IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

PUBLIC CITIZEN, et al., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

IntervenorDefendant. 

Civil Action No. 1:14-cv-00148 

(RJL) 

PLAINTIFFS’ SUPPLEMENTAL BRIEF 

The oral argument in this case on August 2, 2016, focused largely on the 

issue of Chevron deference and its application to this case. At the Court’s invitation, 

plaintiffs submit this supplemental brief to clarify points addressed during the oral 

argument and further explain the importance and proper resolution of the Chevron

issue and, ultimately, the merits. 

The question of Chevron deference arises because the statement of reasons of 

the controlling group of Commissioners, which provides the rationale for the 

agency’s decision that is subject to review by this Court, demonstrates that the 

decision not to investigate Crossroads GPS is based on legal and constitutional 

propositions about the nature of the “major purpose” test that determines whether 

Crossroads GPS is a political committee. See AR 404–24. Specifically, the 

controlling Commissioners concluded that, to determine an entity’s major purpose, 

they must give primary weight to the organization’s own statement of its purposes; 

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they must limit their consideration to its expenditures on express advocacy and the 

functional equivalent of express advocacy; and they must consider not only 

expenditures made in the calendar year or election cycle in which the entity is 

alleged to be a political committee, but also those made later in the entity’s own 

fiscal year. The controlling Commissioners’ view that Crossroads GPS was not a 

political committee in 2010 depended wholly on these legal conclusions. 

Because the controlling Commissioners’ rationale depended upon their view 

of the law concerning the major purpose test, the defense of their decision by the 

Commission and Crossroads GPS rests largely on invocation of Chevron deference 

for those legal views. Under Chevron, as reframed by the Supreme Court in United 

States v. Mead Corp., 533 U.S. 218 (2001), a court defers to an agency’s reasonable 

construction of an ambiguous statute “when it appears that Congress delegated 

authority to the agency generally to make rules carrying the force of law, and that 

the agency interpretation claiming deference was promulgated in the exercise of 

that authority.” Id. at 226–27. The controlling Commissioners’ interpretation of the 

major purpose test does not qualify for deference for two principal reasons. 

First, the controlling Commissioners’ determination is not an exercise of 

congressionally delegated authority to interpret ambiguous statutory terms, but 

instead reflects the controlling Commissioners’ interpretation of case law construing 

a limit imposed on the statute by the Supreme Court to avoid First Amendment 

overbreadth. Courts “are not obligated to defer to an agency’s interpretation of 

Supreme Court precedent under Chevron or any other principle.” Sierra Club v. 

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FERC, __ F.3d. __, 2016 WL 3524262, at *8 (D.C. Cir. June 28, 2016) (quoting New 

York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002)); Okla. Gas & 

Elec. Co. v. FERC, __ F.3d __, 2016 WL 3568086, at *3 (D.C. Cir. July 1, 2016). 

Second, the controlling Commissioners’ rationale does not reflect an exercise 

of authority to make “rules carrying the force of law.” Mead, 533 U.S. at 227. It is 

undisputed that legal interpretations announced by the controlling Commissioners 

in a deadlocked Commission decision not to proceed with an investigation do not set 

forth a rule with the force of law: They determine only the outcome of the particular 

matter and do not bind regulated parties or the Commission in any other matter. 

Such determinations do not qualify for Chevron deference. Fogo de Chão (Holdings) 

Inc. v. Dep’t of Homeland Security, 769 F.3d 1127, 1137 (D.C. Cir. 2014). 

At the oral argument, the Commission and Crossroads GPS did not refute 

these central points. And absent Chevron deference, the controlling Commissioners’ 

reasoning cannot be sustained, as explained in plaintiffs’ briefs and at argument. 

I. The controlling Commissioners’ statement of reasons sets forth the 

rationale subject to review in this case. 

