UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) Civ. No. 16-259 (BAH) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) MOTION FOR 

STRATEGIES, ) SUMMARY JUDGMENT 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

Defendant Federal Election Commission (“Commission”) hereby moves this Court for 

an order granting summary judgment to the Commission pursuant to Federal Rule of Civil 

Procedure 56 and Local Rule 7(h). As demonstrated in the accompanying memorandum of 

points and authorities, the Commission did not act contrary to law in dismissing plaintiffs’ 

administrative complaint. A proposed order is attached to the Commission’s memorandum. 

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

 

Harry J. Summers 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 1 of 64
Assistant General Counsel 

hsummers@fec.gov 

(202) 694-1650 

October 23, 2017 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 2 of 64
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) Civ. No. 16-259 (BAH) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) 

STRATEGIES, ) MEMORANDUM AS TO 

 ) SUMMARY JUDGMENT 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND 

IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

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

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

October 23, 2017 

Harry J. Summers 

Assistant General Counsel 

Seth Nesin 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 3 of 64
i 

TABLE OF CONTENTS 

 Page 

BACKGROUND .......................................................................................................................3 

I. THE PARTIES...............................................................................................................3 

II. STATUTORY AND REGULATORY BACKGROUND .............................................4 

A. FECA’s Requirements for Independent Expenditure Reporting by 

Persons That Are Not Political Committees ......................................................4 

B. The Commission’s Regulation Implementing FECA’s Requirements for 

Independent Expenditure Reporting by Persons That Are Not Political 

Committees ........................................................................................................6 

III. ADMINISTRATIVE PROCEEDINGS FOR MATTER UNDER REVIEW 6696 ......8 

IV. PLAINTIFFS’ LAWSUIT AGAINST THE COMMISSION .....................................12 

ARGUMENT ...........................................................................................................................14 

I. THE COMMISSION’S PROMULGATION OF REGULATIONS AND ITS 

DISMISSAL OF ADMINISTRATIVE COMPLAINTS ARE ENTITLED 

TO JUDICIAL DEFERENCE .....................................................................................14 

II. THE COMMISSION’S DISPOSITION OF THE ADMINISTRATIVE 

COMPLAINT WAS LAWFUL ...................................................................................15 

A. FEC Dismissals Must Be Affirmed Unless They Are “Contrary to Law” ......16 

B. It Was Reasonable, Based on the Facts Presented, Not to Find Reason 

to Believe That Crossroads GPS Violated 11 C.F.R. § 109.10(e)(1)(vi) .........17 

C. It Was Reasonable, Based on the Facts Presented, Not to Find Reason 

to Believe That Crossroads GPS Violated 52 U.S.C. § 30104(c)(2)(C) ..........19 

D. 52 U.S.C. § 30104(c)(1) Is an Ambiguous Statutory Provision and 

Therefore the Commission Properly Exercised Prosecutorial Discretion 

in Dismissing an Allegation That Crossroads GPS Violated It .......................23 

1. Congress’s Intent When Passing 52 U.S.C. § 30104(c)(1) Is 

Unclear .................................................................................................24 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 4 of 64
ii 

2. The Commission Properly Exercised Discretion in Dismissing 

the Allegation of a Violation of 52 U.S.C. § 30104(c)(1) ...................28 

III. 11 C.F.R. § 109.10(E)(1)(VI) PROVIDED A REASONABLE BASIS FOR 

DISMISSAL AS A VALID REGULATION UNDER THE APA AND 

CHEVRON ...................................................................................................................31 

A. The Commission’s Dismissal Should Be Affirmed Under the APA 

Unless the Challenged Regulation Is Arbitrary, Capricious, or in Excess 

of Statutory Jurisdiction ...................................................................................31 

B. There Are Significant Ambiguities in the Statute Governing Independent 

Expenditure Reporting by Persons Other Than Political Committees .............34 

1. It Is Unclear What Congress Meant by “for the Purpose of 

Furthering an Independent Expenditure” .............................................34 

2. Congress’s General Desire for Disclosure on Other Subjects 

Does Not Mean It Intended to Mandate the Specific Disclosure 

Plaintiffs Favor.....................................................................................41 

C. The Commission’s Regulation Passes Chevron Step 2 Because It 

Reasonably Requires Disclosure Consistent with Congress’s Statutory 

Directive ...........................................................................................................42 

1. The Commission’s Clarification That Contributions Be Disclosed 

If They Are for the Purpose of “the Reported” Independent 

Expenditure Is a Reasonable Statutory Interpretation .........................43 

a. The Commission’s Decision to Substitute “the Reported” 

for “An” Was a Reasonable Interpretation That Provides 

Greater Guidance to Regulated Entities and Reduces the 

Chance of Misleading the Public About Political Spending ....43 

b. The Commission’s Regulation Does Not Make the Statute 

Redundant ................................................................................46 

2. The Court Should Not Consider Evidence That Post-Dates the 

Commission’s 1980 Rulemaking .........................................................47 

a. Review of the Regulation Is Limited to the Administrative 

Record That Existed When the FEC Issued the Regulation ....47 

b. Plaintiffs’ Complaints Here Are Largely the Result of 

Changes in the Legal Landscape That Were Unforeseeable 

in 1980 .....................................................................................48 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 5 of 64
iii 

IV. THE PROPER REMEDY FOR ANY FINDING THAT THE FEC ERRED 

BY DISMISSING THE ADMINISTRATIVE COMPLAINT OR THAT THE 

REGULATION IS UNLAWFUL WOULD BE REMAND TO THE 

COMMISSION ............................................................................................................49 

CONCLUSION ........................................................................................................................50 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 6 of 64
iv 

TABLE OF AUTHORITIES 

Cases 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ...................................................................15 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ......................................................................30 

Alabama v. North Carolina, 560 U.S. 330 (2010) ...................................................................21 

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 

988 F.2d 146 (D.C. Cir. 1993) .....................................................................................50 

Amfac Resorts, L.L.C. v. Dep’t. of Interior, 143 F. Supp. 2d 7 (D.D.C. 2001) .......................47 

Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983) .............................32 

Bluewater Network v. EPA, 372 F.3d 404 (D.C. Cir. 2004) ....................................................33 

Buckley v. Valeo, 424 U.S. 1 (1976) ..........................................................................................4 

Camp v. Pitts, 411 U.S. 138 (1973) ...................................................................................47, 50 

Cellco P’ship v. FCC, 357 F.3d 88 (D.C. Cir. 2004)...............................................................32 

Cent. States Motor Freight Bureau v. ICC, 924 F.2d 1099 (D.C. Cir. 1991) ..........................32 

Chamber of Commerce of the U.S. v. FEC, 76 F.3d 1234 (D.C. Cir. 1996) ...........................33 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ............. 2, 31-34, 40 

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ...........................14, 32, 47 

Citizens United v. FEC, 558 U.S. 310 (2010) .................................................................... 48-49 

Common Cause v. FEC, 906 F.2d 705 (D.C. Cir. 1990) .........................................................17 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .........................................................15 

Common Cause v. Schmitt, 455 U.S. 129 (1982).....................................................................15 

Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980) ..................................................15 

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) ........................................................................29 

CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017) ............................................................13, 49 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 7 of 64
v 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) ................................................................30 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) ...........................40 

Deukmejian v. NRC, 751 F.2d 1287 (D.C. Cir. 1984) .............................................................47 

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ..................................................22 

Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) .............................................48 

FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012)...............................................29, 30 

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

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .......................................42 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ......................12, 14, 16 

FEC v. Furgatch, 807 F.2d 857 (9th Cir.), cert denied 484 U.S. 850 (1987)..........................27 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) ...............15 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ......................................................27 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) .......................12 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001).......................................33, 42 

FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007) ....................................................48 

Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) .........................................................50 

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980) ......................................................22 

Friedman v. Sebelius, 686 F.3d 813 (D.C. Cir. 2012) .............................................................29 

Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995) .................................................48 

Gen. Instrument Corp. v. FCC., 213 F.3d 724 (D.C. Cir. 2000) .............................................33 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ......................................................................16 

Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997) ................................................................34 

Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) ..................................50 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 8 of 64
vi 

Heckler v. Cheney, 470 U.S. 821 (1985) ...........................................................................28, 29 

Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232 (2004) ..............................................15 

IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) ..............................................................48 

In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991) ...............................................................28 

In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538 (D.C. Cir. 1980) ......................15 

Int’l Union, United Mine Workers v. Fed. Mine Safety and Health Admin., 

920 F.2d 960 (D.C. Cir. 1990) .....................................................................................50 

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ............................................................28, 29 

Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) .......................31 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .........................................................21 

McFadden v. United States, 135 S. Ct. 2298 (2015) ...............................................................36 

Mich. Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir. 1989) ..............33 

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) .......................................................................................................32 

Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356 (1973) ................................................32 

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013) .........................................................................29 

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ....................................................... 16-17, 29 

Nat’l Park and Conservation Ass’n v. Stanton, 54 F. Supp. 2d 7 (D.D.C. 1999)....................48 

Nat’l Treasury Emps. Union v. Hove, 840 F. Supp. 165 (D.D.C. 1994) .................................48 

NLRB v. Food & Commercial Workers, 484 U.S. 112 (1987) ...............................................33 

Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990) .......................................................22 

Office of Workers Comp. v. Newport News, 514 U.S. 122 (1995)...........................................41 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .......................................................................16 

Pauley v BethEnergy Mines, Inc., 501 U.S. 680 (1991) ..........................................................33 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 9 of 64
vii 

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ...........................................33 

Reytblatt v. U.S. Nuclear Regulatory Comm’n, 105 F.3d 715 (D.C. Cir. 1997) .....................48 

Rodriguez v. United States, 480 U.S. 522 (1987) ....................................................................41 

San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) ...........................47 

Serono Labs, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) ................................................33 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ...........................................................................21 

Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) ..........................................................14, 32 

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996) ..............................................................14 

Stark v. FEC, 683 F. Supp. 836 (D.D.C. 1988) .......................................................................29 

Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397 (D.C. Cir. 1997) .........................................41 

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) .....................................................21 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .......................................15, 34 

United States v. Williams, 553 U.S. 285 (2008) ......................................................................30 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ........................................16, 39, 40, 41, 42 

Vermont Yankee Nuclear Power Corp. v. Nat’l Res. Def. Council, Inc., 

435 U.S. 519(1978) ......................................................................................................47 

Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) ...............47, 48, 49 

WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002) .........................................................50 

Statutes and Regulations 

2 U.S.C. § 434(c)(2) (now codified as 52 U.S.C. § 30104(c)(2)) ..............................................6 

2 U.S.C. § 434(e) (now codified as 52 U.S.C. § 30104(e)) .......................................................6 

2 U.S.C. § 438(e) (now codified as 52 U.S.C. § 30111(e)) .....................................................21 

5 U.S.C. § 706 ............................................................................................................................1 

5 U.S.C. § 706(2)(A) ...............................................................................................................31 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 10 of 64
viii 

5 U.S.C. § 706(2)(C) ................................................................................................................31 

29 U.S.C. § 259(a) ...................................................................................................................22 

52 U.S.C. § 30101(11) ...............................................................................................................4 

52 U.S.C. § 30101(17)(A)..........................................................................................................4 

52 U.S.C. § 30104 ................................................................................................................8, 34 

52 U.S.C. § 30104(a) ...........................................................................................................4, 34 

52 U.S.C. § 30104(a)(1) ...........................................................................................................26 

52 U.S.C. § 30104(a)(2) .....................................................................................................35, 37 

52 U.S.C. § 30104(a)(3) .....................................................................................................35, 37 

52 U.S.C. § 30104(a)(4) .....................................................................................................35, 37 

52 U.S.C. § 30104(b) ...............................................................................................................35 

52 U.S.C. § 30104(b)(3)(A)) ....................................................................................5, 25, 26, 35 

52 U.S.C. § 30104(c) .....................................................................................4, 5, 25, 26, 31, 35 

52 U.S.C. § 30104(c)(1) ................................................................................................... passim

52 U.S.C. § 30104(c)(2) .........................................................................5, 25, 26, 27, 28, 37, 49 

52 U.S.C. § 30104(c)(2)(C) ............................................................................................. passim

52 U.S.C. § 30104(c)(3) ...........................................................................................................25 

52 U.S.C. § 30104(f) ............................................................................................................4, 39 

52 U.S.C. § 30104(f)(2)(F) ......................................................................................................40 

52 U.S.C. § 30104(f)(3)(A)(i) ..................................................................................................39 

52 U.S.C. § 30104(f)(3)(B)(ii) .................................................................................................39 

52 U.S.C. § 30104(g)(1)(A) ...............................................................................................28, 35 

52 U.S.C. § 30104(g)(1)(B) .....................................................................................................35 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 11 of 64
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52 U.S.C. § 30104(g)(2)(A) ...............................................................................................28, 35 

52 U.S.C. § 30104(g)(2)(B) .....................................................................................................35 

52 U.S.C. § 30104(g)(3)(B) .....................................................................................................28 

52 U.S.C. § 30106 ......................................................................................................................3 

52 U.S.C. § 30106(b)(1) ............................................................................................................3 

52 U.S.C. § 30106(c) ...............................................................................................................10 

52 U.S.C. § 30107 ......................................................................................................................3 

52 U.S.C. § 30107(a)(8) .......................................................................................................3, 32 

52 U.S.C. § 30109(a)(1) .........................................................................................................3, 8 

52 U.S.C. § 30109(a)(2) .......................................................................................................3, 10 

52 U.S.C. § 30109(a)(6) .............................................................................................................3 

52 U.S.C. § 30109(a)(8) .................................................................................................1, 13, 24 

52 U.S.C. § 30109(a)(8)(A) .....................................................................................................12 

