign nationals and government contractors. Id.

§§ 30118-19, 30121. Additionally, FECA requires candidates, political parties, and political 

committees to disclose publicly the amounts they spend and receive in reports filed with the 

FEC. See id. § 30104.

B. The Prohibition on Making a Contribution in the Name of Another 

1. 52 U.S.C. § 30122 

For more than four and a half decades, FECA has stated that “[n]o person shall make a 

contribution in the name of another person[.]” 52 U.S.C. § 30122 (formerly 2 U.S.C. § 441f).

1

 

The statute prohibits at least two types of contributions in the name of another. First, it bans 

“false name” contributions, which occur when a person contributes to a candidate or committee 

but falsely attributes another person as the source the contribution. See United States v. 

 1 Effective September 1, 2014, the provisions of FECA that were codified in Title 2 of the 

United States Code were recodified in a new title, Title 52. See Editorial Reclassification Table, 

http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.html. As a 

result, many of the relevant authorities cited herein refer to 2 U.S.C. § 441f. 

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 6 of 48
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O’Donnell, 608 F.3d 546, 553-54 (9th Cir. 2010). Second, and relevant to this case, section 

30122 bars concealed “conduit contributions,” which occur when a person provides funds to a 

conduit (also called a “straw donor”), who then contributes those funds to a candidate or 

committee without disclosing the true source of the contribution. Id. 

Congress originally enacted the ban on making contributions in the name of another in 

1971 as part of the first version of FECA, which sought to improve regulation of campaign 

finance primarily through enhanced disclosure of contributions and their sources. See

O’Donnell, 608 F.3d at 553. For instance, the 1971 version of FECA removed some dollar limits 

on contributions that had not been effectively enforced in the past, but did require campaigns to 

publicly disclose the identities of their contributors who gave at least minimum amounts. See 2 

U.S.C. §§ 432(c), 434(b) (1972). 

In 1974, Congress significantly revised FECA in response to the Watergate scandal and 

the “deeply disturbing” reports of excessive contributions made through multiple conduits and

quid pro quo corruption during the four years preceding the 1972 federal elections,. See Buckley, 

424 U.S. at 23-24, 26-27 & n.28, 62 (citing Buckley v. Valeo, 519 F.2d 821, 821, 839-40 & nn. 

36-38 (D.C. Cir. 1975)). The revision retained the ban on making contributions in the name of 

another, placed new limits on the sources and amounts of contributions, and created the FEC to 

enforce those limits and FECA’s disclosure requirements. See id. at 12-13, 109; see 18 U.S.C. §

614 (1974). Shortly after Congress revised FECA, the Supreme Court upheld the 

constitutionality of the Act’s contribution limits and disclosure requirements. See Buckley, 424 

U.S. at 58, 84. 

Section 30122 is one of FECA’s most frequently violated provisions. See Department of 

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 7 of 48
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Justice, Federal Prosecution of Election Offenses 166 (7th ed. May 2007).

2

 This is because 

people attempting to violate FECA’s limits on the sources and amounts of contributions often

attempt to avoid detection by laundering their illegal contributions through straw donors. Id. 

Reflecting section 30122’s importance to FECA’s system of disclosure requirements and 

contributions limits, Congress authorized the courts to impose significantly enhanced civil and 

criminal penalties for violations of section 30122 than for other FECA provisions. Civil 

penalties for knowing and willful violations of section 30122 are at least five times greater than 

the penalties authorized for other FECA violations. See 52 U.S.C. § 30109(a)(6)(C). Criminal 

violations of section 30122 involving more than $10,000 are punishable as felonies, subject to 

two-to-five years’ imprisonment. 52 U.S.C. § 30109(d)(1)(A)(i), (D). Congress increased these 

penalties in 2002, after conducting an investigation into the 1996 presidential election that 

revealed serious abuses, including that “millions of dollars in illegal donations from foreign 

nations were funneled into party and campaign coffers through conduit contributions.” 147 

Cong. Rec. 3,187-3,188 (2001) (statement of Sen. Bond); Bipartisan Campaign Reform Act

(“BCRA”), Pub. L. No. 107-155, 116 Stat. 108 (2002). 

2. 11 C.F.R. § 110.4(b)(1)(iii)

In 1976, the Commission promulgated a regulation implementing FECA’s ban on making 

contributions in the name of another. See 11 C.F.R. § 110.4(b); see also Establishment of 

Chapter, 41 Fed. Reg. 35,932, 35,950 (Aug. 25, 1976). That regulation specifies that section 

30122’s prohibition includes both false-name and conduit contributions, see 11 C.F.R. 

§ 110.4(b)(2), and courts have subsequently agreed that the statute’s broad language extends at 

 2 See https://www.justice.gov/sites/default/files/criminal/legacy/2013/09/30/electbookrvs0807.pdf.

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 8 of 48
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least that far, see, e.g., O’Donnell, 608 F.3d at 555.

In 1989, the Commission added a provision to its regulation providing that no person 

shall “[k]nowingly help or assist any person in making a contribution in the name of another.” 

11 C.F.R. § 110.4(b)(1)(iii) (1989); see Affiliated Committees, Transfers, Prohibited 

Contributions, Annual Contribution Limitations and Earmarked Contributions, 54 Fed. Reg. 

34,098, 34,104-05 (Aug. 17, 1989) (“E&J”). The Commission promulgated section 

110.4(b)(1)(iii) after a federal district court held the previous year that a defendant had violated 

section 30122 “by knowingly assisting in the making of contributions in the name of another.” 

See Exh. A at 1 (Final Order and Default Judgment, FEC v. Rodriguez, Case No. 86-687-Civ-T10 (M.D. Fla. Oct. 28, 1988) (emphasis added)). In Rodriguez, the defendant solicited 

contributions to a federal campaign on behalf of his business associate, Alan Wolfson, and then

reimbursed the conduits with funds provided by Wolfson. Id. The federal court held that 

Rodriguez’s knowing assistance to Wolfson had violated FECA. Id.

Following Rodriguez, and after discussing the regulation at multiple hearings between 

1988 and 1989, the Commission adopted the judicial interpretation approved by the Rodriguez 

court in 11 C.F.R. 110.4(b)(1)(iii); see E&J, 54 Fed. Reg. at 34,104-05. As the Commission 

explained in its interpretive guidance for the regulation, section 110.4(b)(1)(iii) applies “to those 

who initiate or instigate or have some significant participation in a plan or scheme to make a 

contribution in the name of another, including those who solicit or act as go-betweens to third 

parties whose donations are reimbursed.” Id.

3

 

In the nearly three decades since the FEC promulgated section 110.4(b)(1)(iii), the 

 3 Before its promulgation, the FEC transmitted the new regulation to Congress, as required 

under 52 U.S.C. § 30111 (then codified at 2 U.S.C. § 438(c)). See 54 Fed. Reg. at 34,098.

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 9 of 48
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agency has consistently and repeatedly enforced section 30122 in administrative enforcement 

matters against respondents who knowingly helped or assisted conduit contributions. See, e.g., 

Matter Under Review (“MUR”) 6922 (Henke)4; MUR 6223 (St. John)5; MUR 5948 (Critical 

Health Systems of N.C., P.C.)

6

; MUR 5849 (Bank of America Corp.)7; MUR 5453 (Watts)8; 

MUR 4748 (Moniot)

9

; MUR 4582 (Vinay Wahi, Satish Bahl, and S.V. Ramamurthy)10; MUR 

4399 (Spice)11; MUR 4177 (Davis)12; MUR 3056 (Davidson)13.

For example, in MUR 4748 (Moniot), the Commission concluded that a television station 

executive violated section 110.4(b)(1)(iii) by knowingly helping and assisting the station in 

making illegal corporate contributions to five members of Congress using its employees as 

conduits. See Factual & Legal Analysis (“F&LA”) (Resp’t Moniot) at 4-5, supra note 9. Moniot 

“initiated the entire sequence of events” by convincing the station that it should make conduit 

contributions to members of Congress in hopes that members would then appear in stories aired 

by the station. Id. at 6. Moniot not only “actively participate[d] in the decision making process,” 

but also asked station staff to serve as conduits, and drafted the letters to members of Congress 

that accompanied the illicit contributions. Id. 

 4 https://www.fec.gov/files/legal/murs/current/111957.pdf.

5 https://www.fec.gov/files/legal/murs/current/96982.pdf.

6 https://www.fec.gov/files/legal/murs/current/95874.pdf.

7 https://www.fec.gov/files/legal/murs/current/95225.pdf.

8 https://www.fec.gov/files/legal/murs/current/52806.pdf.

9 https://www.fec.gov/files/legal/murs/current/38714.pdf.

10 https://www.fec.gov/files/legal/murs/4582.pdf.

11 https://www.fec.gov/files/legal/murs/4399.pdf.

12 https://www.fec.gov/files/legal/murs/4177.pdf. 

13 https://www.fec.gov/files/legal/murs/3056.pdf.

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 10 of 48
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Similarly, in MUR 5453 (Watts), the Commission concluded that a corporate executive 

violated section 110.4(b)(1)(iii) by knowingly helping and assisting his company make illegal 

corporate contributions to a U.S. Senate candidate. F&LA (Resp’t Watts) at 1, supra note 8. 

Watts “suggested a corporate reimbursement scheme” to higher-ranking officers of his company, 

and, after receiving approval, helped “carry[] out the scheme” by collecting the funds to 

reimburse the employees who served as conduits. Id.

Finally, in MUR 4177 (Davis), the Commission found reason to believe that a consultant 

working for a company, Hourani and Associates, violated section 110.4(b)(1)(iii) by knowingly 

helping and assisting that company make illegal corporate contributions to a federal candidate. 

F&LA (Resp’t Davis), supra note 12. Davis admitted to acting as a conduit herself for two 

contributions that were reimbursed by the company, but in addition, the evidence showed that 

Davis “may have solicited other employees to make a contribution and [Davis] may have also 

been involved in the payment of the reimbursements.” Id. at 2. Accordingly, the FEC found 

reason to believe Davis violated section 30122 by “knowingly assisting in the making of 

contributions in the name of another.” Id. at 3.

