No. 13-772 

================================================================ 

In The 

Supreme Court of the United States ---------------------------------  --------------------------------- 

FREE SPEECH, 

Petitioner, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

---------------------------------  --------------------------------- 

On Petition For A Writ Of Certiorari 

To The United States Court Of Appeals 

For The Tenth Circuit 

---------------------------------  --------------------------------- 

PETITIONER’S SUPPLEMENTAL BRIEF 

---------------------------------  --------------------------------- 

BENJAMIN BARR

Counsel of Record 

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Cheyenne, Wyoming 82001 

Telephone: 202-595-4671 

Benjamin.barr@gmail.com 

STEPHEN R. KLEIN

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Cheyenne, Wyoming 82001 

Telephone: 307-632-7020 

Stephen.klein@wyliberty.org 

JACK R. SPEIGHT

4021 Snyder Avenue 

Cheyenne, Wyoming 82001 

Telephone: 307-635-1239 

jbspeight@gmail.com 

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 

WWW.COCKLELEGALBRIEFS.COM 
i 

TABLE OF CONTENTS 

Page 

Argument ............................................................. 1 

Appendix 

Federal Election Commission, Supplemental 

Statement of Reasons of Chairman Lee E. 

Goodman and Commissioners Caroline C. 

Hunter and Matthew W. Petersen in MUR 

6396 .................................................................. App. 1 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Citizens United v. FEC, 558 U.S. 310 (2010) ............... 2 

McCutcheon v. FEC, 134 S.Ct. 1434 (2014) ................. 5 

RULES

Supreme Court Rule 15(8) ........................................... 1 

OTHER AUTHORITIES

FEC Advisory Opinion 2008-15 (National Right 

to Life Committee, Inc.) ............................................ 4 

FEC Advisory Opinion 2010-20 (National 

Defense PAC) ............................................................. 4 

FEC Advisory Opinion 2010-25 (RG Entertainment Ltd.) .................................................................. 4 

Dave Levinthal, FEC releases election law 

documents after subpoena threat, Politico 

(May 23, 2012) ........................................................... 4 

Matter Under Review 6396 (Crossroads Grassroots Policy Strategies), Supplemental 

Statement of Reasons of Chairman Lee E. 

Goodman and Commissioners Caroline C. 

Hunter and Matthew S. Petersen (FEC 

March 25, 2014) ............................................ 1, 2, 3, 4 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

Memorandum from Vice Chairman Donald F. 

McGahn to the Federal Election Commission, “Background Information Regarding 

Proposed Enforcement Manual,” (FEC July 

25, 2013) .................................................................... 4 

Political Committee Status 2, 72 Fed. Reg. 

5595 (FEC Feb. 7, 2007) ........................................... 2 

“Statement of Policy Regarding Placing First 

General Counsel’s Reports on the Public 

Record,” 74 Fed. Reg. 66132 (FEC Dec. 14, 

2009) .......................................................................... 3 
1 

ARGUMENT 

 Pursuant to Supreme Court Rule 15(8), Petitioner Free Speech files this brief of supplemental authority concerning a recent development in the Federal 

Election Commission’s (“FEC’s”) approach to regulating Political Action Committee’s (“PACs”). Based on 

this development, it appears the Commission has 

made non-public certain public documents that define 

regulatory standards in relation to PAC rules. In 

doing so, the FEC has erased a significant element of 

the law. 

 As explained in the Petition for a Writ of Certiorari, the FEC relies on a confusing hodgepodge of 

factors to determine whether a group must register as 

a PAC under federal election law. One assumption 

steadily advanced by the Commission’s attorneys in 

considering this approach is that the elements relied 

upon by the FEC are made public and bear some 

consistency. With the release of a recent Supplemental Statement of Reasons by three Commissioners, it is evident these assumptions are incorrect. See 

Matter Under Review (“MUR”) 6396 (Crossroads 

Grassroots Policy Strategies), Supplemental Statement of Reasons of Chairman Lee E. Goodman and 

Commissioners Caroline C. Hunter and Matthew S. 

Petersen (FEC March 25, 2014), available at http:// 

eqs.fec.gov/eqsdocsMUR/14044352011.pdf (attached 

as App. 1). 

 Under current law, factors that may trigger the 

need to register as a PAC arise on a case-by-case 
2 

basis. Citizens interested in knowing whether they 

must register and report as a PAC must consult “the 

public files for the Political Committee Status Matters 

and other closed enforcement matters, as well as advisory opinions and filings in civil enforcement cases.” 

Political Committee Status 2, 72 Fed. Reg. 5595, 5604 

(FEC Feb. 7, 2007). Thus, regulatory criteria defining 

PAC status are found in the regulations themselves, the 

FEC’s Explanation and Justification (“E&J”) for its 

policy, and its voluminous administrative record that 

itself carries the weight of law. 

