United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2019 Decided August 21, 2020

No. 18-5261

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 

AND NICHOLAS MEZLAK,

APPELLEES

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

CROSSROADS GRASSROOTS POLICY STRATEGIES,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00259)

Thomas W. Kirby argued the cause for appellant. With 

him on the briefs were Michael E. Toner and Andrew G. 

Woodson.

Bobby R. Burchfield was on the brief for amicus curiae 

Mitch McConnell, Majority Leader of the United States Senate, 

in support of appellant.

Allen Dickerson and Zac Morgan were on the brief for 

amicus curiae Institute for Free Speech in support of appellant.

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Jeffrey M. Harris and Steven P. Lehotsky were on the brief 

for amicus curiae the Chamber of Commerce of the United 

States of America in support of appellant.

Herbert W. Titus, Jeremiah L. Morgan, William J. Olson, 

and Robert J. Olson were on the brief for amici curiae Free 

Speech Coalition, et al. in support of defendant-appellant.

Stuart McPhail argued the cause for appellee. With him 

on the brief were Adam J. Rappaport and Nikhel S. Sus.

Tara Malloy and Megan P. McAllen were on the brief for 

amicus curiae Campaign Legal Center in support of plaintiffsappellees.

Jennifer R. Cowan and Gary W. Kubek were on the brief 

for amici curiae Senators Sheldon Whitehouse, Jon Tester, and 

Richard Blumenthal in support of appellees.

Before: SRINIVASAN, Chief Judge, GARLAND, Circuit 

Judge, and WILLIAMS, Senior Circuit Judge.

*

Opinion for the Court filed by Chief Judge SRINIVASAN. 

SRINIVASAN, Chief Judge: In recent election cycles,

billions of dollars have been spent on political advertisements 

known as “independent expenditures,” or IEs. IEs expressly 

* The late Senior Circuit Judge Stephen F. Williams was a 

member of the panel at the time the case was argued and participated 

in its consideration before his death on August 7, 2020. Because he 

died before this opinion’s issuance, his vote was not counted. See

Yovino v. Rizo, 139 S. Ct. 706, 710 (2019). Judges Srinivasan and 

Garland have acted as a quorum with respect to this opinion and 

judgment. See 28 U.S.C. § 46(d).

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urge the election or defeat of an identified candidate but 

without coordination with any candidate. Most IEs are made 

by organizations that fund their activities with donations. 

Some of those donations must be publicly disclosed under

a Federal Election Commission Rule. The Rule’s disclosure 

obligation is relatively narrow, however, requiring an IEmaking organization to disclose a contribution only if it is

earmarked to support a particular IE. See 11 C.F.R. 

§ 190.10(e)(1)(vi). Under the Rule, then, IE makers need not

disclose any donors who give with the intent of generally

supporting IEs, without an intent to support a specific one.

The plaintiffs here, led by Citizens for Responsibility and 

Ethics in Washington (CREW), claim that the narrow reach of 

the Rule’s disclosure obligation is inconsistent with the Federal 

Election Campaign Act. As CREW readsthe statute, it requires

an IE maker to disclose any contributor who gives $200 in the 

aggregate, without regard to any intent to support IEs or a

specific IE. At a minimum, CREW argues, donating to 

generally support the making of IEs suffices to come within the 

statute’s disclosure obligations. 

CREW brought an enforcement complaint before the 

Commission alleging that a well-known IE-making entity, 

Crossroads GPS, had violated the Rule by failing to disclose 

certain contributors. The Commission dismissed the 

complaint, finding that none of the relevant donors had 

intended to support a specific IE and that their contributions 

therefore fell outside the Rule’s disclosure obligation. 

CREW then brought this action in the district court, 

seeking to have the Rule’s circumscribed disclosure mandate

declared invalid as inconsistent with the statute. The district 

court agreed with CREW and held that the Rule conflicts with 

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the plain terms of the statute’s broader disclosure requirements. 

We read the statute the same way and thus affirm the district 

court’s decision.

I.

A.

The Federal Election Campaign Act (FECA), 52 U.S.C. 

§ 30101 et seq., requires public disclosures by groups and 

individuals that engage in certain election-related activities. 

One such activity is the making of “independent expenditures,”

or IEs. An IE is a payment that (i) goes toward “expressly 

advocating the election or defeat of a clearly identified 

candidate” and (ii) “is not made in concert or cooperation with 

or at the request or suggestion of such candidate,” a political 

committee, or their agents. Id. § 30101(17). The FECA 

imposes disclosure obligations on any entity (other than 

political committees, which are separately regulated) that 

makes over $250 worth of IEs in a calendar year. Id.