52 U.S.C. § 30109(a)(8)(C) ...................................................................................13, 14, 16, 49 

52 U.S.C. § 30111(a)(8) .............................................................................................................3 

52 U.S.C. § 30111(e) ...................................................................................................20, 21, 22 

11 C.F.R. § 104.20(c)(9) ..........................................................................................................40 

11 C.F.R. § 109.10(b) ..........................................................................................................8, 35 

11 C.F.R. § 109.10(c).................................................................................................................8 

11 C.F.R. § 109.10(d) ................................................................................................................8 

11 C.F.R. § 109.10(e)...........................................................................................................8, 28 

11 C.F.R. § 109.10(e)(1)(vi) ............................................................................................ passim

11 C.F.R. § 111.4 .......................................................................................................................8 

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Miscellaneous 

Factual and Legal Analysis, FEC Matter Under Review 7101, 

https://www.fec.gov/files/legal/murs/current/119538.pdf ...........................................21 

FEC, Bipartisan Campaign Reform Act of 2002 Reporting, 

68 Fed. Reg. 404, 415 (Jan. 3, 2003) .............................................................................7 

FEC, Amendments to the Federal Election Campaign Act of 1971; Regulations 

Transmitted to Congress, 45 Fed. Reg. 15080 (Mar. 7, 1980) ..................................6, 7 

Pub. L. 96-187, 93 Stat. 1339 (Jan. 8, 1980) ............................................................................6 

Webster’s New International Dictionary (2d ed. 1954) ...........................................................36

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 13 of 64
1 

The Federal Election Commission (“Commission” or “FEC”) acted lawfully when it 

dismissed the administrative complaint filed by plaintiffs Citizens for Responsibility and Ethics 

in Washington (“CREW”) and Nicholas Mezlak. That administrative complaint alleged that 

Crossroads Grassroots Policy Strategies (“Crossroads GPS”) and several associated individuals 

filed reports with the FEC of independent expenditures, which expressly advocate the election or 

defeat of federal candidates, that improperly did not disclose the identities of contributors to 

Crossroads GPS. After reviewing the facts and arguments presented both by the administrative 

complainants and respondents, however, a controlling group of Commissioners determined that 

there was no reason to believe the respondents had violated the provision of the Federal Election 

Campaign Act (“FECA” or “Act”) or the FEC’s implementing regulation governing the 

disclosure of such identities. The controlling Commissioners also decided, as an exercise of 

prosecutorial discretion, not to pursue another allegation regarding a possible disclosure 

obligation because that allegation rested upon a novel statutory interpretation arguably 

inconsistent with the agency’s regulations and therefore could raise equitable concerns about fair 

notice. Plaintiffs now challenge the Commission’s decisions pursuant to FEC’s judicial review 

provision at 52 U.S.C. § 30109(a)(8). Plaintiffs also challenge the Commission’s dismissal of 

the administrative complaint on the grounds that the applicable FEC regulation is invalid and 

unlawful under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. (Compl. for 

Injunctive and Declaratory Relief (“Compl.”) ¶¶ 117-24 (Doc. No. 1)). 

The Court should reject plaintiffs’ claims that it was unlawful not to find reason to 

believe Crossroads GPS violated the Commission’s reporting regulation or the statutory 

provision it interprets. Both the statute and the regulation specify that contributors need only be 

identified if their contributions to a group like Crossroads GPS, which is not registered with the 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 14 of 64
2 

FEC as a political committee, were made “for the purpose of furthering” an independent 

expenditure. The administrative complaint did not provide evidence of that critical factor. 

Rather, plaintiffs simply compared a press article about Crossroads GPS’s fundraising to the 

group’s independent expenditure reports and then alleged that some contributions must have 

been made for that purpose. But such speculation does not show that the contributions had the 

specific purpose of supporting an independent expenditure, and the respondents provided 

information indicating that the contributions did not in fact have that specific purpose. To the 

extent the statute can be interpreted to require more disclosure than the FEC’s longstanding 

regulation implementing it, respondents were entitled to rely in good faith on the regulation. It 

was thus reasonable for the Commission not to launch an investigation into the respondents here. 

The Court should also reject plaintiffs’ argument that it was contrary to law to exercise 

the FEC’s broad prosecutorial discretion not to pursue an investigation based on a novel 

interpretation of a different provision of FECA—an interpretation that is at odds with the FEC’s 

past enforcement practices and the expectations of reporting entities like Crossroads GPS, and is 

one that plaintiffs did not even raise in their administrative complaint. Plaintiffs now argue that 

it is “clear on the face of the statute” that groups like Crossroads GPS that make independent 

expenditures have a separate obligation to report all of their contributors above a certain level. 

(Mem. of P. & A. in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Mem.”) at 41 (Doc. No. 27)). But it 

was reasonable for the FEC not to proceed against these respondents due to equitable concerns 

that they did not have fair notice that the statute would be interpreted and applied in that manner. 

Lastly, the Court should reject plaintiffs’ argument that the Commission’s regulation is in 

conflict with the statute under the analysis of Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984). The statutory provision that the FEC’s regulation 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 15 of 64
3 

implements is ambiguous, and the regulation reasonably clarifies the meaning of the statute 

consistent with Congressional intent. While plaintiffs may wish that the Commission had 

interpreted the statute in a different manner to obtain more disclosure, it is not the role of the 

Court to substitute its own interpretation for that of the Commission as long as the FEC’s 

interpretation is reasonable. 

The Court should grant summary judgment to the Commission. 

BACKGROUND 

I. THE PARTIES 

 The FEC is a six-member federal independent agency with “exclusive jurisdiction” to 

administer, interpret, and civilly enforce FECA. See generally 52 U.S.C. §§ 30106, 30107. 

Congress authorized the FEC to “formulate policy” with respect to FECA, id. § 30106(b)(1); “to 

make, amend, and repeal such rules . . . as are necessary to carry out the provisions of [FECA],”

id. §§ 30107(a)(8), 30111(a)(8); and to investigate possible violations of the Act, id. 

§ 30109(a)(1)-(2). The FEC has exclusive jurisdiction to initiate civil enforcement actions for 

violations of the Act in the United States district courts. Id. §§ 30106(b)(1), 30109(a)(6). 

 Plaintiff CREW “is a non-profit, non-partisan corporation organized under Section 

501(c)(3) of the Internal Revenue Code.” (Compl. ¶ 7.) Among other things, CREW “monitors 

the activities of those who run for federal office as well as those groups financially supporting 

candidates for office or advocating for or against their election” and “files complaints with the 

FEC when it discovers violations of the FECA.” (Id. ¶¶ 10-11.) Plaintiff Nicholas Mezlak states 

that he is “a citizen of the United States and a resident of the state of Ohio.” (Id. ¶ 17.) 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 16 of 64
4 

II. STATUTORY AND REGULATORY BACKGROUND 

A. FECA’s Requirements for Independent Expenditure Reporting by Persons 

That Are Not Political Committees 

FECA creates a comprehensive structure of disclosure requirements that vary depending 

upon who is reporting to the FEC and what activities the reporting entity has engaged in. 

Political committees, which have the major purpose of electing federal candidates, Buckley v. 

Valeo, 424 U.S. 1, 79 (1976), are required to report detailed information to the Commission on a 

regular basis regardless of their specific activities. See 52 U.S.C. § 30104(a). By contrast, 

groups that have not registered as (or otherwise been found by the FEC to be) political 

committees, such as Crossroads GPS, do not have such broad, regular disclosure requirements, 

but are required to file event-driven reports with the FEC if they engage in certain electionrelated spending such as independent expenditures, 52 U.S.C. § 30104(c), or electioneering 

communications, 52 U.S.C. § 30104(f). An independent expenditure is a communication made 

without coordination with a candidate, campaign, or political party that “expressly advocat[es] 

the election or defeat of a clearly identified candidate.” 52 U.S.C. § 30101(17)(A). 

The provision at issue in this case, 52 U.S.C. § 30104(c), involves the disclosure 

requirements for persons that are not political committees and that make independent 

expenditures.1

 FECA states that independent expenditure reports of such persons must include 

“the identification of each person who made a contribution in excess of $200 to the person filing 

such statement which was made for the purpose of furthering an independent expenditure.” 52 

U.S.C. § 30104(c)(2)(C) (emphasis added). Therefore, unlike political committees, which are 

generally required to report the identities of all their contributors who gave over $200 in a 

 

1

 “Person” as used in the statute includes both individuals and organizations like 

Crossroads GPS. 52 U.S.C. § 30101(11). 

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5 

calendar year (52 U.S.C. § 30104(b)(3)(A)), groups that are not political committees are required 

under section 30104(c)(2)(C) only to identify a subset of contributors – those that gave for the 

purpose of furthering an independent expenditure. There is no requirement under that provision 

of FECA that such groups identify those that have contributed for some other purpose or for no 

particular purpose at all. The statute does not specify whether “an independent expenditure” 

refers to the specific independent expenditure that the group is reporting, or if it encompasses 

contributions that were made for the purpose of furthering independent expenditures in a general 

sense, but not any independent expenditure in particular. 

Another portion of 52 U.S.C. § 30104(c) also addresses reporting by groups that are not 

political committees but that make independent expenditures. That subpart states that “[e]very 

person (other than a political committee) who makes independent expenditures in an aggregate 

amount or value in excess of $250 during a calendar year shall file a statement containing the 

information required under subsection (b)(3)(A) of this section for all contributions received by 

such person.” 52 U.S.C. § 30104(c)(1). Subsection (b)(3)(A), in turn, describes how to report 

contributor information.2

 Section 30104(c)(1) may be read simply to specify the situations when 

such groups are required to file reports with the FEC (if they make at least $250 in independent 

expenditures during a calendar year), while section 30104(c)(2) describes what information 

should be included in those reports. See 52 U.S.C. § 30104(c)(2) (“Statements required to be 

filed by this subsection . . . shall include . . .”). However, the second half of section 30104(c)(1) 

might also be read to require such groups to include a comprehensive list of all contributors, 

whether their contributions were made for the purpose of furthering an independent expenditure 

 

2

 Political committees must identify anyone “who makes a contribution to the reporting 

committee during the reporting period, whose contribution or contributions have an aggregate 

amount or value in excess of $200 within the calendar year (or election cycle, in the case of an 

authorized committee of a candidate for Federal office) . . . .” 52 U.S.C. § 30104(b)(3)(A). 

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6 

or not, whenever the reporting requirement is triggered. In essence, this interpretation would 

require all groups that are not political committees but that meet the $250 independentexpenditure-spending threshold in a calendar year to identify all their contributors in the same 

manner that political committees do, but also to go beyond what is required of political 

committees, by separately identifying contributors that gave for the purpose of furthering an 

independent expenditure in accord with subsection 30104(c)(2)(C), as discussed above. 

The provisions of FECA discussed above were originally promulgated as part of the 1979 

amendments to FECA, and although they have been recodified, their language has remained 

unaltered since that time. See Pub. L. 96-187, 93 Stat. 1339 (Jan. 8, 1980) (amending provision 

then codified at 2 U.S.C. § 434(c)(2) (now 52 U.S.C. § 30104(c)(2)). Before the passage of the 

1979 amendments, contributors to entities other than political committees and candidates were 

responsible for reporting their own contributions to the FEC. See 2 U.S.C. § 434(e) (1976). The 

1979 amendments changed disclosure to the current system in which the responsibility for 

reporting contributions is left solely to the recipients of those contributions. The independent 

expenditure reporting provisions discussed above were among those new provisions. 

B. The Commission’s Regulation Implementing FECA’s Requirements for 

Independent Expenditure Reporting by Persons That Are Not Political 

Committees 

The Commission promulgated a number of new and amended regulations in response to 

the 1979 Amendments. The passage of these regulations moved forward in an expedited 

process, as Congress had directed the FEC to transmit regulations to them in less than two 

months time. See 45 Fed. Reg. 15080 (Mar. 7, 1980) (AR1496) (noting that the 1979 

Amendments passed on January 8, 1980 and the Commission was required to transmit 

regulations prior to February 29, 1980). The Commission noticed draft regulations (AR1056-

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7 

1080), received comments from the public (AR1081, 1213-1222, 1227-1261), and published the 

final versions of the regulations, with an explanation and justification (AR1495-1542). 

The independent expenditure disclosure regulation, then located at 11 C.F.R. § 109.2, 

was among the provisions modified as a result of the 1979 Amendments. See 45 Fed. Reg. 

15080, 15087 (Mar. 7, 1980) (AR1503). The process was uncontroversial. The regulation 

contains language almost identical to 52 U.S.C. § 30104(c)(2)(C), and it requires persons that are 

not political committees but that make independent expenditures to identify “each person who 

made a contribution in excess of $200 to the person filing the report, which contribution was 

made for the purpose of furthering the reported independent expenditure.” See 11 C.F.R. 

§ 109.10(e)(1)(vi). None of the commenters during the notice period commented on that 

particular provision. The Commission’s explanation for the regulation was as follows: 

§ 109.2 Reporting of independent expenditures by persons other 

than a political committee. 

This section has been amended to incorporate the changes set forth 

at 2 USC 434(c) (1) and (2) regarding reporting requirements for 

persons, other than a political committee, who make independent 

expenditures. 

(AR1503.) The regulation has not been changed substantively since it was promulgated in 

1980.3

 In practice, the regulation requires groups that engage in the minimum level of 

independent expenditures to file the FEC’s “Form 5” (https://www.fec.gov/resources/cmscontent/documents/fecfrm5.pdf) in any quarter in which they make independent expenditures, as 

 

3

 In 2003, the regulation was moved from section 109.2 to section 109.10 and slightly 

modified to make clear when and how those reports should be filed. FEC, Bipartisan Campaign 

Reform Act of 2002 Reporting, 68 Fed. Reg. 404, 415 (Jan. 3, 2003). The modifications that 

were made in 2003 are not at issue in this case. 