 So, before speaking a local non-profit or advocacy 

group must decide whether to register and report 

with the FEC by consulting a sizeable set of enforcement matters, court filings, and advisory opinions 

issued by the Commission. This alone is problematic 

because it conditions the exercise of First Amendment 

freedoms on citizens mastering prolix and confusing 

administrative and legal filings of the Commission. 

Citizens United v. FEC, 558 U.S. 310, 335 (2010). But 

it gets worse. 

 On March 25, 2014, three FEC Commissioners 

issued a Supplemental Statement of Reasons in MUR 

6396. This MUR considered the very legal issue 

involved in this case – that is, what standards dictate 

when groups must register as a PAC. These commissioners issued the supplemental statement because 

the agency’s attorneys had issued a First General 

Counsel’s Report (“FGCR”) in the matter, but then 

issued a “second First General Counsel’s Report” and 

prevented the earlier report from public review, 
3 

despite the three commissioners’ reliance on the first 

FGCR. FGCRs are important to understanding the 

law because they set forth the factors, considerations, 

and reasoning of the Commission in deciding PAC 

status. 

 Based on the March 25 Supplemental Statement, 

the FGCRs are fundamentally contradictory in their 

treatment of timing considerations for deciding 

whether a group must register and report as a PAC. 

For the FEC’s case-by-case approach to work, the 

documents revealing the Commission’s reasoning, 

important factors weighing for or against regulation, 

and illumination of legal standards must at least be 

publicly available. Secret, here-today, gone-tomorrow 

standards do little to inform the public about how to 

comply with the law. Furthermore, the FEC’s selective elimination of some FGCRs appears to be in 

violation of its own policy from 2009, which provided 

that “all First General Counsel’s Reports [should be 

placed] on the public record.” 74 Fed. Reg. 66132 

(FEC Dec. 14, 2009). 

 The FEC holds an important public trust in 

overseeing regulations that abut sensitive First 

Amendment freedoms. It is problematic enough to 

demand average citizens consult a bizarrely complicated patchwork of administrative material and legal 

filings to comply with the law; hiding these documents from public review while portraying federal 

election law as consistent and easy to comply with is 

deeply offensive to the Due Process and First 

Amendment rights of every American. 
4 

 The recently filed Supplemental Statement of 

Reasons in MUR 6396 only buttresses the need for 

review in Free Speech v. FEC. Permitting the FEC to 

oversee a shifting – sometimes secret – set of speech 

criteria for regulatory compliance only deepens the 

damage done to Free Speech and our national political debate. When it comes to the FEC, hidden documents, shifting regulatory targets, and utter 

confusion are the norm.1

 This circuitous muddle of 

discerning PAC status leaves many Americans unable 

to engage in meaningful electoral participation – an 

injury that desperately needs review by this Court. 

 

1

See, e.g., Dave Levinthal, FEC releases election law 

documents after subpoena threat, Politico (May 23, 2012), http:// 

www.politico.com/news/stories/0512/76684.html; Memorandum 

from Vice Chairman Donald F. McGahn to the Federal Election 

Commission, “Background Information Regarding Proposed 

Enforcement Manual,” (FEC July 25, 2013), http://www.hvjlaw. 

com/wp-content/uploads/2013/07/mtgdoc_13-21-k.pdf; FEC Advisory Opinion 2010-25 (RG Entertainment Ltd.), http://saos.fec.gov/ 

aodocs/AOR%202010-25%20(RG%20Entertainment%20et%20al) 

%20Closeout%20Letter%20(1.6.11).pdf (where the Commission 

could not decide upon the application of the Act’s media exemption to the costs of producing, disseminating, and marketing a 

film); FEC Advisory Opinion 2010-20 (National Defense PAC), 

http://saos.fec.gov/aodocs/AO%202010-20.pdf (the Commission 

was unable to provide an opinion regarding a non-connected 

PAC’s fundraising and record keeping requirements after 

Citizens United); FEC Advisory Opinion 2008-15 (National Right 

to Life Committee, Inc.), http://saos.fec.gov/aodocs/AO%202008-

15.pdf (where the Commission was unable to issue an opinion 

about the application of the Act to a proposal to fund a radio 

advertisement). 
5 

See McCutcheon v. FEC, 134 S.Ct. 1434, 1440-41 

(2014) (there is “no right more basic” than electoral 

participation). 