§ 30104(c). Among those disclosure obligations is a 

requirement that IE makers (we use the term to exclude 

political committees) provide information about at least some 

of the contributions they receive. The FECA defines a 

“contribution” as a donation “made by any person for the 

purpose of influencing any election for Federal office.” Id.

§ 30101(8)(A)(i). 

Two relevant FECA provisions call for IE makers to 

disclose information about contributions. First, 52 U.S.C.

§ 30104(c)(1) states that IE makers “shall file a statement 

containing the information required under subsection (b)(3)(A) 

for all contributions received.” (Because the relevant FECA 

provisions refer to all statutory subdivisions as “subsections,” 

we do the same.) The cross-referenced subsection (b)(3)(A) 

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imposes disclosure obligations on political committees, 

requiring them to “identif[y] each . . . person . . . 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 . . . 

together with the date and amount of any such contribution.” 

Id. § 30104(b)(3)(A). Second, subsection 30104(c)(2)(C) 

separately requires IE makers to disclose “each person who 

made a contribution in excess of $200 . . . for the purpose of 

furthering an independent expenditure.” Id. § 30104(c)(2)(C).

Both of those provisions, which we will refer to by 

shorthand as FECA (c)(1) and (c)(2)(C), were enacted in 1980. 

See FECA Amendments of 1979, Pub. L. 96-187, 93 Stat. 1339 

(1980). Shortly thereafter, the Federal Election Commission 

issued implementing regulations. Amendments to Federal 

Election Campaign Act of 1971: Regulations Transmitted to 

Congress, 45 Fed. Reg. 15080, 15087 (Mar. 7, 1980). As 

relevant here, one of those regulations requires IE makers to 

disclose contributors only if they “made a contribution . . . for 

the purpose of furthering the reported independent 

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

As a result, whereas FECA (c)(2)(C) requires disclosure of 

contributions “made for the purpose of furthering an

independent expenditure,” the Commission Rule requires 

disclosure only of contributions “made for the purpose of 

furthering the reported independent expenditure.” The Rule is 

also silent as to the separate disclosure obligation set forth in 

FECA (c)(1).

B.

For many years, those disclosure obligations operated in 

relative obscurity. Before 2010, a separate FECA provision 

generally prohibited corporations and unions from making IEs

or contributing to support IEs. See 2 U.S.C. § 441b (2006), 

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invalidated by Citizens United v. FEC, 558 U.S. 310, 320–21 

(2010). As a result of that ban, IEs made up a small portion of 

overall election-related spending. And most IEs were made not 

by individuals, who would have been subject to the Rule, but

by political committees. See, e.g., Federal Election 

Commission, Annual Report 1981 at 11, https://fec.gov/

resources/about-fec/reports/ar81.pdf (PACs made $14.1 

million out of $16 million total IEs made).

Things changed, though, following the Supreme Court’s 

decision striking down the FECA’s prohibition on corporate 

and union IE activity, Citizens United, 558 U.S. at 365, and our 

court’s follow-on decision invalidating the FECA’s limits on 

contributions to political committees as applied to “super 

PACs,” i.e., committees whose sole function is to make IEs, 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). After

those 2010 decisions, overall IE spending exploded: nearly

$1.4 billion worth of IEs were made during the 2016 election 

cycle, compared to $143.7 million in the 2008 cycle and $63.9 

million in the 2004 cycle. Total Outside Spending by Election 

Cycle, Excluding Party Committees, Ctr. for Responsive Pol.,

https://www.opensecrets.org/outsidespending/cycle_tots.php

(last visited August 18, 2020) (entire cycle chart). IE spending 

is now dominated by organized entities, such as super PACs 

and 501(c)(4) social welfare organizations, rather than 

individuals. See, e.g., 2016 Outside Spending, By Group, Ctr.

for Responsive Pol., https://www.opensecrets.org/outside

spending/summ.php?cycle=2016 (last visited August 18, 

2020). 

Owing in part to the Rule’s narrow disclosure obligation, 

a significant amount of IE spending now comes from

organizations that do not disclose their contributors. In fact, 

more IEs were made by such entities during the 2016 election 

cycle ($174.8 million) than the total amount of IEs made during 

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the 2008 cycle ($143.7 million). See id. What is more, the

same non-disclosing entities also contribute millions to 

political committees, such as super PACs, in order to further 

those committees’ political activities, including IEs. See R. 

