i 

 UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

ORAL ARGUMENT REQUESTED 

CROSS-MOTION FOR SUMMARY 

JUDGMENT 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ OPPOSITION TO 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND 

CROSS-MOTION FOR SUMMARY JUDGMENT 

 Intervenor-Defendant Crossroads Grassroots Policy Strategies (“CGPS”) moves this 

Court for an order (1) granting its Cross-Motion for Summary Judgment under Rule 56 of the 

Federal Rules of Civil Procedure and Local Rule 7(h) and dismissing the Plaintiffs’ complaint 

with prejudice, and (2) denying Plaintiff’s Motion for Summary Judgment (Dkt. No. 27). 

 In support of this motion, CGPS files (1) a Memorandum of Points and Authorities in 

Support of Its Opposition to Plaintiffs’ Motion for Summary Judgment and Cross-Motion for 

Summary Judgment, and (2) a Proposed Order. CGPS requests oral argument on this motion. 

 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 1 of 65
ii 

Respectfully submitted, 

/s/ Thomas W. Kirby 

Thomas J. Josefiak Michael E. Toner (D.C. Bar No. 439707) 

J. Michael Bayes (D.C. Bar No. 501845) Thomas W. Kirby (D.C. Bar No. 915231) 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC Andrew G. Woodson (D.C. Bar No. 494062) 

45 North Hill Drive, Suite 100 Eric Wang (D.C. Bar No. 974038) 

Warrenton, VA 20186 WILEY REIN LLP 

Tel.: 540.341.8808 1776 K Street, NW 

Fax: 540.341.8809 Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

October 23, 2017 Strategies 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 2 of 65
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ MEMORANDUM IN 

SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 3 of 65
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................................................................................... iii 

LIST OF ABBREVIATIONS ........................................................................................................ xi 

INTRODUCTION .......................................................................................................................... 1

SUMMARY OF THE ARGUMENT ............................................................................................. 2

STATEMENT OF FACTS ............................................................................................................. 6

I. CROSSROADS GRASSROOTS POLICY STRATEGIES ............................................... 6

II. INDEPENDENT EXPENDITURES UNDER THE FECA AND FEC 

REGULATIONS................................................................................................................. 7

III. HISTORY OF THE FEC’S IE REGULATION ................................................................. 8

A. Congress Enacts the FEC’s IE Recommendations in Its 1979 FECA Amendments ................ 8

B. The FEC Implements the Statutory Language ........................................................................ 11

C. Congress Did Not Use Its Special Oversight Powers to Reject the FEC Rule, and the 

FEC Has Adhered to the Approved Regulation for 37 Years. ................................................ 13

IV. THE FEC IMPLEMENTS PARALLEL EARMARKING-BASED DONOR 

REPORTING FOR ELECTIONEERING COMMUNICATIONS .................................. 14

V. THE AUGUST 30, 2012, EVENT AND CGPS’S 2012 ACTIVITIES ........................... 15

VI. FEC ENFORCEMENT ..................................................................................................... 17

VII. THE UNDERLYING FEC ADMINISTRATIVE PROCEEDINGS ............................... 18

ARGUMENT ................................................................................................................................ 22

I. STANDARD OF REVIEW .............................................................................................. 22

II. THE FEC PROPERLY DISMISSED CREW’S FIRST CLAIM THAT CGPS 

VIOLATED 11 C.F.R. § 109.10(E)(1)(VI) ...................................................................... 23

III. THE COURT SHOULD DISPOSE OF CREW’S CLAIMS TWO AND THREE 

WITHOUT RULING ON THEIR MERITS..................................................................... 25

A. CGPS Was Entitled to Rely on the FEC’s IE Reporting Regulation ...................................... 25

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 4 of 65
ii 

1. The FECA Specifically Protects Those Relying on the FEC’s Regulations From Any 

Sanctions or Enforcement Proceedings ............................................................................... 25

2. CGPS Was Entitled to Rely on the FEC’s Regulation Under Principles of Due 

Process and Administrative Law .......................................................................................... 27

3. CGPS’s Reliance on 11 C.F.R. § 109.10(e)(1)(vi) Precludes CREW’s Claims Two 

and Three and Any Enforcement in This Matter .................................................................. 31

B. CREW’s Administrative Complaint Did Not Allege the FEC’s Regulation Is Invalid or 

That CGPS Violated Subsection 30104(c)(1), and These New Theories Are Not 

Properly Before This Court. .................................................................................................... 32

C. CREW’s Facial Challenge to the Regulation’s Validity Is Time-Barred, and an AsApplied Challenge Would Not Redress CREW’s Claimed Injury .......................................... 35

D. The FEC’s Heckler Dismissal of the Agency Staff’s Self-Initiated Hypothetical Theory 

That CGPS May Have Violated Subsection 30104(c)(1) Was Rational Under the 

“Extremely Deferential Standard” of Judicial Review ............................................................ 37

IV. THE CONTENT PROVISION SPECIFIES TAILORED IE REPORTING, AND 

THE FEC’S REGULATION IS A REASONABLE INTERPRETATION OF 

THAT REQUIREMENT. ................................................................................................. 38

A. Chevron Step 1: Congress Tailored the FECA to Require Ad-Based Identification of 

Contributors. ............................................................................................................................ 38

B. Chevron Step 2: The FEC’s Regulatory Construction Is Within the Range of 

Permissible Options. ................................................................................................................ 41

1. The FEC Was Heavily Involved in the Statute’s Drafting.................................................... 42

2. For 37 Years, Congress Has Not Disagreed With the FEC’s Contemporaneous 

Interpretation of the Statute, but Has Ratified It .................................................................. 43

3. The FEC’s Interpretation of the Statute Has Remained Consistent for Nearly Four 

Decades ................................................................................................................................ 45

4. The FEC’s Regulation Accords With Expressed Congressional Intent ............................... 46

5. The FEC’s Interpretation Does Not Render Any Other Provision Superfluous .................. 47

C. CREW’s Procedural Objections to the FEC IE Contributor Reporting Regulation Are 

Irrelevant and, in Any Event, Erroneous. ................................................................................ 48

V. SUBSECTION 30104(C)(1) DOES NOT MANDATE “ADDITIONAL” 

REPORTING. ................................................................................................................... 49

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

 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 5 of 65
iii 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Abbott GmbH & Co. KG v. Yeda Research & Dev. Co., 

516 F. Supp. 2d 1 (D.D.C. 2007) .............................................................................................40 

Action on Smoking and Health v. C.A.B., 

699 F.2d 1209 (D.C. Cir. 1983) ...............................................................................................45 

Affum v. U.S., 

566 F.3d 1150 (D.C. Cir. 2009) ...............................................................................................27 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) .................................................................................................44 

Air Courier Conf. of Am. v. Am. Postal Workers Union, AFL-CIO, 

498 U.S. 517 (1991) .................................................................................................................25 

Barnett v. Weinberger, 

818 F.2d 953 (D.C. Cir. 1987) ...........................................................................................31, 32 

Buchanan v. FEC, 

112 F. Supp. 2d 58 (D.D.C. 2000) ...........................................................................................22

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................................................................................................. passim

Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 

566 U.S. 399 (2012) .................................................................................................................40 

Chevron, USA, Inc. v. NRDC, 

467 U.S. 837 (1984) .................................................................................................................38 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) .............................................................................................1, 46 

Creekstone Farms Premium Beef, L.L.C. v. Dept. of Agriculture, 

539 F.3d 492 (D.C. Cir. 2008) .................................................................................................45 

CREW v. FEC, 

236 F. Supp. 3d 378, 390 (D.D.C. 2017) ...............................................................23, 37, 38, 48 

Crossroads Grassroots Policy Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015) .................................................................................................22 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 6 of 65
iv 

DaimlerChrysler Corp. et al. v. Cuno et al., 

547 U.S. 332 (2006) .................................................................................................................36 

DCCC v. FEC, 

831 F.2d 1131, 1134 (D.C. Cir. 1987) ....................................................................................22

Encino Motorcars, LLC v. Navarro, 

136 S. Ct. 2117 (2016) .............................................................................................................31 

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000) .................................................................................................................45 

FEC v. DSCC, 

454 U.S. 27 (1981) ...................................................................................................................21 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987) ...............................................................................................7, 50 

FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986) .................................................................................................................50 

FEC v. NRSC, 

966 F.2d 1471 (D.C. Cir. 1992) .........................................................................................15, 21

FEC v. Ted Haley Congressional Comm., 

852 F.2d 1111 (9th Cir. 1988) .................................................................................................43 

Foo v. Tillerson, 

244 F. Supp. 3d 17 (D.D.C. 2017) ...........................................................................................41

Freeman United Coal Min. Co. v. Fed. Mine Safety and Health Review Comm’n, 

108 F.3d 358 (D.C. Cir. 1997) .................................................................................................30 

Graceba Total Communications, Inc. v. FCC, 

115 F.3d 1038 (D.C. Cir. 1997) ...............................................................................................36 

Hagelin v. FEC, 

411 F.3d 237 (D.C. Cir. 2005) .................................................................................................22 

Heckler v. Chaney, 

470 U.S. 821 (1985) ...........................................................................................................21, 37 

King v. Burwell, 

135 S. Ct. 2480 (2015) .............................................................................................................39 

In re Lehman Bros. Mortg.-Backed Sec. Litig., 

650 F.3d 167 (2d Cir. 2011).....................................................................................................39 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 7 of 65
v 

Lujan v. Defenders of Wildlife, et al., 

504 U.S. 555 (1992) .................................................................................................................36 

Marks v. U.S., 

430 U.S. 188 (1977) .................................................................................................................27 

Middle South Energy, Inc. v. F.E.R.C., 

747 F.2d 763 (D.C. Cir. 1984) .................................................................................................43 

Miller v. Youakim, 

440 U.S. 125 (1979) .................................................................................................................42 

Moore v. District of Columbia, 

907 F.2d 165 (D.C. Cir. 1990) .................................................................................................42 

Nat’l Conservative Pol. Action Comm. v. FEC, 

626 F.2d 953 (D.C. Cir. 1980) .................................................................................................27 

New Hampshire Motor Transp. Ass’n v. Rowe, 

448 F.3d 66 (1st Cir. 2006), aff’d, 552 U.S. 364 (2008)..........................................................40 

NLRB Union v. FLRA, 

834 F.2d 191 (D.C. Cir. 1987) ...........................................................................................35, 37 

Nuclear Energy Inst., Inc. v. EPA, 

373 F.3d 1251 (D.C. Cir. 2004) ...............................................................................................34 

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) .................................................................................................39 

P&V Enterprises, et al. v. U.S. Army Corps of Engineers, et al., 

466 F. Supp. 2d 134 (D.D.C. 2006) .........................................................................................36 

PDK Labs., Inc. v. DEA, 

362 F.3d 786 (D.C. Cir. 2004) .................................................................................................25 

PMD Produce Brokerage Corp. v. USDA, 

234 F.3d 48, 52 (D.C. Cir. 2000) ............................................................................................30 

Raton Gas Transmission Co. v. FERC, 

852 F.2d 612 (D.C. Cir. 1988) .................................................................................................35 

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005) .......................................................................................26, 38, 44

Suburban Air Freight, Inc. v. Transp. Sec. Admin., 

716 F.3d 679 (D.C. Cir. 2013) .................................................................................................31 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 8 of 65
vi 

Teich v. FDA, 

751 F. Supp. 243 (D.C. Cir. 1990) ...........................................................................................27 

Thomas Jefferson Univ. v. Shalala, 

512 U.S. 504 (1994) .................................................................................................................48 

Tierney v. FEC, 

538 F. Supp. 2d 99 (D.D.C. 2008) ...........................................................................................23

Tripoli Rocketry Assoc. v. U.S. BATF, 

2002 U.S. Dist. LEXIS 27588 (D.D.C. June 24, 2002) ...........................................................36 

United Airlines, Inc. v. Brien, 

588 F.3d 158 (2d Cir. 2009).....................................................................................................42 

United States v. Ashurov, 

726 F.3d 395 (3d Cir. 2013).....................................................................................................39 

United States v. Hagler, 

700 F.3d 1091 (7th Cir. 2012) .................................................................................................40 

United Transp. Union v. Lewis, 

711 F.2d 233 (D.C. Cir. 1983) .................................................................................................42 

Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ......................................................................................... passim

Vasser v. McDonald, 

228 F. Supp. 3d 1, 17 (D.D.C. 2016) .................................................................................33, 34 

Vote Choice, Inc. v. Di Stefano, 

814 F. Supp. 186 (D.R.I. 1992)................................................................................................50 

Wallaesa v. FAA, 

824 F.3d 1071 (D.C. Cir. 2016) ...............................................................................................34 

Weaver v. Fed. Motor Safety Admin., 

744 F.3d 142 (D.C. Cir. 2014) ...........................................................................................35, 36 

Weber v Heaney, 

995 F.2d 872 (8th Cir. 1993) .............................................................................................43, 44 

Woodford v. Ngo, 

548 U.S. 81 (2006) ...................................................................................................................33 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 9 of 65
vii 

Statutes 

2 U.S.C. § 434 ....................................................................................................................18, 19, 33 

2 U.S.C. § 434(c)(2) .......................................................................................................................21 

2 U.S.C. § 434(c)(2)(C) .................................................................................................................15 

2 U.S.C. § 434(e)(1) .........................................................................................................................8 

2 U.S.C. § 434(e)(2) .......................................................................................................................10 

5 U.S.C. § 601 ................................................................................................................................28 

28 U.S.C. § 2401(a) .................................................................................................................13, 35 

52 U.S.C. § 434(c)(1) ...........................................................................................................9, 12, 50 

52 U.S.C. § 30101(17) .....................................................................................................................7 

52 U.S.C. § 30101(c)(1) .................................................................................................................19 

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

52 U.S.C. § 30104(c)(2) ...........................................................................................................21, 40 

52 U.S.C. § 30104(c)(2)(C) .................................................................................................7, 15, 30 

52 U.S.C. § 30104(f) ......................................................................................................................49 

52 U.S.C. § 30104(f)(2)(F) ............................................................................................................14 

52 U.S.C. § 30104(f)(3) .................................................................................................................14 

52 U.S.C. § 30106(c) .....................................................................................................................21 

52 U.S.C. § 30107(a)(8) ...................................................................................................................8 

52 U.S.C. § 30109(a)(1) .................................................................................................4, 17, 32, 34 

52 U.S.C. § 30109(a)(2) .................................................................................................................34 

52 U.S.C. § 30109(a)(8) ...........................................................................................................22, 34 

52 U.S.C. § 30109(a)(8)(A) ...........................................................................................................32 

52 U.S.C. § 30109(a)(8)(C) .......................................................................................................1, 32 

52 U.S.C. § 30111 ..........................................................................................................................44 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 10 of 65
viii 

52 U.S.C. § 30111(d)(1) ..................................................................................................................8 

52 U.S.C. § 30111(e) ...........................................................................................................3, 26, 31 

IRC Section 527 ...............................................................................................................................6 

Pub. L. 94–283 .................................................................................................................................8 

Pub. L. 104-79................................................................................................................................44 

Pub. L. 106-58................................................................................................................................44 

Pub. L. 106-346..............................................................................................................................44 

Pub. L. 107–155 .......................................................................................................................14, 44 

Pub. L. 108-199..............................................................................................................................44 

Pub. L. 110-81................................................................................................................................44 

Other Authorities 

11 C.F.R. § 100.22 ...........................................................................................................................7 

11 C.F.R. § 109.2(e).......................................................................................................................45 

11 C.F.R. § 109.10 ...........................................................................................................................8 

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

26 C.F.R. § 1.501(c)(4)-1(a)(2) .......................................................................................................7 

Center for Responsive Politics, “Outside Spending,” at

https://www.opensecrets.org/outsidespending/........................................................................46 

Center for Responsive Politics, “Outside Spending by Disclosure, Excluding 

Party Committees,” at 

https://www.opensecrets.org/outsidespending/disclosure.php. ...............................................46 

CREW Am. Admin. Compl. Exh. C (6:02-6:20), available at

https://youtu.be/RZsudD4O3i8 ................................................................................................24 

CREW, Comments in Response to Advance Notice of Proposed Rulemaking on 

Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues (Jan. 