Respectfully submitted, 

BENJAMIN BARR

Counsel of Record

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Cheyenne, Wyoming 82001 

Telephone: 202-595-4671 

Benjamin.barr@gmail.com 

STEPHEN R. KLEIN

WYOMING LIBERTY GROUP 

1902 Thomes Avenue 

Cheyenne, Wyoming 82001 

Telephone: 307-632-7020 

Stephen.klein@wyliberty.org 

JACK R. SPEIGHT

4021 Snyder Avenue 

Cheyenne, Wyoming 82001 

Telephone: 307-635-1239 

jbspeight@gmail.com 
App. 1 

[SEAL] FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL 

ELECTION COMMISSION 

In the Matter of 

Crossroads Grassroots 

Policy Strategies 

) 

) 

) 

MUR 6396 

SUPPLEMENTAL STATEMENT OF REASONS 

OF CHAIRMAN LEE E. GOODMAN AND 

COMMISSIONERS CAROLINE C. HUNTER 

AND MATTHEW S. PETERSEN 

 On January 8, 2014 we issued our Statement of 

Reasons (“Statement”) in this matter, explaining 

the basis for our votes not to adopt the Office of the 

General Counsel’s (“OGC”) recommendations.1 As explained in our Statement, OGC issued two First 

General Counsel’s Reports in this matter. The initial 

First General Counsel’s Report, dated June 22, 2011, 

was withdrawn and later replaced by a second First 

General Counsel’s Report, dated November 21, 2012, 

which introduced a new legal norm: that a calendar 

year and only a calendar year is the necessary time 

frame for determining an organization’s political committee status.2

 Because OGC’s legal test was evolving 

1

 MUR 6396 (Crossroads Grassroots Policy Strategies), 

Statement of Reasons of Chairman Lee E. Goodman and Commissioners Caroline C. Hunter and Matthew S. Petersen (“Statement”), available at http://eqs.fec.gov/eqsdocsMUR/14044350970.pdf. 

2

 OGC did seek to incorporate this analysis into other reports prepared roughly contemporaneously with the second First 

(Continued on following page) 
App. 2 

behind closed doors while this enforcement matter was 

under review, the Respondent and other similarly 

situated organizations did not have clear prior notice 

that their respective major purposes would be analyzed by OGC under a single calendar-year rule. 

 We attached the withdrawn First General Counsel’s Report, along with an accompanying Factual and 

Legal Analysis, to our Statement to illuminate the 

introduction of this new legal norm.3 As a matter of 

custom and courtesy, we provided our Statement to 

our colleagues and OGC before making it public. At 

that time, OGC and several of our fellow Commissioners expressed their viow that the withdrawn First 

General Counsel’s Report might be privileged and 

should be withheld from the public record. Because 

the Complainant, the Respondent, and the public deserve an explanation for official actions, particularly 

in a high profile matter such as this one, we agreed to 

redact the first report pending further Commission 

discussions in order to make the rest of the Statement public. We do not believe that these redactions 

are necessary or consistent with the Commission’s 

Disclosure Policy, discussed more fully below. 

 As we explained in our Statement, the withdrawn First General Counsel’s Report in this matter 

General Counsel’s Report in this matter. See, e.g., MUR 6081 

(American Issues Project), First General Counsel’s Report. Nevertheless, OGC did not and could not root this novel legal theory in 

prior Commission actions or interpretations. 

3

 There were other material changes to OGC’s analysis of 

the Respondent’s major purpose as well. 
App. 3 

informed our decision in this matter.4 Thus, it should 

have been publicly released so that it could be available 

4

 It is incumbent upon us to provide such a statement, 

because in the event a lawsuit is filed (as has occurred here), a 

court undertakes judicial review of our decision. See Public Citizen v. FEC, Case No. 14-cv-00148 (D.D.C. filed Jan. 31, 2014); 

see also 2 U.S.C. § 437g(a)(8)(A) (“Any party aggrieved by an 

order of the Commission dismissing a complaint filed by such 

party under paragraph (1), or by a failure of the Commission to 

act on such complaint during the 120-day period beginning on 

the date the complaint is filed, may file a petition with the 

United States District Court for the District of Columbia.”). 

When Commissioners fail to adapt the recommendations of the 

Office of the General Conned, those Commissioners explain their 

views in statements that become an essential part of subsequent 

litigation, if any. See Democratic. Congressional Campaign Committee v. FEC, 831 F.2d 1131, 1132 (“[W]hen . . . the FEC does 

not act in conformity with its General Counsel’s reading of Commission precedent, it is incumbent upon the Commissioners to 

state their reasons why. Absent an explanation by the Commissioners for the FEC’s stance, we cannot intelligently determine 

whether the Commission is acting ‘contrary to law’ ” (citation 

omitted)); FEC v. National Republican Senatorial Committee, 

966 F.2d 1471, 1476 (D.C. Cir. 1992) (“[W]hen the Commission 

deadlocks 3-3 and so dismisses a complaint, that dismissal, like 

any other, is judicially reviewable under § 437g(a)(8). . . . [T]o 

make judicial review a meaningful exercise, the three Commissioners who voted to dismiss must provide a statement of their 