II. FACTUAL BACKGROUND 

A. Defendant John Swallow

Defendant John Swallow is a former Chief Deputy Attorney General and former Attorney 

General of Utah. (See FEC’s Am. Compl. for Civil Penalty, Declaratory, Injunctive, and Other 

Appropriate Relief ¶ 12 (“Compl.” or “Complaint”) (Docket No. 36).) In December 2009, thenUtah Attorney General Mark Shurtleff appointed Swallow to serve as Chief Deputy Attorney 

General. (Id.) Swallow was later elected Attorney General of Utah in November 2012, and 

served in that office from January 2013 until his resignation less than a year later in December 

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 11 of 48
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2013. (Id.)

Swallow has experience with campaign fundraising and FECA. In 2002 and 2004 he 

unsuccessfully ran for United States Congress in Utah’s 2nd Congressional district. (Compl.

¶ 12.) Swallow’s 2002 campaign was the subject of an FEC matter under review, entitled MUR 

5333.14 In that matter, on June 30, 2004, the Commission found that there was reason to believe 

that Swallow’s campaign had violated section 30122 by knowingly accepting contributions made 

in the names of others. F&LA (Resp’t John Swallow for Congress, et al.) at 8-9 (Aug. 16, 

2004).15 The Commission ultimately concluded that Swallow’s campaign had taken excessive 

contributions16 and chose to take no further action regarding Swallow in his individual capacity 

due to conflicting evidence about his personal role in some of the excessive contributions.17

Later, Swallow served as a fundraiser for Shurtleff’s campaigns for Utah Attorney 

General in 2008 and United States Senate in 2009. (Compl. ¶ 12.) Swallow then also worked as 

fundraiser for United States Senator Mike Lee’s campaign for Senate in 2010. (Id.)

B. Defendant Jeremy Johnson

Defendant Jeremy Johnson was a Utah businessman who at the time relevant to this case 

had business interests that included companies that made tens of millions of dollars by 

processing financial transactions for on-line poker companies. (Compl. ¶ 28.) Johnson also 

owned an internet-marketing company named I Works, Inc. (Id. ¶ 11.) In connection with his 

operation of that multi-million dollar company, Johnson was convicted in federal court in March 

2016 of eight counts of making false statements to a bank and is currently serving a more than 

 14 https://www.fec.gov/data/legal/matter-under-review/5333/ 

15 https://www.fec.gov/files/legal/murs/current/59860.pdf.

16 https://www.fec.gov/files/legal/murs/current/59849.pdf.

17 https://www.fec.gov/files/legal/murs/current/59897.pdf.

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11-year prison sentence. See Dennis Romboy, Judge Sends Jeremy Johnson to Prison for More 

Than 11 Years, Deseret News (July 29, 2016).18

C. Swallow Knowingly Helped and Assisted Johnson in Making Approximately 

$50,000 of Conduit Contributions in 2010

During the 2009-2010 federal election cycle, Swallow knowingly helped and assisted his 

co-defendant Johnson in making contributions to federal campaigns using straw donors. (Compl.

¶ 1.) In 2009, when Swallow was a fundraiser for Shurtleff’s Senate campaign, Swallow asked 

Johnson to make a large contribution to Shurtleff. (Id. ¶ 21.) In response, Johnson offered to 

write a check for Shurtleff’s campaign in a large amount that exceeded FECA’s limits, which at 

the time, capped contributions to a federal candidate at $2,400 per election. (Id. ¶¶ 2, 21.) 

Swallow then told Johnson about FECA’s $2,400 limit, but suggested that Johnson contribute 

amounts in excess of that limit “by giving the funds to straw donors and arranging for those 

straw donors to pass on the funds to the Shurtleff campaign.” (Id. ¶ 22.) Johnson subsequently

contributed approximately $100,000 to Shurtleff’s campaign using straw donors.

19 (Id. ¶¶ 23-

24.) 

In November 2009, Shurtleff ended his campaign. (Id. ¶ 29.) In 2010, Mike Lee was a 

candidate in the 2010 Republican primary election and in the subsequent general election for 

United States Senate in Utah. (Id. ¶¶ 27, 29). As he did for Shurtleff, Swallow raised funds for

 18 https://www.deseretnews.com/article/865658992/Judge-sends-Jeremy-Johnson-to-prisonfor-more-than-11-years.html. 

19 Swallow’s recitation of the facts alleged in the Complaint incorrectly omits the details of 

Swallow’s interactions with Johnson in relation to conduit contributions that were made to the 

Shurtleff campaign in 2009. (Def. John Swallow’s Mot. to Dismiss, Mot for J. on the Pleadings, 

and Mem in Supp. (“Mot.”) at v n.3 (Docket No. 98).) Those facts are relevant to the FEC’s 

cause of action against Swallow because they help evidence that Swallow had a knowing and 

willful state of mind when in 2010 he helped and assisted Johnson in making approximately 

$50,000 of conduit contributions to Senator Mike Lee’s 2010 campaign. (See Compl. ¶¶ 77.) 

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Lee’s campaign. And as he also did for Shurtleff, Swallow “solicited Johnson to reimburse

contributions to the Lee campaign.” (Id. ¶ 27.) At the time, Johnson’s lucrative poker 

processing business interests were potentially threatened since similar businesses were being 

prosecuted by the Department of Justice. (Id. ¶ 28.) To convince Johnson to contribute large 

amounts again but this time to Lee, Swallow “promised Johnson that funding the contributions 

would help protect Johnson’s business interests from federal prosecution.” (Id. ¶¶ 27, 29.) 

Swallow pointed out to Johnson that if Lee were elected to the Senate, Lee would be effectively 

“choosing the next U.S. Attorney,” and Swallow stressed to Johnson: “you gotta have [Lee] in 

your corner and you gotta have the U.S. Attorney in your corner, especially while you’re 

processing poker in this district.” (Id. ¶¶ 29, 30.) According to Johnson, Swallow also said to 

him: “‘I’m supporting you, and supporting your processing of poker . . . you don’t have to worry 

about anything on the state level, but if the federal government comes after poker, you wanna 

head that off and this is how you do it.’” (Id.) 

Convinced, Johnson then asked Swallow “whether he could write a large check to the 

Lee campaign or if the limits applicable to Shurtleff’s campaign also applied. Swallow 

confirmed to Johnson that the same rules applied.” (Compl. ¶ 29.) Johnson subsequently 

contributed approximately $50,000 to the Lee campaign using straw donors who he either paid in 

advance or later reimbursed. (Id. ¶ 32.) 

Swallow actively participated in the straw donor scheme further by helping Johnson 

successfully execute some of his conduits’ contributions. (Compl. ¶ 33.) At least four of 

Johnson’s straw donors gave contribution checks to the Lee campaign that bounced when the 

Lee campaign attempted to deposit them. (Id. ¶¶ 48-49.) On June 21, 2010, Swallow alerted 

Johnson by e-mail that “[he] was told that [four] of those checks bounced. I’ll forward you the 

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names. We are working hard and tomorrow is the big day.” (Id. ¶ 33 (alterations in original).) 

Johnson responded that he would “fix” the bounced checks immediately. (Id. ¶ 49.) The next 

day, three of the four contributors whose checks had bounced issued new checks to the Lee 

campaign, at least three of which were successfully deposited by the campaign. (Id.) 

D. The FEC’s Administrative Enforcement Proceedings Against Swallow

On June 30, 2014, a member of the public filed an administrative complaint with the 

Commission alleging that both Johnson and Swallow had violated FECA. (Compl. ¶¶ 50, 59.) 

After conducting an investigation, the FEC’s Office of General Counsel notified Swallow that it 

was prepared to recommend that the Commission find probable cause to believe that he had 

knowingly and willfully violated section 30122. (Id. ¶ 63.) Swallow opposed the FEC’s 

recommendation. (Id. ¶ 65.) 

The Commission nevertheless found probable cause to believe that Swallow knowingly 

and willfully violated section 30122 and section 110.4(b)(1)(iii). (Compl. ¶ 68.) After the 

Commission’s attempts to conciliate with Swallow failed, the Commission authorized the filing 

of a lawsuit against Swallow on December 4, 2015. (Id. ¶ 70.) By the time the FEC authorized 

suit against Swallow, this case against Johnson had already begun, on June 19, 2015. (See

Docket No. 1.) The agency therefore moved on December 10, 2015 to amend and supplement 

the Complaint against Johnson to permissively join Swallow. (Docket No. 25.) The Court 

granted that motion (Docket No. 35) and the FEC filed its Amended Complaint on February 24, 

2016 (Docket No. 36). Rather than moving to dismiss, Swallow filed an answer largely denying 

the FEC’s allegations and asserting fourteen affirmative defenses. (See Def.’s Answer to Am. 

Compl. (“Answer”) (Docket No. 45).) The third of those fourteen affirmative defenses 

challenges the validity of the “the applicable federal regulations.” (Id. at 37-38.) 

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 15 of 48
xv

On September 20, 2017, the Court granted the parties’ joint stipulation to stay this case 

pending Johnson’s currently pending criminal appeal, with the exception that the Court permitted 

Swallow to file “a motion for judgment on the pleadings under [Rule] 12(c) based on purely 

legal arguments.” (Joint Stipulation and Order to Stay Proceedings at ¶ 1 (Docket No. 91).) The 

Court also authorized the Commission to cross-move under Rule 12(c) “on any issues raised by 

defendant Swallow’s Rule 12(c) motion.” (Id.) On October 23, 2017, Swallow moved under 

Rules 12(b)(6) and 12(c). (See Def. John Swallow’s Mot. to Dismiss, Mot. for J. on the 

Pleadings, and Mem. in Supp. (“Mot.”) (Docket No. 98).) Because Swallow has moved in part 

on the basis of his Answer’s third affirmative defense (id. at vi), the Commission has crossmoved for judgment on the pleadings against that defense (Docket No. 102). 