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8 

well as more frequently if they reach certain dollar thresholds shortly before an election. Form 5 

Instructions at 1, https://www.fec.gov/resources/cms-content/documents/fecfrm5i.pdf. 

III. ADMINISTRATIVE PROCEEDINGS FOR MATTER UNDER REVIEW 6696 

 FECA permits any person to file an administrative complaint with the FEC alleging a 

violation of the Act. 52 U.S.C. § 30109(a)(1); see also 11 C.F.R. § 111.4. In November 2012, 

plaintiff CREW and two individuals filed an administrative complaint against Crossroads GPS 

and associated individuals alleging that Crossroads GPS had unlawfully failed to disclose 

contributors in violation of 52 U.S.C. § 30104 and 11 C.F.R. §§ 109.10(b)-(e). (AR1-AR52.)4 

The administrative complaint relied upon a press account by a reporter who had attended a 

fundraiser at which Senate campaign advertisements were shown to attendees and contributions 

were allegedly solicited for both Crossroads GPS and a political committee registered with the 

FEC called American Crossroads. (AR104-105.) 

The administrative complaint described three categories of contributors that the 

complainants alleged Crossroads GPS had unlawfully failed to disclose. First, the complaint 

alleged, based on the press account, that Karl Rove, who described himself as an 

“uncompensated advisor” to Crossroads GPS and American Crossroads (AR94), had stated that 

he had received a phone call from an “unnamed out-of-state donor” who indicated he would 

pledge $3 million for a “matching challenge” to help raise $6 million for Ohio Senate candidate 

Josh Mandel. (AR103-104.) Based on these facts, the administrative complaint alleged that 

Crossroads GPS had violated the disclosure statute and regulation by not identifying the 

unnamed donor. (AR108-112.) Second, based on the same facts, the administrative complaint 

alleged that Crossroads GPS had violated the disclosure requirements of FECA and the FEC 

 

4

 The administrative complaint was later supplemented to substitute plaintiff Nicholas 

Mezlak for one of the individual complainants. (AR98-159.) 

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9 

regulation by not identifying any contributors that were part of the “matching challenge” 

described by Rove at the fundraiser and helped pay for the over $6 million in independent 

expenditures Crossroads GPS reportedly made in that Ohio Senate race. (AR108-112.) Third, 

based on the press account, the administrative complaint alleged that Crossroads GPS had 

violated FECA and the FEC regulation by not identifying any contributors that responded to the 

solicitations at the fundraiser and contributed to Crossroads GPS after having viewed the 

advertisements shown there. (AR 112-113.) In addition to these allegations against Crossroads 

GPS, the administrative complaint made related allegations against several individuals associated 

with Crossroads GPS. (AR 108-115.) The administrative complaint did not allege that any 

respondent had failed to disclose information pursuant to 52 U.S.C. § 30104(c)(1). 

 Crossroads GPS and the other respondents responded to the administrative complaint on 

January 17, 2013, and included an affidavit from Karl Rove. (AR73-95.) The response argued 

that Crossroads GPS was not obligated to identify its contributors. In particular, the response 

stated that Crossroads GPS was not required to identify the “unnamed out-of-state donor” 

because there was no evidence that “demonstrates that any contribution was made for the 

purpose of funding any particular advertisements, advertisements in general, or that the donor 

had any knowledge of any particular Crossroads GPS efforts.” (AR85.) Crossroads GPS also 

stated that it was not obligated to identify any of the “matching fund” contributors because they 

did not make those contributions for the purpose of “furthering the independent expenditures 

Crossroads GPS made in the Ohio Senate race” and there “is no evidence presented regarding 

any donor’s intent.” (AR90.) Similarly, the response stated that Crossroads GPS was not legally 

obligated to disclose contributors that had responded to solicitations at the fundraiser because 

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10 

“Crossroads GPS did not solicit or receive, at any time, any contributions ‘for the purpose of . . . 

broadcasting other ads in those races.’” (AR92 (quoting AR14).) 

 After reviewing an administrative complaint and any responses filed by the respondents, 

the Commission considers whether there is “reason to believe” that FECA has been violated. 

52 U.S.C. § 30109(a)(2). If at least four of the FEC’s six Commissioners vote to find such 

reason to believe, the Commission may investigate the alleged violation; otherwise, the 

Commission dismisses the administrative complaint. Id. §§ 30106(c), 30109(a)(2). 

In this case, the Commission’s Office of General Counsel provided the Commission 

with a First General Counsel’s Report that recommended a finding of “no reason to believe” that 

Crossroads GPS had violated the regulation at 11 C.F.R. § 109.10(e)(1)(vi) or the statutory 

provision that is currently codified at 52 U.S.C. § 30104(c)(2)(C). With respect to the “unnamed 

out-of-state donor,” the Office of General Counsel recommended a finding of “no reason to 

believe” because “a donor’s general purpose to support an organization in its efforts to further 

the election of a particular federal candidate does not itself indicate that the donor’s purpose was 

to further ‘the reported independent expenditure’ – the requisite regulatory test.” (AR 174.) 

With respect to any contributors that might have participated in the “matching challenge,” the 

Office of General Counsel recommended no reason to believe because the mere fact that 

Crossroads GPS spent more than $6 million in independent expenditures in the Ohio Senate race 

“would not advance the claim that, as a result of the matching challenge, Crossroads received 

funds from a donor for the purpose of furthering Crossroads’ reported independent expenditures 

in Ohio.” (Id.) As for the alleged failure to identify contributors who saw advertisements at the 

fundraiser, the Office of General Counsel likewise recommended a finding of no reason to 

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11 

believe because, among other reasons, “Crossroads represents that none of the contributions 

received at the event were for the purpose of furthering those communications.” (AR175.) 

Lastly, the Office of General Counsel discussed 52 U.S.C. § 30104(c)(1), which could 

be read to require groups that are not political committees but that make independent 

expenditures to disclose all contributors, not just those made for the purpose of furthering 

independent expenditures. (AR175-176.) This alternative statutory interpretation had not been 

raised in the administrative complaint, which had only argued that Crossroads GPS violated the 

law by failing to disclose contributions made for the purpose of furthering independent 

expenditures. (AR108-115.) Nonetheless, in the interest of providing comprehensive legal 

advice, the FEC’s Office of General Counsel raised the issue, without taking a position as to 

whether 52 U.S.C. § 30104(c)(1) actually imposed such a requirement. (AR176.) But that 

Office ultimately recommended that the Commission exercise its prosecutorial discretion and not 

pursue that legal theory here, explaining that doing so “could raise equitable concerns about 

whether a filer has fair notice of the requisite level of disclosure required by law,” due to the fact 

that the Commission’s regulation does not itself impose such a disclosure requirement and the 

Commission has not previously interpreted the statute in that manner. (Id.) 

The Commission voted on the matter on November 17, 2015, splitting 3-3 on each of 

the recommendations of the Office of General Counsel, as well as on an additional motion to 

find that Crossroads GPS should be deemed a political committee. (AR 193.) As a result of the 

split votes, the Commission closed the file in the matter and dismissed the administrative 

complaint. (AR 195.) The three Commissioners that voted in favor of the recommendations of 

the Office of General Counsel, who made up the controlling group because their position 

prevailed, did not issue a separate Statement of Reasons for their vote, and therefore the Office 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 24 of 64
12 

of General Counsel’s First General Counsel’s Report serves as the basis for judicial review. See

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”), 

966 F.2d 1471, 1476 (D.C. Cir. 1992) (Commissioners that voted to dismiss “constitute a 

controlling group for purposes of the decision, their rationale necessarily states the agency’s 

reasons for acting as it did.”); FEC v. Democratic Senatorial Campaign Comm. (“DSCC”), 454 

U.S. 27, 38 & n.19 (1981) (staff report may provide a basis for the Commission’s action). 

IV. PLAINTIFFS’ LAWSUIT AGAINST THE COMMISSION 

 FECA provides administrative complainants with a cause of action for judicial review if 

the Commission determines that no violation has occurred or decides to dismiss the 

administrative complaint for some other reason. See 52 U.S.C. § 30109(a)(8)(A) (detailing 

procedure and scope of judicial review of administrative dismissal). Judicial review is also 

available for FEC dismissals resulting from 3-3 votes. NRSC, 966 F.2d 1471, 1476 (D.C. Cir. 

1992) (“[A split vote] dismissal, like any other, is judicially reviewable under [§ 30109(a)(8)].”). 

Following the dismissal of plaintiffs’ administrative complaint, they brought this lawsuit, 

which asserts three claims. Count I contends that the Commission’s failure to find reason to 

believe that Crossroads GPS violated the Commission’s independent-expenditure disclosure 

regulation at 11 C.F.R. § 109.10(e)(1)(vi) was arbitrary, capricious, an abuse of discretion, and 

contrary to law. (Compl. ¶ 116.) Count II argues that 52 U.S.C. § 30104(c)(2)(C) actually 

requires greater disclosure of contributors than the Commission’s regulation, and therefore the 

FEC acted contrary to law by finding no reason to believe that Crossroad GPS violated the 

statute when it did not report the identity of its contributors. (Compl. ¶ 124.) This Count thus 

claims that the dismissal applying the regulation is contrary to law because the regulation is 

inconsistent with the statute, and plaintiffs seek to have the Court declare “that 11 C.F.R. § 

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13 

109.10(e)(1)(vi) is contrary to law, arbitrary and capricious, and invalid.” (Compl. Requested 

Relief ¶ 3). Plaintiffs, in addition to relying on section 30109(a)(8), bring their challenge to the 

interpretation of the regulation in the agency’s dismissal pursuant to the APA. (See id. ¶ 124 

(citing 5 U.S.C. § 706.) Lastly, Claim III asserts that 52 U.S.C. § 30104(c)(1) should be 

interpreted such that groups that are not political committees but that make at least $250 in 

independent expenditures annually are required to identify all persons who made contributions 

for the purpose of influencing a federal election generally, whether or not those contributions 

were made to further independent expenditures. (Compl. ¶ 127.) As a result, plaintiffs argue 

that the FEC acted contrary to law by exercising its prosecutorial discretion to dismiss the 

allegation that Crossroads GPS violated 52 U.S.C. § 30104(c)(1). 

The FEC moved to dismiss plaintiffs’ challenge to its regulation under the APA (Claim 

II), arguing that the claim was time-barred. (FEC’s Partial Mot. to Dismiss (Doc. No. 12). The 

Court disagreed, finding that “when an agency applies a regulation to dismiss an administrative 

complaint, the party whose complaint was dismissed may challenge the regulation after the 

statute of limitations has expired on the ground that the regulation conflicts with the statute from 

which it derives.” CREW v. FEC, 243 F. Supp. 3d 91, 101 (D.D.C. 2017). The Court also 

granted a motion by defendant-intervenor Crossroads GPS to dismiss claims under the APA 

from plaintiffs’ Counts I and III, but the Court denied the same motion as to Count II. Id. at 105. 

Because the APA challenge arises in the context of a dismissal under FECA, “[i]n the event that 

the plaintiffs ultimately prevail on their APA challenge to the regulation, however, the Court 

would remand this action to the FEC for reconsideration of the plaintiffs’ administrative 

complaint in light of the Court’s opinion.” Id. (citing 52 U.S.C. § 30109(a)(8)(C). 

The parties have now filed cross-motions for summary judgment. 

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ARGUMENT 

I. THE COMMISSION’S PROMULGATION OF REGULATIONS AND ITS 

DISMISSAL OF ADMINISTRATIVE COMPLAINTS ARE ENTITLED TO 

JUDICIAL DEFERENCE 

Judicial review of both the Commission’s 2015 administrative complaint dismissal and 

its 1980 rulemaking are highly deferential. This Court may set aside an administrative dismissal 

order of the Commission only if it is “contrary to law,” a high standard. 52 U.S.C. § 

30109(a)(8)(C). The Commission receives even greater deference in judicial review of its 

decision not to proceed with an enforcement case in an exercise of its prosecutorial discretion, 

such as Claim III of the complaint in this case. See infra pp. 28-29. Review of plaintiffs’ 

challenge to the Commission’s regulation under the APA is also “highly deferential.” See infra

pp. 31-34 (quoting Sierra Club v. EPA, 353 F.3d 976, 978 (D.C. Cir. 2004)). In both contexts, 

the Court has the limited role of reviewing the Commission’s decision-making based on the 

administrative record, so the Court’s review must be based upon the record that was before the 

agency during its rulemaking. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 

402, 420 (1971). 

The Supreme Court has explained that the Commission “is precisely the type of agency to 

which deference should presumptively be afforded.” DSCC, 454 U.S. at 39. That judicial 

deference is based upon Congress’s delegation of discretion to an agency to implement a statute. 

See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996). Such deference is appropriate 

when “Congress has expressly delegated to [an agency] the authority to prescribe regulations 

containing such classifications, differentiations, or other provisions as, in the judgment of the 

[agency], are necessary or proper to effectuate the purposes of [the authorizing statute], to 

prevent circumvention or evasion thereof, or to facilitate compliance therewith.” Household 

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15 

Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 238-39 (2004) (internal quotation marks omitted). 

And “Congress has legislated in no uncertain terms with respect to FEC dominion over the 

election law.” Common Cause v. Schmitt, 512 F. Supp. 489, 502 (D.D.C. 1980) (three-judge 

court), aff’d mem., 455 U.S. 129 (1982). Indeed, the Commission’s “express authorization to 

elucidate statutory policy in administering FECA ‘implies that Congress intended the FEC ... to 

resolve any ambiguities in statutory language,’” and so “‘the FEC’s interpretation of the Act 

should be accorded considerable deference.’” United States v. Kanchanalak, 192 F.3d 1037, 

1049 (D.C. Cir. 1999) (citation omitted). 