15, 2015), available at http://sers.fec.gov/fosers/showpdf.htm?docid=312990. .....................28 

FEC, Bipartisan Campaign Reform Act of 2002 Reporting, 68 Fed. Reg. 404 

(Jan. 3, 2003)............................................................................................................................45 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 11 of 65
ix 

FEC, Campaign Guide for Corporations and Labor Organizations (Aug. 1997) 

(Exh. A)....................................................................................................................................14 

FEC, Campaign Guide for Corporations and Labor Organizations (Jan. 2007), 

available at https://transition.fec.gov/pdf/colagui.pdf. ............................................................28 

FEC, Electioneering Communications,72 Fed. Reg. 72,899 (Dec. 26, 2007) ...............................15 

FEC, Form 5 (rev. Sept. 2013), at

https://transition.fec.gov/pdf/forms/fecfrm5.pdf. ......................................................................8 

FEC, FEC Form 5 Instructions (rev. Sept. 2013), at

https://www.fec.gov/resources/cms-content/documents/fecfrm5i.pdf. .....................................8 

FEC, Independent Expenditure Reporting, at

http://sers.fec.gov/fosers/ruledata.htm? ...................................................................................29 

FEC, Matter Under Review 4313 (Lugar for President), First General Counsel’s 

Report, available at http://eqs.fec.gov/eqsdocsMUR/0000018F.pdf ......................................48 

FEC, Matter Under Review 4960 (Hillary Rodham Clinton for U.S. Senate 

Exploratory Comm.), Statement of Reasons of Commissioners David M. 

Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. Thomas, available 

at http://eqs.fec.gov/eqsdocsMUR/0000263B.pdf. ..................................................................18 

FEC, Matter Under Review 6002 (Freedom’s Watch), Statement of Reasons of 

Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter and 

Donald F. McGahn, available at

http://eqs.fec.gov/eqsdocsMUR/10044274536.pdf. ................................................................15 

FEC, Matter Under Review 6816 (American Future Fund, et al.) ................................................46 

FEC, Matter Under Review 7085 (State Tea Party Express).........................................................46 

FEC, Reg 2011-01 Independent Expenditure Reporting, at

http://sers.fec.gov/fosers/ruledata.htm?ruleNumber=REG%202011-01. ................................29 

FEC, Request for Additional Information, at https://www.fec.gov/helpcandidates-and-committees/request-additional-information. ...................................................34 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial 

Stage in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007) ...............................18 

H.R. Res. 5010 ...............................................................................................................................11 

H.R. Res. 5175 ...............................................................................................................................45 

H.R. Res. 780 .................................................................................................................................13 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 12 of 65
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IRS, 2000 Exempt Orgs. Continuing Professional Educ. Text, Affiliations Among 

Political, Lobbying, and Educational Organizations, available at

https://www.irs.gov/pub/irs-tege/eotopics00.pdf .......................................................................7 

Legislative History of Federal Election Campaign Act Amendments of 1979

(1983), available at 

http://classic.fec.gov/pdf/legislative_hist/legislative_history_1979.pdf. ...................................9 

Rep. Van Hollen Petition for Rulemaking to Revise and Amend Regulations 

Relating to Disclosure of Independent Expenditures (Apr. 21, 2011), available 

at http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. ...........................................29 

S. Res. 236 .....................................................................................................................................13 

S. Res. 275 .....................................................................................................................................13 

Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. 

Rev. 363, 368 (1986) ...............................................................................................................42 

U.S. Const., Amend. I ......................................................................................................3, 6, 27, 31 

 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 13 of 65
xi 

LIST OF ABBREVIATIONS 

BCRA – Bipartisan Campaign Reform Act of 2002 (Pub. L. 107–155)

CGPS – Crossroads Grassroots Policy Strategies 

CREW – Citizens for Responsibility and Ethics in Washington 

EC – electioneering communication 

FEC – Federal Election Commission 

FECA – Federal Election Campaign Act of 1971, as amended (52 U.S.C. § 30101 et seq.) 

FGCR – First General Counsel’s Report 

IE – independent expenditure

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 14 of 65
1 

INTRODUCTION 

The Federal Election Campaign Act of 1971, as amended (“FECA”), sets forth a “FirstAmendment-sensitive regime” with “enormous subtleties and complexities.” Common Cause v. 

FEC, 842 F.2d 436, 445 (D.C. Cir. 1988). The FECA vests the Federal Election Commission 

(“FEC” or “Commission”) with “primary and substantial responsibility for administering and 

enforcing” that statute. Buckley v. Valeo, 424 U.S. 1, 109 (1976). 

Citizens for Responsibility and Ethics in Washington (“CREW”) attempts with this 

lawsuit to short-circuit the FEC’s rulemaking process, which is the vehicle best-suited for sorting 

through the FECA’s subtleties and complexities. CREW could have filed a rulemaking petition 

with the six-member, bipartisan FEC to amend the agency’s independent expenditure (“IE”) 

reporting regulation, which CREW contends here is deficient. Had the FEC not acted on such a 

petition, CREW could have sought review of that decision in this Court. 

But CREW did not file a rulemaking petition. Instead, CREW asks this Court to use the 

enforcement process to repeal a 37-year-old regulation – widely relied on by advocacy groups 

across the ideological spectrum – without any notice to or comment by the public, and largely 

based on CREW’s unilateral assertions about recent campaign finance developments. In so 

doing, CREW asks this Court to retroactively apply a new legal rule to subject Crossroads 

Grassroots Policy Strategies (“CGPS”) to the burdens of enforcement and sanction, even though 

CGPS fully complied with and relied upon a longstanding FEC regulation and Commission 

practice. 

This Court applies a highly deferential standard of review in deciding whether the FEC’s 

dismissal of an administrative complaint was “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). 

The career staff in the FEC’s Office of General Counsel and the Commission, through its 

controlling bloc of commissioners, confirmed that CGPS complied with the FEC’s IE reporting 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 15 of 65
2 

regulation. On such a clear factual record, this Court must defer to the agency’s more-thanreasonable determination to dismiss this matter and reject CREW’s Claim One here. 

There are many legal and policy reasons why this Court should refuse CREW’s two 

follow-on requests to substitute this enforcement matter for an administrative rulemaking. Most 

fundamental, however, is CGPS’s compliance with the Commission’s controlling regulation that 

has been in effect for decades. By law, that compliance precludes further enforcement, 

regardless of whether the regulation is deemed valid. This moots CREW’s Claims Two and 

Three, which present (mistaken) statutory challenges to the validity of the regulation and do not 

affect the lawfulness of the FEC’s dismissal of the administrative complaint. 

Even if the Court were to consider CREW’s challenges to the regulation in the context of 

this ongoing litigation, the ultimate result would be the same. The regulation is consistent with 

the statutory text and is a rational means of implementing congressional intent, doubly so given 

the great deference owed to the FEC on such matters. For their part, CREW’s baseless 

complaints about the rulemaking procedures followed by the Commission 37 years ago come too 

late. CREW’s challenges to the regulation thus would fail if they mattered here, which they do 

not. 

SUMMARY OF THE ARGUMENT 

CREW’s Claim One alleges CGPS failed to comply with 11 C.F.R. § 109.10(e)(1)(vi), 

which required CGPS to report its spending for each express advocacy IE and identify any 

contributions to CGPS “for the purpose of furthering the reported independent expenditure.” 

CREW’s FEC submission asserted that CGPS received contributions intended for political 

purposes or to assist certain candidates. But CREW offered no evidence that any such funds 

were earmarked for a particular IE, or even for IEs generally. To the contrary, the administrative 

record before the FEC made clear that the donors at issue left CGPS free to spend as it chose, 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 16 of 65
3 

whether for issue advocacy, IEs, polling, voter registration and get-out-the-vote drives, or other 

activities. Under the plain language of the Commission’s regulation as it has been construed for 

37 years, such donations are not “for the purpose of furthering the reported independent 

expenditure.” Id. (emphasis added). Thus, the FEC’s professional staff appropriately found no 

FECA violation on these facts, and the controlling commissioners reasonably accepted that 

conclusion. Indeed, even the commissioners who voted to pursue enforcement did so on the 

basis of an alternative theory not raised in CREW’s administrative complaint, and did not 

articulate any disagreements with their colleagues’ or the staff’s reasoning for dismissing. 

By statute and basic fairness, CGPS’s compliance with the Commission’s regulation 

protected it from any enforcement proceeding and made dismissal of the administrative 

complaint mandatory. Recognizing the risk that uncertain laws may impermissibly chill core 

First Amendment speech, the FECA provides the following explicit, statutory “protection for 

good faith reliance upon rules or regulations”: 

Notwithstanding any other provision of law, 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 or 

by chapter 95 or chapter 96 of title 26. 

52 U.S.C. § 30111(e). Moreover, even if there were no specific statutory reliance provision, 

there is abundant authority that principles of fair notice, which have particular force in protecting 

the exercise of core First Amendment rights, preclude enforcement against a respondent who 

complied with applicable agency regulations and guidance. If CREW wants to challenge the 

FEC regulation, it must use rulemaking procedures of prospective effect, which it has not done. 

CREW’s complaint before this Court suffers from a wide range of other flaws, most 

notably that CREW failed to exhaust its administrative remedies and, in large part, abandoned its 

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4 

present Claims Two and Three in the FEC proceedings below. Each of CREW’s five counts in 

its administrative complaint asserted that CGPS failed to report earmarked contributions as 

required by the Commission’s regulation, and no count alleged that CGPS failed to identify 

donors under the broadest level of donor reporting CREW now claims FECA section 

30104(c)(1) requires. This matters. The FECA requires any enforcement action be taken only 

“on the basis of the complaint,” and judicial review of complaint-generated matters must be 

limited to “the original complaint.” Id. § 30109(a)(1), (a)(8)(C). Because CREW’s 

administrative complaint failed to raise these issues against CGPS, CREW’s present Claims Two 

and Three are not properly before this Court. 

CREW’s Claim Two, which facially challenges the regulation’s validity and not merely 

its application to this case, also is time-barred. Furthermore, CREW lacks standing to bring 

Claim Two. Its claimed standing relies on the theory that further enforcement in this matter 

could compel CGPS to identify its donors, and that CREW would find this information useful. 

But even if this Court were to find the FEC’s regulation invalid, CGPS’s compliance with the 

regulation still is an absolute bar against enforcement. Therefore, CREW’s purported injury 

(that it lacks information about CGPS’s donors) is not redressable – a prerequisite for standing. 

 CREW’s Claim Three, which challenges the FEC’s dismissal of any claim that CGPS 

may have violated FECA section 30104(c)(1), also fails to meet the high bar for judicial 

deference to agencies’ exercise of their prosecutorial discretion. This is especially so where the 

agency’s dismissal was based not on any claim that CREW specifically asserted against CGPS, 

but rather on a theoretical issue that FEC staff incorporated into their analysis sua sponte. 

Finally, even if the Court were to reach the merits of CREW’s Claims Two and Three, 

and it should not, each claim would fail. CREW’s present Claim Two is that Section 

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5 

30104(c)(2)(C)’s requirement to identify support for “an independent expenditure” plainly means 

“any” independent expenditure, such that contributions earmarked for unknown future 

independent advocacy trigger reporting. CREW does not explain, however, why Congress did 

not say “any” if that is what it meant. CREW does not grapple with relevant authority that “an” 

often is equivalent to “one.” CREW does not mention, much less explain away, the fact that 

Congress made no objection when the FEC submitted the regulation for congressional review in 

1980 – which is strong evidence that the Commission accurately discerned congressional intent. 

CREW also fails to adequately rebut Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016), which 

recently approved the FEC’s parallel earmarking-based reporting regime for electioneering 

communications, and that was modeled on the IE regulation challenged here. Nor does CREW 

give fair weight to the FEC’s interpretative leeway under Chevron.

CREW’s present Claim Three rests on FECA section 30104(c)(1), the provision CREW 

failed to prosecute in the underlying administrative proceeding. CREW now reads that section to 

require any entity that reports any IE – even one concerning a narrow topic in an isolated area of 

the country – to report all “contributions made for the purpose of influencing a federal election 

generally,” CREW Motion for Summary Judgment (“MSJ”) Brief (Doc 27) at 34, 49, even if a 

contribution had absolutely no relation to the reported IE or election at issue. Not only is this an 

erroneous reading of the statute’s substantive requirement, but as Van Hollen recognized, 

CREW’s approach would burden the reporting entity’s speech, while doing more to obscure than 

illuminate who is actually supporting any reported advocacy. 

Congress never intended the FECA to require speakers to convey such misleading 

information. Back in 1980, the FEC understood Congress to create only a limited reporting 

burden – those who funded express advocacy IEs for or against identified federal candidates 

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6 

were to identify themselves, and financial support earmarked for a specific IE had to be reported. 

Conversely, the FEC understood Congress not to require reporting of those funders who 

generally supported a reporting entity but did not link their support to particular express 

advocacy public communications. The FEC could have confidence in its assessment because the 

law was based on the agency’s own legislative recommendation to Congress. 

The FEC embodied that understanding in its implementing regulation, and Congress 

expressed no concern in the statutory review process established precisely to identify regulatory 

deviations from legislative intent. The Commission’s understanding was reasonable at the time 

and was arguably compelled by the First Amendment. Thus, when the FEC later implemented a 

parallel reporting regime for electioneering communications, it similarly narrowed the scope of 

contributor identification. If CREW believes more recent campaign finance experience shows 

circumstances have changed, it must, at minimum, squarely present that claim and supporting 

data to the FEC in a rulemaking proceeding that allows for public comment and a broad-based 

evaluation of recent data. What CREW cannot be permitted to do is hijack an administrative 

enforcement proceeding in which CGPS’s compliance with the Commission’s governing 

regulation, whether valid or invalid, requires dismissal. 