As the Court suggested in the oral argument, it is unusual in administrative 

law practice for an agency to offer a statement of reasons for a non-enforcement 

decision reached as a result of a tie vote. The existence of such a statement here is 

the result of the provision in the Federal Election Campaign Act (FECA) for review 

of Commission orders dismissing complaints, see 52 U.S.C. § 30109(a)(8), as well as 

D.C. Circuit decisions that impose procedural requirements on the Commission in 

order to make that provision effective. In Democratic Congressional Campaign 

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Committee v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) (DCCC), the court of appeals, in 

an opinion by then-Judge Ruth Bader Ginsburg, considered whether a Commission 

deadlock leading to dismissal of a complaint was subject to review under the Act, 

and, if so, how such review should proceed. The court held that “when, as in this 

case, the FEC does not act in conformity with its General Counsel’s reading of 

Commission precedent, it is incumbent upon the Commissioners to state their 

reasons why. Absent an explanation by the Commissioners for the FEC’s stance, we 

cannot intelligently determine whether the Commission is acting ‘contrary to law.’” 

Id. at 1132; see also id. at 1135. The required statement of the three Commissioners 

whose votes dictated the outcome sets forth the rationale that is subject to judicial 

review under the principles of SEC v. Chenery Corp., 318 U.S. 80, 87 (1943), which 

limits a reviewing court to considering the validity of the reasons actually relied on 

by the agency for its action. See DCCC, 831 F.2d at 1135 n.6. 

However, as the Commission itself has explained, such statements of reasons 

do not establish rules or precedents binding on either the Commission or those 

subject to its jurisdiction, because three-member blocs of Commissioners lack 

authority to establish Commission rules, precedents, or policies. “[T]hese required 

statements from declining-to-go-ahead Commissioners in three-three dismissals are 

‘not law’ and ... ‘would not be binding legal precedent or authority for future cases.’” 

FEC Reply in Support of Motion to Dismiss, at 4, Citizens for Responsibility & 

Ethics in Wash. v. FEC, No. 14-1419, Dkt. No. 12 (D.D.C. Dec. 16, 2014) (FEC 

CREW Reply) (emphasis added by FEC) (quoting Common Cause v. FEC, 842 F.2d 

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436, 449 & n.32 (D.C. Cir. 1988)). Neither the Commission nor Crossroads GPS has 

contended otherwise in their briefs or at the oral argument. 

II. The controlling Commissioners’ statement of reasons makes clear 

that their decision rests on their interpretation of the judicially 

imposed “major purpose” requirement. 

In Buckley v. Valeo, 424 U.S. 1, 79 (1976), the Supreme Court held that 

FECA’s definition of a political committee must be limited to organizations that 

have the “major purpose” of nominating or electing candidates in order to avoid 

constitutional problems of vagueness and overbreadth. It is undisputed in this case 

that the controlling Commissioners’ statement of reasons in this case (AR 400–28) is 

based entirely on their interpretation of the major purpose test, as Crossroads GPS 

otherwise met the statutory requirements for political committee status: It made 

“expenditures aggregating in excess of $1,000 during [the] calendar year” 2010. 52 

U.S.C. § 30101(4). As the Commission itself acknowledged in its cross-motion for 

summary judgment in this case, the controlling Commissioners were “applying the 

major-purpose test” established in “Buckley and its progeny.” Dkt. No. 32, at 34. 

The controlling Commissioners’ heavy reliance on case law concerning the 

major purpose test and the constitutional principles that, in the Commissioners’ 

view, must inform application of the test is evident from their statement of reasons. 