reasons for so voting. Since those Commissioners constitute a 

controlling group for purposes of the decision, their rationale 

necessarily states the agency’s reasons for acting as it did.”). Since 

it lays out the position of the Commission, this statement is 

entitled to full judicial deference. See id. (“[The Supreme Court 

observed] in upholding (against a complainant’s § 437g(a)(8) 

challenge) the Commission’s unanimous dismissal of a complaint, ‘that the Commission is precisely the type of agency to 

which deference should presumptively be afforded.’ Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 

(Continued on following page) 
App. 4 

to a reviewing court and litigants as part of the 

administrative record in this matter. 

 Although the specific question of the public release of a withdrawn First General Counsel’s Report 

may be new, Commissioners have previously released 

materially similar documents with neither redactions 

by OGC nor a vote of the Commission.5 The nondisclosure here deviates from past practice and from 

current policy. Not releasing the report to the public 

contravenes the Commission’s Statement of Policy 

Regarding Placing First General Counsel’s Reports on 

the Public Record.6 In 2009, the Commission determined that “[i]n the interest of promoting transparency, the Commission is resuming the practice of 

placing all First General Counsel’s Reports on the 

public record, whether or not the recommendation in 

these First General Counsel’s Reports are adopted by 

the Commission” (emphasis added). Here, OGC has 

taken the position that when a First General Counsel’s Report is withdrawn and replaced, it is essentially, erased from the administrative record as if that 

prior document never existed, even if it has been 

U.S. 27, 37, 102 S.Ct. 38, 44-45, 70 L.Ed.2d 23 (1981) (DSCC). 

Though our DCCC opinion limited itself to its facts, we have 

since expanded it to control generally situations in which the 

Commission deadlocks and dismisses.”). 

5

See, e.g., MUR 5842 (Economic Freedom Fund), Statement 

of Reasons of Commissioners Cynthia L. Bauerly and Ellen L. 

Weintraub, available at http://eqs.fec.gov/eqsdocsMUR/29044241152. 

pdf (attaching an OGC Factual and Legal Analysis). 

6

 74 Fed. Reg. 68132 (Dec. 14, 2009), available at http:// 

www.fec.gov/law/cfr/ej_compilation/2009/notice_2009-28.pdf. 
App. 5 

voted on and considered by the Commission. Even if 

disclosure was not mandated by the explicit language 

of the policy – and we believe it is – non-disclosure 

clearly frustrates the purpose of the policy to provide 

greater transparency to agency decisions. 

 The report at issue was first prepared and styled 

as a First General Counsel’s Report. Thus, it was 

clearly prepared with an expectation that it would be 

reviewed by Commissioners and the general public, 

per Commission policy and practice. The report was 

circulated by the Commission Secretary for a vote 

and was voted on as a First General Counsel’s Report. 

Objections were made and, pursuant to Commission 

directive, the matter was placed on the Commission’s 

September 27, 2011 Executive Session. The report 

was thus styled as a “First General Counsel’s Report” 

on the agenda for the executive session, discussed at 

a Commission meeting, and referenced in the approved minutes for the session. 

 Even assuming arguendo that the report is privileged as OGC has argued, we asked our colleagues 

to support the public release of that First General 

Counsel’s Report and the accompanying proposed 

Factual and Legal Analysis in the interests of public 

transparency and full disclosure. We moved to release 

the document but the vote failed.7

7

 MUR 6396 (Crossroads GPS): Redactions in the Statement of Reasons Written by Chairman Lee E. Goodman and 

Commissioners Caroline C. Hunter and Matthew S. Petersen, 

Certification (March 20, 2013). 
App. 6 

 We respect it when our colleagues approach the 

law or individual matters from a different perspective 

and earnestly want to work with them to move forward in areas where we can find common ground. We 

recognize that the question of publicly releasing this 

first report after it was withdrawn involves a delicate 

balance between withholding privileged material and 

the public’s interest in government transparency. 

However, particularly in a matter subject to litigation 

implicating the First Amendment and Due Process 

rights of citizens, and in furtherance of the Commission’s 2009 Disclosure Policy, we voted in favor 

of transparency. 

/s/ Lee E. Goodman 3/25/14

 LEE E. GOODMAN 

Chairman 

 Date

/s/ Caroline C. Hunter by ESB 3/25/14

 CAROLINE C. HUNTER 

Commissioner 

 Date

/s/ Matthew S. Petersen (JDB) 3/25/14

 MATTHEW S. PETERSEN 

Commissioner 

 Date