STATEMENT OF FACTS 

I. CROSSROADS GRASSROOTS POLICY STRATEGIES 

CGPS was founded in 2010 with the mission of educating, equipping, and engaging 

American citizens to take action on important economic and legislative issues. The Internal 

Revenue Service (“IRS”) has issued a determination letter to CGPS recognizing it as a Section 

501(c)(4) social welfare organization under the Internal Revenue Code (“IRC”). Like many 

501(c)(4) entities, CGPS has a legally distinct affiliated entity, American Crossroads, which is 

organized as a political organization under Section 527 of the IRC and is registered with the FEC 

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as a “super PAC.” See IRS, 2000 Exempt Orgs. Continuing Professional Educ. Text, Affiliations 

Among Political, Lobbying, and Educational Organizations, available at

https://www.irs.gov/pub/irs-tege/eotopics00.pdf. 

CGPS works to advance its mission by conducting issue research, holding events with 

policymakers, and engaging and inviting citizens to participate in grassroots advocacy on 

pending legislative issues through advertising, mailings, e-mails, and web-based advocacy tools. 

Many of the public policy issues that 501(c)(4) entities like CGPS seek to affect are largely 

determined by elected officials. Not surprisingly, therefore, some of CGPS’s public 

communications have advocated for or against elected officials and candidates based on whether 

their positions are favorable or inimical to CGPS’s preferred public policy outcomes. See IRS, 

Rev. Ruls. 2004-6 and 1981-95; 26 C.F.R. § 1.501(c)(4)-1(a)(2).

II. INDEPENDENT EXPENDITURES UNDER THE FECA AND FEC 

REGULATIONS 

When public communications “expressly advocate” the election or defeat of a candidate 

and are not coordinated with any candidate or political party, they are regulated as “independent 

expenditures” (“IEs”) under the FECA. 52 U.S.C. § 30101(17). “To insure that the reach of [the 

IE reporting requirement] is not impermissibly broad,” the Supreme Court construes “express 

advocacy” narrowly only to cover language “such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your 

ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Buckley, 424 U.S. at 80, 44 

n.52, and 80 n.108; see also 11 C.F.R. § 100.22 (defining “expressly advocating”).

IEs are subject to reporting requirements. As the judiciary has recognized, see FEC v. 

Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987), FECA section 30104(c)(1) – i.e., the “Coverage 

Provision” – defines the scope of who is covered by the IE reporting requirement, while section 

30104(c)(2)(C) – i.e., the “Content Provision” – defines, with respect to contributor information, 

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the content of what is required to be reported. In line with that structure, the FEC has 

promulgated comprehensive and detailed regulations for when and how IE reports must be filed 

and what those reports must include. See 11 C.F.R. § 109.10. Of particular relevance here, the 

Content Provision requires IE reports to include “[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.” Id. § 109.10(e)(1)(vi). 

Under the FECA, the FEC also has the authority “to develop such prescribed forms . . . as 

are necessary to carry out the provisions of this Act.” 52 U.S.C. § 30107(a)(8). The 

Commission has prescribed Form 5 for persons other than political committees to use to report 

their IEs. FEC, Form 5 (rev. Sept. 2013), at https://transition.fec.gov/pdf/forms/fecfrm5.pdf. 

The instructions for Form 5 require filers to report the sources of “each contribution over $200 

that was made for the purpose of furthering the independent expenditures” being reported. FEC, 

Instructions for Preparing FEC Form 5 (rev. Sept. 2013), at https://www.fec.gov/resources/cmscontent/documents/fecfrm5i.pdf. The reporting forms are submitted to Congress for review prior 

to taking effect. See 52 U.S.C. § 30111(d)(1). 

III. HISTORY OF THE FEC’S IE REGULATION 

A. Congress Enacts the FEC’s IE Recommendations in Its 1979 FECA 

Amendments 

In the wake of Buckley, Congress enacted a number of significant reforms to the FECA,

including provisions affecting the reporting of IEs. See Pub. L. 94–283 (1976). Between 1976 

and 1979, the FECA required “[e]very person (other than a political committee or candidate) 

who makes contributions or independent expenditures expressly advocating the election or defeat 

of a clearly identified candidate” to file a statement with the FEC containing certain contributor 

and expenditure information, as appropriate. Id. (codified as 2 U.S.C. § 434(e)(1), and later 

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renumbered as 52 U.S.C. § 434(c)(1)). Paragraph (2) of the same subsection required two 

specific pieces of information be included in these IE reports: (A) information about the 

expenditure (e.g., which candidate was supported or opposed); and (B) a certification that the 

expenditure was made independent of a candidate’s campaign. Id. 

“During implementation of the 1976 Amendments, the FEC kept a continually updated 

list of apparent statutory omissions, inadequacies and other problems” with the law, which was 

converted into an annual set of legislative recommendations to Congress. Legislative History of 

Federal Election Campaign Act Amendments of 1979 at 10 (1983) (“1979 FECA History”), 

available at http://classic.fec.gov/pdf/legislative_hist/legislative_history_1979.pdf. In July 1979, 

the Senate Committee on Rules and Administration convened a hearing to consider, in the words 

of Chairman Claiborne Pell, “some long-overdue amendments to the [FECA].” Id. at 7. Chief 

among them were the FEC’s legislative recommendations, which built upon recent Commission 

experience and made “valuable suggestions for simplifying the [FECA]’s reporting requirements 

and improving its administration.” Id. The FEC’s Chairman and Vice-Chairman testified at the 

Committee hearing and were accompanied by the Commission’s Staff Director and General 

Counsel. Id. at 8, 20, 39. The FEC’s representatives pledged their agency’s readiness to assist 

the Committee and its staff in revising the FECA and remained substantively engaged with the 

Committee following the hearing. Id. at 10, 150-60. 

As relevant here, the FEC recommended abolishing the requirement for contributors to 

file their own reports if they gave to sponsors of IEs, and instead requiring that “persons who file 

independent expenditure reports . . . report the sources of any contributions in excess of $100 

which is donated with a view toward bringing about an independent expenditure.” Id. at 25. 

Following the hearing, Committee staff circulated draft legislative language that included 

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revisions to the FECA’s IE reporting provisions. See id. at 62-100, 108-142, 451. The language 

required persons filing IE reports to identify “each person who has made a contribution of more 

than $200 to the person filing such statement, which was made for the purpose of furthering an 

independent expenditure.” Id. at 78, 123. This gloss on the overall IE reporting statute was 

incorporated as subsection (C) to 2 U.S.C. § 434(e)(2).1

 The accompanying Summary of 

Committee Working Draft confirmed that this change was an “FEC legislative recommendation,” 

id. at 101, 103, 145, that required “the person who receives the contributions, and subsequently 

makes the independent expenditure, [to] report having received the contribution to the 

Commission.” Id. at 103, 145 (emphasis added). 

The Committee approved the draft language unanimously and reported S. 1757 favorably 

to the Senate floor. See id. at 450, 463. The Committee report accompanying the Senate bill 

explained the rationale and import of the IE-related changes as follows: 

 “[R]eporting requirements under the existing act have [generally] been viewed by most 

reporting entities as unduly burdensome [and] going beyond legitimate disclosure to 

actively discourage participating in the electoral process”; 

 The existing independent expenditure reporting requirements, in particular, were 

“burdens[ome]”; 

 The Senate bill, S. 1757, “includes certain legislative recommendations from the Federal 

Election Commission’s 1978 annual report, which are intended to remedy statutory 

omissions and address other technical problems in the operation of the current law”; and 

 The proposed law would require “the person who receives the contribution, and 

subsequently makes the independent expenditure, [to] report having received that 

                                                            

1

 The statute is reproduced in its entirety on pages 38-40, infra. 

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contribution to the Commission.” 

Id. at 449, 458 (emphasis added). 

Materially similar IE reporting requirements were incorporated into the House’s 

campaign finance legislation, H.R. Res. 5010, which was introduced shortly after the Senate 

hearing and ultimately signed into law by President Carter on January 8, 1980. See id. at 187, 

558, 573. In urging his colleagues to approve the final bill, Chairman Pell explained the IErelated provisions on the Senate floor as follows: 

Reporting requirements in the bill generally simplify existing law by reducing the 

amount of information to be included in reports. . . . The reporting threshold for 

independent expenditures is also raised to $250 and only the person making the 

independent expenditure must report this. 

Id. at 549. 

Pursuant to a special congressional review provision, see infra at 13, H.R. Res. 5010 also 

required the FEC to “transmit to the Congress proposed rules and regulations necessary for the 

purpose of implementing the [law]” prior to February 29, 1980. Id. at 562. This deadline was 

barely more than 50 days after the bill was signed into law. See id. at 562, 573. 

B. The FEC Implements the Statutory Language 

The FEC moved quickly on the implementing regulations. On January 4, 1980, the 

FEC’s Staff Director circulated a memorandum to the Commission, noting that the legislative 

“changes themselves present relatively few novel problems or difficult questions of statutory 

interpretation.” AR1002. Given the short deadline set by Congress, the Staff Director 

recommended including an earlier-than-normal draft of the regulations in the Notice of Proposed 

Rulemaking (“NPRM”) to “provide a vehicle for assuring that all concerned [including 

Commission staff] can focus on the central problems of implementation.” AR1003. 

The Commission formally took up the impact of the new law at its January 10 and 17 

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meetings. AR1025-32, 1048-52. On January 23, the NPRM was published in the Federal 

Register. AR1057. Consistent with the legislative history, the NPRM explained that the 

“proposed regulations would, among other things, reduce recordkeeping and reporting 

requirements.” Id. The NPRM also advised potential commenters that “the draft regulations that 

are being published in this notice . . . have not been approved by the Commission.” Id. 

On January 30 and 31, the FEC called a special meeting to conduct a “section-by-section 

review of the proposed changes for 11 CFR.” AR1051, AR1083. Shortly afterwards, the 

Commission received feedback on the NPRM, with only one commenter addressing the IE 

reporting requirements. In addition to suggesting an edit to the IE rules, which the Commission 

implemented, the commenter praised the NPRM’s language as going “a long way to reducing 

and simplifying the recordkeeping and reporting requirements of the [FECA],” and observing 

that Congress had “accepted the logic” inherent in the FEC’s legislative recommendations. AR 

1228. Neither this commenter, nor anyone else, claimed that the Commission had overlooked a 

separate, broader reporting obligation under 2 U.S.C. § 434(c)(1). 

On February 19, Commission staff circulated “proposed regulations” to the FEC 

commissioners. AR1337. The accompanying memorandum explained that the changes from the 

staff’s NPRM language were the “result of the Commission’s discussion of the proposed 

regulations” over the past month. Id. The proposed regulations first explained (in section 104.4) 

that Part 109 was meant to comprehensively address all of the IE reporting requirements 

applicable to persons other than political committees. AR1416. Section 109.2 was then 

relabeled “Reporting of Independent Expenditures by Persons Other Than a Political 

Committee” and included a few adjustments to the NPRM’s preliminary regulatory text. 

AR1444. Most importantly, the preliminary contributor reporting requirement changed from 

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identifying each person whose contribution “was made for the purpose of furthering an 

independent expenditure” to each person whose “contribution was made for the purpose of 

furthering the reported independent expenditure.” Compare AR1075 with AR1444. 

The Commission voted to adopt these proposed regulations at its February 21 meeting. 

AR1494. The FEC published its explanation and justification for the new rules on March 7, 

1980, see AR1496-1542, and explained the IE contributor reporting provision as follows: 

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 (emphasis added). Thus, the regulation implemented both the Coverage and Content 

Provisions that CREW cites here. 

C. Congress Did Not Use Its Special Oversight Powers to Reject the FEC Rule, 

and the FEC Has Adhered to the Approved Regulation for 37 Years. 

The FECA requires that all proposed FEC regulations be transmitted to Congress for 

review before they take legal effect. This special congressional review process had been used 

several times before the agency’s 1980 IE reporting rulemaking, including just a few months 

before to disapprove the FEC’s candidate debates regulation. See S. Res. 236, 96th Cong. 

(1979).2

Consistent with the statutory deadline, the FEC’s IE reporting regulations were 

transmitted to Congress on February 28, 1980. AR1496. Congress did not disapprove the 

regulations during the requisite 15-day legislative review period, and the regulations took effect 

on April 1, 1980. AR1543, 1553. No party subsequently challenged the regulations within the 

six-year statute of limitations period available for doing so. See 28 U.S.C. § 2401(a). 

                                                            

2

 The House and Senate rejected FEC regulations on several earlier occasions as well. See H.R. Res. 780, 94th 

Cong. (1975); S. Res. 275, 94th Cong. (1975). 

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Over the past 37 years, the Commission and its staff have consistently interpreted the IE 

contributor reporting requirement under the statute and the FEC’s regulations. See FEC, 

Campaign Guide for Corporations and Labor Organizations (Jan. 2007), infra at 28; FEC, 

Campaign Guide for Corporations and Labor Organizations (Aug. 1997) at 24 (Exh. A) 

(instructing IE reports to identify “each person who contributed more than $200 for the purpose 

of making the independent expenditures” being reported); FEC Matter Under Review (“MUR”) 

6696, First General Counsel’s Report, infra at 21. 

IV. THE FEC IMPLEMENTS PARALLEL EARMARKING-BASED DONOR 

REPORTING FOR ELECTIONEERING COMMUNICATIONS. 

In 2002, Congress passed, and the President signed, the Bipartisan Campaign Reform Act 

(“BCRA”), amending the FECA. Pub. L. 107–155. Of relevance here, BCRA regulates certain 

speech in close proximity to elections that does not contain express advocacy in a manner similar 

to how the FECA regulates IEs. However, Congress did not attempt to reach this speech by 

expanding the definition of express advocacy. Instead, it adopted a parallel system to regulate 

so-called “electioneering communications” (“ECs”), defined in terms of timing, reference to 

candidates, and distribution media. See 52 U.S.C. § 30104(f)(3). Among other things, BCRA 

required reporting of some funding sources for ECs. Id. § 30104(f)(2)(F). 

As amended by BCRA, the FECA requires sponsors of ECs that do not use a segregated 

bank account to report “all contributors who contributed an aggregate amount of $1,000 or more 

to the person making the disbursement” during the calendar year in which the report is filed. 52 

U.S.C. § 30104(f)(2)(F). However, the Commission’s implementing regulation narrowed the EC 

reports’ donor identification requirement due to concerns over “the significant burden” on 

corporations (including non-profit corporations) and labor unions who might have to report “the 

identities of the vast numbers of customers, investors, or members, who have provided funds for 

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purposes entirely unrelated to the making of ECs.” FEC, Explanation and Justification for Final 

Rule on Electioneering Communications (hereinafter, “ECs E&J”), 72 Fed. Reg. 72,899 (Dec. 

26, 2007). Specifically, the FEC’s EC reporting regulation requires only the identification of 

persons who gave “for the purpose of furthering electioneering communications.” 11 C.F.R. 