The statement’s “Legal Analysis” occupies 21 of its 29 pages (AR 404–24) and is 

dominated by analysis of judicial decisions construing the major purpose test and 

addressing First Amendment limits on campaign finance legislation. Specifically, 

the Commissioners relied on their interpretation of court decisions to support their 

view that the determination of a group’s purpose must be based in the first instance 

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on its formal organizing documents, statements of purpose, and official 

communications, to the exclusion of other sources bearing on the organization’s 

purpose. AR 409–10. Moreover, the Commissioners’ analysis of whether the 

organization’s actual activities were consistent with its stated purpose rested on 

their legal determination, based on their review of judicial case law, that the 

Commission is required to limit its consideration to expenditures on express 

advocacy or its functional equivalent. AR 412–19. The controlling Commissioners 

expressly stated that their position on this issue was compelled by their reading of 

“judicial application of the law.” AR 416. Finally, the Commissioners’ decision to 

consider expenditures through the end of Crossroads’ fiscal year rather than 

focusing on the calendar year and election cycle in which it was alleged to have been 

a political committee rested on their views of the purposes of the major purpose test 

as set forth in “Buckley and its progeny.” AR 419. Throughout, the controlling 

Commissioners’ reasons reflected their views about what the Commission “must” do 

to “heed the limiting constructions that courts have placed on the definition of 

‘political committee.’” AR 400. 

III. The controlling Commissioners’ reasons are not entitled to Chevron

deference. 

At oral argument, the Commission’s defense of the decision not to proceed 

against Crossroads GPS rested centrally on a plea for deference. Because the 

validity of the controlling Commissioners’ action (that is, whether it is contrary to 

law) depends on the correctness of their legal analysis of the major purpose test, the 

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Commission’s request for deference depends on whether that analysis meets the 

conditions for Chevron deference. For two reasons, it does not. 

A. Agency interpretations of judicial decisions and constitutional 

principles receive no Chevron deference. 

As explained above, the controlling Commissioners’ analysis of Crossroads 

GPS’s major purpose reflected rules they purported to glean from judicial case law 

based on First Amendment considerations. Because the premise of Chevron is that 

an agency is entitled to deference when it exercises discretionary authority 

delegated by Congress to interpret ambiguous statutory mandates, Chevron

deference is inapplicable when an agency instead acts because it believes it is bound 

to take a particular action by judicial decisions or the constitutional concerns they 

reflect. See, e.g., Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002) 

(citing Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc), vacated on other 

grounds, 524 U.S. 11 (1998)). The D.C. Circuit applied this principle—derived from 

its ruling in the Akins case that the FEC’s major-purpose determinations are not 

entitled to deference, see id.—most recently in two cases decided just this year. See 

Sierra Club, 2016 WL 3524262, at *8; Okla. Gas, 2016 WL 3568086, at *3; see also

Banner Heart Hosp. v. Burwell, __ F. Supp. 3d __, 2016 WL 4435174, at *5 (D.D.C. 

2016) (“However, while the agency enjoys deference in the area of its expertise—

including its interpretation of statutes it is tasked with enforcing—the agency's 

interpretation of judicial precedent is entitled to no deference.”).1 

 1 Likewise, when an agency acts because it believes a statute requires it to do 

so, it receives no deference because it is not purporting to exercise interpretive 

discretion, see, e.g., Arizona v. Thompson, 281 F.3d 248, 253–54 (D.C. Cir. 2002), 

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In the oral argument, the Commission contended that because there is no 

dispute that the major purpose test applies here, the controlling Commissioners’ 

reliance on it cannot be contrary to law and necessarily receives Chevron deference. 

Tr. 25–26. The Commission’s argument overlooks that the issue is not whether the 

major purpose test applies, but what the test means as a legal matter. Specifically, 

the issue is whether the controlling Commissioners were correct to conclude that 

judicial decisions construing the test require the FEC to consider only express 

advocacy spending or its functional equivalent, compel it to reject its own General 

Counsel’s recommendation that it base its determination on Crossroads GPS’s 

spending during the 2010 calendar year, and prohibit it from looking at indicia of 

the organization’s purpose other than its official statements. The Commission has 

identified no support for its position that the controlling Commissioners’ 

construction of judicial precedents setting forth the major purpose test receives 

Chevron deference. 

Indeed, the Commission’s citation (Tr. 25) of the D.C. Circuit’s decision in 

Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010), undermines its argument that the 

controlling Commissioners’ interpretation of the major purpose test is entitled to 

Chevron deference. In Unity08, as here, it was undisputed that the major purpose 

test applied, and the question was whether the Commission’s legal determination 

 

just as an agency that believes it is bound by judicial decisions or the Constitution 

has not engaged in an exercise of authority meriting deference. 