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 16 of 48
1

ARGUMENT

Swallow’s motions should be denied and the FEC’s cross-motion granted. Swallow’s 

motion to dismiss is untimely under Rule 12(b) and violates this Court’s order allowing him to 

file only a Rule 12(c) motion during the stay of the case. (Docket No. 91.) Swallow’s motion 

for judgment on the pleadings also fails because (1) the Complaint states a plausible claim that 

Swallow violated 52 U.S.C. § 30122; and (2) Swallow’s asserted third affirmative defense lacks

merit because 11 C.F.R. § 110.4(b)(1)(iii) is constitutional and valid under the APA. Swallow’s 

third defense should be dismissed under Rule 12(c) as a result. 

I. STANDARD OF REVIEW

Motions for judgment on the pleadings “are not favored in the law and are not granted

unless the moving party establishes that no material issue of fact remains to be resolved and that 

the movant is entitled to judgment as a matter of law.” F.D.I.C. ex rel. Heritage Bank & Tr. v. 

Lowe, 809 F. Supp. 856, 857 (D. Utah 1992). On a Rule 12(c) motion, a court may consider 

“both the pleadings and any facts of which the Court can take judicial notice.” Mata v. 

Anderson, 760 F. Supp. 2d 1068, 1083 (D.N.M. 2009) (citations omitted). 

Courts evaluate a Rule 12(c) motion using the same standard as for a Rule 12(b)(6) 

motion to dismiss. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th 

Cir. 2000). Under that standard, the “Court must take Plaintiffs’ factual allegations as true, 

consider them as a whole, and view them in the light most favorable to [p]laintiffs.” Beltran v. 

InterExchange, Inc., 176 F. Supp. 3d 1066, 1079 (D. Colo. 2016). To survive the motion, the

complaint need only contain “enough facts to state a claim to relief that is plausible on its face.” 

Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (internal quotation marks omitted). A 

claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw 

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2

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). 

In addition, judgment against a pleaded affirmative defense is warranted under Rule 12(c) 

where the “non-moving party can prove no set of facts which would form the basis for relief” 

and thus the defense is “insufficient as a matter of law.” F.D.I.C. ex rel. Heritage Bank & Tr., 

809 F. Supp. at 858-59 (dismissing affirmative defenses under Rule 12(c)). An affirmative 

defense cannot succeed on a Rule 12(c) motion unless “the allegations of the complaint suffice to 

establish the defense.” Bader v. Air Line Pilots Ass'n, 113 F. Supp. 3d 990, 997 (N.D. Ill. 2015).

II. THE FEC HAS STATED A PLAUSIBLE CLAIM AGAINST SWALLOW

The Complaint has pleaded sufficient facts upon which the Court may reasonably infer

that Swallow violated 52 U.S.C. § 30122 and 11 C.F.R. § 110.4(b)(1)(iii), despite Swallow’s 

contentions otherwise (Mot. at 21-22, 24-25 & n.26.) The Complaint’s facts taken as true

establish, first, that Johnson made approximately $50,000 of contributions in the names of others 

to the Lee campaign (see, e.g., Compl. ¶¶ 27, 31-35, 44-49), which Swallow does not dispute. 

Second, the Complaint describes how Swallow helped or assisted Johnson by recruiting Johnson, 

instructing him on how to evade the law by using straw donors, and helping complete some of 

those contributions, as detailed above. See supra pp. xii-xiv (citing Compl. ¶¶ 21-22, 27-30, 33, 

49). Third and finally, the Complaint also establishes that Swallow, an experienced fundraiser,

acted knowingly and willfully. See id.

Even though it is blackletter law these facts must be viewed in a light most favorable to 

the FEC, see supra p. 1, Swallow asserts that the “Court is not required to give the Commission 

the benefit of the doubt,” and insists that the Court should entertain “innocent explanations” for 

his alleged statements and actions (Mot. at 25 n.26). That is wrong, as explained under the 

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3

relevant standard above. There is also no requirement that Swallow’s alleged statements must 

have been “illegal in themselves” to form part of the FEC’s plausible claim, as he contends (Mot. 

at 22, 25 n.26), given that “[t]he First Amendment . . . does not prohibit the evidentiary use of 

speech to establish the elements of a crime or to prove motive or intent,” Wisconsin v. Mitchell, 

508 U.S. 476, 489 (1993).

Swallow also challenges the Complaint’s allegation that he “solicited Johnson to 

reimburse contributions to the Lee campaign” as “conclusory” (see Mot. at 24-25 & n.26; 

Compl. ¶ 27), but that allegation is clearly one of fact, not law, and in any event is supported by 

plenty of contextual detail that Swallow ignores (see, e.g., Compl. ¶¶ 27-30). Swallow even goes 

so far as to demand that the FEC show “direct proof” of Swallow’s liability (Mot. at 21), but he 

has moved under Rule 12(c) not 56, and so the FEC need only have “placed [Swallow] on notice 

of his . . . alleged misconduct,” Kan. Penn Gambling, LLC v. Collins, 656 F.3d 1210, 1215 (10th 

Cir. 2011) (citation omitted), which the Complaint has done.

III. THE REGULATION IS CONSTITUTIONAL 

A. Intermediate Scrutiny Applies to the Regulation Not Strict Scrutiny

For the more than four decades since Buckley v. Valeo, the Supreme Court has drawn a 

fundamental distinction between the types of campaign finance restrictions that are evaluated 

with strict scrutiny and those that are evaluated with less rigorous forms of intermediate scrutiny. 

On the one hand, “limits on campaign expenditures” — caps on the amount a person can 

independently spend on electoral speech — “are subject to strict scrutiny.” Republican Nat'l 

Comm. v. FEC, 698 F. Supp. 2d 150, 156 (D.D.C.), aff’d, 561 U.S. 1040 (2010). 

On the other hand, “limits on contributions to candidates and political parties are subject 

to ‘less rigorous scrutiny’ and are valid if they are ‘closely drawn’ to meet a ‘sufficiently 

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important’ governmental interest.” Id. (internal quotation marks omitted); see also McCutcheon 

v. FEC, 134 S. Ct. 1434, 1445 (2014) (declining to “revisit Buckley’s distinction between 

contributions and expenditures and the corollary distinction in the applicable standards of 

review”). Similarly, the Supreme Court has applied closely drawn scrutiny to FECA provisions 

preventing the circumvention of contribution limits, see, e.g., McConnell v. FEC, 540 U.S. 93, 

133-42 (2003), overruled in part on other grounds, Citizens United v. FEC, 558 U.S. 310, 365 

(2010); FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 440 (2001) (“Colorado 

II”), and the similarly less rigorous “exacting scrutiny” to provisions requiring disclosure, see, 

e.g., Citizens United, 558 U.S. at 366-67 (requiring only a “substantial relation” between a

disclosure requirement and a “sufficiently important” governmental interest); Buckley, 424 U.S. 

at 64 (same); Indep. Inst. v. Williams, 812 F.3d 787, 792 (10th Cir. 2016) (same). 

The Court has applied these differing levels of scrutiny because while expenditure limits 

“impose direct and substantial restraints” on the quantity of speech, contribution limits only 

“marginal[ly]” restrict speech, Buckley, 424 U.S. at 20, 39, and disclosure requirements “do not 

prevent anyone from speaking,” Citizens United, 558 U.S. at 366. The Supreme Court has 

therefore never applied strict scrutiny to any FECA provision other than an expenditure limit. 

FECA’s ban on making contributions in the name of another and its implementing 

regulation are not expenditure limits, and Swallow does not claim otherwise. Instead, they 

prohibit using straw donors from evading disclosure and circumventing FECA’s limits on the 

amounts and sources of contributions. See United States v. Whittemore, 776 F.3d 1074, 1079 

(9th Cir.) (stating that section 30122 furthers “the complete and accurate disclosure of the 

contributors who finance federal elections” (internal quotation marks omitted)), cert. denied, 136 

S.Ct. 89 (2015); O’Donnell, 608 F.3d at 549 (explaining that section 30122 outlaws “attempts by 

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an individual (or campaign) to thwart disclosure requirements and contribution limits”); Mariani 

v. United States, 212 F.3d 761, 775 (3d Cir. 2000) (calling section 30122 a “disclosure 

requirement”). By implementing section 30122, 11 C.F.R. § 110.4(b)(1)(iii) also operates to 

enable disclosure and prevent circumvention of contribution limitations. 

As a result, no court has ever applied strict scrutiny to section 30122 or section 110.4(b), 

and Swallow identifies no such case. Instead, courts have applied intermediate scrutiny to 

section 30122. See Whittemore, 776 F.3d at 1081 (explaining that the argument that section 

30122 violates the First Amendment “is foreclosed by the Supreme Court’s holding in Buckley

. . . that contributions, as distinct from independent expenditures, may be limited”); Mariani, 212 

F.3d at 775 (upholding section 30122 based on Buckley’s disclosure analysis, which applied 

exacting scrutiny). 

The same intermediate scrutiny therefore should apply to 11 C.F.R. § 110.4(b), and 

Swallow implicitly recognizes as much. He does not dispute that less rigorous scrutiny applies 

to FECA contribution limits (Mot. at 20 n.21), and he concedes that section 110.4(b)(1)(iii) 

enforces FECA’s contribution limits (Mot. at 26-27). Yet Swallow does not even attempt to 

show that section 110.4(b)(1)(iii) would fail the applicable intermediate scrutiny standard. 

Instead, he implicitly recognizes that intermediate scrutiny would doom his claim by throwing a 

proverbial Hail Mary for strict scrutiny. (See, e.g., Mot. at 20 n.21.)