§ 104.20(c)(9). The Commission explained that the relevant language from the EC provision 

was “drawn from the reporting requirements that apply to independent expenditures” and cited 

both 2 U.S.C. § 434(c)(2)(C) (52 U.S.C. § 30104(c)(2)(C)) and 11 C.F.R. § 109.10(e)(1)(vi), the 

IE reporting regulation at issue here.3

 ECs E&J, 72 Fed. Reg. at 72,911 n.22. The D.C. Circuit 

recently upheld the FEC’s EC donor identification regulation as rational and consistent with 

legislative intent. Van Hollen, 811 F.3d 486. 

V. THE AUGUST 30, 2012, EVENT AND CGPS’S 2012 ACTIVITIES 

On August 30, 2012, American Crossroads hosted an informational meeting in Tampa to 

provide an update to various persons interested in the super PAC’s activities.4 While attendees 

were orally encouraged to support the work of American Crossroads, and were provided 

information on how they could contribute to the organization (as well as given separate donor 

information sheets for CGPS), the event was not specifically structured as a “fundraiser” (e.g., no 

stipulated ticket price, no listed donor “hosts,” no demand for specific commitments), as CREW 

                                                            

3

 In an enforcement matter, the controlling group of FEC commissioners (see FEC v. NRSC, 966 F.2d 1471, 1476 

(D.C. Cir. 1992)) determined that the EC reporting regulation is parallel to the IE reporting regulation, requiring the 

identification of donors “only if such donations are made for the purpose of furthering the electioneering 

communication that is the subject of the report.” FEC Matter Under Review (“MUR”) 6002 (Freedom’s Watch), 

Statement of Reasons of Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter and Donald F. 

McGahn at 5, available at http://eqs.fec.gov/eqsdocsMUR/10044274536.pdf. 

4

 CREW’s MSJ Brief (Doc 27 at 20) alleges “Crossroads GPS officials” took certain actions at this meeting under 

the name of “American Crossroads,” which “they evidently used [] to mean both American Crossroads and 

Crossroads GPS.” CREW cites nothing more than the unsubstantiated allegations in its own administrative 

complaint and complaint for judicial review for these naked claims, and there is no evidence in the administrative 

record to support these contentions. 

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has asserted. See Rove Aff. ¶ 2, AR094; CREW MSJ Brief (Doc 27) at 18; CGPS Answer ¶ 49. 5

As part of the informational update, American Crossroads showed two independent 

expenditure ads that it had already aired and paid for earlier in the year, as well as another focus 

group advertisement not intended for public distribution. CGPS Resp. to Admin. Compl., 

AR077-78. American Crossroads also showed eleven of CGPS’s ads, also already aired and paid 

for. Id.6 Notwithstanding CREW’s mischaracterization of all of these ads as “independent 

expenditures,” ten of the eleven CGPS ads shown were not IEs and were not reported to the FEC 

as IEs because they did not contain express advocacy. Compare CREW MSJ Brief (Doc 27) at 

45 with CGPS Resp. to Admin. Compl., AR077-78.7

 Moreover, while CREW mischaracterizes 

CGPS’s response as having “admitted” these ads were “‘examples’ of the activities raised funds 

would support,” in fact neither American Crossroads nor CGPS solicited attendees to help fund 

the specific ads shown, or even substantially similar ads. Compare CREW MSJ Brief (Doc 27) 

at 45 and 19 with CGPS Resp. to Admin. Compl., AR078 and CGPS Answer ¶ 47.8 Rather, the 

purpose of showing the ads was merely to demonstrate the quality and range of the two entities’ 

                                                            

5

 CREW also contends that, “by failure to respond,” CGPS admitted CREW’s allegation that “[CGPS] held a 

fundraiser . . . in conjunction with American Crossroads.” CREW MSJ Brief (Doc 27) at 18. In fact, CGPS denied 

it “held [the] fundraiser” in question. CGPS Answer ¶ 40. 

6

 YouTube links to the ads were provided in CGPS’s response to the administrative complaint. AR077-78. 

7

 CGPS’s “Investigation” ad, which opposed Nevada U.S. Senate candidate Shelley Berkley, was the only IE among 

the eleven CGPS ads shown at the August 30 meeting, and an IE report was properly filed with the FEC for that ad. 

See CGPS Resp. to Admin. Compl., AR078; see also AR151, 153. In its administrative complaint, CREW also: (1) 

made conclusory allegations about “independent expenditures broadcasting the advertisements shown at the [August 

30 meeting] or broadcasting other ads in the Ohio, Virginia, Montana, and Nevada Senate races”; and (2) cited the 

IE reporting requirements in alleging CGPS failed to report donors who gave “for the purpose of broadcasting the 

advertisements shown at the August 30, 2012 [meeting] or broadcasting other ads in those races.” CREW Amend. 

Admin. Compl. ¶¶ 59, 62-64, AR113-14 (emphasis added); see also CREW MSJ Brief (Doc 27) at 1 (alleging the 

FEC made a “finding” that CGPS’s work “primarily consist[ed] of disseminating explicit campaign ads.”). Contrary 

to CREW’s contention, the FEC never determined whether the ads shown at the August 30 meeting were IEs. First 

General Counsel’s Report, AR174-75 (discussing the “television advertisements shown at” the event and “those 

communications”). 

8

 CGPS also has not admitted that “attendees were solicited for contributions . . . to broadcast advertisements like 

those the attendees had just watched,” as CREW erroneously contends. Compare CREW MSJ Brief (Doc 27) at 20 

with CGPS Answer ¶ 49. 

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activities, and to add excitement to an otherwise straightforward political briefing. 

During the August 30 meeting, Karl Rove, an unpaid adviser to American Crossroads and 

CGPS, also recounted a $3 million matching challenge offered by a donor for CGPS’s activities 

in Ohio. Mr. Rove’s conversation with that donor did not entail: (1) “any discussion of any 

particular television advertisements, or television advertisements in general”; (2) any specific 

details “of any actual or hypothetical television advertisements”; (3) any “specific efforts”; 

(4) “any specific methods of communications”; (5) “any discussion of independent 

expenditures”; or (6) the spending of funds “in any particular manner or on any particular or 

specific projects or efforts.” Rove Aff. ¶¶ 3-10, AR094-95. 

Later in 2012, and relevant to this matter, CGPS sponsored and properly reported 32 IEs 

disseminated in connection with the U.S. Senate races in Montana, Nevada, Ohio, and Virginia. 

CREW Am. Admin. Compl. ¶ 60, AR113; Compl. ¶ 53. The donor whose $3 million matching 

challenge Mr. Rove mentioned at the August 30 meeting ended up making a larger contribution 

“that was not in any way earmarked for any particular use.” Rove Aff. ¶ 14, AR095. 

VI. FEC ENFORCEMENT 

Upon receiving a written complaint alleging a FECA violation, the FEC must give the 

respondent notice and the opportunity to file a written response demonstrating that “no action 

should be taken . . . on the basis of the complaint.” 52 U.S.C. § 30109(a)(1). If, on the basis of 

the complaint and the response, at least four commissioners find there is “reason to believe that a 

person has committed, or is about to commit,” a violation, the FEC must notify the respondent 

and may open an investigation. Id. § 30109(a)(2). The FECA and the FEC’s regulations and 

publications spell out subsequent enforcement procedures. 

The FEC shall find “reason to believe” only “where the available evidence in the matter 

is at least sufficient to warrant conducting an investigation, and where the seriousness of the 

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alleged violation warrants either further investigation or immediate conciliation.” FEC, 

Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007). That standard is not met unless all 

the facts justify “a reasonable inference that a violation has occurred.” Id. at 12,546. And 

“evidence provided in the response” may defeat inferences that otherwise might be drawn. FEC 

MUR 4960 (Hillary Rodham Clinton for U.S. Senate Exploratory Comm.), Statement of Reasons 

of Commissioners David M. Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. Thomas 

at 2 (internal citations omitted), available at http://eqs.fec.gov/eqsdocsMUR/0000263B.pdf.

VII. THE UNDERLYING FEC ADMINISTRATIVE PROCEEDINGS 

CREW filed an administrative complaint with the FEC on November 15, 2012, in 

connection with CGPS’s 2012 IEs in Montana, Nevada, Ohio, and Virginia and the August 30, 

2012, meeting. AR001-018. CREW filed an amended complaint on April 24, 2013, which 

substituted the individual named complainant and narrowed CREW’s legal theory in one 

material respect (see note 12, infra). AR098-117; CREW MSJ Brief (Doc 27) at 23. 

Regarding CGPS’s FEC reports for the Ohio IEs, CREW’s amended complaint alleged: 

(1) CGPS violated 2 U.S.C. § 434 (now 52 U.S.C. § 30104) and 11 C.F.R. § 109.10(b)-

(e) by failing to identify the donor who offered the $3 million matching challenge, which CREW 

alleged “was for the purpose of furthering those independent expenditures” (“Count I”), CREW 

Am. Admin. Compl. ¶ 44, AR109 (emphasis added); 

(2) CGPS violated 2 U.S.C. § 434 (52 U.S.C. § 30104) and 11 C.F.R. § 109.10(b)-(e) by 

failing to identify the donors who gave in response to the matching challenge “for the purpose of 

furthering the independent expenditures CGPS made in the Ohio Senate race” (“Count II”), id. 

¶¶ 46, 50, AR110 (emphasis added); and 

(3) CGPS, its officers, and Mr. Rove violated 18 U.S.C. § 371 (criminal conspiracy to 

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defraud the federal government) by failing to report the donor who made the $3 million matching 

donation, and the donors who responded to the matching challenge, “for the purpose of 

furthering the independent expenditures [CGPS] made in the Ohio Senate race” (“Count III”), id. 

¶¶ 52-53, AR111 (emphasis added).9

Regarding the August 30 meeting, CREW’s amended complaint further alleged that: 

(4) Attendees at the meeting gave “contributions” to CGPS “with the intention that the 

money be spent on independent expenditures broadcasting the advertisements shown at the 

fundraiser or broadcasting other ads in the Ohio, Virginia, Montana, and Nevada Senate races,” 

and that CGPS’s IE reports failed to identify “any of the persons who made contributions for the 

purpose of broadcasting the advertisements” in violation of 2 U.S.C. § 434 (52 U.S.C. § 30104) 

and 11 C.F.R. §§ 109.10(b)-(e) (“Count IV”), id. ¶¶ 59-60, AR113 (emphasis added); and 

(5) CGPS, its officers, and Mr. Rove violated 18 U.S.C. § 371 by failing to “identify the 

persons who made contributions for the purpose of broadcasting the advertisements shown at the 

August 30, 2012 [meeting] or broadcasting other ads in those races” (“Count V”), id. ¶ 62, 

AR113 (emphasis added). 

Notably, CREW’s administrative complaint did not claim: (a) that CGPS violated 52 

U.S.C. § 30104(c)(1) by failing to identify on its IE reports “all contributors” who had given 

more than $200 to CGPS during the calendar year; or (b) that the FEC’s IE reporting regulation 

was invalid. See CREW Am. Admin. Compl., AR098-117, compare id. with CREW MSJ Brief 

(Doc 27) at 28-40, 42 and Compl. ¶ 124 and Requested Relief ¶ 3.

10 

                                                            

9

 CREW abandoned its 18 U.S.C. § 371 criminal conspiracy allegations in its complaint for judicial review. Even if 

those allegations were properly before this Court, they are without merit to the same extent the underlying alleged 

violations of the FEC regulation and the FECA are without merit. 

10 While CREW recited in passing the language from 52 U.S.C. § 30101(c)(1), CREW did not specifically allege 

that CGPS had violated this provision, whether by reference to the provision’s statutory designation or its substance. 

Compare CREW Am. Admin. Compl. ¶ 14, AR101 with id. ¶¶ 40-67, AR108-115. 

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CGPS filed a response with the FEC refuting all of the allegations in CREW’s 

administrative complaint and not addressing any additional allegations omitted in the complaint. 

AR073-095.11 After considering CREW’s administrative complaint and CGPS’s response, the 

FEC’s Office of General Counsel issued its “First General Counsel’s Report” (“FGCR”), 

recommending that the Commission find no reason to believe that CGPS had violated 2 U.S.C. 

§ 434(c)(2) (52 U.S.C. § 30104(c)(2)) and 11 C.F.R. § 109.10(e)(1)(vi). AR165. 

According to the FGCR, even if the CGPS donor who made the $3 million matching 

challenge had a “general purpose to support an organization in its efforts to further the election 

of a particular federal candidate” (i.e., in Ohio), that “does not itself indicate that the donor’s 

purpose was to further ‘the reported independent expenditure’ – the requisite regulatory test,” or 

that other donors responding to the matching challenge had given for such purpose. AR174. 

With respect to the IEs in other states addressed at the August 30 meeting, the FGCR endorsed 

CGPS’s explanation that “it did not receive contributions for the purpose of furthering those 

communications” shown at the meeting because those communications had already been aired 

and fully paid for, and another one had never aired. AR175. “Consequently, there is no basis to 

conclude on these facts that [CGPS] received contributions from individuals . . . for the purpose 

of furthering [CGPS’s] reported independent expenditures” in those other states. Id.

As to whether FECA section 30104(c)(1) required a broader level of contributor 

identification than the Commission’s IE reporting regulation, the FEC’s staff perceived no clear 

claim in CREW’s administrative complaint to this effect. Rather, the staff addressed this issue in 

the hypothetical: “[T]o the extent the question is presented on these facts, we recommend that the 

                                                            

11 Because CREW’s amended administrative complaint contained no new substantive allegations, CGPS responded 

to the amended complaint merely by reiterating its previous response. AR162-63. 

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21 

Commission dismiss in the exercise of prosecutorial discretion” any allegation involving section 

30104(c)(1). AR165-66.12 The staff cited a prior matter in which the Commission dismissed a 

claim that the FECA compelled broader IE reporting than the FEC’s regulation required, AR172-

73, and reasoned that CGPS could raise “equitable concerns” and “fair notice” claims “if the 

Commission attempted to impose liability under Section [30104](c)(1).” AR175-76. 

Accordingly, the staff recommended a dismissal on this hypothetical theory in the Commission’s 

prosecutorial discretion. AR176 (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)). 

The commissioners divided 3-3 on whether to pursue or, as recommended by the FGCR, 

dismiss the administrative complaint. AR193-194. Because the FECA requires an affirmative 

vote of four commissioners to proceed in an enforcement action, this vote constituted a formal 

Commission decision not to proceed that resulted in dismissal of the administrative complaint. 

See 52 U.S.C. § 30106(c). 

Due to the 3-3 vote, the commissioners who voted to dismiss CREW’s administrative 

complaint “constitute a controlling group for purposes of the decision,” and “their rationale 

necessarily states the agency’s reasons for acting as it did” on review. NRSC, 966 F.2d at 1476. 

More specifically, because these commissioners followed the recommendations in the FGCR, 

they did not issue their own statement of reasons. Therefore, the FGCR “provides the basis for 

the Commission’s action.” FEC v. DSCC, 454 U.S. 27, 38 n.19 (1981). 