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about the scope of the test was contrary to law.2 The D.C. Circuit rejected the 

Commission’s application of the major purpose test as a matter of law, without 

affording it Chevron deference; the court did not even mention Chevron, but simply 

disagreed with the Commission’s interpretation of the applicable judicial 

precedents. 596 F.3d at 867–69. Far from supporting its Chevron argument, the 

Commission’s invocation of Unity08 confirms that the controlling Commissioners’ 

major purpose analysis does not qualify for Chevron deference. 

Crossroads GPS contends that because the major purpose test is not 

necessarily constitutionally compelled, but is a limiting construction of a statute, 

the controlling Commissioners’ interpretation of that limiting construction has the 

same status as an agency’s exercise of delegated authority to construe statutory 

ambiguity. Tr. 34. But the limiting construction was imposed by the courts and is 

not an interpretation of statutory ambiguity, and the controlling Commissioners 

expressly cast their decision as one based on their reading of the case law, not on 

their exercise of their own discretion to fill a statutory gap. Chevron does not apply. 

B. The controlling Commissioners’ interpretation of the major 

purpose test lacks the force of law. 

Under Mead, an agency legal interpretation is entitled to Chevron deference 

only “when it appears that Congress delegated authority to the agency generally to 

make rules carrying the force of law, and that the agency interpretation claiming 

deference was promulgated in the exercise of that authority.” 533 U.S. at 226–27 

 2 Specifically, the question in Unity08 was whether an entity that intended to 

support a not-yet-selected candidate had the requisite major purpose to be a 

political committee under Buckley’s limiting construction of the statute. 

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(emphasis added). The interpretation of the major purpose test in the controlling 

Commissioners’ statement of reasons also fails to meet that prerequisite for 

Chevron deference because it was not promulgated in the exercise of the 

Commission’s authority “to make rules carrying the force of law.” Although the 

Commission undoubtedly has such authority, it can exercise that authority only 

through adjudicatory decisions or rulemaking proceedings supported by a majority 

vote of the Commission, as its lawyers have pointed out. FEC CREW Reply, at 4 

(citing 52 U.S.C. §§ 30106(c) & 30107(a)(8)). 

Neither in their briefs nor at oral argument have the Commission or 

Crossroads GPS argued that the interpretations in the controlling Commissioners’ 

statement of reasons establish a rule with legal effect binding on the Commission or 

regulated entities. The Commission, however, argues that it is enough that the 

dismissal resulting from the controlling Commissioners’ vote has legal effect with 

respect to the proceedings involving Crossroads GPS. Tr. 22–23. The Commission’s 

argument, however, confuses a ruling with a rule. A ruling may have legal effect as 

to specific parties before the agency, but it is not entitled to Chevron deference 

unless it establishes a rule with the force of law binding the agency and third 

parties. That is the holding of Mead itself, which involved a ruling with legal effect 

on the affected party (a tariff classification that determined how much Mead would 

pay to import day planners) but that did not establish a rule that was binding with 

respect to third parties. 533 U.S. at 233. That the ruling had no binding effect 

beyond the immediate parties was what the Supreme Court referred to when that it 

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held that the ruling was not an exercise of authority to establish “rules carrying the 

force of law.” Id. at 227; see id. at 231–34. 