It would upend decades of Supreme Court precedent to apply strict scrutiny to a FECA 

provision that is undisputedly not an expenditure limit. And yet Swallow urges the Court to do 

just that almost solely on the basis of an inapposite case involving not FECA but the election of 

state judges. (Mot. at 19 (citing Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1662 (2015).) In 

Williams-Yulee, the Court upheld a state ban on judicial candidates soliciting otherwise legal

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campaign contributions. Id. at 1662-63. In choosing to apply strict scrutiny, the Court said that 

its FECA campaign finance case law did not control the level of scrutiny in that case, because the 

solicitation restriction at issue there burdened only speech. Id. at 1665. In contrast, the Court 

explained, the intermediate scrutiny applicable in the FECA context applies to contribution limits 

(which primarily burden association) and “solicitation restrictions [that] operate [] primarily to 

prevent circumvention of the contribution limits.” Id. (citing McConnell, 540 U.S. at 138-39). 

Given that 11 C.F.R. § 110.4(b)(1)(iii) is an anti-circumvention measure, cf. O’Donnell, 608 

F.3d at 549, as Swallow concedes (Mot. 25), Williams-Yulee offers him no help. 

Furthermore, Swallow’s alleged illegal activity in this case is far different from the 

burdened speech at issue in Williams-Yulee. The law there prevented the plaintiff from soliciting 

legal campaign contributions and from “discuss[ing] candidates and public issues — namely, 

herself and her qualifications to be a judge.” Williams-Yulee, 135 S. Ct. at 1665. Here, the 

FEC’s complaint alleges that Swallow solicited Johnson to make illegal conduit-contributions, 

instructed him on how to do so, and then participated in executing the illegal contributions. See 

supra pp. xii-xiv. As Swallow recognizes, such “‘[o]ffers to engage in illegal transactions are 

categorically excluded from First Amendment protection.’” (Mot. at 20 (quoting United States v. 

Williams, 553 U.S. 285, 297 (2008).) Swallow’s arguments for strict scrutiny thus ignore that 

the Complaint alleges that he violated section 110.4(b)(1)(iii) by doing more than merely having 

purportedly innocent discussions with Johnson. (See, e.g., Compl. ¶¶ 21, 33.) In addition, the 

Court should reject Swallow’s implication that strict scrutiny should apply to any regulated 

activity not categorically excluded from First Amendment protection. (See id. at 20-21.) As 

explained above, intermediate scrutiny applies to contribution limits and disclosure requirements 

— even though those laws burden some First Amendment interests. See supra pp. 3-4. 

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B. The Regulation Is Substantially Related and Closely Drawn to the 

Government’s Important Pro-Disclosure and Anti-Circumvention Interests

The regulation at section 110.4(b)(1)(iii) is appropriately tailored to the same important 

governmental interests that courts have held are served by the statute it implements. 

First, the government’s interest in the public disclosure of the sources and amounts of 

campaign contributions is “important” because that information (1) allows voters to make 

informed decisions at the ballot box; (2) deters corruption and its appearance by publicizing large 

contributions; and (3) allows the FEC and the Department of Justice to detect violations of 

FECA’s limits on the sources and amounts of contributions. Buckley, 424 U.S. at 66-69; see 

Citizens United, 558 U.S. at 366-67; Indep. Inst., 812 F.3d at 792; SpeechNow.org v. FEC, 599 

F.3d 686, 698 (D.C. Cir. 2010). 

Second, the government’s interest in preventing donors from circumventing FECA’s 

source and amount limits on contributions is also important. That is because the “government’s 

interest in preventing corruption can also encompass regulations that prevent circumvention of 

laws that prevent corruption (such as contribution limits).” Catholic Leadership Coal. of Tex. v. 

Reisman, 764 F.3d 409, 445 (5th Cir. 2014); see also, e.g., Colorado II, 533 U.S. at 456 (“[A]ll 

Members of the Court agree that circumvention is a valid theory of corruption.”). 

FECA’s ban on making contributions in the name of another furthers both of these 

interests. Section 30122 bars a prohibited contributor (such as a foreign national) from 

concealing an illicit contribution by laundering it through a straw donor. The statute also 

prevents even legal contributors from using conduits to hide that they contributed an excessive 

amount of money to a campaign or committee. As a result, courts have repeatedly found that 

section 30122 serves both of these important interests and some of those courts have denied First 

Amendment challenges on that basis. See Whittemore, 776 F.3d at 1079 (denying First 

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Amendment challenge to section 30122 and explaining that it “ensur[es] the complete and 

accurate disclosure of the contributors who finance federal elections”); O’Donnell, 608 F.3d at 

554 (noting that “‘[d]ummy contributors’ were used both to avoid disclosure as well as to evade 

contribution limits”); Goland v. United States, 903 F.2d 1247, 1251 (9th Cir. 1990) (“The Act 

prohibits the use of ‘conduits’ to circumvent restrictions.”); Mariani, 212 F.3d at 775 (upholding 

section 30122 and observing that the “[p]roscription of conduit contributions (with the 

concomitant requirement that the true source of contributions be disclosed) would seem to be at 

the very core of the [Buckley] Court’s analysis.”); United States v. Curran, No. 92-558, 1993 WL 

137459, at *1 (E.D. Pa. April 28, 1993) (“FECA forbids the use of ‘conduits’ to circumvent 

these restrictions by prohibiting campaign contributions in the name of another person.”). 

Like the statutory provision it implements, section 110.4(b)(1)(iii) is substantially related 

and closely drawn to the disclosure and anti-circumvention interests. The regulation promotes 

these interests by specifying that section 30122 also prohibits any person from knowingly 

helping or assisting a conduit contribution by initiating, instigating, or significantly participating 

in the scheme. See E&J, 54 Fed. Reg. at 34,104-05. If section 30122 did not bar knowingly 

helping or assisting a conduit-contribution scheme, the government’s important interests would 

suffer, as this case illustrates. Johnson’s conduit scheme would likely have never occurred, at 

least in part, if Swallow had not recruited Johnson to make those contributions, given Johnson a 

motive to do so, and helped Johnson complete the contributions. See supra pp. xii-xiv. As a 

result of the conduit scheme that Swallow enabled, the disclosure interests suffered: voters in the 

2010 federal election did not know that Johnson had contributed approximately $50,000 to 

Friends of Mike Lee; Johnson was able to make a large, concealed contribution in hopes of

evading prosecution for his illicit poker-processing businesses; and Johnson’s hidden excessive 

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contributions went undetected for years. The anti-circumvention and anti-corruption interests 

also suffered: Swallow’s help and assistance to Johnson resulted in a campaign contribution that 

exceeded FECA’s $2,400 limit by approximately $47,600. 

The scope of 11 C.F.R. § 110.4(b)(1)(iii) is proportional to its goals. First, the 

regulation’s restriction on knowing help or assistance does not apply unless a contribution in the 

name of another has actually occurred. Id. The restriction therefore applies only in cases where 

the government’s disclosure and anti-circumvention interests have actually suffered harm. And 

it does not restrict any person from helping or assisting lawful contributions or from engaging in 

any other lawful political activities. 

Second, the regulation extends only to individuals who “knowingly” help or assist 

making contributions in the name of another. 11 C.F.R. § 110.4(b)(1)(iii). Thus, a person must 

be more than incidentally or innocently engaged in a conduit-contribution scheme to be liable. 

Third, the Commission’s interpretive guidance further defines the scope of the regulation 

as applying “to those who initiate or instigate or have some significant participation in a plan or 

scheme to make a contribution in the name of another, including those who solicit or act as gobetweens to third parties whose donations are reimbursed.” 54 Fed. Reg. at 34,105. 

Accordingly, the regulation typically applies to behavior that is a but-for cause of a conduitcontribution scheme.

Swallow ignores these limitations on the scope of section 110.4(b)(1)(iii) when he claims 

that the regulation chills “innocent activity,” including merely “advising others about which 

candidate will best represent their interests” and “notifying fundraisers” about failed 

contributions. (Mot. at 25-26.) Section 110.4(b)(1)(iii) has been in effect for nearly 30 years, 

however, and so the notion that it has been deterring legitimate fundraising during that time 

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strains credulity. See FEC Press Release, Statistical Summary of 24-Month Campaign Activity of 

the 2015-2016 Election Cycle (Mar. 23, 2017) (indicating that candidates, parties, and political 

committees raised and spent $8.7 billion during the 2015-16 election cycle).

20

Swallow does not even contend that section 110.4(b)(1)(iii) fails intermediate scrutiny’s 

“substantial relation” or “closely drawn” tailoring requirements. Instead, Swallow incorrectly 

demands that the regulation meet strict scrutiny’s narrow tailoring requirement and further an 

interest more directly associated with corruption than courts have ever required in civil FECA 

cases. Swallow asserts that to sustain the regulation, the FEC must show that applying it to 

Swallow would have “prevent[ed] the direct exchange of an official act by Senator Lee for 

money from Mr. Swallow.” (Mot. at 24.) This is incorrect. FECA’s prophylactic rules, like 

contribution limits and disclosure requirements, are not valid only when they would have 

stopped an actual quid pro quo. Like speed limits, these laws are preventive measures and are 

designed to remove “the danger of actual quid pro quo arrangements” and the “appearance” of 

corruption. Buckley, 424 U.S. at 27 (emphases added). Buckley upheld the facial validity of 

contribution limits even though it acknowledged that “most large contributors do not seek 

improper influence,” given that it is “difficult to isolate suspect contributions” and there is 

“opportunity for abuse” in the fundraising process. Buckley, 424 U.S. at 29-30; Citizens United, 

558 U.S. at 357 (“[R]estrictions on direct contributions are preventative, because few if any 

contributions to candidates will involve quid pro quo arrangements.”). Under intermediate 

scrutiny, disclosure and anti-circumvention measures, like contribution limits, are valid methods 

of preventing the danger of quid pro quo corruption and its appearance, see Colorado II, 533 

 20 https://www.fec.gov/updates/statistical-summary-24-month-campaign-activity-2015-

2016-election-cycle/.