Two of the dissenting commissioners who disagreed with the Commission’s dismissal of 

the administrative complaint wrote a statement of reasons supporting their own theory that CGPS 

                                                            

12 Footnote 60 of the FGCR merely characterizes CREW’s original administrative complaint as “reciting language 

of disclosure obligations under Sections 434(c)(1) and (c)(2),” but did not suggest that CREW was alleging CGPS 

had violated the latter. AR176. Moreover, CREW’s amended administrative complaint, which is the one that 

should have governed the Commission’s decision and the one that is properly before this Court, revised CREW’s 

theory to focus specifically on the contributor reporting requirements under subparagraph (c)(2). Compare CREW 

Am. Admin. Compl. at 5 n.1, AR102 with CREW Admin. Compl. at 4 n.1, AR004.

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22 

should have been regulated as a political committee. AR198-99. Notably, however, no 

commissioner disputed any of the staff’s recommendations or reasoning with respect to dismissal 

of the IE reporting claim. See id.

Dissatisfied with the FEC’s resolution of the matter, CREW filed the instant complaint 

for judicial review under 52 U.S.C. § 30109(a)(8). 

ARGUMENT 

I. STANDARD OF REVIEW 

Although the FECA permits some review of the FEC’s dismissal of a complaint, that 

judicial scrutiny must be “[h]ighly deferential,” Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 

2005), and “limited” in its breadth, Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 

312, 315 (D.C. Cir. 2015). To that end, “the FEC is entitled, and indeed required, to make

subjective evaluation of claims” under the “reason to believe” standard, and “to weigh the 

evidence before it and make credibility determinations in reaching its ultimate decision.” 

Buchanan v. FEC, 112 F. Supp. 2d 58, 72 (D.D.C. 2000) (quoting and citing Orloski v. FEC, 795 

F.2d 156, 168 (D.C. Cir. 1986)). In this respect, the Commission’s role is not subject to the 

constraints a district court faces in deciding a motion to dismiss a civil complaint. Rather, it is 

more analogous to a decision by a prosecutor on whether to present a matter to a grand jury. 

Courts “may set aside the FEC’s dismissal of a complaint only if its action was ‘contrary 

to law,’ . . . e.g., ‘arbitrary or capricious, or an abuse of discretion,’” Hagelin, 411 F.3d at 242, 

and “judges . . . owe large deference to a Commission disposition so long as the FEC (or its 

General Counsel) supplied reasonable grounds for reaching (or recommending) the disposition,” 

DCCC v. FEC, 831 F.2d 1131, 1134 (D.C. Cir. 1987). “As long as the FEC presents a coherent 

and reasonable explanation of that decision, it must be upheld.” Buchanan v. FEC, 112 F. Supp. 

2d 58, 72 (D.D.C. 2000) (citing Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 

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23 

1182, 1185 (D.C. Cir. 1985)).

Courts also apply an “extremely deferential standard” of review when the Commission 

dismisses a case in its prosecutorial discretion. CREW v. FEC, 236 F. Supp. 3d 378, 390 (D.D.C. 

2017) (quoting LaBotz v. FEC, 61 F. Supp. 3d 21, 33 (D.D.C. 2014)). This “is an area where the 

decision is ‘generally committed to an agency’s absolute discretion,’” since it “is not for the 

judiciary to ride roughshod over agency procedures or sit as a board of superintend[e]nce 

directing where limited agency resources will be devoted.” Id. (quoting LaBotz, 61 F. Supp. 3d 

at 33-34 and FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986)) (emphasis added). 

In all instances, the “burden of proof is on . . . the party challenging agency action.” 

Tierney v. FEC, 538 F. Supp. 2d 99, 103 (D.D.C. 2008), aff’d, No. 08-5134, 2008 WL 5516511 

(D.C. Cir. Sept. 12, 2008). 

II. THE FEC PROPERLY DISMISSED CREW’S FIRST CLAIM THAT CGPS 

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

CGPS is entitled to summary judgment on CREW’s Claim One, which alleges the FEC 

was required to find reason to believe that CGPS violated 11 C.F.R. § 109.10(e)(1)(vi) by failing 

to report any contributions “for the purpose of furthering the reported independent 

expenditure[s]” at issue. CREW failed to present facts in the underlying administrative 

proceeding showing such a purpose. In fact, CGPS presented evidence negating any such 

purpose, and the FEC’s informed evaluation of the facts receives an extremely high level of 

judicial deference. 

CREW summarizes the factual allegations of its administrative complaint relating to its 

Claim One on pages 44-45 of its MSJ Brief (Doc 27). However, much of CREW’s recitation 

consists of its own inaccurate and selective characterization of the administrative record. CREW 

omits that Mr. Rove’s affidavit swears that the donor who initially offered the $3 million match 

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24 

that CREW emphasizes actually ended up making a donation “that was not in any way 

earmarked for any particular use” – even for use in Ohio. Rove Aff. ¶ 14, AR095. Mr. Rove 

also specifically attested that the $1.3 million raised in matching donations “were not solicited 

for a particular purpose other than for general use in Ohio” and were not “for the purposes of 

aiding the election of Josh Mandel,” as CREW erroneously contends. Compare id. ¶ 13, AR095 

with CREW MSJ Brief (Doc 27) at 44. Moreover, as discussed supra, ten of the 11 CGPS ads 

that were shown at the August 30 meeting were issue ads and not IEs, as CREW 

mischaracterizes them, and CGPS has not “admitted” that these ads were “‘examples’ of the 

activities raised funds would support,” as CREW speciously contends. Compare CGPS 

Response to CREW Admin. Compl., AR078 with CREW MSJ Brief (Doc 27) at 45. 

Strikingly, CREW’s administrative complaint never clearly alleged CGPS solicited 

donors to fund any advertisements whatsoever (regardless of whether they were IEs, or whether 

they were disseminated in the four states at issue or elsewhere). Rather, CREW resorted to a 

vague and unsupported allegation that the solicitations were “apparently to pay” for the 

advertisements at issue. CREW Am. Admin. Compl. ¶ 28, AR 105 (emphasis added). But in the 

“Democracy Now” segment that CREW relies on, the reporter who attended the August 30 

meeting described the materials that were distributed along with donation forms as merely 

“explaining what the missions are of both organizations” (referring to American Crossroads and 

CGPS). CREW Am. Admin. Compl. Exh. C (6:02-6:20), available at

https://youtu.be/RZsudD4O3i8. 

Moreover, even assuming arguendo, as CREW alleges, that donors gave to CGPS “for 

the purpose[] of aiding the election of Josh Mandel,” CREW MSJ Brief (Doc 27) at 44, that does 

not lead to the conclusion, or even an inference, that they gave “for the purpose of furthering the 

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reported independent expenditure[s]” in question here, see 11 C.F.R. § 109.10(e)(1)(vi). CGPS 

submits that the facts before the Commission clearly negated such a purpose. Certainly, the facts 

were not so compelling that the FEC’s decision can be condemned as contrary to law, which is 

the standard CREW must meet here. 

III. THE COURT SHOULD DISPOSE OF CREW’S CLAIMS TWO AND THREE 

WITHOUT RULING ON THEIR MERITS. 

 Because CGPS’s compliance with the FEC’s IE reporting regulation is dispositive, 

whether or not the regulation is valid, this Court need not and should not rule on the merits of 

CREW’s Claims Two and Three. See Air Courier Conf. of Am. v. Am. Postal Workers Union, 

AFL-CIO, 498 U.S. 517, 531 (1991) (Stevens, J., concurring) (“Faithful adherence to the 

doctrine of judicial restraint provides a fully adequate justification for deciding this case on the 

best and narrowest ground available.”); see also PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 

(D.C. Cir. 2004) (Roberts, J., concurring) (“if it is not necessary to decide more, it is necessary 

not to decide more”). That is even more so here because CREW’s claims also are time-barred, 

not properly before this court, and otherwise precluded by the FEC’s prosecutorial discretion. 

A. CGPS Was Entitled to Rely on the FEC’s IE Reporting Regulation.

As discussed more fully below, 11 C.F.R. § 109.10(e)(1)(vi) validly implements the 

FECA. But even if the regulation were invalid, CGPS was entitled to rely on it under both the 

FECA and well-established principles of due process and administrative law. Therefore, this 

Court should dismiss CREW’s Claims Two and Three as unnecessary to decide. 

1. The FECA Specifically Protects Those Relying on the FEC’s Regulations 

From Any Sanctions or Enforcement Proceedings. 

The FECA provides that: 

Scope of protection for good faith reliance upon rules or regulations. 

Notwithstanding any other provision of law, any person who relies upon any rule 

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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 or 

by chapter 95 or chapter 96 of title 26. 

52 U.S.C. § 30111(e) (emphasis added). As the legislative history further explains, “[a] person 

who relies upon [the FEC’s] regulations in good faith will not be subject to subsequent 

enforcement action.” 1979 FECA History at 208. 

 Thus, the FECA permits the public to “undertake any conduct permitted by the 

challenged regulations without fear of penalty, even if that conduct violates campaign statutes.” 

Shays v. FEC (“Shays I”), 414 F.3d 76, 84 (D.C. Cir. 2005) (emphasis added). The “good faith 

reliance” statute is unequivocal: compliance with FEC regulations removes “certain conduct 

from any risk of enforcement” and “establish[es] ‘legal rights’ to engage in that conduct.” Id. at 

95 (emphasis added). This precludes the full range of FECA-authorized sanctions that CREW 

seeks, including “equitable remedies” requiring CGPS to retroactively file amended IE reports. 

Compare CREW MSJ Brief (Doc 27) at 43 with 52 U.S.C. §§ 30111(e) (prohibiting “any 

sanction provided by this Act” for reliance on FEC regulations) and 30109(6)(A), (B) (otherwise 

permitting an “injunction, restraining order, or any other appropriate order” for violations). This 

is especially so where CREW’s desired relief would violate the associational privacy rights of 

CGPS and its donors, who relied on the FEC’s regulation with the understanding that they would 

not be publicly identified thereunder. As the Supreme Court has recognized, campaign finance 

reporting requirements – like the IE reporting scheme here – pose “not insignificant burdens on 

individual rights,” “deter some individuals who otherwise might contribute,” and “expose 

contributors to harassment or retaliation.” Buckley, 424 U.S. at 68; see also Van Hollen, 811 

F.3d at 499-500. 

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2. CGPS Was Entitled to Rely on the FEC’s Regulation Under Principles of Due 

Process and Administrative Law. 

The FECA’s protection for those complying with FEC regulations also tracks 

“[t]raditional concepts of due process incorporated into administrative law,” which “preclude an 

agency from penalizing a private party for violating a rule without first providing adequate notice 

of the substance of the rule.” Affum v. U.S., 566 F.3d 1150, 1163 (D.C. Cir. 2009) (quoting PMD 

Produce Brokerage Corp. v. USDA, 234 F.3d 48, 52 (D.C. Cir. 2000)). This notice may be in 

form of the rule text itself “and other public statements issued by the agency.” Id. (quoting 

Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2000)). 

Even where a party relies on an agency’s regulation and “a court [subsequently] 

determines that the regulation is invalid,” the judicial decision requires “nonretroactive 

application” where the decision “will work an injustice or hardship” or “establish[es] a new 

principle of law, either by overruling clear past precedent . . . or by deciding an issue of first 

impression whose resolution was not clearly foreshadowed.” Teich v. FDA, 751 F. Supp. 243, 

249 (D.C. Cir. 1990) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 355 (1971))

(emphasis added). More generally, “prior notice is required where a private party justifiably 

relies upon an agency’s past practice and is substantially affected by a change in that practice.” 

Nat’l Conservative Pol. Action Comm. v. FEC, 626 F.2d 953, 959 (D.C. Cir. 1980). These 

principles apply with special force where the relevant conduct is core First Amendment free 

speech and association. To avoid chilling such highly protected activity, the law must provide 

clear advance notice before burdens may be imposed. Marks v. U.S., 430 U.S. 188, 196 (1977);

Buckley, 424 U.S. at 77. 

Here, CREW concedes the FEC’s regulation in question has been in effect for more than 

37 years. Compl. ¶ 120; CREW MSJ Brief (Doc 27) at 7. During that time, CREW has not 

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identified any precedent where the FEC interpreted or applied the regulation under the “more 

expansive approach” CREW advocates here. Compl. ¶ 122. In fact, as discussed above, the 

agency previously considered an enforcement matter involving the identical issue that CREW 

presents here, and the FEC dismissed the matter. AR172-3. The FEC’s reporting instructions 

and guidance – which are legally significant – also have consistently described IE reports as only 

requiring identification of contributions “made for the purpose of furthering the independent 

expenditures” being reported, FEC, Instructions for Preparing FEC Form 5, supra, or 

contributions “for the purpose of making the independent expenditures” being reported, FEC, 

Campaign Guide for Corporations and Labor Organizations (Jan. 2007) at 36, available at

https://transition.fec.gov/pdf/colagui.pdf.

13

Indeed, CREW itself previously conceded the limited scope and dispositive effect of the 

Commission’s regulation. In response to a broad-based FEC request for public comments, 

CREW sharply critiqued the narrow scope of the FEC’s IE reporting regulation. According to 

CREW, “under the Commission’s regulations, the identity of a contributor who gives to the 

organization for the broad purpose of influencing a federal election, or even the specific purpose 

of making independent expenditures, need not be disclosed.” CREW, Comments in Response to 

Advance Notice of Proposed Rulemaking on Earmarking, Affiliation, Joint Fundraising, 

Disclosure, and Other Issues (Jan. 15, 2015) at 3-4, available at http://sers.fec.gov/fosers/ 

showpdf.htm?docid=312990. 

In the same proceeding, CREW also (1) acknowledged that the Commission’s IE 

                                                            

13 The FEC guide provides CGPS with yet an additional protection against any sanctions. Under the Small Business 

Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. § 601 note, reliance by a “small entity” on an agency’s 

designated “small entity compliance guide” “may be considered as evidence of the reasonableness or 

appropriateness of any proposed fines, penalties, or damages.” The FEC has designated its guide as a “small entity 

compliance guide.” FEC, Campaign Guide for Corporations and Labor Organizations at ii. As a non-profit entity, 

CGPS meets the definition of a “small entity.” 5 U.S.C. § 601(6), (4). 

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reporting regulation implemented “both contributor disclosure provisions of the statute” (i.e., the 

Coverage and Content Provisions); and (2) did not suggest that the agency could require more 

reporting of donors simply by ignoring the regulation and enforcing the two FECA provisions 

according to CREW’s own (mistaken) interpretation of them. See id. at 2-5. As CREW 

discusses in its MSJ Brief (Doc 27 at 15-16), in a rulemaking petition filed on behalf of thenRepresentative Chris Van Hollen, campaign finance attorneys at Democracy 21 and the 

Campaign Legal Center also characterized the FEC’s IE reporting regulation as being limited in 

scope and dispositive in effect. Rep. Van Hollen Petition for Rulemaking to Revise and Amend 

Regulations Relating to Disclosure of Independent Expenditures (Apr. 21, 2011) at 4, available 

at http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. (Notably, CREW did not 

participate in any way in this rulemaking petition, which further underscores why CREW should 

not be permitted to convert this enforcement action into a rulemaking proceeding. See FEC, Reg 

2011-01 Independent Expenditure Reporting, at http://sers.fec.gov/fosers/ruledata.htm? 

ruleNumber=REG%202011-01.) 