 The Commission’s decisions are particularly appropriate for judicial deference because 

the FEC is “[u]nique among federal administrative agencies” in that “its sole purpose [is] the 

regulation of core constitutionally protected activity — ‘the behavior of individuals and groups 

only insofar as they act, speak and associate for political purposes.’” AFL-CIO v. FEC, 333 F.3d 

168, 170 (D.C. Cir. 2003) (quoting FEC v. Machinists Non-Partisan Political League, 655 F.2d 

380, 387 (D.C. Cir. 1981)). “The [Federal Election] Commission has been vested with a wide 

discretion in order to guarantee that it will be sensitive to the great trust imposed in it to not 

overstep its authority by interfering unduly in the conduct of elections.” In re Carter-Mondale 

Reelection Comm., Inc., 642 F.2d 538, 545 (D.C. Cir. 1980). “Deference is particularly 

appropriate in the context of the FECA, which explicitly relies on the bipartisan Commission as 

its primary enforcer.” Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988). 

II. THE COMMISSION’S DISPOSITION OF THE ADMINISTRATIVE 

COMPLAINT WAS LAWFUL 

In considering plaintiffs’ administrative complaint, the Commission reasonably and 

lawfully exercised its discretion. The Commission’s lack of consensus to find “reason to 

believe” that Crossroads GPS had violated either 11 C.F.R. § 109.10(e)(1)(vi) or 52 U.S.C. 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 28 of 64
16 

§ 30104(c)(2)(C) was justified by the speculative nature of the allegations, most notably the 

absence of any evidence of contributions that were made “for the purpose of furthering” 

Crossroads GPS’s independent expenditures. The Commission’s dismissal of the allegation that 

Crossroads GPS violated 52 U.S.C. § 30104(c)(1) was permissible in light of the concern that the 

statute had not previously been applied to require such additional disclosure and it would present 

fairness concerns to do so against an entity like Crossroads that reasonably believed it was acting 

consistently with the law. Thus, the Commission did not act “contrary to law” in this matter. 

A. FEC Dismissals Must Be Affirmed Unless They Are “Contrary to Law” 

This Court may set aside the Commission’s dismissal order only if it is “contrary to law.” 

52 U.S.C. § 30109(a)(8)(C). Under that standard, the Commission’s decision to dismiss cannot 

be disturbed unless it was based on “an impermissible interpretation of the Act” or was otherwise 

“arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 

1986). This standard simply requires that the Commission’s decision was “sufficiently 

reasonable to be accepted.” DSCC, 454 U.S. at 39. The Commission’s decision need not be “the 

only reasonable one or even the” decision “the [C]ourt would have reached” on its own “if the 

question initially had arisen in a judicial proceeding.” Id. Instead, the contrary-to-law standard 

is “[h]ighly deferential” to the Commission’s decision. Hagelin v. FEC, 411 F.3d 237, 242 (D.C. 

Cir. 2005) (internal quotation marks omitted); see also Orloski, 795 F.2d at 167 (noting that the 

contrary-to-law standard is “extremely deferential” to the agency’s decision (internal quotation 

marks omitted)).5

 

 

5

 In addition, although “an agency is required to adequately explain its decision” in such 

a matter, it need not do so with perfect precision. Van Hollen v. FEC, 811 F.3d 486, 496-97 

(D.C. Cir. 2016). “It is enough that a reviewing court can reasonably discern the agency’s 

analytical path,” id. at 497, even if the decision is “of ‘less than ideal clarity.’” Nader v. FEC, 

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17 

B. It Was Reasonable, Based on the Facts Presented, Not to Find Reason to 

Believe That Crossroads GPS Violated 11 C.F.R. § 109.10(e)(1)(vi) 

The controlling group of Commissioners reasonably determined, based on the evidence 

presented, that there was no reason to believe Crossroads GPS received any of the alleged 

contributions for the purpose of furthering any of the independent expenditures it made. 

Plaintiffs claim that the Commission acted unlawfully by failing to find reason to believe that 

Crossroads GPS violated 11 C.F.R. § 109.10(e)(1)(vi). But that regulation requires reporting 

only of “[t]he identification of each person who made a contribution in excess of $200 to the 

person filing such report which contribution was made for the purpose of furthering the reported 

independent expenditure.” 11 C.F.R. § 109.10(e)(1)(vi) (emphasis added). There was evidence 

that donors intended to support certain candidates, but as noted in the First General Counsel’s 

Report, “a donor’s general purpose to support an organization in its efforts to further the election 

of a particular federal candidate does not itself indicate that the donor’s purpose was to further 

‘the reported independent expenditure’— the requisite regulatory test.” (AR174.) 

Plaintiffs point to three factual elements that they assert establish a reason to believe that 

Crossroads was in violation of the regulation (Pls.’ Mem. at 44-45), but even if correct, none of 

those would establish that contributions here were made for the purpose of furthering any 

specific reported independent expenditure. The first point plaintiffs make is that “Crossroads 

GPS took at least $3 million ‘to use to support the election of [Ohio Senate candidate] Josh 

Mandel.’” (Pls.’ Mem. at 44 (quoting AR174).) Karl Rove did confirm in an affidavit that the 

donor of these funds “intended the funds to be used in some manner that would aid the election 

of Josh Mandel” (AR95 ¶ 10), but Rove also explained that his conversations with the donor did 

 

823 F. Supp. 2d 53, 58 (D.D.C. 2011) (quoting Common Cause v. FEC, 906 F.2d 705, 706 (D.C. 

Cir. 1990)). 

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not include discussion of “any particular television advertisements, or television advertisements 

in general” (AR94 ¶ 6); “specific efforts that would or could be made by Crossroads GPS” 

(AR94 ¶ 7); “spending the donor’s funds on any specific methods of communication” (AR94 ¶ 

8); “independent expenditures” (AR94 ¶ 9); or spending of the pledged funds “in any particular 

manner or on any particular or specific efforts or projects” (AR95 ¶ 10). Rove also clarified that 

the donor did not actually donate $3 million, but instead “subsequently contributed a larger 

amount to Crossroads GPS that was not in any way earmarked for any particular use.” (AR95 ¶ 

14.) The mere fact that a contribution was made to help a particular candidate is not evidence 

that it was made for the purpose of furthering a reported independent expenditure. Plaintiffs may 

prefer that the regulation require more disclosure, but it does not. 

The second factual element plaintiffs identify is that Crossroads GPS received an 

additional $1.3 million in matching donations to aid the election of Josh Mandel (Pls.’ Mem. at 

44-45), but this point suffers from the same infirmity. As the Office of General Counsel noted, 

“that fact would not advance the claim that, as a result of the matching challenge, Crossroads 

received funds from a donor for the purpose of furthering Crossroads’ reported independent 

expenditures in Ohio.” (AR174.) It therefore provides no evidence that the regulation required 

Crossroads GPS to disclose the identity of those contributors. 

Plaintiffs’ third factual point is that attendees at the fundraiser “were shown independent 

expenditures, which the respondents admitted were used as ‘examples’ of the activities raised 

funds would support and which mirrored the ads that eventually ran.” (Pls.’ Mem. at 45.) But 

the fact that “example” TV advertisements were shown at a fundraiser does not indicate that 

contributions received were made for the purpose of furthering independent expenditures 

actually made. In fact, the administrative respondents indicated that all of the advertisements 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 31 of 64
19 

shown at the fundraiser had already been fully paid for and aired by the day of the fundraiser, 

with the exception of one that never aired. (AR77-78, AR175.) In any case, as the First General 

Counsel’s Report stated, “there is no basis to conclude on these facts that Crossroads received 

contributions from individuals at the fundraiser for the purpose of furthering Crossroads’ 

reported independent expenditures in Virginia, Montana, and Nevada as alleged.” (AR175.) 

Plaintiffs’ arguments seem to reflect a view that if a group like Crossroads GPS tells 

potential contributors that it is going to support certain candidates, provides some examples of 

how it might do so, and makes independent expenditures, 11 C.F.R. § 109.10(e)(1)(vi) requires 

the identities of the contributors to be reported. But the regulation plainly requires more of a link 

between the contributions and the expenditures, and it was reasonable for the controlling group 

of Commissioners to determine that the facts identified in the administrative complaint were 

insufficient to find reason to believe that Crossroads GPS had violated the regulation. 

C. It Was Reasonable, Based on the Facts Presented, Not to Find Reason to 

Believe That Crossroads GPS Violated 52 U.S.C. § 30104(c)(2)(C) 

Plaintiffs claim that the Commission’s dismissal of the alleged statutory violation was 

contrary to FECA even if respondents’ conduct did not violate the regulation (Pls.’ Mem. at 38-

39), but that is incorrect. Plaintiffs argue at length that there was reason to believe Crossroads 

GPS violated the allegedly greater disclosure requirements of 52 U.S.C. § 30104(c)(2)(C), 

asserting that the FEC’s regulation actually conflicts with the language in FECA. Plaintiffs 

emphasize that the statute requires contributors to be identified if their contributions are made for 

the purpose of furthering “‘an’ independent expenditure,” whereas the regulation states 

contributors should be identified if contributions are made for the purpose of furthering “‘the 

reported’ independent expenditure.” (Pls.’ Mem. at 30-33, 38-39 (emphasis added) (comparing 

52 U.S.C. § 30104(c)(2)(C) with 11 C.F.R. § 109.10(e)(1)(vi)).) The First General Counsel’s 

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20 

Report addressed the distinction between the statutory and regulatory language, explaining that 

while the statutory language is “an arguably more expansive approach,” the regulation 

“constitutes the Commission’s controlling interpretation of the statutory provision it 

implements.” (AR175 n.57.) As discussed supra pp. 14-15, the Commission is entitled to great 

deference in this task and its regulation is a reasonable interpretation of the statute’s ambiguous 

language. Therefore, the FEC acted lawfully by dismissing the statutory allegations in the 

administrative complaint. 

But even if the regulation were invalid, the Commission would still not be in a position to 

proceed against Crossroads GPS for an independent statutory violation. First, any such 

enforcement proceeding would likely not be able to surmount the hurdle of Crossroads GPS 

interposing the defense that it had exhibited good faith reliance on that regulation. Congress 

placed a “safe harbor” provision in FECA, titled “Scope of protection for good faith reliance 

upon rules or regulations,” stating that “any person who relies upon any rule or regulation 

prescribed by the Commission in accordance with the provisions of this section and who acts in 

good faith in accordance with such rule or regulation shall not, as a result of such act, be subject 

to any sanction provided by this Act.” 52 U.S.C. § 30111(e). Here, if there is no reason to 

believe that Crossroads GPS violated the regulation, then under 52 U.S.C. § 30111(e) the 

Commission could not reasonably pursue Crossroads GPS for failing to comply with the terms of 

the statute it implements. There has been no indication here that Crossroads GPS did not rely in 

good faith on the regulation. And the report providing the basis for the controlling group’s 

dismissal cited the equitable concerns underlying the safe harbor. (See AR176 (“Because the 

record here does not suggest a basis to find a violation of the regulatory standard at 11 C.F.R. 

§ 109.10(e)(1)(vi) under its plain terms, a Respondent could raise equitable concerns about 

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21 

whether a filer has fair notice of the requisite level of disclosure required by law if the 

Commission attempted to impose liability under Section [30104(c)(1)].”).) Indeed, that principle 

underlies any decision not to go forward when proceeding would involve revisiting a 

longstanding interpretive regulation. The controlling group was reasonable in declining to revisit 

a regulatory interpretation through an enforcement proceeding against Crossroads GPS. 

This Court therefore need not further consider any of plaintiffs’ claims. Because the 

controlling group reasonably found no reason to believe that Crossroads GPS violated the 

regulation, they also reasonably took a lack of notice into account on any contrary interpretations 

in light of FECA’s safe harbor provision. See Shays v. FEC, 414 F.3d 76, 95 (D.C. Cir. 2005) 

(“good-faith reliance on FEC regulations affords a defense against FEC sanction” (citing 2 

U.S.C. § 438(e), now codified as 52 U.S.C. § 30111(e)); McConnell v. FEC, 251 F. Supp. 2d 

176, 261–64 (D.D.C. 2003) (“as long as Plaintiffs abide by the regulations in good faith, they 

will not be subject to sanctions under FECA.”) The Commission can reasonably decline to 

proceed with an understanding that “sanction” is not just limited to monetary sanctions, but also 

extends to the injunctive and declaratory relief sought by plaintiffs here. See Factual and Legal 

Analysis, FEC Matter Under Review 7101 at 12 n.45, 

https://www.fec.gov/files/legal/murs/current/119538.pdf (concluding that “sanction” in the 

advisory opinion context extends to forms of equitable relief that might be sought in a later 

enforcement action); Alabama v. North Carolina, 560 U.S. 330, 340-41 (2010) (noting that “the 

imposition of a nonmonetary obligation” can be “one kind of ‘sanction’”); United States v. 

Alabama, 691 F.3d 1269, 1289 (11th Cir. 2012) (“A sanction is commonly understood to be ‘a 

restrictive measure used to punish a specific action or to prevent some future activity.’”). 