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U.S. at 431; Buckley, 424 U.S. at 67, and the regulation here performs both functions.21 

While the FEC need not prove an actual quid pro quo occurred or would have occurred in 

this case to sustain its regulation, it is worth underscoring how far Swallow’s alleged actions 

actually went in attempting to facilitate such an arrangement. Swallow had great power as the 

deputy attorney general of the state and a fundraiser for a Senate candidate. He needed money 

for his candidate. And so he lured Johnson, a businessman with deep pockets, to make an 

illegally large contribution to his candidate with implied promises that this money would buy 

Johnson’s imperiled businesses legal protection from a future officeholder. All of these actions 

are assumed true for purposes of this motion. The alleged behavior implicates the very core of 

FECA’s reason for being. See Buckley, 424 U.S. at 26-27 (“To the extent that large contributions 

are given to secure a political quid pro quo from current and potential office holders, the integrity 

of our system of representative democracy is undermined.”). Only section 110.4(b)(1)(iii)’s

interpretation of the statute outlaws such facilitation of concealed schemes.

C. The Regulation Is Not Unconstitutionally Vague 

Section 110.4(b)(1)(iii)’s use of the plain and common words “help” and “assist” does

not render the regulation unconstitutionally vague, as Swallow claims. (Mot. at 26.) Swallow

bears the heavy burden of showing that section 110.4(b)(1)(iii) “fails to provide a person of 

ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or 

encourages seriously discriminatory enforcement.” Williams, 553 U.S. at 304. He must also 

 21 Relatedly, Swallow has not met the burden of establishing a facial challenge by showing 

that the “application [of the challenged rules] to protected speech is substantial, ‘not only in an 

absolute sense, but also relative to the scope of the ... [regulations’] plainly legitimate 

applications.’” McConnell, 540 U.S. at 207 (internal citation omitted). Thus, even if the Court 

were to conclude the regulation is unconstitutional as applied to Swallow, it should not strike the 

regulation.

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show that, “the potential chilling effect on protected expression” is both “real and substantial.” 

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 478-80 (7th Cir. 2012) (internal 

quotation marks omitted). He has done neither.

First, the terms “help” and “assist” are commonly used and have a plain and clear 

meaning that do not leave ordinary citizens guessing as to what constitutes unlawful conduct. 

Other courts have denied claims that the word “assist” is unconstitutionally vague, including in 

the election context. See Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183, 

1222 (D.N.M. 2010) (upholding regulation of individuals who “assist” persons in completing 

voter-registration forms because “[t]o ‘assist’ a voter is a concept of plain import”); United 

States v. Reed, 375 F.3d 340, 344 (5th Cir. 2004) (rejecting vagueness challenge to statute 

containing the word “assist,” because that verb has a “clear and uncontroverted” meaning, which 

is “to provide supplemental help or support to another in carrying out some task of mutual 

involvement”); see also United States v. Murphy, 35 F.3d 143, 145 (4th Cir. 1994) (holding that

“assist,” which means “giv[ing] support or aid,” is not ambiguous). The word “help” is similarly 

clear.22 

Second, the regulation applies only to those who “knowingly” help or assist concealed 

conduit contributions, and thus does not extend to innocent behavior. A “scienter requirement 

may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the 

complainant that his conduct is proscribed.” Vill. of Hoffman Estates v. Flipside, Hoffman 

Estates, Inc., 455 U.S. 489, 498-99 (1982); Bushco v. Shurtleff, 729 F.3d 1294, 1302-03 (10th 

Cir. 2013) (upholding a sexual solicitation ban as not vague because of its intent requirement).

 22 See, e.g., Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/help (defining the verb “help” as “to give assistance or support to”).

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Third, the FEC’s interpretive guidance for section 110.4(b)(1)(iii) adds further clarity by 

specifying that the regulation “applies to those who initiate or instigate or have some significant 

participation in a plan or scheme to make a contribution in the name of another.” 54 Fed. Reg. at 

34,105; cf. Nat’l Oilseed Processors Ass’n v. OSHA, 769 F.3d 1173, 1183 (D.C. Cir. 2014) 

(denying vagueness challenge in part because “OSHA has provided additional guidance on how 

the [regulation] will be enforced”).

Fourth, Swallow could have (but did not) obtain an advisory opinion from the FEC to 

clarify any alleged uncertainty he had about the scope of section 110.4(b)(1)(iii). See 52 U.S.C. 

§ 30108; cf. U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 738 (D.C. Cir. 2016) (“[T]he advisoryopinion procedure accompanying the General Conduct Rule cures it of any potential lingering 

constitutional [vagueness] deficiency.”). 

Finally, the regulation here “has survived without constitutional challenge for almost 

three decades. Although that fact does not insulate the definition from constitutional scrutiny, it 

does undermine [Swallow’s] claim that the language of [section 110.4(b)(1)(iii)] is intolerably 

vague.” McConnell, 540 U.S. at 222-23.

Unable to demonstrate that the regulation is unconstitutionally vague as applied to his 

actions, Swallow imagines hypothetical applications of the regulation involving a bank teller and 

innocent conversations about the law.23 (Mot. at 27 & n.27.) These hypotheticals entirely ignore

the regulation’s scienter requirement and the requirement that a contribution in the name of 

another have actually occurred. In any event, this Court need not “invalidate the challenged law 

 23 Particularly imaginative is Swallow’s suggestion that he was giving Johnson legal advice

(Mot. at 27 n.27), given that Swallow was a fundraiser for the Lee campaign, and his instructions 

to Johnson to violate federal law were made in the context of this alleged fundraising activity 

(Compl. ¶ 12). 

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merely because [Swallow] can speculate different ways to interpret the term assist.” Herrera, 

690 F. Supp. 2d at 1222-23 (“[A] court need not indulge in speculation on the theoretical 

ambiguities latent in words when their plain meaning will suffice to apprise those bound by them 

of the duties they create.”); see also Hill v. Colorado, 530 U.S. 703, 732 (2000) (same).

IV. THE REGULATION IS VALID UNDER CHEVRON’S HIGHLY DEFERENTIAL 

STANDARD OF REVIEW

The helping or assisting regulation is a permissible interpretation of 52 U.S.C. § 30122 

under the familiar two-step test of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842 (1984). 

Under that test, if Congress “has directly spoken to the precise question at issue,” a court must 

give effect to its unambiguously expressed intent. Id. If, however, “the statute is silent or 

ambiguous with respect to the specific issue,” the court must defer to the agency’s interpretation 

as long as it is “based on a permissible construction of the statute.” Id. at 842-43, 844. 

Chevron prescribes broad judicial deference to the agency’s reasonable construction of 

the statute, “even if the agency’s reading differs from what the court believes is the best statutory 

interpretation.” Padilla-Caldera v. Holder, 637 F.3d 1140, 1147 (10th Cir. 2011), as corrected

(Mar. 22, 2011) (internal quotation marks omitted). Thus, a reviewing court’s inquiry under 

Chevron must be “focused on discerning the boundaries of Congress’ delegation of authority to 

the agency,” and “as long as the agency stays within that delegation, it is free to make policy 

choices in interpreting the statute, and such interpretations are entitled to deference.” Arent v. 

Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995). 

A. The Statute Does Not Unambiguously Foreclose the FEC’s Interpretation

1. The Statute Is Broad Enough to Apply to Multiple Ways to “Make” a 

Contribution in the Name of Another

Section 30122 does not unambiguously foreclose the FEC’s interpretation in section 

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110.4(b)(1)(iii) that a person may “make” a contribution in the name of another by knowingly 

helping or assisting the execution of that contribution. At Chevron step one, “[i]f the statute is 

silent or ambiguous” on the issue, then the court “proceed[s] to step two and ask[s] whether the 

agency’s answer is based on a permissible construction of the statute.” United Keetoowah Band 

of Cherokee Indians of Okla. v. HUD, 567 F.3d 1235, 1239-40 (10th Cir. 2009) (internal 

quotation marks omitted). To undertake this inquiry, the Court may look to, among other things, 

“the statutory text, history, and purpose.” Id.

Here, the words of the statute state that “[n]o person shall make a contribution in the 

name of another person.” 52 U.S.C. § 30122 (emphasis added). While FECA includes a 

definition of “contribution,” id. § 30101(8), it does not define the word “make,” nor does it

“specify a number of covered ways to ‘make a contribution’” under section 30122, O’Donnell, 

608 F.3d at 552 (noting that the statute’s language is “broad rather than specific”); see United 

States v. Boender, 691 F. Supp. 2d 833, 838-39 (N.D. Ill. 2010) (“Boender I”) (explaining that 

the statute uses the “broad” verb “make”), aff’d, 649 F.3d 650 (7th Cir. 2011) (“Boender II”); 

United States v. Danielczyk, 788 F. Supp. 2d 472, 480-81 (E.D. Va. 2011) (finding that the 

statutory language is broad), rev’d in part on other grounds, 683 F.3d 611 (4th Cir. 2012); 

United States v. Suarez, No. 5:13 CR 420, 2014 WL 1898579, at *3 (N.D. Ohio May 8, 2014) 

(noting the broad scope of the statute). 

As a result, several courts have held that the plain meaning of the term “make” in section 

30122 captures multiple ways to accomplish a contribution in the name of another. For example, 

in Danielczyk, the court examined the language of 30122 and noted two different dictionary 

definitions of “make”: “[t]o cause to exist or happen; bring about; create,” and “[t]o cause 

(something) to exist.” 788 F. Supp. 2d at 481 (internal quotation marks omitted). On that basis, 

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the court concluded that the statute outlaws not only “false name” contributions (where a person 

contributes using someone else name), but also conduit-contribution schemes. Id. at 479. As 

the court explained, “[t]o cause to exist or happen; bring about; create . . . is broad enough to 

encompass a number of means, including ‘indirect’ or ‘conduit’ means.” Id. at 481; see also 

Boender I, 691 F. Supp. 2d at 838 (explaining that “make” in section 30122 “means to cause 

(something) to exist or come about; bring about . . . carry out, perform, or produce”) (internal 

quotation marks omitted) (alteration in original). Similarly, in Suarez, the court found that the 

common meaning of the phrase “make a contribution” in section 30122 encompasses more than 

one method of contributing in the name of another, including concealed conduit donations. 2014 

WL 1898579, at *3. For similar reasons, other courts have implicitly or explicitly found that 

section 30122 prohibits conduit schemes in addition to false-name contributions. See, e.g., 

O’Donnell, 608 F.3d 552-53; Boender II, 649 F.3d at 660. 