 As CREW also notes, dozens of 501(c) organizations spent tens of millions of dollars on 

IEs during the 2010 election cycle, and hundreds of millions of dollars “during each of the 2012, 

2014, and 2016 election cycles . . . but they did not identify a single contributor or report a single 

dollar in outside contributions.” CREW MSJ Brief (Doc 27) at 15-16. Yet, CREW has not 

identified a single precedent where an organization relying on the FEC’s IE reporting regulation 

has been found to have violated the law – either by the FEC or by a reviewing court. 

In the instant matter, CGPS also responded to four form letters from the FEC’s Reports 

Analysis Division asking for confirmation that no contributors had to be identified on the IE 

reports at issue here. AR149-154. These inquiries are routinely sent by the agency for 

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“additional clarification” on reports. FEC, Request for Additional Information (RFAI), at

https://www.fec.gov/help-candidates-and-committees/request-additional-information. Citing the 

regulation, CGPS explained that “no contributions or donations accepted by [CGPS] were 

solicited or received for the purpose of furthering the reported independent expenditures.” 

AR153. The FEC never disputed CGPS’s responses or demanded that CGPS amend its filings in 

the manner CREW urges. See PMD Produce Brokerage Corp., 234 F.3d at 53 (noting that “preenforcement efforts” may indicate an agency’s interpretation of the relevant law). 

CREW contends that the Coverage Provision, 52 U.S.C. § 30104(c)(1) imposes a broader 

donor identification requirement that is “[s]eparate and distinct from” the FEC’s IE reporting 

regulation, and that “[t]he appearance of [this] requirement in the ‘plain language’ of the statute 

gives ‘fair notice’ to regulated parties.” CREW MSJ Brief (Doc 27) at 39 (quoting Freeman 

United Coal Min. Co. v. Fed. Mine Safety and Health Review Comm’n, 108 F.3d 358, 362 (D.C. 

Cir. 1997)). But as even CREW’s parenthetical for Freeman reveals, that opinion was 

addressing the “plain language” of an agency regulation, and not the conflict that allegedly exists 

here between a regulation and a purportedly broader statute. Here, CREW: (1) concedes – 

consistent with the FEC’s own explanation of the rule – that the regulation construes both the 

Coverage and Content Provisions;14 and (2) never identifies a single instance where the FEC 

interpreted the Coverage Provision as creating a separate reporting obligation. Thus, Freeman

actually supports CGPS’s position. 

CREW further contends that this “case is not among the ‘very limited set of cases’ in 

which courts have found lack of required notice.” CREW MSJ Brief (Doc 27) at 40 (citing 

                                                            

14 Per CREW’s administrative complaint, “FEC regulations interpret these provisions” – referring to 52 U.S.C. 

§ 30104(c)(2)(C) and (c)(1) – to require reporting of each contribution that “was made for the purpose of furthering 

the reported independent expenditure.” CREW Am. Admin. Comp. ¶¶ 14-16, AR101-02 (emphasis added); CREW 

Admin. Compl. ¶¶ 14-16, AR004 (emphasis added). 

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Suburban Air Freight, Inc. v. Transp. Sec. Admin, 716 F.3d 679, 684 (D.C. Cir. 2013)). 

However, CREW’s authority for this proposition also supports CGPS’s position. In Suburban 

Air Freight, the court held that the agency regulation at issue “made clear” the appellant’s 

obligations, and that the appellant “ma[de] no argument that [the agency] previously interpreted 

those provisions differently, let alone that the company relied on any such interpretation.” 716 

F.3d at 684. But that describes exactly the situation here: CREW concedes 11 C.F.R. 

§ 109.21(e)(1)(vi) is clear that only “contributions given for the purpose of furthering ‘the 

reported’ independent expenditure” must be reported. CREW MSJ Brief (Doc 27) at 28. The 

FEC previously has not interpreted the regulation in a manner broader than its plain text, and 

CGPS relied on this longstanding Commission interpretation. 

Finally, of course, the FECA has an express provision making compliance with a 

regulation a bar to further enforcement action. That provision and the First Amendment are 

powerful considerations not present in the cases CREW discusses. 

3. CGPS’s Reliance on 11 C.F.R. § 109.10(e)(1)(vi) Precludes CREW’s Claims 

Two and Three and Any Enforcement in This Matter. 

 Regardless of whether, as CREW alleges, the FEC regulation at issue is unduly 

permissive and contrary to the FECA, the statute (52 U.S.C. § 30111(e)) and traditional 

principles of due process and administrative law present an absolute bar against any sanction, 

penalty, or enforcement action against CGPS where it reasonably relied on the Commission’s 

regulation. In fact, it is CREW’s position in this matter that is impermissible. Had the FEC 

completely and abruptly, and without any advance public notice, reversed its longstanding 

interpretation and application of the regulation at issue, the agency would have acted arbitrarily 

and capriciously. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016).15 

                                                            

15 CREW misrepresents Barnett v. Weinberger, 818 F.2d 953, 954 (D.C. Cir. 1987) as holding that an “agency

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32 

Therefore, this Court should dispose of CREW’s Claims Two and Three, which are premised 

entirely on two statutory provisions that are both implemented by the FEC’s regulation. 

B. CREW’s Administrative Complaint Did Not Allege the FEC’s Regulation Is 

Invalid or That CGPS Violated Subsection 30104(c)(1), and These New Theories 

Are Not Properly Before This Court. 

The Court also should dispose of CREW’s Claims Two and Three because CREW did 

not clearly raise – indeed, it abandoned – these issues in its administrative complaint. Here, once 

again, both the FECA and traditional principles of administrative law preclude CREW’s claims. 

The FECA provides that “[a]ny party aggrieved by an order of the Commission 

dismissing a complaint filed by such party” may seek judicial review. 52 U.S.C. 

§ 30109(a)(8)(A) (emphasis added). If the court “declare[s] that the dismissal of the complaint 

or the failure to act is contrary to law” and the FEC fails to conform with such declaration, the 

complainant may then bring another suit “to remedy the violation involved in the original 

complaint.” Id. § 30109(a)(8)(C) (emphasis added).16 Furthermore, the FECA requires that 

respondents have an opportunity to submit a written response to administrative complaints, 

which necessarily encompasses responding to the applicable legal theories contained in the 

administrative complaint. Id. § 30109(a)(1). 

Here, CREW’s administrative complaint never once specifically alleged, as CREW does 

now, that CGPS violated the law by relying on an invalid FEC regulation, or that CGPS had 

                                                            

decision premised on [an] invalid regulation at odds with [the] statute was arbitrary.” CREW MSJ Brief (Doc 27) at 

39. The court in Barnett did not determine the regulations at issue were “invalid”; rather the issue was whether the 

regulations, “either as written or applied,” were contrary to the statute. Barnett, 818 F.2d at 959, 970 (emphasis 

added). In addition, the agency’s “‘findings’ of adjudicative facts that [were] not supported by substantial evidence” 

played a large part in the court’s enjoining the agency’s action. Id. at 971. Moreover, the issue in Barnett was 

whether it was proper for an agency to apply its regulation to discontinue future benefits to a member of the public. 

Id. at 954-55. By contrast, the issue here is whether it was proper for CGPS to rely on an agency regulation for 

activities conducted long before the regulation was challenged. 

16 The term “original complaint” here distinguishes the administrative complaint from a later judicial complaint for 

review. For present purposes, CREW’s amended FEC complaint is the relevant “original complaint.” 

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33 

violated the Coverage Provision, 52 U.S.C. § 30104(c)(1), by not reporting “all contributors who 

provide more than $200 annually to the group.” See supra at 18-19 and CREW Am. Admin. 

Compl., AR108-115.17 As to section 30104(c)(1) specifically, the FEC staff’s FGCR also did 

not interpret CREW’s administrative complaint as alleging a violation of this provision. Rather, 

the FGCR merely said that, “to the extent that the facts here may also give rise to a claim that 

Crossroads allegedly violated” 52 U.S.C. § 30104(c)(1), that claim would properly be dismissed 

as a matter of prosecutorial discretion. AR165-66, 176 (emphasis added). In other words, the 

FGCR addressed a hypothetical that CREW never specifically alleged in its administrative 

complaint. 

CREW’s addition of these new legal theories in its complaint filed in this Court not only 

conflicts with the limited scope of judicial review permitted by the FECA, but it also violates the 

basic doctrine of exhaustion of administrative remedies. Under this doctrine, parties in an 

administrative proceeding must “give the agency a fair and full opportunity to adjudicate their 

claims,” and “do[] so properly (so that the agency addresses the issues on the merits).” 

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 

(7th Cir. 2002), cert. denied, 537 U.S. 949 (2002) (emphasis in the original). A plaintiff may not 

“proceed to federal court after having raised claims in only a cursory manner,” or “permute 

‘mere[] background information’ in an [administrative] complaint into a separately actionable 

legal claim.” Vasser v. McDonald, 228 F. Supp. 3d 1, 17 (D.D.C. 2016) (quoting Lyles v. 

District of Columbia, 777 F. Supp. 2d 128, 137 (D.D.C. 2011)). Including only a “vague 

reference” to an issue, “[d]espite the opportunity to specifically raise the [issue] as a separate 

                                                            

17 The general references in CREW’s administrative complaint to “2 U.S.C. § 434” cannot fairly be understood as 

specifically alleging that CGPS violated 52 U.S.C. § 30104(c)(1), especially in light of CREW’s actual 

characterization of the alleged violations. See CREW Am. Admin. Compl., “Count I,” ¶ 44; “Count II,” ¶ 50; 

“Count III,” ¶ 53; “Count IV,” ¶ 60; “Count V,” ¶ 62, AR110-114. 

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34 

claim . . . [a]fter listing five different claims” is insufficient. Id. Relatedly, CREW’s additional 

legal theories violate the “hard and fast rule of administrative law, rooted in simple fairness, that 

issues not raised before an agency are waived and will not be considered by a court on review.” 

Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004); see also Wallaesa v.

FAA, 824 F.3d 1071, 1078 (D.C. Cir. 2016). 

Although the FEC staff’s FGCR raised the speculative issue of liability under the 

Coverage Provision, 52 U.S.C. § 30104(c)(1), the report merely recommended a dismissal in the 

agency’s prosecutorial discretion due to the “equitable concerns” about “fair notice” that CGPS 

could raise concerning this novel enforcement theory. AR176. The FGCR did not address the 

substantive merits of this theory. Moreover, because CREW failed to allege such a violation in 

any one of the five separate “counts” of its administrative complaint, AR108-115, CGPS’s 

response thereto also did not address any alleged violation of the Coverage Provision, AR083-

84. CGPS also did not have an opportunity to address this new theory when it was first 

presented to the Commission in the FGCR. See FEC, Guidebook for Complainants and 

Respondents on the FEC Enforcement Process (May 2012) at 10-12, available at

https://transition.fec.gov/em/respondent_guide.pdf (explaining that, after respondents file a 

response, the General Counsel’s office issues its report and then the Commission votes on the 

General Counsel’s recommendations). 

Additionally, while the FECA authorizes the FEC to open certain enforcement matters 

sua sponte, 52 U.S.C. § 30109(a)(1), (2), the FECA does not permit complainants to seek 

judicial review of internally generated matters. Compare id. with id. § 30109(a)(8). Thus, to the 

extent the FEC staff’s FGCR, on its own, raised the hypothetical issue of whether CGPS may 

have violated 52 U.S.C. § 30104(c)(1), the agency’s dismissal on that issue is not reviewable. 

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35 

For all of these reasons, CREW’s Claims Two and Three are not properly before this 

Court. 

C. CREW’s Facial Challenge to the Regulation’s Validity Is Time-Barred, and an 

As-Applied Challenge Would Not Redress CREW’s Claimed Injury. 

In addition to the reasons just discussed, this Court should dispose of CREW’s Claim 

Two – which seeks a declaratory order that “11 C.F.R. 109.10(e)(1)(vi) is unlawful and 

invalid” on its face – because the claim is time-barred. Compl. ¶ 124; see also id., Requested 

Relief ¶ 3. Moreover, although this Court has held that CREW’s challenge to the FEC’s 

application of the supposedly invalid regulation is not time-barred, Memo. Op. (Mar. 22, 2017) 

at 15, such a claim cannot redress CREW’s injury, since compliance with the regulation justifies 

dismissal of CREW’s complaint, whether or not the regulation is valid. 

Although 28 U.S.C. § 2401(a) establishes a six-year statute of limitations in this matter 

for judicial review of the regulation’s validity, NLRB Union v. FLRA, 834 F.2d 191 (D.C. Cir. 

1987) recognized “a limited number of exceptions.” See Memo. Op. (Mar. 22, 2017) at 12-13; 

Raton Gas Transmission Co. v. FERC, 852 F.2d 612, 615 (D.C. Cir. 1988) (explaining NLRB 

Union). NLRB Union held that, outside of the statute of limitations, “a party who possesses 

standing may challenge regulations directly on the ground that the issuing agency acted in excess 

of its statutory authority in promulgating them. A challenge of this sort might be raised, for 

example, by way of defense in an enforcement proceeding.” 834 F.2d at 195 (emphasis added). 

The point is that the running of the statute of limitations should not prevent a party from 

redressing a new and recent injury. 

This Court also has noted the D.C. Circuit’s holding in Weaver v. Fed. Motor Safety 

Admin., 744 F.3d 142 (D.C. Cir. 2014). Memo. Op. (Mar. 22, 2017) at 16. As Weaver 

explained: 

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36 

Where Congress imposes a statute of limitations on challenges to a regulation, 

running from a regulation’s issuance, facial challenges to the rule or the 

procedures by which it was promulgated are barred. But when an agency seeks to 

apply the rule, those affected may challenge that application on the grounds that it 

“conflicts with the statute from which its authority derives.” 

744 F.3d 142 at 145 (emphasis added) (internal citations omitted) (quoting Nat’l Air Transp. 

Ass’n v. McArtor, 866 F.2d 483, 487 (D.C. Cir. 1989)).18 In short, the time bar does not subject a 

party to a new injury that violates the substantive command of the law. 

 CREW’s problem is that the FECA makes compliance with the FEC regulation a 

complete defense, regardless of the regulation’s validity. So even if the dismissal of CREW’s 

complaint injured CREW by depriving it of desired information, the injury did not flow from the 

validity or invalidity of the FEC’s regulation. Moreover, declaring the rule invalid would not 

and could not redress that injury: even if the regulation were invalidated, the dismissal would 

stand. 

 CREW may wish to invalidate the regulation so that it will not provide a defense to future 

respondents. But a “plaintiff must demonstrate standing for each claim he seeks to press.” 