The D.C. Circuit’s ruling in Fogo de Chão makes the point even more explicit 

by holding that, under Mead, Chevron deference does not apply to “nonprecedential” rulings—i.e., those that do not establish rules that are binding on the 

agency and third parties but instead, like the decision here, are “conclusive only as 

between [the agency] itself and the [petitioner] to whom it was issued.” 769 F.3d at 

1137 (alteration in original) (quoting Mead, 533 U.S. at 233).3

At oral argument, both the Commission and Crossroads GPS asserted that 

Fogo de Chão is inapplicable because the lack of formal adjudication was decisive in 

that case. Tr. 23–24, 33. That argument disregards what both Mead and Fogo de 

Chão actually said, which is that the distinction between formal and informal 

adjudication is not determinative as to Chevron deference: Either type of proceeding 

can produce a rule with the force of law that merits deference. See Mead, 533 U.S. 

at 230–31; Fogo de Chão, 769 F.3d at 1136–37. What counts is whether Congress 

authorized the agency to establish rules with the force of law through a particular 

procedure and whether the agency in fact exercised that authority. Mead, 533 U.S. 

at 227. Thus, what was “conclusive[]” in Fogo de Chão was not the formality or 

 3 As Fogo de Chão makes clear, any suggestion in the D.C. Circuit’s pre-Mead

decision in In re Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000), that a deadlocked 

non-enforcement decision could receive Chevron deference because it had “legal 

effect” limited to the subject of the investigation cannot survive Mead’s holding that 

Chevron deference is not available for rulings that are conclusive only between an 

agency and a single party. We rely on our previous briefs for other reasons why 

Sealed Case is not applicable to the circumstances here. E.g., Dkt. No. 38, at 3–5. 

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informality of the procedures, but the “non-precedential nature of the ... decision.” 

769 F.3d at 1137. As the court put it, “[h]aving disclaimed any intent to set a rule of 

law with any force beyond the petition at issue, the [agency] cannot ... now claim to 

have promulgated its decision as an exercise of any authority it had to make such 

rules.” Id. Likewise, having disclaimed any argument that the controlling 

Commissioners’ decision establishes a rule with any force beyond the investigation 

of Crossroads GPS, the Commission cannot claim that its decision was an exercise 

of authority to establish a rule entitled to deference. 

Moreover, even if the formality of the decisional process were decisive, the 

fact that FEC enforcement matters generally involve formal adjudication would not 

suffice, because one element of formality that is required for the Commission to 

establish a rule through a formal adjudication is that the adjudication be decided by 

a majority vote. As the Commission itself has emphasized, it can only establish 

policies and rules through majority vote. FEC CREW Reply, at 4.4

IV. The controlling Commissioners’ statement of reasons is contrary to 

law. 

Absent Chevron deference, the court must resolve legal issues as to the scope 

of the major purpose test for itself, giving the controlling Commissioners’ reading of 

the relevant case law only so much weight as their interpretation merits. See Mead, 

533 U.S. at 234. Under that standard, the controlling Commissioners’ reading of the 

 4

 As our briefs have explained, to the extent there is a Commission decision 

with the requisite formality, it is the 2007 Supplemental Explanation and 

Justification concerning political committee status, which was adopted by the 

Commission as a whole in the exercise of its rulemaking authority. See Political 

Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007). 

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case law cannot be sustained if it lacks “power to persuade.” Id. at 228 (quoting 

Skidmore v. Swift & Co., 323 U.S. 134 (1944)). 

The Commission asserts, however, that the controlling Commissioners’ views 

“can’t have been contrary to law” if no court has ever held that the Commission 

must consider non-express advocacy in making a major purpose determination. Tr. 

27. The Commission has it backwards. Under the Chenery principle, whether the 

Commission’s dismissal of the Crossroads GPS complaint can be sustained by this 

Court depends on whether the reason the controlling Commissioners gave for their 

votes is contrary to law. 318 U.S. at 87, 94. Where, as here, the stated reason for an 

agency’s action is that judicial precedents compel a particular result, the action’s 

“validity must likewise be judged on that basis.” Id. at 87. The agency’s action is 

thus contrary to law if the precedents that it claimed dictated the outcome do not in 

fact do so. See id. at 88–89. 

The Chenery rule has repeatedly been applied by the D.C. Circuit to hold that 

agency actions based on an agency’s mistaken view that it is compelled to reach a 

particular result cannot be sustained. See, e.g., Transitional Hosps. Corp. of La. v. 