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22 

Courts reviewing other similar federal statutes have concluded that Congress’s intent 

when passing such provisions is to prevent exactly what plaintiffs have urged the Commission to 

do here, namely, to pursue statutory violations that are not encompassed by the statute. These 

laws provide the public with security that they will not be subject to sanction so long as they 

comply with an agency’s guidance. Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 428–29 

(1990) (citing numerous such safe harbor statutes). For example, the Truth in Lending Act 

includes just such a provision to “promote reliance upon Federal Reserve pronouncements” and 

to “relieve the creditor of the burden of choosing ‘between the Board's construction of the Act 

and the creditor's own assessment of how a court may interpret the Act.’” Ford Motor Credit 

Co. v. Milhollin, 444 U.S. 555, 566–67 (1980). That provision “signals an unmistakable 

congressional decision to treat administrative rulemaking and interpretation under [Truth in 

Lending Act] as authoritative.” Id. at 567-78. The safe harbor laws also protect the public 

against unexpected changes in agency positions, because “an agency must also be cognizant that 

longstanding policies may have ‘engendered serious reliance interests that must be taken into 

account.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting FCC v. 

Fox Television Stations, Inc., 556 U.S. 502, 515, (2009)); see also Encino Motorcars, 136 S. Ct. 

at 2128 n.2 (Ginsburg, J., concurring) (“an affirmative defense in the Fair Labor Standards Act 

(FLSA) protects regulated parties against retroactive liability for actions taken in good-faith 

reliance on superseded agency guidance, 29 U.S.C. § 259(a).”). 52 U.S.C. § 30111(e) serves the 

same interests by assuring participants in election activity that they will not be subject to 

unexpected and unpredictable sanctions by relying on the Commission’s regulations. 

Moreover, even in the absence of the disclosure regulation, plaintiffs have not shown that 

there was sufficient evidence to find reason to believe respondents violated the statutory 

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23 

disclosure requirement at 52 U.S.C. § 30104(c)(2)(C). The evidence plaintiffs have cited does 

not show that the contributions Crossroads GPS actually reported were made to further “an 

independent expenditure,” but only that potential contributors were given information about the 

types of activities the group might conduct in order to support certain candidates. That does not 

establish the nexus between contribution and expenditure that the statute itself requires.

D. 52 U.S.C. § 30104(c)(1) Is an Ambiguous Statutory Provision and Therefore 

the Commission Properly Exercised Prosecutorial Discretion in Dismissing 

an Allegation That Crossroads GPS Violated It 

Claim Three of plaintiffs’ judicial Complaint asserts that the FEC acted contrary to law 

when it dismissed any allegation that Crossroads GPS violated 52 U.S.C. § 30104(c)(1) by not 

identifying all contributors of more than $200 in its independent expenditure reports. It is far 

from clear that Congress intended 52 U.S.C. § 30104(c)(1) to impose additional reporting 

requirements on groups that are not political committees but that engage in independent 

expenditures. However, even if the statute can be read in the manner that plaintiffs suggest, the 

Commission has wide discretion to exercise its prosecutorial authority to dismiss claims even in 

situations where there was an arguable violation of law. In this instance, where there is a 

significant question whether 52 U.S.C. § 30104(c)(1) even imposes the requirements that 

plaintiffs suggest and there is no record of FEC enforcement of that statutory provision in the 

manner sought by plaintiffs here, the controlling group acted well within its authority in deciding 

not to pursue an investigation against Crossroads GPS for the alleged violation. Furthermore, the 

“safe harbor” justification discussed above applies equally here – as long as Crossroads GPS was 

acting in good faith reliance on the regulation that has governed the disclosure at issue for 

decades, the FEC reasonably decided not to move forward against the group on a theory that 

another part of the statute requires more disclosure than the regulation. 

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1. Congress’s Intent When Passing 52 U.S.C. § 30104(c)(1) Is Unclear 

Plaintiffs argue that 52 U.S.C. § 30104(c)(1) requires the identification of all contributors 

over $200 and that that interpretation is “clear on the face of the statute” (Pls.’ Mem. at 41), but 

plaintiffs’ own administrative complaint did not make that claim, even though CREW is by any 

measure an experienced reader of FECA. (See, e.g., Compl. ¶ 8 (stating that CREW’s mission 

includes “seek[ing] to ensure that campaign finance laws are properly interpreted, enforced, and 

implemented”).) Rather, the sole legal theory in the administrative complaint was that 

Crossroads GPS was required to identify only those contributors that gave for the purpose of 

furthering independent expenditures, a theory that the complainants recited in 26 different 

paragraphs.6

 The Commission should not be found to have acted “contrary to law” for failing to 

pursue an allegation not even presented by CREW in the administrative complaint.7

In any case, the likely reason that the administrative complaint failed to argue that 

additional disclosure was required under 52 U.S.C. § 30104(c)(1) is that the meaning of that 

particular provision is unclear. The ambiguity of this provision is evident in the title of the entire 

 

6

 (See Amended Administrative Compl., AR 98-115 ¶ 31 (“None of the reports disclosed 

the names of any of the donors who made contributions for the purpose of broadcasting the 

advertisements shown to attendees at the fundraiser, or broadcasting other ads in those races.”); ¶ 

32 (“Crossroads GPS is aware of its obligations under the FECA and FEC regulations to disclose 

the names of its donors who made contributions for the purpose of broadcasting specific 

advertisements.”); ¶¶ 33, 36-40, 44-46, 50-54, 57, 59, 60-64, 66-67; Conclusion (FEC should 

“order Crossroads GPS to correct these violations by amending the relevant independent 

expenditure disclosure reports to identify and make public each person who made a contribution 

in excess of $200 made for the purpose of furthering the reported independent expenditures.”).) 

7

 Indeed, the failure of plaintiffs to press their current interpretation of 52 U.S.C. § 

30104(c)(1) in the administrative proceeding suggests that plaintiffs may not even have standing 

to bring the claim in this proceeding. 52 U.S.C. § 30109(a)(8) permits “[a]ny party aggrieved by 

an order of the Commission dismissing a complaint” to seek judicial review of that order in this 

district. But plaintiffs can hardly be considered “aggrieved” that the FEC dismissed an 

allegation that they did not even make. For that reason, the Court could grant summary 

judgment to the Commission on this claim on that ground alone and limit its substantive judicial 

review to alleged violations that were actually presented to the agency by plaintiffs. 

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25 

subsection, the cross-reference in the provision, and the provision’s uncertain relation to FECA’s 

reporting requirements as a whole. Plaintiffs’ appeal to the supposed plain language of the 

statute and to dicta from a non-controlling opinion of the Supreme Court are unavailing. 

There are three provisions in the subsection dealing with the reporting of independent 

expenditures by those other than political committees. The first part, the subject of disagreement 

here, begins with a description of who must file independent expenditure statements. 52 U.S.C. 

§ 30104(c)(1) (“Every person (other than a political committee) who makes independent 

expenditures in an aggregate amount or value in excess of $250 during a calendar year shall file 

a statement . . . .”). The second and third subsections are, respectively, about the contents of 

such statements and about indices that the FEC must prepare from those statements. See 52 

U.S.C. § 30104(c)(2) (“Statements required to be filed by this subsection . . . shall include . . .”); 

52 U.S.C. § 30104(c)(3) (“The Commission shall be responsible for expeditiously preparing 

indices . . .”). The structure of the subsection therefore matches the title of the subsection, which 

is “Statements by other than political committees; filing; contents; indices of expenditures.” 52 

U.S.C. § 30104(c). Under this reading, “Statements by other than political committees” refers to 

the subsection as a whole, while the three parts bracketed by semicolons refer to each individual 

provision. But section 30104(c)(1) also specifies that the filed statements should “contain[] the 

information required under subsection (b)(3)(A) of this section for all contributions received by 

such person.” 52 U.S.C. § 30104(c)(1). Interpreting this part of section 30104(c)(1) as a 

provision about the content of independent expenditures appears to conflict with the language in 

the title, but interpreting 30104(c)(1) as solely about “filing,” as the title suggests, arguably fails 

to give meaning to all of the words of the statute. 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 38 of 64
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In addition, the provision’s cross-reference stating that reports should “contain[] the 

information required under subsection (b)(3)(A)” is ambiguous. It is not clear that this crossreference creates an additional content requirement because subsection (b)(3)(A), which deals 

with the content of reports filed by political committees, includes language that is inapplicable to 

filers that are not political committees. The provision directs that statements should include 

contributions “to the reporting committee during the reporting period.” But independent 

expenditure statement filers under 52 U.S.C. § 30104(c) are often not “committees”; they may be 

individuals, corporations, or labor unions. Arguably, they are not “reporting” under the statute, 

because the law requires them to file independent expenditure or electioneering communication 

“statements,” not “reports.” Compare id. § 30104(a)(1) (“Each treasurer of a political committee 

shall file reports . . .”) with id. § 30104(c)(1) (“Every person (other than a political committee) 

who makes independent expenditures in an aggregate amount or value in excess of $250 during a 

calendar year shall file a statement . . .”). And unlike political committees that file reports at 

scheduled intervals for reporting periods, such filers have no “reporting period.” 

The structure of 52 U.S.C. § 30104(c) deepens the ambiguity. Section 30104(c)(1) states 

that filers that are not political committees and that spend over $250 in independent expenditures 

“shall file a statement containing the information required under subsection (b)(3)(A).” 52 

U.S.C. § 30104(c)(1) (emphasis added). But the following provision indicates that “[s]tatements 

required to be filed by this subsection . . . shall include” information that is dissimilar from what 

is required under subparagraph (b)(3)(A). 52 U.S.C. § 30104(c)(2). If Congress’s intent was 

that a single statement would be filed, it is unclear whether the content of that statement should 

be what is listed in 52 U.S.C. § 30104(b)(3)(A) or in 52 U.S.C. § 30104(c)(1). But if Congress 

intended that two different statements would be filed, it should not have said that filers “shall file 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 39 of 64
27 

a statement.” And if the directive to “file a statement” is read to only apply to a statement 

containing the information in section 30104(c)(1), then there is no provision in the statute 

directing the filing of the statement contemplated in section 30104(c)(2). 

Plaintiffs make several arguments that section 30104(c)(1) is a clear stand-alone 

disclosure requirement, but each of these arguments is flawed. As discussed above, the 

argument that such a reading is dictated by the plain language of the statute is untrue — reading 

the statute in that manner conflicts with the language and structure of other parts of the statute. 

Plaintiffs also rely on FEC v. Massachusetts Citizens for Life, Inc. (“MCFL”), 479 U.S. 238 

(1986), for the proposition that the Supreme Court has interpreted section 30104(c)(1) as 

requiring the identification of all contributors. Justice Brennan’s opinion in MCFL does contain 

a single sentence that appears to assume that the statute should be read in that manner, but that 

sentence was not essential to the holding of the case and in any event it was in a portion of the 

opinion only signed by four justices. MCFL, 479 U.S. at 262. Moreover, the very next year the 

Ninth Circuit interpreted section 30104(c)(1) in the opposite manner, and the Supreme Court 

denied certiorari. See FEC v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987) (stating that the 

contents of the statement contemplated by (c)(1) are specified in (c)(2)), cert. denied, 484 U.S. 

850 (1987). That reading is consistent with the ensuing 30 years of FECA enforcement.

Plaintiffs also claim that, although the language of (c)(1) and (c)(2) suggest statements 

need to be filed with different information, this “paired reporting is sensible” because it provides 

the public both with general information about all contributors and specific information about 

those contributions made to further independent expenditures. (Pls.’ Mem. at 40.) But plaintiffs 

make no attempt to explain why Congress would require this type of “paired reporting” for those 

that make independent expenditures other than political committees, but not for political 

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28 

committees, which are also capable of making independent expenditures. In fact, the statute 

states explicitly that political committees have a duty to report independent expenditures (see 52 

U.S.C. § 30104(g)(1)(A), (2)(A)), but that when they do so, the content of that statement need 

only “contain the information required by subsection (b)(6)(B)(iii),” a subsection that requires 

disbursement, not contributor information. 52 U.S.C. § 30104(g)(3)(B). 

In light of these issues, it is reasonable for the controlling group of FEC Commissioners 

to interpret 52 U.S.C. § 30104(c)(1) not to establish an anomalous, stand-alone reporting 

requirement for persons that are not political committees, over and above the clear event-driven 

reporting of 52 U.S.C. § 30104(c)(2). And to the extent the Commission’s regulation at 11 

C.F.R. § 109.10(e) was an implementation of both statutory provisions, that construction of 

arguably competing statutory commands — which may be debatable but has not been revised — 

is entitled to deference under step two of the Chevron framework. 467 U.S. at 842, 844. 

2. The Commission Properly Exercised Discretion in Dismissing the Allegation of a 

Violation of 52 U.S.C. § 30104(c)(1) 

The FEC is afforded great deference in judicial review of decisions not to proceed with 

enforcement cases as exercises of prosecutorial discretion. Heckler v. Cheney, 470 U.S. 821, 831 

(1985) (“[A]n agency’s decision not to prosecute or enforce . . . is a decision generally 

committed to an agency’s absolute discretion.”); see also La Botz v. FEC, 61 F. Supp. 3d 21, 33 

(D.D.C. 2014) (“The prosecutorial discretion afforded to the FEC is considerable.” (internal 

quotation marks omitted)). This is so because the “agency is in a unique — and authoritative — 

position to view its projects as a whole, estimate the prospects for each, and allocate its resources 

in the optimal way.” In re Barr Labs., Inc., 930 F.2d 72, 76 (D.C. Cir. 1991). Such “budget 

flexibility as Congress has allowed the agency is not for [the courts] to hijack.” Id. Courts have 

repeatedly applied these principles in affirming particular FEC decisions not to pursue 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 41 of 64
29 

enforcement of FECA. See Nader v. FEC, 823 F. Supp. 2d at 65 (“[T]he Court believes that the 

FEC is in a better position to evaluate its own resources and the probability of investigatory 

difficulties than is [the plaintiff].”), vacated on other grounds, 725 F.3d 226 (D.C. Cir. 2013); 

Stark v. FEC, 683 F. Supp. 836, 840 (D.D.C. 1988) (“[I]t is . . . surely committed to the 

Commission’s discretion to determine where and when to commit its investigative resources.”) 