DaimlerChrysler Corp. et al. v. Cuno et al., 547 U.S. 332, 335 (2006). And an essential element 

of standing is that success on the claim will redress the plaintiff’s claimed injury. Lujan v. 

Defenders of Wildlife, et al., 504 U.S. 555, 561-62 (1992). CREW’s broader claim that 

invalidating the regulation will allow it to obtain information in the future is precisely the type of 

“facial challenge” that the statute of limitations bars. P&V Enterprises, et al. v. U.S. Army Corps 

of Engineers, et al., 466 F. Supp. 2d 134, 136 (D.D.C. 2006).

                                                            

18 See also Graceba Total Communications, Inc. v. FCC, 115 F.3d 1038, 1040 (D.C. Cir. 1997) (“we permit both 

constitutional and statutory challenges to an agency’s application or reconsideration of a previously promulgated 

rule, even if the period for review of the initial rulemaking has expired.”) (collecting authority) (emphasis added); 

Tripoli Rocketry Assoc. v. U.S. BATF, 2002 U.S. Dist. LEXIS 27588 at *16 (D.D.C. June 24, 2002) (plaintiff’s 

“substantive challenge” to an agency regulation was “not time barred because it attacks [the agency’s] 

‘noncompliance with the substantive provisions of federal law as applied to plaintiffs.’”) (emphasis added). 

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37 

CREW’s position also is untenable to the extent it relies on procedural arguments, 

because a “petitioner’s contention that a regulation suffers from some procedural infirmity . . . 

will not be heard outside of the statutory limitations period.” NLRB Union, 834 F.2d at 196. 

Here, CREW argues that the FEC adopted the IE reporting regulation at issue without an 

adequate contemporaneous explanation for it. CREW MSJ Brief (Doc 27) at 28-30. This is an 

attack on the regulation’s procedural validity and is not properly before this court outside of the 

six-year statute of limitations for reviewing the rule’s promulgation. 

D. The FEC’s Heckler Dismissal of the Agency Staff’s Self-Initiated Hypothetical 

Theory That CGPS May Have Violated Subsection 30104(c)(1) Was Rational 

Under the “Extremely Deferential Standard” of Judicial Review. 

CREW’s Claim Three – that CGPS may have failed to report a broader universe of 

donors supposedly required by the Coverage Provision, 52 U.S.C. § 30104(c)(1) – fails on 

multiple grounds. As noted above, because CREW did not plainly present that claim to the FEC, 

it failed to exhaust its administrative remedies. The Commission staff’s comment that, if such a 

claim had been made, it would be subject to dismissal as a matter of prosecutorial discretion 

under Heckler v. Chaney, 470 U.S. 821 (1985), does not excuse this failure, doubly so since the 

FECA does not authorize private complainants to seek review of FEC staff-originated issues. 

And, beyond all this, on the facts here CREW cannot begin to overcome the great deference 

accorded such a highly discretionary ruling. 

The “extremely deferential standard” of judicial review that protects the FEC’s exercise 

of prosecutorial discretion, CREW, 236 F. Supp. 3d at 390, is even more deferential in matters 

involving “novel legal issues,” where prosecution would invite great risk of litigation by the 

respondent, id. at 391, 393.19 This is such a novel case. The FEC, to CGPS’s knowledge, has

                                                            

19 Despite the weight of authorities supporting the FEC’s broad prosecutorial discretion, CREW has appealed this 

ruling to the D.C. Circuit. See CREW v. FEC, No. 17-5049. 

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never previously adopted CREW’s position on identifying donors on IE reports, whether in 

enforcement matters or in the agency’s guidance documents. Thus, the FGCR more than 

reasonably and rationally concluded that CGPS “could raise equitable concerns,” as it does now, 

“about whether [it had] fair notice of the requisite level of disclosure” commanded by an out-ofcontext reading of the Coverage Provision. Therefore, the commissioners who voted on this 

basis to dismiss the agency staff’s self-initiated hypothetical claim, and to avoid the high 

litigation risk of proceeding under this theory, had more than a reasonable and rational basis for 

exercising the agency’s prosecutorial discretion. Under the “extremely deferential standard” of 

judicial review, CREW, 236 F. Supp. 3d at 390, this Court should not disturb that decision. 

IV. THE CONTENT PROVISION SPECIFIES TAILORED IE REPORTING, AND THE 

FEC’S REGULATION IS A REASONABLE INTERPRETATION OF THAT 

REQUIREMENT. 

For all the reasons just discussed, this Court need not and should not reach the merits of 

CREW’s argument that the FEC’s IE reporting regulation is inconsistent with the FECA. But if 

the issue were reached, the two-step process contained in Chevron, USA, Inc. v. NRDC, 467 U.S. 

837 (1984), requires CREW to establish either that (i) the statutory text clearly forecloses the 

regulation, or if not, (ii) the regulation is irrational in light of the statute’s purpose. See Shays I, 

414 F.3d at 96. CREW can establish neither, particularly given the high level of deference 

afforded FEC interpretations of the FECA. See, e.g., Orloski, 795 F.2d at 164. 

A. Chevron Step 1: Congress Tailored the FECA to Require Ad-Based 

Identification of Contributors. 

The pertinent statutory language is as follows (with the key language in italics and other 

language to be discussed shortly in bold/underlined): 

2 U.S.C. 434 REPORTS . . . 

(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 

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39 

year shall file a statement containing the information required under subsection 

(b)(3)(A)20 for all contributions received by such person. 

(2) Statements required to be filed by this subsection shall be filed in accordance 

with subsection (a)(2), and shall include—, 

(A) the information required by subsection (b)(6)(B)(iii),21 indicating 

whether the independent expenditure is in support of, or in opposition 

to, the candidate involved; 

(B) under penalty of perjury, a certification whether or not such22

independent expenditure is made in cooperation, consultation, or 

concert, with, or at the request or suggestion of, any candidate or any 

authorized committee or agent of such candidate; and 

(C) 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. 

Any independent expenditure (including those described in subsection 

(b)(6)(B)(iii)) aggregating $1,000 or more made after the 20th day, but more than 

24 hours, before any election shall be reported within 24 hours after such 

independent expenditure is made. Such statement shall be filed with the Clerk, 

the Secretary, or the Commission and the Secretary of State and shall contain the 

information required by subsection (b)(6)(B)(iii) indicating whether the 

independent expenditure is in support of, or in opposition to, the candidate 

involved. 

(3) The Commission shall be responsible for expeditiously preparing indices 

which set forth, on a candidate-by-candidate basis, all independent expenditures 

separately, including those reported under subsection (b)(6)(B)(iii), made by or 

                                                            

20 This provision provides that: “(b) Each report under this section shall disclose . . . (3) the identification of each . . . 

(A) person (other than a political committee) 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 in any lesser amount if the reporting committee should so elect, together with the date and 

amount of any such contribution.” 

21 This provision provides that the report will disclose “the full name and mailing address (occupation and the 

principal place of business, if any) of each person to whom expenditures have been made by such committee or on 

behalf of such committee or candidate within the calendar year in an aggregate amount or value in excess of $100, 

the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each 

candidate on whose behalf such expenditure was made.” 

22 See King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (defining “such” as “That or those; having just been 

mentioned”); United States v. Ashurov, 726 F.3d 395, 398 (3d Cir. 2013) (explaining that “such” means “of the 

character, quality, or extent previously indicated or implied”); In re Lehman Bros. Mortg.-Backed Sec. Litig., 650 

F.3d 167, 176–77 (2d Cir. 2011) (citing Webster’s Third New International Dictionary’s definition of “such” as 

“something ‘previously characterized or specified’”). 

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40 

for each candidate, as reported under this subsection, and for periodically 

publishing such indices on a timely pre-election basis.” 

For the reasons explained below, the best (and, at the very least, a permissible) reading of the 

statute is that the Content Provision, 52 U.S.C. § 30104(c)(2), only requires reporting of those 

contributors who gave for the purpose of furthering the reported independent expenditure. 

To begin, the term “‘an’ means ‘one,’” New Hampshire Motor Transp. Ass’n v. Rowe, 

448 F.3d 66, 72 (1st Cir. 2006), aff’d, 552 U.S. 364 (2008) (citing Merriam Webster’s Collegiate 

Dictionary at 40, 53 (10th ed. 2001)), which is the “normal” reading of such an indefinite article, 

Abbott GmbH & Co. KG v. Yeda Research & Dev. Co., 516 F. Supp. 2d 1, 6 (D.D.C. 2007) 

(quotation omitted). This is particularly true where the modified term is singular, as 

“independent expenditure” is here. See United States v. Hagler, 700 F.3d 1091, 1097 (7th Cir. 

2012). 

Moreover, in determining the meaning of “an,” “context matters.” Caraco Pharm. Labs., 

Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 413-14 (2012) (interpreting “not an” language to mean 

“not a particular one”). Here, the FECA’s structure and history support the FEC’s reading of the 

statute. For example, as discussed above, see supra at 10, the Summary of Committee Working 

Draft and the Senate Committee’s report confirm that the statute targets reporting of 

contributions received for “the independent expenditure.” (Emphasis added.) Furthermore, 

where “the rest of the statute is written using definite articles,” it indicates specificity of the 

modified item. Hagler, 700 F.3d at 1097. Here, the two paragraphs above and two paragraphs 

below the relevant provision all contain terms underscoring that IE contribution reporting relates 

to funds designated for a particular advertisement. 

If, as CREW maintains, Congress intended a broader level of contributor-related 

reporting for IEs, it easily could have said so, beginning with a reference to giving “for the 

Case 1:16-cv-00259-BAH Document 28 Filed 10/23/17 Page 54 of 65
41 

purpose of furthering any independent expenditures.” But Congress did not do that. Instead, it 

required earmarking to support “an expenditure.” If that language does not compel the FEC’s 

reading of the statute – and CGPS submits that it does23 – it certainly permits such a reading, 

given the FEC’s broad Chevron discretion. 

B. Chevron Step 2: The FEC’s Regulatory Construction Is Within the Range of 

Permissible Options. 

That leaves the issue of rationality.24 CREW argues it is irrational for the FEC’s IE 

reporting regulation to include an earmarking principle under which no contributor is identified 

unless the contribution is earmarked for a particular IE. But the D.C. Circuit rejected precisely 

that argument with respect to the parallel FEC regulation containing an earmarking principle for 

identifying EC funders: 

[T]he FEC’s purpose requirement regulates electioneering communication 

disclosures in precisely the same way BCRA itself regulates express advocacy 

disclosures. . . . The FEC was concerned [in the EC context] that some individuals 

who contribute to a union or corporation’s general treasury may not support that 

entity’s electioneering communications, and a robust disclosure rule would thus 

mislead voters as to who really supports the communications. . . . It’s hard to 

escape the intuitive logic behind this rationale. 

Van Hollen, 811 F.3d at 497. 

Here, as in Van Hollen, the FEC regulation’s earmarking component avoids misleading 

reporting and, at the same time, avoids imposing reporting burdens on core political speech that 

are not clearly necessary. Take, for example, an Alaska donor who helps fund an environmental 

conservation group’s IEs attacking an Alaska congressional candidate’s support for drilling in 

the Arctic National Wildlife Refuge. Under the FEC’s regulation, that donor is not identified on 

                                                            

23 CREW’s MSJ Brief (Doc 27 at 31) also agrees that “use of a definite article” – e.g., “the” – “would mean that the 

contribution must be related to a specific independent expenditure.” 

24 Cf. Foo v. Tillerson, 244 F. Supp. 3d 17 (D.D.C. 2017) (upholding the State Department’s interpretation of “an 

individual” under Chevron Step Two when Congress did not provide an explicit definition). 

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42 

the group’s FEC reports for an IE promoting an Arkansas U.S. Senate candidate’s opposition to 

fracking in the Fayetteville Shale. Similarly, a Long Island property developer who contributes 

to a national trade association’s voter turnout efforts for a New York congressional candidate is 

not identified on the organization’s FEC reports for an IE opposing a California congressional 

candidate’s position on federal public transit funding. 

Five further considerations show that the FEC’s regulation is consistent with legislative 

intent: 

1. The FEC Was Heavily Involved in the Statute’s Drafting. 

Administrative interpretations of statutes are “especially persuasive” where either “the 

agency participated in developing the provision,” Miller v. Youakim, 440 U.S. 125, 144 (1979), 

or where there is “a contemporaneous construction of a statute by those charged with the 

responsibility of setting its machinery in motion,” United Transp. Union v. Lewis, 711 F.2d 233, 

242 (D.C. Cir. 1983). As to the former, courts attach “‘great weight’ to agency representations 

to Congress when the administrators ‘participated in drafting and directly made known their 

views to Congress in committee hearings,’” since this forms “part of the legislative background” 

of the new law. Moore v. District of Columbia, 907 F.2d 165, 176 (D.C. Cir. 1990) (quoting 

Zuber v. Allen, 396 U.S. 168, 192 (1969)). As to the latter, contemporaneous constructions are 

important because the agency “may possess an internal history in the form of documents or 

‘handed-down oral tradition’ that casts light on the meaning of a difficult phrase or provision.” 

Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 368 

(1986). Indeed, a contemporaneous construction “might . . . ‘carry the day against doubts that 

might exist from a reading of the bare words of a statute.’” United Airlines, Inc. v. Brien, 588 

F.3d 158, 172 (2d Cir. 2009) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 414 

(1993)). The presence of both factors here together means deference principles apply with “even 

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43 

greater force.” Middle South Energy, Inc. v. F.E.R.C., 747 F.2d 763, 769 (D.C. Cir. 1984). 

As explained above, the statute upon which the FEC regulation is based was explicitly 

identified as an FEC legislative recommendation, and FEC commissioners and staff worked 

closely with Congress to develop the provision. See supra at 9-10. When it came time to 

implement the statute by regulation, which Congress mandated be done quickly, the Commission 

could do so expeditiously because the FEC knew precisely what it had asked Congress to enact. 

Nor should the FEC’s efficiency be confused with carelessness in the agency’s 

rulemaking. After the bill was signed into law, the Commission held four meetings to discuss 

these issues, including a section-by-section discussion of the proposed regulations themselves. 

See supra at 11-13. In the end, and consistent with the legislative history that expressed an 

interest in reducing IE-related reporting burdens and also requiring reporting of contributions for 

“the” independent expenditure, the FEC promulgated its regulation narrowly, 

contemporaneously, and appropriately.25

2. For 37 Years, Congress Has Not Disagreed With the FEC’s 

Contemporaneous Interpretation of the Statute, but Has Ratified It. 

Congressional “failure to revise or repeal the [FEC’s regulatory] interpretation is 

persuasive evidence that the interpretation is the one intended by Congress,” Weber v Heaney, 

995 F.2d 872, 877 (8th Cir. 1993) (quoting Young v. Community Nutrition Inst., 476 U.S. 974, 

983 (1986)), and “strongly implies that the regulations accurately reflect congressional intent,” 

FEC v. Ted Haley Congressional Comm., 852 F.2d 1111, 1114 (9th Cir. 1988) (quoting Grove 

                                                            

25 CREW makes much of the change between the draft regulations expeditiously prepared by FEC staff as part of the 

1980 NPRM, on the one hand, and the final regulations promulgated by the Commission, on the other. However, 

the NPRM itself noted that the regulatory text printed therein was preliminary and had “not been approved by the 

Commission.” See supra at 12. Moreover, the preliminary rules used the same “an” language as the statute, which, 

as discussed above, was Congress’ way of referencing contributions provided to fund a particular expenditure. The 

“the” language ultimately used in the final rule simply gave the public clearer notice of what Congress intended. 