Given the broad definition of “make,” section 30122 does not unambiguously foreclose 

that someone can make a contribution in the name of another by initiating, instigating, or 

significantly participating in a conduit-contribution scheme, even where that person was not the 

source of the contributed funds. “In many areas of law and life, a person can ‘make’ something 

happen though various forms of action.” Boender I, 691 F. Supp. 2d at 838. For example, “a 

head of state ‘makes war’ through soldiers.” Id. at 839. “In common usage, one who causes 

something to happen or brings it about . . . ‘made’ it happen just the same as the person who 

executed the action.” Danielczyk, 788 F. Supp. 2d at 480 (finding that the term “make” in 

section 30122 permits the Court to consider [a defendant’s] alleged role within the totality of the 

transaction”). Similarly, conduit-contribution schemes are often complex and achieved with 

multiple “soldiers” who are essential to the making of the contribution even though not the

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source of the funds. See supra pp. viii-x.

Swallow’s motion does not address the word “make” in section 30122 or the case law 

interpreting that term broadly. Swallow points out that FECA’s definition of “contribution” 

contemplates someone giving a “gift . . . of money” (Mot. at 9), but this definition does not 

preclude the undefined term “make” from including not only the source of that money but also a 

person like Swallow whose involvement was critical to accomplishing a conduit scheme. 

2. The FEC’s Reasonable Implementation of Section 30122’s Broad 

Language Is Distinguishable from Past Efforts to Obtain Private 

Rights of Action Under Narrower Statutes

Because he does not address the courts’ broad interpretation of the word “make” in 

section 30122, Swallow’s step one argument proceeds on the incorrect assumption that the 

statute clearly excludes section 110.4(b)(1)(iii)’s interpretation. He then compounds his error by 

relying upon a distinguishable line of cases involving aiding and abetting liability in the

completely different context of seeking to obtain a private right of action under less ambiguous 

statutes. (See Mot. at 3-8.)

The case upon which Swallow principally relies is inapplicable here. (See Mot. at 3 

(citing Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 182

(1994).) First, in Central Bank, the Court determined that the particular language of the statute 

at issue there, section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), did not 

reach persons who aided and abetted section 10(b) violations. Id. at 175-76. In contrast, the 

language of 30122 is broad and ambiguous enough to permit the helping and assisting liability 

provided for in the FEC’s regulation. See supra pp. 15-17.

Second, the issue in Central Bank concerned only whether there was an implied private

right of action for aiding and abetting liability under section 10(b). 511 U.S. at 170-71, 191. 

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Central Bank concluded that there was no liability available and made clear that its holding was 

restricted to private litigants: “Congress has not enacted a general civil aiding and abetting 

statute” and so “when Congress enacts a statute under which a person may sue and recover . . . 

there is no general presumption that the plaintiff may also sue aiders and abettors.” Id. at 182

(emphasis added). In so holding, the Supreme Court was particularly concerned that allowing a 

private right of action for aiding and abetting liability would remove the requirement that a 

private plaintiff in a securities lawsuit must show reliance on a defendant’s misstatements or 

omissions. Id. at 180. 

Central Bank’s concerns are therefore inapplicable in a case, such as this, involving an 

agency’s enforcement of its implementing regulation using an express cause of action. Indeed, 

Central Bank itself recognized that Congress has “taken a statute-by-statute approach” to 

whether secondary liability exists, and that the inquiry ultimately is guided by “whether aiding 

and abetting is covered by the statute” in question. 511 U.S. at 177, 182. On this basis, many

courts have distinguished Central Bank and declined to apply it outside of the context of cases 

involving implied private rights of action. See United States v. O’Hagan, 521 U.S. 642, 664 

(1997) (noting that “Central Bank’s discussion concerned only private civil litigation under

§ 10(b) and Rule 10b-5”); Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 55-56 (D.D.C. 

2010) (concluding that implied aiding and abetting liability is available under the Anti-Terrorism 

Act, which provides for an express cause of action); Linde v. Arab Bank, PLC, 384 F. Supp. 2d 

571 (E.D.N.Y. 2005) (same); SEC v. Buntrock, No. 02 C 2180, 2004 WL 1179423, at *8 (N.D. 

Ill. May 25, 2004) (holding that Central Bank “does not, by analogy, extend to the SEC’s 

authority to bring aiding and abetting claims” under other statutes), aff’d sub nom. SEC v. 

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Koenig, 557 F.3d 736 (7th Cir. 2009).24

As even Swallow acknowledges, Central Bank did not foreclose aiding and abetting 

liability from all civil statutes, and instead held that “the text of the statute controls” the 

availability of such claims. (Mot. at 4 (citing Central Bank, 511 U.S. at 173).) In contrast to the 

restrictive language at issue in Central Bank, the language of section 30122 extends to any 

person who “make[s]” a contribution in the name of another, and courts have interpreted that 

term quite broadly. 

Because the language of 30122 is ambiguous and does not foreclose that a person may 

make a conduit contribution by knowingly helping and assisting that contribution, 11 C.F.R. 

§ 110.4(b)(1)(iii) passes Chevron step one. 

B. The Commission’s Interpretation Is Reasonable and Warrants Judicial 

Deference 

Under Chevron step two, the Court must defer to the FEC’s regulation if its interpretation 

of the statute is reasonable. Padilla-Caldera, 637 F.3d at 1147. In fact, the Court “may not 

substitute its own construction of a statutory provision for a reasonable interpretation made by 

the [Commission],” even if the Commission’s “reading differs from what the court believes is 

the best statutory interpretation.’” Id. at 1147; Chevron, 467 U.S. at 844. As one court in this 

Circuit has noted, if the agency survives step one, its action is “upheld almost without exception” 

given the level of deference due in this step. Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest 

Serv., 305 F.R.D. 256, 285 (D.N.M. 2015), adhered to on reconsideration, No. CIV. 12-0069,

2015 WL 5138286 (D.N.M. Aug. 26, 2015).

 24 It is also noteworthy that Chevron was decided almost a decade before Central Bank. It 

strains logic to conclude that the Court in Central Bank intended to silently supersede the 

applicability of the well-established Chevron framework in certain cases where it would 

otherwise analyze whether it should defer to a government agency. 

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Under this deferential standard, the FEC’s regulation was a proper exercise of its broad 

statutory gap-filling authority. 52 U.S.C. § 30107(a)(8) (authorizing the FEC to “make, amend, 

and repeal such rules . . . as are necessary to carry out [FECA]”). Moreover, the Supreme Court 

has held that the FEC “is precisely the type of agency to which deference should presumptively 

be afforded.” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981).

Applying Chevron step two, one court has already concluded that “the FEC regulation 

that interprets Section [30122] is reasonable.” See Boender I, 691 F. Supp. 2d at 839-40

(concluding that 11 C.F.R. § 110.4(b)(1)(i) “is entitled to Chevron-type deference”). 

Specifically, the Boender court concluded that the FEC’s interpretation in section 110.4(b)(1)(i),

that a conduit-contribution was a valid way to “make a contribution,” was reasonable and 

entitled to deference. Id. at 839-41. Like section 110.4(b)(1)(i), section 110.4(b)(1)(iii) also 

specifies a reasonable method of making a contribution in the name of another.

The background of section 110.4(b)(1)(iii)’s promulgation also supports the 

reasonableness of FEC’s interpretation. The Commission promulgated the regulation after a 

district court concluded that a defendant who “knowingly assisted” the making of a contribution 

in the name of another violated section 30122. (See Exh. A (Final Order and Default Judgment, 

FEC v. Rodriguez, Case No. 86-687-Civ-T-10 (M.D. Fla. Oct. 28, 1988).) Subsequently, in 

1989, the FEC adopted the Rodriguez court’s interpretation of section 30122 and its language by 

promulgating section 110.4(b)(1)(iii). See E&J, 54 Fed. Reg. 34,104-05. Since then, the 

Commission has consistently enforced the provision for the last 28 years, see supra pp. viii-x, 

and until now, the regulation’s validity has never before been challenged in court. 

Not only that, but during those 28 years, Congress has had at least three opportunities to 

alter or undo section 110.4(b)(i)(iii)’s interpretation of the statute and has declined to do so each 

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time, strongly suggesting that the FEC’s interpretation is not just reasonable but the one 

Congress intends. 

First, before its promulgation, the FEC transmitted the regulation to Congress, as required 

under 52 U.S.C. § 30111 (then codified at 2 U.S.C. § 438(c)), and Congress did not disapprove

it. See FEC v. Ted Haley Cong. Comm., 852 F.2d 1111, 1114 (9th Cir. 1988) (failure to 

disapprove “strongly implies that the regulations accurately reflect congressional intent”) 

(citation and internal quotations omitted); see also Democratic Senatorial Campaign Comm., 

454 U.S. at 34 & n.8 (observing Congress’ failure to disapprove FEC regulation and suggesting 

it was “indication that Congress does not look unfavorably” on it). 

Second, years later, Congress did not alter or undo section 110.4(b)(1)(iii) despite 

significantly amending FECA — including its penalties for section 30122 violations. See, e.g., 

CFTC v. Schor, 478 U.S. 833, 846 (1986) (“[W]hen Congress revisits a statute giving rise to a 

longstanding administrative interpretation without pertinent change, the congressional failure to 

revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the 

one intended by Congress.”) (citation omitted). In the late 1990s, Congress investigated alleged 

conduit contribution schemes that took place during the 1995-1996 election cycle. See, e.g., 

Investigation of Political Fundraising Improprieties and Possible Violations of Law Interim 

Report, H.R. Rep. No. 105-829 (1998) (“The Committee has tracked hundreds of thousands of 

dollars in conduit contributions and learned that many illegal conduit funds have yet to be 

returned by the DNC and other Democratic entities.”). Thereafter, in 2002, in response to abuses 

in the 1996 election, Congress amended FECA and, among other things, enhanced the Act’s

penalties for making contributions in the names of others. BCRA, Pub. L. No. 107-155, 116 

Stat. 81 (2002). At that time, Congress is deemed to have been aware of the Rodriguez ruling 

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and section 110.4(b)(1)(iii). See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988) 

(Congress is presumed “knowledgeable about existing law pertinent to the legislation it enacts.”). 