(citing Heckler, 470 U.S. at 831-32). Indeed, the FEC retains prosecutorial discretion to dismiss 

an administrative complaint even if it identifies a violation, because the “FEC is not required to 

pursue every potential violation of FECA.” La Botz, 61 F. Supp. 3d at 35; CREW. v. FEC, 475 

F.3d 337, 340 (D.C. Cir. 2007) (“The Supreme Court in Akins recognized that the Commission, 

like other Executive agencies, retains prosecutorial discretion.”). 

In this case, the FEC exercised its prosecutorial discretion and dismissed the 52 U.S.C. § 

30104(c)(1) allegation due to concerns that a “[r]espondent could raise equitable concerns about 

whether a filer has fair notice of the requisite level of disclosure required by law.” (AR176.) 

“A fundamental principle in our legal system is that laws which regulate persons or entities must 

give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., 

567 U.S. 239, 253 (2012) (setting aside orders against TV stations due to FCC’s lack of fair 

notice about its new interpretation of an indecency law). In an administrative proceeding, the 

Constitution’s due process clause requires that the agency provide the “precision and guidance 

[that] are necessary so that those enforcing the law do not act in an arbitrary or discriminatory 

way.” Friedman v. Sebelius, 686 F.3d 813, 831 (D.C. Cir. 2012) (quoting Fox, 567 U.S. at 254). 

The concern about a lack of fair notice here is clearly reasonable. The Commission had 

promulgated a regulation more than thirty years earlier that provided guidance to persons other 

than political committees about their reporting obligations. The agency never issued any 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 42 of 64
30 

additional guidance suggesting that it intended to enforce 52 U.S.C. § 30104(c)(1) as a standalone reporting requirement going forward. It was clearly reasonable for the controlling group of 

FEC Commissioners to determine that the lack of enforcement of 52 U.S.C. § 30104(c)(1) as a 

separate reporting requirement, along with the absence of any other guidance since 1980 

suggesting that the FEC would interpret the statute in that manner, “fail[ed] to provide a person 

of ordinary intelligence fair notice of what is prohibited” if section 30104(c)(1) were used as a 

basis for enforcement as CREW seeks. Fox, 567 U.S. at 254 (quoting United States v. Williams, 

553 U.S. 285, 304 (2008)). Thus, it was reasonable to exercise prosecutorial discretion here. 

Plaintiffs attempt to distinguish these “fair notice” cases by asserting that Crossroads 

GPS had fair notice because the rule is “plainly stated in the statute” (Pls.’ Mem. at 43) and 

because Crossroads GPS stated in the administrative proceeding that it “is fully aware of its FEC 

reporting and disclosure obligations” (id. at 42 (quoting AR81). But as described supra pp. 23-

28, the idea that 52 U.S.C. § 30104(c)(1) requires disclosure of all contributors is far from 

“plainly stated.” And Crossroads GPS’s statements of familiarity with the reporting requirements 

are not evidence that it agreed with plaintiffs’ novel interpretation of FECA. 

Because there are competing demands on the FEC’s resources, it is not contrary to law 

for the agency to focus its law enforcement resources on other claims. Akins v. FEC, 736 F. 

Supp. 2d 9, 22 (D.D.C. 2010) (“Absent evidence that the Commission’s investigation was so 

inadequate as to constitute an abuse of discretion, it is not this Court’s place to direct the 

Commission how to expend its resources, and it is certainly not the plaintiffs’.”). And given the 

ambiguous state of the law here, pursuing such a claim against Crossroads GPS would very 

likely have led to lengthy and uncertain litigation over the proper reading of the statute. See 

CREW v. FEC, 236 F. Supp. 3d 378, 394 (D.D.C. 2017) (granting summary judgment to FEC for 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 43 of 64
31 

its exercise of prosecutorial discretion because “[t]he FEC had a rational basis for concluding 

that ‘novel legal issues’ existed in this case, and that resolving them in this forum would have 

been a ‘pyrrhic’ exercise fraught with litigation risk”). The Commission reasonably chose to 

focus its resources elsewhere. 

III. 11 C.F.R. § 109.10(E)(1)(VI) PROVIDED A REASONABLE BASIS FOR 

DISMISSAL AS A VALID REGULATION UNDER THE APA AND CHEVRON

The FEC regulation that plaintiffs have challenged is a reasonable rule that hews closely 

to the language of the statute, resolves ambiguities, and provides clear guidance to filers about 

what their reporting responsibilities are under FECA. The Commission adopted the regulation in 

1980 after a notice-and-comment period in which no commenters said anything about this issue. 

Under the highly deferential standard of review, this regulation satisfies the APA and the twostep analysis of Chevron. The statutory language at 52 U.S.C. § 30104(c) is ambiguous and 

cannot be resolved at Chevron step one, but consistent with Chevron step two, the Commission’s 

regulation reasonably attempts to resolve that ambiguity in a way that is consistent with 

Congressional intent and provides clear guidance to filers. The controlling group’s reliance on 

the regulation in its dismissal decision thus did not violate the APA. 

A. The Commission’s Dismissal Should Be Affirmed Under the APA Unless the 

Challenged Regulation Is Arbitrary, Capricious, or in Excess of Statutory 

Jurisdiction 

When reviewing a challenge to agency action under the APA, the “district court sits as an 

appellate tribunal” and the “entire case on review is a question of law.” Marshall Cty. Health 

Care Auth. v. Shalala, 988 F.2d 1221, 1225-26 (D.C. Cir. 1993). Under the APA, the Court may 

set aside 11 C.F.R. § 109.10(e)(1)(vi) only if it is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law,” or “in excess of statutory jurisdiction, authority, or 

limitations.” 5 U.S.C. §§ 706(2)(A) & (C). 

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The standard for judicial review in an APA challenge is “highly deferential,” Sierra Club, 

353 F.3d at 978 (D.C. Cir. 2004), and so the scope of review is narrow, see Motor Vehicle Mfrs. 

Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In fact, the 

arbitrary and capricious standard “presumes the validity of agency action.” Volpe, 401 U.S. at 

415; see Cellco P’ship v. FCC, 357 F.3d 88, 93-94 (D.C. Cir. 2004). The Court is “not to 

substitute its judgment for that of the agency,” but instead is to satisfy itself that the agency has 

“examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including 

a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 

(citation and internal quotation marks omitted). Where the empowering provision of a statute 

authorizes the agency to “make . . . such rules [. . .] as are necessary to carry out the provisions 

of this Act,” as FECA does in 52 U.S.C. § 30107(a)(8), the “validity of a regulation promulgated 

thereunder will be sustained so long as it is ‘reasonably related to the purposes of the enabling 

legislation.’” Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 369 (1973) (citation 

omitted). And when, as here, an agency has made a determination that falls within its area of 

special expertise, deference is at its zenith. See Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 

Inc., 462 U.S. 87, 103 (1983). 

Because plaintiffs here challenge a regulation that interprets a statute the FEC 

administers, the Court reviews the regulation not only under the APA but also under the two-step 

Chevron framework. The Court looks first to determine “whether Congress has directly spoken 

to the precise question at issue,” and if it has, “the [C]ourt, as well as the agency, must give 

effect to the unambiguously expressed intent of Congress.” 467 U.S. at 842-43. In this step-one 

analysis, “the term ‘precise question at issue’ [is] to be interpreted tightly.” See Cent. States 

Motor Freight Bureau v. ICC, 924 F.2d 1099, 1104 (D.C. Cir. 1991). Only if “an accepted 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 45 of 64
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canon of construction illustrates that Congress had a specific intent on the issue in question” can 

the case “be disposed of under the first prong of Chevron.” Mich. Citizens for an Indep. Press v. 

Thornburgh, 868 F.2d 1285, 1292-93 (D.C. Cir. 1989) (emphasis in original). 

If Congress has not “directly spoken to the precise question at issue,” the Court proceeds 

to the second step of Chevron analysis. At that stage, the Court “may not substitute its own 

construction of a statutory provision for a reasonable interpretation made by the administrator of 

an agency.” Chevron, 467 U.S. at 842, 844.8 Instead, the Court is to “defer to the agency’s 

interpretation as long as it is ‘based on a permissible construction of the statute.’” Bluewater 

Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting Chevron, 467 U.S. at 843. The 

“interpretation need not be the best or most natural one by grammatical or other standards . . . . 

[r]ather[, it] need be only reasonable to warrant deference.” Pauley v BethEnergy Mines, Inc., 

501 U.S. 680, 702 (1991) (citations omitted). “[U]nder Chevron, courts are bound to uphold an 

agency interpretation as long as it is reasonable — regardless whether there may be other 

reasonable, or even more reasonable, views.” FEC v. National Rifle Ass’n of Am., 254 F.3d 173, 

187 (D.C. Cir. 2001) (quoting Serono Labs, Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 

1998)). A “permissible” construction means only “a construction that is ‘rational and consistent 

with the statute.’” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quoting 

NLRB v. Food & Commercial Workers, 484 U.S. 112, 123 (1987)). If “the statute is ambiguous, 

then Chevron step two implicitly precludes courts picking and choosing among various canons 

 

8

 This step overlaps with the arbitrary and capricious standard of the APA, Chamber of 

Commerce of the U.S. v. FEC, 76 F.3d 1234, 1235 (D.C. Cir. 1996), because the question of 

whether an agency’s interpretation of a statute is unreasonable is “close analytically to the issue 

whether an agency’s actions under a statute are unreasonable,” Gen. Instrument Corp. v. FCC., 

213 F.3d 724, 732 (D.C. Cir. 2000). 

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34 

of construction to reject reasonable agency interpretations.” Halverson v. Slater, 129 F.3d 180, 

184 (D.C. Cir. 1997) (citation and internal quotation marks omitted; emphasis in original). 

B. There Are Significant Ambiguities in the Statute Governing Independent 

Expenditure Reporting by Persons Other Than Political Committees 

52 U.S.C. § 30104(c)(2)(C) is ambiguous and the FEC was entitled to clarify it through 

11 C.F.R. § 109.10(e)(1)(vi). Under the first step of Chevron analysis, “the court examines 

whether the statute speaks ‘directly ... to the precise question at issue.’” Kanchanalak, 192 F.3d 

at 1047 (citation omitted). If so, the court must give effect to the clearly expressed intent of 

Congress. Chevron, 467 U.S. at 842. However, “[i]f the statute ‘has not directly addressed the 

precise question at issue,’ then the agency’s construction, if reasonable, should be honored.” 

Kanchanalak, 192 F.3d at 1047 (citation omitted). 

This statute does not directly address the question at issue here. The precise question is 

the circumstances in which a person other than a political committee must identify its 

contributors when it reports independent expenditures to the FEC. Because FECA is ambiguous 

on this question, as explained in the next two subsections, Congress did not clearly express its 

intent and the FEC had the authority to promulgate a regulation addressing that ambiguity. 

1. It Is Unclear What Congress Meant by “for the Purpose of Furthering 

an Independent Expenditure” 

Before examining the language of the statutory provision at issue for ambiguity, it is first 

helpful to look holistically at the overall structure of 52 U.S.C. § 30104. The first subsection, 52 

U.S.C. § 30104(a), describes how and when political committees make their regular disclosure 

reports to the FEC. Depending upon the type of political committee involved, the amount of 

money raised, and whether it is an election year, committees are required to file regular reports at 

specific times, either monthly or quarterly, with additional pre-election and post-election reports. 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 47 of 64
35 

52 U.S.C. §§ 30104(a)(2), (3), (4). Section 30104(b) describes what must be disclosed in those 

reports. Among other things, political committees must disclose the identity of each contributor 

who contributes more than $200 and “who makes a contribution to the reporting committee 

during the reporting period.” 52 U.S.C. § 30104(b)(3)(A). 

 52 U.S.C. § 30104(c) describes the filing of reports by persons that are not registered as 

political committees, like Crossroads GPS, and that “make[] independent expenditures in an 

aggregate amount or value in excess of $250 during a calendar year.” Unlike the routine 

scheduled reporting required of political committees, the statutory provision governing such 

other groups does not contain any specific reporting schedule or periods. Rather, the reports 

filed by such other groups engaged in independent expenditures are triggered by particular 

events. For example, such a group that “makes or contracts to make independent expenditures 

aggregating $1,000” within a 20-day period before an election must file an “initial report” within 

24 hours after making or contracting to make those expenditures, and must file additional reports 

within 24 hours for each set of independent expenditures made during that time period that 

aggregate over $1,000. 52 U.S.C. §§ 30104(g)(1)(A), (B). A person that “makes or contracts to 

make independent expenditures aggregating $10,000 or more” at any time leading up to the 20-

day pre-election period must file an “initial report” within 48 hours of making or contracting to 

make those expenditures, and must file additional reports within 48 hours for each set of 

independent expenditures made before the 20-day pre-election period that aggregate over 

$10,000. 52 U.S.C. § 30104(g)(2)(A), (B). The FEC has established one reporting requirement 

for such groups that is not immediately triggered by an event: Under 11 C.F.R. § 109.10(b), a 

person other than a political committee that makes more than $250 in independent expenditures 

must file a quarterly report in any quarter in which it has made such expenditures. 