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44 

City College v. Bell, 465 U.S. 555, 568 (1974)). This is particularly true when Congress did not 

use the special, FECA-specific review provision to reject the regulation here. 

Congress built into the FECA a provision permitting the legislative branch to 

immediately reject FEC regulations before they go into effect. Under 52 U.S.C. § 30111, “the 

FEC must submit a proposed regulation and an accompanying statement to both the House and 

the Senate. If neither house disapproves the proposed regulation within [the preset time period], 

the FEC may issue it.” Weber, 995 F.2d at 876-77. Courts “normally accord considerable 

deference to the Commission . . . [where] Congress took no action to disapprove the regulation 

when the agency submitted it for review pursuant to [the FECA’s special provision].” AFL-CIO 

v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (internal quotation omitted). 

Here, the FEC transmitted the regulation to Congress on February 28, 1980. Consistent 

with the congressional review timeline, the FEC waited 15 days before making the regulation 

effective. See supra at 13. Congress did not object to the IE reporting regulation during this 

period, thus bestowing considerable legitimacy on the agency’s interpretation. 

Congress also has ratified the regulation in other ways. Congress amended the statute 

containing the IE reporting requirements (2 U.S.C. § 434) in 1995, 1999, 2000, 2002, 2004, and 

2007.26 BCRA and the Honest Leadership and Open Government Act of 2007, Pub.L. 110-81, in 

particular, made significant changes to the statute. Indeed, the BCRA “ordered the FEC to 

rewrite its regulations” on another provision relevant to IEs. Shays I, 414 F.3d at 97-98. Yet in 

no instance did Congress revise or reject the FEC’s IE contributor reporting requirements. Given 

                                                            

26 See Pub. L. 104-79, §§ 1(a), 3(b), Dec. 28, 1995, 109 Stat. 791, 792; Pub. L. 106-58, Title VI, §§ 639(a), 641(a), 

Sept. 29, 1999, 113 Stat. 476, 477; Pub. L. 106-346, § 101(a) [Title V, § 502(a), (c)], Oct. 23, 2000, 114 Stat. 1356, 

1356A-49; Pub. L. 107-155, Title I, § 103(a), Title II, §§ 201(a), 212, Title III, §§ 304(b), 306, 308(b), Title V, 

§§ 501, 503, Mar. 27, 2002, 116 Stat. 87, 88, 93, 99, 102, 104, 114, 115; Pub. L. 108-199, Div. F, Title VI, § 641, 

Jan. 23, 2004, 118 Stat. 359; Pub. L. 110-81, Title II, § 204(a), Sept. 14, 2007, 121 Stat. 744.) 

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this record, it “would be inappropriate to overturn an interpretation that Congress has acquiesced 

in for [] years, during which it has closely reviewed the statutory scheme under question.” 

Action on Smoking and Health v. C.A.B., 699 F.2d 1209, 1215 (D.C. Cir. 1983). See also FDA v. 

Brown & Williamson Tobacco Corp., 529 U.S. 120, 155-56 (2000) (cataloging the affirmative 

legislative “actions by Congress over the past 35 years” as having “effectively ratified” an 

agency’s position). Instead, CREW should turn its attention toward advocating for one or more 

of the bills before Congress in recent years that would establish new reporting requirements for 

501(c) organizations making IEs. See, e.g., H.R. Res. 5175, 111th Cong. § 211 (2010) (the 

“Democracy is Strengthened by Casting Light on Spending in Elections Act” or “DISCLOSE 

Act”).27 

3. The FEC’s Interpretation of the Statute Has Remained Consistent for Nearly 

Four Decades. 

At Step Two, courts also accord “great weight to the longstanding interpretation placed 

on a statute by an agency charged with its administration.” Creekstone Farms Premium Beef, 

L.L.C. v. Dept. of Agriculture, 539 F.3d 492, 500 (D.C. Cir. 2008). Here, the FEC’s 

interpretation of the FECA’s IE contributor identification provision is entitled to great deference 

because the agency itself has maintained its interpretation of the statute – without change – for 

37 years. See supra at 14. Moreover, when the public was given an opportunity to submit 

comments on significant revisions to the IE reporting requirements that took effect in 2003 –

including revisions to 11 C.F.R. § 109.2(e) – “[t]he Commission received no comments on [the 

IE contributor reporting] section” and left 109.2(e)(1)(vi) unchanged. FEC, Bipartisan 

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

                                                            

27 Notably, Congress declined to enact the DISCLOSE Act and has otherwise refused to impose additional IE donor 

reporting requirements. 

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4. The FEC’s Regulation Accords With Expressed Congressional Intent. 

“The general purpose of the 1979 amendments to the FECA . . . was to simplify reporting 

and administrative procedures.” Common Cause, 842 F.2d at 444. The FEC regulation at issue 

here is consistent with that legislative goal. Furthermore, as explained above (see supra at 10, 

38-41), Congress intended that contributor reporting be tied to contributions for “the” 

expenditure. 

CREW’s MSJ Brief (Doc 27 at 33-34) attempts to convert the 1979 FECA amendments 

into a “disclosure at all costs” directive. But this type of dogmatic voyeurism was soundly 

rejected just last year in Van Hollen, where the court observed that “[j]ust because one of [the 

FECA’s] purposes (even chief purposes) was broader disclosure does not mean that anything less 

than maximal disclosure is subversive.” 811 F.3d at 494–95 (emphasis in the original). 

Moreover, it is simply not true that the FEC’s regulation has “effectively resulted in no

disclosure of contributions used to fund independent expenditures.” CREW MSJ Brief (Doc 27) 

at 34 (emphasis in the original). According to the Center for Responsive Politics (using FEC 

data), the percentage of “outside spending” by organizations that have publicly reported some of 

their donors in recent years has ranged between 7.2% (in 2010) to 29.7% (in 2012). Ctr. for 

Responsive Politics (“CRP”), “Outside Spending by Disclosure, Excluding Party Committees,” 

at https://www.opensecrets.org/outsidespending/disclosure.php.

28 Thus, reporting is occurring 

under the statue precisely as Congress intended. 

                                                            

28 CRP uses the term “outside spending” to refer to both IEs and ECs, although the vast majority of CRP’s “outside 

spending” statistics pertain to IEs. See CRP, “Outside Spending,” at https://www.opensecrets.org/outsidespending/. 

Organizations engaged in “outside spending” that report some of their donors is a distinct category from 

organizations that publicly report all of their donors (i.e., political committees, or “PACs”). See id. and CRP, 

“Outside Spending by Disclosure, Excluding Party Committees,” supra. For its part, in 2016 alone the FEC 

identified millions of dollars in contributions requiring reporting under the IE regulation. See Conciliation 

Agreements, MUR 7085 (State Tea Party Express) (Sept. 21, 2016), MUR 6816 (Americans for Job Security) (June 

21, 2016), MUR 6816 (The 60 Plus Association, Inc.) (July 7, 2016), MUR 6816 (American Future Fund) (June 21, 

2016). 

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5. The FEC’s Interpretation Does Not Render Any Other Provision Superfluous. 

CREW also contends that 11 C.F.R. § 109.10(e)(1)(vi) renders the FECA’s and 

regulation’s requirements to separately report an IE’s sponsor and its contributors “redundant,” 

by “requir[ing] 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.” CREW 

MSJ Brief (Doc 27) at 35. This is a strained construction of the FEC’s regulation, at best, and it 

is not the Commission’s position. 

CREW acknowledges the FGCR “did not elaborate” to provide support for CREW’s 

illogical reading of the regulation. Id. Rather, CREW resorts to treating the report as a 

Rorschach test that “appears” or “apparently” supports CREW’s contrivance that donors are not 

reportable under the regulation unless their funds “go directly from the contributor to pay for the 

ad,” and not if “they were routed through [an organization’s] ‘general treasury.’” Id. In fact, the 

FGCR suggests no such thing, and merely posits that “an express link” must exist “between the 

receipt and the independent expenditure” to trigger contributor reporting. AR173. 

In practice, this requisite nexus between a contributor’s purposes and the reported IE 

simply means that contributors who earmark their funds for a particular IE are identified as the 

sources of funding, and are publicly linked to the entity sponsoring the IE. This concept of 

tailoring reporting only to contributors of “earmarked” funds has been recognized by more than 

40 years of campaign finance jurisprudence, see Van Hollen, 811 F.3d at 489 (quoting Buckley, 

424 U.S. at 80), and is fully consistent with the core purposes of the FECA’s reporting regime to 

“provide[] the electorate with information ‘as to where political campaign money comes from’” 

and to “expos[e] large contributions and expenditures to the light of publicity.” Buckley, 424 

U.S. at 66-67. This approach also is consistent with FEC precedent. For example, the FEC 

General Counsel’s office previously has concluded that an incorporated entity “took on a legal 

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identity separate from that” of its apparent sole funder, “and was subject to regulation as such” 

for the purposes of the IE reporting requirements. FEC MUR 4313 (Lugar for President), First 

General Counsel’s Report at 34, available at http://eqs.fec.gov/eqsdocsMUR/0000018F.pdf. 

Ultimately, CREW’s reading of the regulation as conflating the contributors for an IE 

with the maker of the IE is not how the FEC has interpreted its own regulation, and courts “must 

give substantial deference to an agency’s interpretation of its own regulations.” Thomas 

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).

C. CREW’s Procedural Objections to the FEC IE Contributor Reporting 

Regulation Are Irrelevant and, in Any Event, Erroneous. 

On its face, the Commission’s regulation reasonably construes the statute, and that is 

confirmed by the regulation’s survival of congressional review. Because CREW’s challenge – to 

the extent it is permissible at all – is limited to a claim that the regulation is substantively invalid, 

those considerations are determinative. 

Moreover, CREW identifies nothing in the FEC’s 1980 rulemaking record that shows the 

Commission’s regulation was arbitrary at the time. Indeed, the FEC’s legislative 

recommendations, the language of the NPRM, and the final explanation and justification easily 

surpass the high bar for challenging a regulation procedurally. See Van Hollen, 811 F.3d at 496–

97. CREW further complains that the campaign finance experience since 1980 has shown that 

the regulation defeats the intended scope of reporting. That is doubtful for the reasons the FEC 

gave with respect to the EC reporting regulation approved in Van Hollen. Beyond that, however, 

FEC action cannot be condemned as arbitrary or capricious based on facts that emerged later. 

See CREW, 209 F. Supp. 3d at 88. If CREW wants to rely on post-1980 experience, it must 

petition the agency to initiate a rulemaking. 

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V. SUBSECTION 30104(C)(1) DOES NOT MANDATE “ADDITIONAL” REPORTING. 

CREW’s MSJ Brief (at 39-44) contends that the Coverage Provision imposes 

“additional” reporting obligations independent of the Content Provision. But this argument is 

inconsistent with the FECA’s structure and conflicts with judicial precedent. 

The Coverage Provision is easily and naturally read as a generalized opening statement 

requiring persons that make IEs to report certain information. Then, following the outlay of this 

general rule, the Content Provision logically provides the contents of what the reports under the 

Coverage Provision must contain – i.e., an indication of whether the IE is in support 

of/opposition to a candidate, a certification that the IE was made independent of a candidate’s 

campaign, and certain information about contributors. Indeed, the Content Provision opens with 

the phrase: “[s]tatements required to be filed by this subsection,” which can only be interpreted 

as a gloss on what the preceding subsection means. Cf. 52 U.S.C. § 30104(f) (“Disclosure of 

electioneering communications”), (f)(1) (“Statement required”), (f)(2) (“Contents of Statement”). 

The Coverage Provision’s introductory requirement that the statement contain “the information 

required under subsection (b)(3)(A) for all contributions received by such person” simply means 

that any information about contributors to be disclosed, pursuant to the Content Provision, must 

include “the date and amount of any such contribution.” (Emphasis added.) 

CREW’s reading of the statute would frustrate congressional intent by decreasing the 

information reported. The Coverage Provision contains an affirmative reporting obligation – i.e., 

“Every person . . . shall file a statement.” The Content Provision, however, does not actually 

contain an affirmative statement that the IE maker do anything. Without linking the two 

provisions together, there would be no requirement that an IE maker file a certification that the 

IE was independent of a candidate’s campaign, for example. That would effectively read out of 

the statute certain information that Congress clearly wanted to have filed with the Commission. 

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CGPS’s reading of the statute also accords with judicial precedent. “Section 434(c)(1) 

requires that any person making an ‘independent expenditure’ greater than $250 file a statement 

with the FEC. The contents of the statement are specified in 434(c)(2).” Furgatch, 807 F.2d at 

859 n.2. 

CREW cites the earlier decision in FEC v. Massachusetts Citizens for Life (“MCFL”), 

479 U.S. 238 (1986), for the proposition the Coverage and Content Provisions constitute separate 

reporting obligations. But CREW fails to mention that Justice Brennan – who delivered the 

Court’s opinion – was not speaking for the Court on the IE reporting point, as five justices were 

unwilling to sign on to that part of his opinion. See id. at 241. Moreover, as both the Chief 

Justice and other courts have observed, the non-essential portions of MCFL are dicta. See, e.g.,

id. at 271 (Rehnquist, J., concurring and dissenting); Vote Choice, Inc. v. Di Stefano, 814 F. 

Supp. 186, 191 n.12 (D.R.I. 1992). 

The FEC correctly concluded that the FECA required all non-political committee IE 

makers to only file one report, and the Commission used its regulations in 11 CFR Part 109 to 

implement that requirement. See AR1416, 1503. This decision was consistent with the FECA’s 

plain language. Moreover, even if there were any statutory ambiguity, this Court should – 

consistent with abundant judicial authority – defer to the FEC’s 37 years of consistent reading, 

implementation, and enforcement of the Coverage Provision. 

CONCLUSION 

For the foregoing reasons, CGPS respectfully requests this Court deny CREW’s Motion 

for Summary Judgment and grant CGPS’s Cross-Motion for Summary Judgment. 

 

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Respectfully submitted, 

/s/ Thomas W. Kirby 

Thomas J. Josefiak Michael E. Toner (D.C. Bar No. 439707) 

J. Michael Bayes (D.C. Bar No. 501845) Thomas W. Kirby (D.C. Bar No. 915231) 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC Andrew G. Woodson (D.C. Bar No. 494062) 

45 North Hill Drive, Suite 100 Eric Wang (D.C. Bar No. 974038) 

Warrenton, VA 20186 WILEY REIN LLP 

Tel.: 540.341.8808 1776 K Street, NW 

Fax: 540.341.8809 Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

October 23, 2017 Strategies

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