And yet Congress chose not to also narrow section 30122’s scope to exclude those who 

knowingly help or assist conduit schemes. See FMC Wyo. Corp. v. Hodel, 816 F.2d 496, 501 

(10th Cir. 1987) (“Congress’ failure to alter this interpretation while amending the statute in 

other respects indicates that legislative intent has been correctly discerned.”).

Finally, the FEC’s interpretation of section 30122 is consistent with how the agency has 

long interpreted other similarly broad FECA provisions to effectuate their key purposes. For 

example, the FEC has interpreted its ban on the knowing acceptance of contributions from 

foreign nationals to also prohibit knowingly providing substantial assistance to such 

contributions. See 11 C.F.R. § 110.20(h). The FEC’s interpretive guidance for section 110.20(h) 

explains that while the statute “does not explicitly address those who assist others to violate its 

prohibition,” the regulation’s prohibition includes such activities, including serving as a conduit 

or intermediary, in light of the Congressional intent to strengthen the foreign money ban. See 

Contribution Limitations and Prohibitions, 67 Fed. Reg. 69,928, 69,940, 69,945-46 (Nov. 19, 

2002); cf. 11 C.F.R. § 9008.12(b)(7) (authorizing agency action against a convention committee 

that “knowingly helps, assists or participates” in certain other violations). 

Swallow’s Chevron step two arguments are flawed because they simply conclude that the 

regulation fails “for the same reason that it is unauthorized under Chevron Step One: the statute 

is clear.” (Mot. at 9.) But of course Chevron step two applies only where the statute is not clear 

or silent on an issue, and so the real question here is whether the agency’s interpretation of the 

statute’s unclear or silent language is reasonable. On that point, all Swallow offers is his 

incorrect assertion that “only the source of the funds can make a contribution under” section 

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30122. (Id.) Swallow’s certainty on this point misconstrues O’Donnell, which held that in a 

conduit-contribution scheme, the source of the funds has made a contribution — not that only the 

source has made a contribution. See 608 F.3d at 550. And Swallow’s certainty also flies in the 

face of the several rulings (which he never mentions) construing the undefined term “make” 

broadly to encompass multiple types of contributions in the name of another. See supra pp. 15-

17.

Section 110.4(b)(1)(iii) is a reasonable interpretation of section 30122’s unclear 

language. 

V. THE REGULATION IS NOT ARBITRARY AND CAPRICIOUS

A. The Regulation Satisfies the “Reasoned Decisionmaking” Requirement of 

State Farm

Swallow has failed to satisfy his “heavy burden” of showing that the FEC’s promulgation 

of section 110.4(a)(1)(iii) was not a product of reasoned decisionmaking and is thus arbitrary and 

capricious. Van Hollen, Jr. v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016). 

The arbitrary and capricious standard entails a ‘very deferential scope of review’ that 

forbids a court from “substitut[ing] its judgment for that of the agency.” Id. (quoting

Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000)); see Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The 

agency’s decision is presumed valid. Kobach v. Election Assistance Comm’n, 772 F.3d 1183, 

1197 (10th Cir. 2014), cert. denied, 135 S. Ct. 2891 (2015). An agency’s explanation of its 

action need not “be a model of analytical precision.” Van Hollen, 811 F.3d at 496 (internal 

quotation marks omitted). “It is enough that a reviewing court can reasonably discern the 

agency’s analytical path.” Id. at 497. That “low hurdle” is cleared where the agency 

“examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including 

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a rational connection between the facts found and the choice made.” Id. (quoting State Farm, 

463 U.S. at 43) (alterations in original). 

The FEC’s rulemaking clears this low hurdle for a few reasons. First, the FEC’s 

Explanation and Justification was published in the Federal Register along with the final rule, see 

supra p. viii, and provides reasoning showing its readily discernable analytical path. That

reasoning is fairly intuitive: the agency adopted a judicially approved interpretation of 52 U.S.C. 

§ 30122 to apprise the regulated community of the statute’s reasonable scope. Cf. Van Hollen, 

811 F.3d at 497-98 (explaining that the FEC’s “fairly intuitive” rationale was enough to pass the 

very deferential review under State Farm). 

Second, for the same reason, the FEC’s Explanation and Justification for the regulation

demonstrates a common sense approach to fulfilling the agency’s mandate of enforcing section 

30122. See Van Hollen, 811 F.3d at 497-98 (noting that it is enough under State Farm when an 

agency’s reasoning is “at the very least, speculation based firmly in common sense and economic 

reality”); see also San Louis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 44 (D.C. Cir. 1986) 

(“[T]he Commission is not required to hold a hearing to prove what common sense shows.”).

Third, it is evident from the Explanation and Justification that the FEC “examined” the 

relevant data — namely, the Rodriguez ruling. In fact, the FEC discussed the ruling and 

proposed regulation at three separate hearings. See infra p. 28. 

Fourth, the Explanation and Justification explains how the regulation would apply, 

demonstrating the agency’s consideration of the important aspects of the rulemaking. And even 

if the FEC’s explanation was not one of ideal clarity, “ideal clarity is not the standard.” Van 

Hollen, 811 F.3d at 497.

Swallow disregards these factors and the deferential standard of review. Instead, he asks 

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the Court to invalidate a presumptively valid agency action, at least in part, because he was 

unable to obtain a public record: the cited judicial decision in the Rodriguez case.25 Moreover, 

Swallow does not cite any authority precluding the FEC from adopting a judicially approved 

interpretation of a statute. Instead, he attempts to discredit the ruling for being “a lone decision 

in a district court in Florida.” (Mot. at 12.) Nor has Swallow shown that the FEC explanation is 

contrary to any evidence that was before it. Van Hollen, 811 F.3d at 497-98. Lastly, Swallow 

also attempts to cast his procedural challenge to the regulation’s validity as a substantive attack. 

(Mot. at 12-13.) But as explained infra, Swallow’s procedural challenge is time-barred. 

In sum, the Explanation and Justification adequately supports the Commission’s adoption 

of 11 C.F.R. § 110.4(b)(1)(iii).

B. Swallow’s Procedural Challenge Should Be Rejected

The Court should reject Swallow’s untimely and meritless claim that the regulation is 

arbitrary and capricious because it was allegedly promulgated without the notice procedures 

required by the APA. (Mot. at 13-16.) 

1. The Applicable Statute of Limitations Has Expired

Procedural challenges to an agency’s adoption of a regulation under the APA are subject 

to the general six-year limitations period provided in 28 U.S.C. § 2401(a). Impact Energy Res., 

LLC v. Salazar, 693 F.3d 1239, 1245-46 (10th Cir. 2012), cert. denied, 134 S.Ct. 67 (2013). The 

 25 Swallow makes a mountain out of the molehill of the Rodriguez opinion’s alleged 

unavailability. (See Mot. at 12 & 12 n.14.) That opinion, like all judicial decisions, is a public 

record, which Swallow could have obtained by following the instructions provided on the 

website for the District Court for the Middle District of Florida: https://www.flmd.uscourts.gov/

FAQs/documents.htm (“FAQ: How do I obtain copies of documents from old cases?”).

It is not the FEC’s practice to put all filings from older cases on its website, but for the 

convenience of the defendants and the Court, the FEC has made relevant court documents from 

Rodriguez available at https://transition.fec.gov/law/

litigation_CCA_FEC_P.shtml#fec_rodriguez. 

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limitations period “accrues on the date of the final agency action.” Harris v. FAA, 353 F.3d 

1006, 1010 (D.C. Cir. 2004). Courts have held that the six-year limitations period is not a mere 

claim-processing rule but is jurisdictional,26 and so Swallow cannot escape its effect just because 

he has raised his APA challenge in an affirmative defense, as he claims. See Mot. at 2 n.6; but 

see Schiller v. Tower Semiconductor Ltd., 449 F.3d 286, 293 (2d Cir. 2006) (“[C]hallenges to the 

procedural lineage of agency regulations, . . . [raised] as a defense to an agency enforcement 

proceeding, will not be entertained outside the [time] period provided by statute.” ) (emphasis 

added) (internal quotation marks and citation omitted). 

Accordingly, this Court lacks jurisdiction to address Swallow’s procedural challenge to 

the regulation’s validity, since that challenge has come more than 20 years after the expiration of 

the limitations period. See Contributions and Expenditures; Prohibited Contributions, 54 Fed. 

Reg. 48,580 (Nov. 24, 1989) (date of final agency action). 

2. Swallow’s Procedural Challenge Lacks Merit

In any event, the procedural challenge fails on the merits because the FEC provided 

sufficient notice and sought comments on the regulation. The APA’s highly deferential review 

under the arbitrary and capricious standard requires only that agencies provide a notice of 

proposed rulemaking that contains “either the terms or substance of the proposed rule or 

description of the subjects and issues involved.” 5 U.S.C. § 553(b) (emphasis added). 

Here, on July 30, 1986, the FEC published a detailed notice proposing a variety of 

possible amendments to regulations at 11 CFR §§ 110.3, 110.4, 110.5, and 110.6 regarding 

 26 See Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 218 (D.C. Cir. 2013) (“The court 

lacks subject matter jurisdiction to hear a claim barred by section 2401(a).”); Urabazo v. United 

States, 947 F.2d 955 (10th Cir. 1991) (unpublished) (“‘§ 2401(a) is a jurisdictional condition 

attached to the government’s waiver of sovereign immunity, and as such must be strictly 

construed.’”) (quoting Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987)).

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“limitations and prohibitions on contributions made to candidates and political committees with 

respect to Federal elections.” Proposed Rules, Contribution and Expenditure Limitations and 

Prohibitions, 51 Fed. Reg. 27,183 (July 30, 1986) (“Notice”). The Commission also notified the 

public of a hearing scheduled on the issues in the Notice. Id. 