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36 

 Thus, because political committees by their very nature are primarily concerned with 

influencing federal elections, Congress requires them to follow a routine pattern of disclosure, 

with specific reporting periods in which both contributions and expenditures are disclosed. By 

contrast, FECA requires entities that are not political committees to make disclosures only if and 

when they engage in particular spending levels of independent expenditures, and it does not set 

regular reporting periods for them. Rather, the deadlines for those reports are triggered by the 

specific act of making independent expenditures that reach those threshold amounts in the 

aggregate. Because of the $1,000 and $10,000 reporting thresholds, the aggregate reports can be 

filed at irregular intervals, and they can potentially include multiple independent expenditures 

over a period of time. The different reporting structures indicate that Congress wanted regular, 

comprehensive disclosure from political committees, but believed that event-driven disclosure 

was sufficient for the independent expenditures of groups that are not political committees. 

 Understanding these contrasting structures is critical to understanding the ambiguity in 

the statutory disclosure provision at the heart of this case. The relevant question is whether there 

is ambiguity in the indefinite article “an” within the requirement that entities other than political 

committees report “the identification of each person who made a contribution in excess of $200 

to the person filing such statement which was made for the purpose of furthering an independent 

expenditure.” 52 U.S.C. § 30104(c)(2)(C) (emphasis added.) Plaintiffs insist that “the use of the 

indefinite clearly covers the full category of independent expenditures the reporting party has 

created or may create.” (Pls.’ Mem. at 31-32.) But an indefinite article does not indicate that a 

full category is covered; rather, it only indicates “[s]ome undetermined or unspecified 

particular.” McFadden v. United States, 135 S. Ct. 2298, 2304 (2015) (quoting Webster’s New 

International Dictionary 1 (2d ed. 1954).) Because one or more independent expenditures may 

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37 

be reported in a single statement, it is reasonable to interpret “an independent expenditure” as a 

reference to any one of the independent expenditures reported in a particular filing with the FEC.

 Interpreting “an” as simply referring to an unspecified independent expenditure from a 

particular report to the FEC is preferable in some ways to the interpretation plaintiffs favor. 

Plaintiffs propose that “an” should refer to “all contributions given for the purpose of furthering 

any independent expenditure, regardless of whether the contribution was given for the purpose of 

reporting the particular independent expenditure reported” (Pls.’ Mem. at 33), but that 

construction creates as many questions as it resolves. As noted above, independent expenditure 

statements are unlike political committee reports, for which the statute creates specific reporting 

periods and requires a political committee to report all of the expenditures they make and 

contributions they receive during that specific reporting period. 52 U.S.C. § 30104(a)(2)-(4). 

There are no such regular reporting periods for independent expenditure reports. So assuming a 

group that is not a political committee receives a contribution for the purpose of furthering an 

independent expenditure, it is unclear where and when that information should be reported under 

plaintiffs’ interpretation. The language of the statute suggests that all such reports “shall 

include” (52 U.S.C. § 30104(c)(2)) “the identification of each person who made a contribution in 

excess of $200 to the person filing such statement which was made for the purpose of furthering 

an independent expenditure” (id. § 30104(c)(2)(C) (emphasis added)). Taken literally, this 

would create the odd result that an organization like Crossroads GPS, which filed more than 100 

different independent expenditure reports in the two-year 2012 election cycle, would need to 

include on each report a recitation of all the contributors that had ever contributed to it for the 

purpose of furthering independent expenditures, possibly for its entire existence. It would be 

cumbersome and confusing to the public to provide such duplicative information. In addition, 

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plaintiffs’ interpretation could generate misleading information about particular contributions. 

For example, if a contributor gave a contribution with specific instructions to use it to further 

independent expenditures in a Ohio U.S. Senate race, but not in a Nevada Senate race, that 

contribution would nonetheless have to be reported on an independent expenditure form that 

reports spending in Nevada. 

Further problems with plaintiffs’ interpretation relating to timing are evident in light of 

their allegation that Crossroads GPS should have identified contributors who attended its 

fundraiser and watched “example” videos of independent expenditure ads. According to 

information from Crossroads GPS, 13 of the 14 advertisements that were shown at the fundraiser 

had already been broadcast and fully paid for before the fundraiser even took place. (AR78.) As 

a result, the independent expenditure statements for those 13 advertisements would have already 

been filed without the contributor information sought by plaintiffs. But if Crossroads GPS 

decided to run independent expenditures the next day that were for completely different races 

and took completely different positions from the ones taken in the ads shown at the fundraiser, 

the contributors at the fundraiser would be listed as having contributed in furtherance of those 

advertisements that they had never seen or had any awareness of. The only remaining 

advertisement shown at the fundraiser was apparently never broadcast at all. If a contributor had 

donated with the specific intention of paying for that advertisement that never ultimately aired, it 

is not clear which form or forms should identify that contributor. 

In short, while Congress intended the regular reports filed by a political committee to 

display all of that committee’s activities during a certain period, the event-driven independentexpenditure reports filed by other entities are intended to provide information only about the 

reported expenditure, not a wider range of activity. It is therefore reasonable, at a minimum, to 

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39 

interpret the statutory term “an” to envision a match between the independent expenditure(s) 

reported in a statement and the contributors listed on that same statement. Because each 

independent expenditure statement is a stand-alone document that details one or more 

independent expenditures, the word “an” can be read to refer to any of the independent 

expenditures that are described in the actual report. Interpreting “an” in that manner eliminates 

the concern about cumbersome and confusing duplicative filings of contributor information over 

and over again on each statement. And it eliminates the concern that a contributor would be 

identified on a report of an independent expenditure that she did not make her contribution in 

furtherance of or even specifically instructed that her contribution not be used for. Because 

multiple independent expenditures can be described in a single report, reading the word “an” in 

this way preserves the match between the contributors listed on an independent expenditure 

statement and the independent expenditures that are the reason for filing that statement. 

 In Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016), the D.C. Circuit evaluated a 

comparable event-driven FEC disclosure regulation and concluded that even statutory language 

that might appear clear on its face nonetheless contained ambiguities that could reasonably be 

resolved by the Commission in promulgating a regulation. In Van Hollen, the plaintiff 

challenged a disclosure regulation promulgated by the FEC that dealt with the reporting of 

electioneering communications. “Electioneering communication[s]” are communications that do 

not qualify as independent expenditures under the statute but do “refer[ ] to a clearly identified 

candidate” and are “made within 60 days before a general [election]” or “30 days before a 

primary [election].” 52 U.S.C. §§ 30104(f)(3)(A)(i), (B)(ii). The statute at issue in that case, 

now codified at 52 U.S.C. § 30104(f), states that reports to the FEC about electioneering 

communications not made from a segregated fund must include “the names and addresses of all 

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contributors who contributed an aggregate amount of $1,000 or more to the person making the 

disbursement during the period beginning on the first day of the preceding calendar year and 

ending on the disclosure date.” 52 U.S.C. § 30104(f)(2)(F) (emphasis added). The Commission 

later promulgated a regulation to govern disclosure by a category of reporting entities 

(corporations and unions) that, like the reporting entities at issue here, were not political 

committees, and that Congress had not originally envisioned making such communications at all, 

but which gained the right to do so after a Supreme Court opinion. Van Hollen, 811 F.3d at 490–

91 (“The FEC was now left to decide how BCRA's disclosure requirements should apply to a 

class of speakers Congress never expected would have anything to disclose.”) 

Although the statutory language directed reporting of “all contributors who 

contributed,” the Commission regulation interpreted the contributor reporting requirement to 

apply, for that category of entities, only to contributions “made for the purpose of furthering 

electioneering communications.” 11 C.F.R. § 104.20(c)(9). That regulation was challenged as 

being in direct conflict with the language of the statute, but the D.C. Circuit held that the 

Commission had the authority to promulgate an interpretive rule because the panel “[did] not 

find that ‘Congress had an intention on the precise question at issue.” Ctr. for Individual 

Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012) (quoting Chevron, 467 U.S. at 843 

n. 9). The same principle applies here, where there is no indication Congress had a clear intent 

about who should appear on an FEC report identifying those who “made a contribution in excess 

of $200 to the person filing such statement which was made for the purpose of furthering an

independent expenditure.” 52 U.S.C. § 30104(c)(2)(C) (emphasis added.) Plaintiffs try to 

distinguish Van Hollen in light of the different genesis of the regulation at issue (Pls.’ Mem. at 

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41 

32-33), but the key point is that context can render ambiguous even statutory text that may seem 

straightforward when viewed narrowly, and that is the case with section 30104(c)(2)(C). 

2. Congress’s General Desire for Disclosure on Other Subjects Does Not 

Mean It Intended to Mandate the Specific Disclosure Plaintiffs Favor 

FECA does not require the FEC to maximize disclosure in all contexts. Indeed, it is 

wrong to “assume[] that Congress’s primary goal was ipso facto its only goal,” because ‘“no 

legislation pursues its purposes at all costs.’” Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397, 

408 (D.C. Cir. 1997) (quoting Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) 

(emphasis added)). “Deciding what competing values will or will not be sacrificed to the 

achievement of a particular objective is the very essence of legislative choice — and it frustrates 

rather than effectuates legislative intent simplistically to assume that whatever furthers the 

statute’s primary objective must be the law.” Rodriguez, 480 U.S. at 526 (emphasis in original). 

Here, as in Riley, 104 F.3d at 408, there is “no evidence that [FECA] was the product of 

monomaniacs.” See also Office of Workers Comp. v. Newport News, 514 U.S. 122, 135 (1995) 

(Supreme Court has dismissed “the proposition that the statute at hand should be liberally 

construed to achieve its purposes” as the “last redoubt of losing causes.”) 

The Court in Van Hollen v. FEC rejected an argument that is virtually identical to the one 

plaintiffs now make about the statute’s independent expenditure reporting, holding that it was 

reasonable for the FEC to interpret the statute’s electioneering communications disclosure 

provision to refer only to those contributions made for the purpose of furthering electioneering 

communications, despite the absence of that specific language in the statute. 811 F.3d at 501-02. 

The Court of Appeals explained that although some might prefer the statute to be interpreted to 

require more disclosure, the Commission’s purpose-driven regulation — which was based in part 

on 52 U.S.C. § 30104(c)(2)(C), the same statutory provision at issue here — had reasonably 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 54 of 64
42 

balanced FECA’s interests in disclosure with the needs of regulated entities. Id. at 499 (“And the 

FEC’s concerns about the competing interests in privacy and disclosure were legitimate.”). The 

Commission’s “tailoring was an able attempt to balance the competing values that lie at the heart 

of campaign finance law.” Id. at 501. 

Moreover, the very statutory provision on which plaintiffs here rely shows that Congress 

did not intend to pursue maximum disclosure at the expense of all other interests. The 

requirement at issue — that entities other than political committees identify those who gave a 

contribution “which was made for the purpose of furthering an independent expenditure,” 52 

U.S.C. § 30104(c)(2)(C) — contains undisputed limits on contributor disclosure, with its eventdriven and dollar-amount parameters, as discussed above. Had Congress been solely interested 

in providing the public with the greatest amount of information about the sources of funding 

used by such entities, it could have drafted the statute in a manner similar to the requirement that 

political committees identify all their contributors on a regular basis. It did not do so. 

C. The Commission’s Regulation Passes Chevron Step 2 Because It Reasonably 

Requires Disclosure Consistent with Congress’s Statutory Directive 

Under Chevron step two, “courts are bound to uphold an agency interpretation as long as 

it is reasonable — regardless of whether there may be other reasonable, or even more reasonable, 

views.” Nat’l Rifle Ass’n, 254 F.3d at 187. Agencies “must be given ample latitude to ‘adapt 

their rules and policies to the demands of changing circumstances.’” FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 157 (2000) (quoting State Farm, 463 U.S. at 42). 11 

C.F.R. § 109.10(e)(1)(vi) is a reasonable interpretation of FECA’s reporting requirements for 

entities that are not political committees but that make independent expenditures. 

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1. The Commission’s Clarification That Contributions Be Disclosed If 

They Are for the Purpose of “the Reported” Independent 

Expenditure Is a Reasonable Statutory Interpretation 

The language of 11 C.F.R. § 109.10(e)(1)(vi) is virtually identical to the statutory 

language of 52 U.S.C. § 30104(c)(2)(C). The statute directs non-political committees to include 

on their independent expenditure reports “the identification of each person who made a 

contribution in excess of $200 to the person filing such statement which was made for the 

purpose of furthering an independent expenditure.” 52 U.S.C. § 30104(c)(2)(C) (emphasis 

added). The regulation requires “[t]he identification of each person who made a contribution in 

excess of $200 to the person filing such report, which contribution was made for the purpose of 

furthering the reported independent expenditure.” 11 C.F.R. § 109.10(e)(1)(vi) (emphasis 

added). Plaintiffs argue that the substitution of “the reported” for “an” causes conflict with the 

regulation, but the change simply clarifies ambiguity in the statute. See supra pp. 34-41. 

a. The Commission’s Decision to Substitute “the Reported” for 

“An” Was a Reasonable Interpretation That Provides Greater 

Guidance to Regulated Entities and Reduces the Chance of 

Misleading the Public About Political Spending 

In light of the ambiguity of the word “an” in the statute, see supra pp. 34-41, the 

Commission’s decision to substitute “the reported” in the regulation was a useful clarification, 

consistent with the intent of Congress, which sought to enhance the ability of the regulated 

community to comply with the law. Plaintiffs suggest that this modest alteration created a 

significant disconnect between the regulation and statute, but it is unclear whether it has even 

resulted in any significant difference in the amount of disclosure of contributors.

Had the FEC promulgated a rule with language identical to the statute, or not 

promulgated one at all, a group like Crossroads GPS making independent expenditures might not 

understand as clearly what contributors to include on its reports. It would not be unreasonable 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 56 of 64
44 

for such a group to read 52 U.S.C. § 30104(c)(2)(C) as requiring the disclosure of contributors 

who gave for the purpose of furthering the independent expenditures listed on its FEC Form 5, 

nor would it be unreasonable for that filer to interpret the statute as requiring reporting of 

contributors who gave for the purpose of furthering any of the group’s independent expenditures. 