Shalala, 222 F.3d 1019, 1029 (D.C. Cir. 2000). As Judge Bates has put it, “deference 

is only appropriate when the agency has exercised its own judgment. When ... the 

agency’s decision is based on an erroneous view of the law, its decision cannot 

stand.” Coal. for Common Sense in Gov’t Procurement v. United States, 671 F. Supp. 

2d 48, 52–53 (D.D.C. 2009) (citations and internal quotation marks omitted). Or, to 

quote Chenery, “if the action is based upon a determination of law as to which the 

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reviewing authority of the courts does come into play, an order may not stand if the 

agency has misconceived the law.” 318 U.S. at 94. 

For the reasons stated in our previous briefs, the controlling Commissioners’ 

view that case law required them to limit their consideration to Crossroads GPS’s 

official statements of purpose and its expenditures on express advocacy or its 

functional equivalent was erroneous. Indeed, the Commission itself had previously 

prevailed in litigation establishing that it was not limited to considering express 

advocacy in determining an entity’s political committee status. See Real Truth 

About Abortion, Inc. v. FEC, 681 F.3d 544, 555–58 (4th Cir. 2012), cert. denied, 133 

S. Ct. 841 (2013). By contrast, as demonstrated most fully in our memorandum 

opposing Crossroads GPS’s motion for summary judgment (Dkt. No. 62, at 20–25), 

none of the case law cited by the controlling Commissioners or by the Commission 

and Crossroads GPS in defending their reasoning in fact supports the view that 

only express advocacy or its equivalent may be considered. And, again, because the 

controlling Commissioners staked the outcome on the proposition that the case law 

does not permit them to consider anything but express advocacy and its equivalent, 

their decision cannot be sustained if the precedents do not in fact support that view. 

For the reasons explained at oral argument, the controlling Commissioners’ 

misreading of the law with respect to whether the Commission may consider only 

express advocacy or its equivalent in making the major purpose determination is in 

itself sufficient to require that the decision be set aside and the case remanded to 

the Commission. See Tr. 16–17, 42–43. In addition, as explained in our briefs, the 

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controlling Commissioners’ decision is an arbitrary departure from the 

Commission’s own 2007 Explanation and Justification. Moreover, the controlling 

Commissioners’ decision to look at the time frame most calculated to obscure the 

extent of Crossroads GPS’s electoral activity was arbitrary and capricious and 

unsupported by the law, see Tr. 17–18, 42–43, as was their choice to blind 

themselves to evidence, outside of Crossroads GPS’s official statements, that the 

organization was formed to influence elections. The Commission’s and Crossroads 

GPS’s efforts in the oral argument to minimize these choices as appropriately 

“flexible” (e.g., Tr. 31, 44) are unavailing. 

The effect of the controlling Commissioners’ reasoning was to allow evasion of 

political committee disclosure requirements on a massive scale. That decision 

cannot claim the protective cloak of Chevron deference. 

CONCLUSION 

For the foregoing reasons, and those set forth in our briefs and at oral 

argument, the Court should grant the plaintiffs’ motion for summary judgment and 

deny the cross-motions of the Commission and Crossroads GPS. 

Dated: September 6, 2016 Respectfully submitted, 

 /s/ Scott L. Nelson 

J. Gerald Hebert (DC Bar No. 447676) Scott L. Nelson (DC Bar No. 413548) 

Paul S. Ryan (DC Bar No. 502514) PUBLIC CITIZEN LITIGATION GROUP

Tara Malloy (DC Bar No. 988280) 1600 20th Street NW 

Megan P. McAllen (DC Bar No. 1020509) Washington, DC 20009 

CAMPAIGN LEGAL CENTER (202) 588-1000 

1411 K Street NW snelson@citizen.org 

Washington, DC 20005 

(202) 736-2200 

Attorneys for Plaintiffs 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Supplemental Brief was served on all 

parties through the Court’s electronic filing system on September 6, 2016. 

 /s/ Scott L. Nelson 

 Scott L. Nelson 

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