The FEC also explicitly invited public comments on section 110.4, both in the 

introductory summary and the supplementary information on “Section 110.4 Prohibited 

Contributions.” See id. (requesting comments on the “regulations at 11 CFR 110.3, 110.4, 110.5, 

and 110.6”); id. at 27,186-87 (“The Commission requests comments on the provisions of 

§ 110.4.”). And while the FEC did not propose specific language for revising section 110.4, it 

noted that “the draft rules that follow do not represent a final decision by the Commission on the 

amendment of §§ 110.3 through 110.6 of its regulations.” Id. at 27,183. 

On October 28, 1988, the Rodriguez court held that a defendant violated section 30122 by 

“knowingly assisting in the making of contributions in the name of another.” See Exh. A. In 

light of the new judicial interpretation of the statute in Rodriguez, the FEC decided to promulgate 

a new regulation adopting that interpretation. Thereafter, at three separate hearings on January 

28, 1988, May 11, 1989 and August 3, 1989, the Commission discussed the regulation’s 

implementation, as well as the Explanation and Justification that would accompany its 

publication to provide guidance to the regulated community.27 

 27 Swallow overlooks these steps in the Commission’s process of promulgating section 

110.4(b)(1)(iii) even though one of his own lawyers was an FEC Commissioner at the time who

participated in each of the three hearings and was even on the “Regulations Committee” that 

oversaw drafting of the regulation. See Federal Election Commission, Annual Report 1989 at 21 

(June 1, 1990) (“A new Regulations Committee, formed by 1989 Chairman Danny L. 

McDonald, contributed to the revision process. Commissioners Thomas J. Josefiak and Scott E. 

Thomas comprised the committee, which oversaw the agency’s goals in the redrafting of 

regulations.”), available at http://classic.fec.gov/pdf/ar89.pdf; Federal Election Commission, 

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The final regulation was published in the Federal Register on August 17, 1989. See E&J, 

54 Fed. Reg. 34,098. The accompanying Explanation and Justification explained that the 

regulations implement the governing FECA statutes, including the prohibition on conduit 

contributions in what was then 2 U.S.C. § 441f. The Commission noted that it did not receive 

any comments on 11 C.F.R. § 110.4,28 provided guidance on how the new provision would be 

enforced, and explained that “new language is consistent with a recent judicial interpretation of 2 

U.S.C. 441f in FEC v. Rodriguez.” Id. at 34,105.

Although the Commission’s Notice requesting “comments on the provisions of 110.4” 

also stated that the agency was “not proposing any revisions to the text of the regulations,” 51 

Fed. Reg. 27,186-87, the FEC was permitted under the APA to deviate from the Notice. See City 

of Waukesha v. EPA, 320 F.3d 228, 245 (D.C. Cir. 2003) (finding that the agency “undoubtedly 

has authority to promulgate a final rule that differs in some particulars from its proposed rule”). 

A final rule that was not clearly presaged in the notice may satisfy the APA requirements without 

an additional round of public comments where the final rule represents a “logical outgrowth” of 

the proposal. See, e.g., Small Refiner Lead Phase–Down Task Force v. EPA, 705 F.2d 506, 547 

(D.C. Cir. 1983). Under the logical outgrowth test, the inquiry is whether the notice was 

“sufficient to fairly apprise interested parties of the subjects and issues [of the rulemaking]” so 

they know whether their interests are at stake. Id. (internal quotation marks omitted); see, e.g.,

American Iron and Steel Inst. v. EPA, 568 F.2d 284, 295 (3rd Cir. 1977) (holding that challenged 

 

New FEC Chairman focuses on Agency’s Direction in 1989 (Jan. 12, 1989), available at

http://classic.fec.gov/press/archive/1989/19890112_AgencyDirection.pdf. 

28 As Swallow notes, the Commission received ten public comments and heard testimony 

from three witnesses at the public hearing on September 17, 1986. (Mot. at 15 n.18 (citing 54 

Fed. Reg. at 34,098).) Swallow apparently believes those numbers are too low (id.), but the APA 

does not specify a minimum level of public response that is necessary before a court can uphold

an agency’s rulemaking.

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notice, while “hardly a model of clarity,” was sufficient under the APA). 

The inclusion of section 110.4 in the Notice and the invitation for public comments 

sufficiently alerted anyone with a particular interest in the agency’s regulation of contributions in 

the name of another “that their interests were potentially ‘at stake.’” Green v. Nat’l Archives & 

Records Admin., 992 F. Supp. 811, 820 (E.D. Va. 1998) (quoting Spartan Radiocasting Co. v. 

FCC, 619 F.2d 314, 321-22 (4th Cir. 1980). Moreover, the Notice states with reasonable clarity 

that the draft is not intended to represent the final rules. Cf. California Citizens Band Ass’n v. 

United States, 375 F.2d 43, 48 (9th Cir. 1967) (holding that agency was not required “to publish 

in advance every precise proposal which it may ultimately adopt as a rule”). 

Finally, the FEC’s adoption of the regulation was also reasonable under the 

circumstances because it was in direct response to a court ruling interpreting a statute that was 

then the subject of the agency’s Notice.29 The rulemaking in response to this public 

development did not deprive interested parties of sufficient notice regarding section 

110.4(b)(1)(iii).

VI. SWALLOW IS NOT ENTITLED TO VACATUR

Section 110.4(b)(1)(iii) is valid under the APA, but even if it were not, Swallow would 

not be entitled to the remedy of vacatur, which he requests. (See Mot. at 17-18.) His APA 

arguments are raised as an affirmative defense, not a counterclaim. See Mot. at vi; 61 Am. Jur.

 29 None of the cases Swallow relies upon (Mot. at 14, 15 & n.16) involved an agency 

promulgating a regulation adopting a judicial interpretation of its statutory authority. See Allina 

Health Servs. v. Sebelius, 746 F.3d 1102, 1108 (D.C. Cir. 2014) (agency adopted an 

interpretation opposite to the existing policy); Envtl. Integrity Project v. EPA, 425 F.3d 992, 996 

(D.C. Cir. 2005) (same); Sugar Cane Growers Co-op. of Florida v. Veneman, 289 F.3d 89, 92 

(D.C. Cir. 2002) (agency indicated to interested persons that it would not implement the program 

it was considering without notice and comment, and then implemented the same program 

without using APA rulemaking).

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 45 of 48
30

2d Pleading 276 (an affirmative defense only “defeats the plaintiff’s cause of action”). 

Moreover, even had Swallow pleaded his APA challenges as counterclaims, Swallow 

would still not be entitled to vacatur (which he recognizes is not “automatic,” see Mot. at 17), but 

instead, remand to the FEC to remedy any deficiencies in the regulation would be more 

appropriate. See, e.g., Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 

150 (D.C. Cir. 1993) (holding that a defective regulation “need not necessarily be vacated” and 

may be remanded); Quest Corp. v. FCC, 258 F.3d 1191, 1201 (10th Cir. 2001) (“[W]hen the 

agency has failed to provide a reasoned explanation for its action it is appropriate to remand to 

the agency for further proceedings”) (citation omitted). For nearly 30 years, section 

110.4(b)(1)(iii) has reinforced one of FECA’s most important and yet frequently violated 

provisions. By doing so, the regulation promotes multiple important government interests in 

protecting the integrity of federal elections. In the absence of the regulation, the FEC would no 

longer be able to enforce section 30122 against violators like Swallow who orchestrate damaging

conduit-contribution schemes. Remand is appropriate since these considerations outweigh the 

seriousness of any alleged deficiencies in the regulation. Cf. Allied-Signal, 988 F.2d at 150. 

Lastly, if the Court does deem vacatur appropriate on procedural grounds, it should 

decline to address Swallow’s substantive challenges, since doing so would “short-circuit the 

APA’s notice and comment procedures and preclude interested parties from participating in the 

agency’s analytic process.” Iowa League of Cities v. EPA, 711 F.3d 844, 877 (8th Cir. 2013). 

CONCLUSION

For the foregoing reasons, the Court should deny Swallow’s motion to dismiss and 

motion for judgment on the pleadings, and grant the FEC’s cross-motion for judgment on the 

pleadings against Swallow’s legally insufficient third affirmative defense.

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31

Respectfully submitted,

Lisa J. Stevenson (lstevenson@fec.gov)

Acting General Counsel

Kevin Deeley (kdeeley@fec.gov)

Associate General Counsel

Kevin P. Hancock (khancock@fec.gov)

Acting Assistant General Counsel

November 20, 2017

/s/ Sana Chaudhry 

Sana Chaudhry (schaudhry@fec.gov)

Attorney

FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 47 of 48
CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2017, I electronically filed plaintiff Federal 

Election Commission’s Memorandum in Opposition to defendant John Swallow’s Motions to 

Dismiss and for Judgment on the Pleadings and in Support of Cross-Motion for Judgment on the 

Pleadings with the Clerk of the United States District Court for the District of Utah by using the

Court’s CM/ECF system, which sent notification of such filing to the following:

Allen Dickerson, Esq. (adickerson@ifs.org) 

Tyler L. Martinez, Esq. (tmartinez@ifs.org) 

Owen D. Yeates, Esq. (oyeates@ifs.org) 

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201 

Alexandria, VA 22314 

Scott C. Williams, Esq. (scwlegal@gmail.com) 

SCOTT C. WILLIAMS, LLC

43 East 400 South 

Salt Lake City, Utah 84111 

Attorneys for Defendant John Swallow 

Karra J. Porter, Esq. (Karra.Porter@chrisjen.com) 

John D. Lauritzen, Esq. (jd.lauritzen@chrisjen.com) 

CHRISTENSEN & JENSEN, P.C.

257 East 200 South, Suite 1100 

Salt Lake City, UT 84111 

Attorneys for Defendant Jeremy Johnson 

/s/ Sana Chaudhry 

Sana Chaudhry 

Attorney 

Federal Election Commission

Case 2:15-cv-00439-DB Document 103 Filed 11/20/17 Page 48 of 48