The Commission’s choice to resolve the ambiguity in favor of only reporting contributors that 

gave to further a particular independent expenditure retains the close connection that Congress 

appears to have intended between the independent expenditures reported and the contributors 

reported on that same FEC form. Under the statute, groups other than political committees do 

not file reports merely because they have received contributions, but only after they have used 

the contributions to pay for independent expenditures. And the statute does not provide for 

general reporting periods for such groups; rather, it provides that reports be filed within 24 or 48 

hours after an independent expenditure is made. 

Because a single organization can make independent expenditures in many different 

elections and with varying content, the Commission’s regulatory approach also results in the 

reporting of contributor data that is more likely to reflect accurate information. A contributor 

that gave for the purpose of furthering an expenditure for a Senate candidate in one state with a 

pro-business message might be dismayed to learn that his contribution was reported publicly on a 

form detailing an expenditure for another candidate with a message regarding a hot-button social 

issue. To the extent that the public used that information to learn which contributors were 

supporting particular candidates and messages, removing a specific link between contribution 

and expenditure would in some respects diminish the value of the information. 

Plaintiffs argue (Pls.’ Mem. at 28-30) that the Commission’s choice has meaningfully 

reduced the amount of disclosure in recent years, but that is not a proper subject of review here, 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 57 of 64
45 

as explained infra pp. 47-49. But even if it were, plaintiffs have failed to produce evidence of it. 

A contributor that wishes to remain anonymous by making sure his contribution was not made 

for the purpose of a particular independent expenditure could just as easily make sure his 

contribution was not made for the purpose of any independent expenditure. For example, even 

though the report providing the Commission’s reasoning in this case analyzed Crossroads GPS’s 

compliance using the regulatory language rather than the statutory language, it is not clear that 

Crossroads GPS would have been legally required to file the contributor information sought by 

plaintiffs even if 52 U.S.C. § 30104(c)(2)(C) were read in the expansive manner urged by 

plaintiffs. For example, Karl Rove’s affidavit submitted in response to the administrative 

complaint stated that the contribution from the donor that pledged $3 million “was not in any 

way earmarked for any particular use” (AR95 ¶ 10) and prior discussions with that contributor 

included no mention of television advertisements or any other specific communication efforts 

(AR94-95 ¶¶ 6-10). To the extent that plaintiffs believe there is inadequate reporting, they 

would appear to be primarily taking issue with the link that 52 U.S.C. § 30104(c)(2)(C) requires 

between contributions and independent expenditures, not the implementing regulation. 

In this context, plaintiffs rely on misleading characterizations of certain statements by the 

FEC’s Office of General Counsel. The First General Counsel’s Report provided comprehensive 

legal advice to the Commission for its consideration, including discussion of different legal 

options and approaches. However, plaintiffs wrongly characterize that Report as having 

“acknowledged . . . that the disclosure requirements imposed by 11 C.F.R. § 109.10(e)(1)(vi) 

conflicted with statutory requirements imposed by FECA.” (Pls.’ Mem. at 24.) The Office of 

General Counsel did no such thing, but merely presented the Commission with possible legal 

approaches to the issue. The Office of General Counsel never even took a position about the best 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 58 of 64
46 

manner to read the statute, noting only that the statute “may reasonably be construed” in a 

particular way. (AR173.) Similarly, the Office of General Counsel did not “recognize[]” that 

the statute and regulation were in conflict due to the presence of 52 U.S.C. § 30104(c)(1). (Pls.’ 

Mem. at 24.) Rather, it simply noted that it was possible to read them as being in conflict, 

without taking any position as to the correct interpretation of the statute. (AR175 (statute takes 

“an arguably more expansive approach” than the regulation (emphasis added)).) 

b. The Commission’s Regulation Does Not Make the Statute 

Redundant 

Plaintiffs argue that 11 C.F.R. § 109.10(e)(1)(vi) is unreasonable because it “makes 

subsection (c)(2)(C) redundant to other disclosure provisions of the FECA and FEC regulations” 

(Pls.’ Mem at 34-35; see generally id. at 34-38), but plaintiffs’ criticism is based on an apparent 

misreading of the regulation. Plaintiffs wrongly claim that “the FEC’s construction of 52 U.S.C. 

§ 30104(c)(2)(C) via 11 C.F.R. § 109.10(e)(1)(vi) would require such a close connection 

between the contributor and the independent expenditure that the contributor would in fact be the 

maker of the independent expenditure itself” (Pls.’ Mem. at 35), suggesting that a contributor 

must actually control an independent expenditure in order for identification to be required (id. at 

34-38). But a contribution can be made “for the purpose of furthering the reported independent 

expenditure” in a variety of ways that would not turn the contributor into the maker of an 

independent expenditure. A contributor might do so simply by responding to a solicitation or by 

earmarking a contribution. If, for example, a group solicits contributions for the purpose of 

making a particular independent expenditure, the contributor of any contribution over $200 made 

in response to that solicitation would need to be reported. Even without a solicitation, a 

contributor could indicate that she wanted her contribution to be used to pay for a particular 

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47 

advertisement, and that contribution would need to be reported. In both of these scenarios, the 

maker of the independent expenditure retains control of the funds and the ad itself. 

2. The Court Should Not Consider Evidence That Post-Dates the 

Commission’s 1980 Rulemaking 

a. Review of the Regulation Is Limited to the Administrative 

Record That Existed When the FEC Issued the Regulation 

Plaintiffs rely on evidence about independent expenditure disclosure that post-dates the 

Commission’s 1980 rulemaking (see, e.g., Pls.’ Mem. at 13-17, 33-34 & 34 n.15), but the “focal 

point of judicial review” of a federal agency’s decision in a rulemaking challenged under the 

APA “should be the administrative record already in existence, not some new record made 

initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 141-142 (1973) (per curiam). See 

also, e.g., Volpe, 401 U.S. at 420 (“review is to be based on the full administrative record that 

was before the [agency] at the time [it] made [its] decision” (footnote omitted)). “To review 

more than the information before the [decision-maker] at the time she made her decision risks 

our requiring administrators to be prescient . . . .” Walter O. Boswell Mem'l Hosp. v. Heckler, 

749 F.2d 788, 793 (D.C. Cir. 1984); see also Vermont Yankee Nuclear Power Corp. v. Nat’l Res. 

Defense Council, Inc., 435 U.S. 519, 554-55 (1978) (internal quotation marks and citation 

omitted). “‘Were courts cavalierly to supplement the record, they would be tempted to secondguess agency decisions in the belief that they were better informed than the administrators 

empowered by Congress and appointed by the President.’” Amfac Resorts, L.L.C. v. Dep’t. of 

Interior, 143 F. Supp. 2d 7, 11 (D.D.C. 2001) (quoting Deukmejian v. NRC, 751 F.2d 1287, 

1325-26 (D.C. Cir. 1984), aff’d in relevant parts sub nom. San Luis Obispo Mothers for Peace v. 

NRC, 789 F.2d 26 (D.C. Cir. 1986) (en banc)). 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 60 of 64
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Plaintiffs argue in a footnote that it is proper for the Court to consider material outside the 

record in certain circumstances (Pls.’ Mem. at 34 n.15), but none of the cases cited suggests that 

the Court can consider evidence about unforeseeable events that took place long after the 

Commission acted. This use of later evidence is precisely what is prohibited in a challenge of 

this type. See IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997); Boswell, 749 F.2d at 

793. A “judicial venture outside the record . . . can never, under Camp v. Pitts, examine the 

propriety of the decision itself.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 286 (D.C. Cir. 

1981) (footnote omitted).9 If plaintiffs believe that later events call for revisiting the challenged 

regulation, the proper recourse is to submit a rulemaking petition to the FEC. See Reytblatt v. 

U.S. Nuclear Regulatory Comm’n, 105 F.3d 715, 723 (D.C. Cir. 1997). 

b. Plaintiffs’ Complaints Here Are Largely the Result of Changes 

in the Legal Landscape That Were Unforeseeable in 1980 

As plaintiffs themselves note with regard to the non-record evidence they present here, 

“the impact of the new FEC regulation was very small, at least initially” and “[b]efore 2008, 

when only small non-profit corporations could engage in politicking, outside spending without 

disclosure of the source of the funds used was relatively nonexistent.” (Pls.’ Mem. at 14, 15.) 

When the FEC issued its rule, corporations and unions were barred from making independent 

expenditures or electioneering communications that contained express advocacy or its functional 

equivalent. See FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449, 469-70 (2007). Only after 

Citizens United v. FEC held that corporations had a constitutional right to finance such 

communications with their general treasury funds did the FEC’s regulation apply to the vast 

 

9

 See also Nat’l Treasury Employees Union v. Hove, 840 F. Supp. 165, 169 (D.D.C. 

1994) (“consideration of outside evidence to determine the correctness or wisdom of the 

agency’s decisions is not permitted”); Nat’l Park and Conservation Ass’n v. Stanton, 54 F. Supp. 

2d 7, 11 n.2 (D.D.C. 1999) (refusing to consider extra-record and post-decisional evidence); 

Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 n.2 (D.D.C. 1995) (same). 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 61 of 64
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number of independent expenditures by groups other than political committees that it does today. 

558 U.S. 310, 365 (2010). Such changes were unforeseeable when the FEC promulgated its 

regulation and the agency is not required to be “prescient.” Boswell, 749 F.2d at 792. The 

regulation reasonably interpreted the statute, as the law and binding precedent existed in 1980. 

IV. THE PROPER REMEDY FOR ANY FINDING THAT THE FEC ERRED BY 

DISMISSING THE ADMINISTRATIVE COMPLAINT OR THAT THE 

REGULATION IS UNLAWFUL WOULD BE REMAND TO THE COMMISSION 

If the Court determined that the FEC acted unlawfully in dismissing plaintiffs’ 

administrative complaint, the proper remedy would be to “direct the Commission to conform 

with such declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C). Plaintiffs suggest that if the 

Court finds the FEC acted unlawfully, it could authorize CREW to file a “citizen suit” against 

Crossroads GPS. (Pls.’ Mem. at 43-44.) But FECA only authorizes that remedy if the 

Commission first fails to obey a court’s order on remand. 52 U.S.C. § 30109(a)(8)(C). Plaintiffs 

also seek to have 11 C.F.R. § 109.10(e)(1)(vi) vacated, but they have not brought a freestanding 

challenge to it. They have only brought a claim (“Claim Two”) in connection with that 

regulation alleging that “The FEC’s Failure to Find Reason to Believe that Crossroads GPS 

Violated 52 U.S.C. § 30104(c)(2) was Arbitrary, Capricious, an Abuse of Discretion, and 

Contrary to Law.” (Compl., text above ¶ 117.) And they have only been deemed to have 

brought a challenge to the regulation that is not time-barred because they raised the claim in that 

context of being “affected” by the FEC’s dismissal. CREW, 243 F. Supp. 3d at 101. Indeed, the 

Court has already held that “[i]n the event that the plaintiffs ultimately prevail on their APA 

challenge to the regulation, . . . the Court would remand this action to the FEC for 

reconsideration of the plaintiffs’ administrative complaint in light of the Court’s opinion.” Id. at 

105. Plaintiffs make no effort to explain why that holding is no longer applicable. 

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50 

In addition, even if this case had not arisen in the context of an enforcement dismissal, if 

the Court determined that 11 C.F.R. § 109.10(e)(1)(vi) was unlawful, the appropriate remedy 

would be a remand, not the unusual remedy of vacating the regulation, as plaintiffs urge. (Pls.’ 

Mem. at 45.) “The decision whether to vacate depends on [1] ‘the seriousness of the order’s 

deficiencies (and thus the extent of doubt whether the agency chose correctly) and [2] the 

disruptive consequences of an interim change that may itself be changed.’” Allied-Signal, Inc. v. 

U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) (quoting Int’l Union, 

United Mine Workers v. Fed. Mine Safety and Health Admin., 920 F.2d 960, 967 (D.C. Cir. 

1990)). The 2018 elections are approaching and, if there were no regulation for any significant 

time, entities engaged in independent expenditures might have inadequate guidance. It would 

therefore be advisable to remand to the FEC to give it the opportunity to reconsider the 

regulation and either compile an administrative record to support it or to amend it.10

CONCLUSION 

Because the Commission acted lawfully in dismissing plaintiffs’ administrative 

complaint, and because 11 C.F.R. § 109.10(e)(1)(vi) is not contrary to law, the Court should 

grant summary judgment to the Commission and deny plaintiffs’ motion for relief. 

 

10 Remand would also be the appropriate remedy if the Court accepted plaintiffs’ 

arguments that the FEC had inadequately explained its regulation. Fla. Power & Light Co. v. 

Lorion, 470 U.S. 729, 744 (1985); see also, e.g., Camp, 411 U.S. at 142-143 (proper remedy is 

remand, not de novo hearing, to obtain from agency additional explanation of its reasons when 

there is “such failure to explain administrative action as to frustrate effective judicial review”). 

Doing so would permit the Commission to more fully explain the existing regulation. See 

Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (“When an agency 

may be able readily to cure a defect in its explanation of a decision, the [required analysis of the 

seriousness of the deficiencies of the agency’s action] counsels remand without vacatur.”); 

accord WorldCom, Inc. v. FCC, 288 F.3d 429, 434 (D.C. Cir. 2002) (remand without vacatur 

appropriate where “non-trivial likelihood” that agency would be able to justify rule on remand). 

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51 

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

October 23, 2017 

Case 1:16-cv-00259-BAH Document 30 Filed 10/23/17 Page 64 of 64