Sam Garrett, Cong. Research Serv., Super PACs in Federal 

Elections: Overview and Issues for Congress 20 (2016), 

https://fas.org/sgp/crs/misc/R42042.pdf. And while those

political committees must disclose their contributors, that 

reveals little when a contributor is an entity that need not 

identify its own underlying donors. In that way, entities subject 

to the Rule can serve as a kind of pass-through, non-disclosure 

vehicle. Id.

C.

Crossroads GPS is one such entity. Since its creation as a 

501(c)(4) social welfare organization in 2010, Crossroads has 

made over $100 million worth of IEs and over $75 million in 

contributions to other IE-making entities. Crossroads has not 

disclosed a single contribution in any of its reports to the 

Commission.

In 2012, the plaintiffs in this case, led by CREW, sought 

to uncover the identities of some of Crossroads’s contributors. 

Relying on news reports about a Crossroads fundraiser in 

Tampa, CREW brought an administrative complaint before the 

Commission. See 52 U.S.C. § 30109. The complaint asserted 

that Crossroads had improperly failed to disclose certain 

contributors connected to the fundraiser. See FEC MUR 6696, 

First General Counsel’s Report at 1 (Mar. 7, 2014) (“OGC 

Report”). 

After Crossroads responded to CREW’s allegations, the 

Commission’s Office of General Counsel (OGC) prepared a 

report with its factual and legal conclusions. See id. OGC’s 

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account of the facts explained that the Tampa event, which had 

been co-hosted by Crossroads, contained two separate pitches 

for donations. 

The first came from Karl Rove, an unpaid advisor to 

Crossroads. Rove informed attendees of a donor willing to 

give $3 million to support the election of Josh Mandel, the 

Republican Senate candidate in Ohio. Rove told the Tampa 

attendees that the donor wanted a “matching challenge,” which 

ultimately raised $1.3 million for Crossroads. Id. at 3–6.

For its second pitch, Crossroads played fourteen different 

television ads targeting Democratic Senate candidates in 

various states including Ohio. Id. at 4–5. Those ads, according 

to Crossroads, were intended as examples for the attendees. 

Response in MUR 6696 at 6. Upon seeing the ads, the Tampa 

attendees received solicitationsfor contributions, and they gave 

an unknown amount. OGC Report at 4–7. 

CREW’s administrative complaint argued that Crossroads 

should have disclosed, under the FECA and the Rule, three 

pieces of information: (i) the identity of the anonymous Josh 

Mandel supporter; (ii) the identity of any “matching” Tampa 

contributors; and (iii) the identity of anyone who donated after 

viewing the fourteen sample ads. Am. Administrative Compl.

in MUR 6696 at 11–16. In the complaint’s “legal background” 

section, CREW made an additional argument. After discussing

both FECA (c)(1) and (c)(2)(C), CREW asserted that “[t]he 

FEC’s interpretation of the statute [set forth in the Rule] fails 

to give full effect to these provisions.” Id. at 4, 5 & n.1. CREW 

argued that, “[a]t a minimum,” the Rule is inconsistent with the 

statute in requiring disclosure only of contributions intended to 

support “the reported independent expenditure” rather than “an

independent expenditure.” Id. at 5 n.1.

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OGC “recommend[ed] that the Commission find no reason 

to believe that Crossroads violated” the FECA or the Rule by 

failing to disclose the donors’ identities. OGC Report at 13. 

As OGC read the Rule, it “appears to require an express link 

between the receipt and the independent expenditure,” such 

that the “donation[] [is] tied to a specific” IE. Id. at 10. 

According to OGC, nothing in the record suggested that the 

Josh Mandel supporter intended to support any specific IE (as 

opposed to generally supporting Crossroads’s efforts to win

Mandel’s election). Thus, “under the applicable Commission 

regulation,” there was no obligation to disclose the donor’s 

identity. Id. at 2. OGC reached the same conclusion with 

respect to the other contributors CREW sought to have 

disclosed. Id.

OGC also addressed both of CREW’s statutory arguments. 

As to FECA (c)(2)(C)’s use of “an” IE, compared to the Rule’s 

use of “the reported” IE, OGC recognized the statute’s 

“arguably more expansive approach.” Id. at 12 n.57. 

Nonetheless, OGC stated, the Rule “constitutes the 

Commission’s controlling interpretation.” Id. As to (c)(1), 

OGC noted CREW’s argument that the provision may impose 

“additional reporting obligations” for contributions “made for 

the purpose of influencing a federal election generally.” Id. at 

12. But because the Rule “is silent” about the existence of such 

a requirement, OGC recommended a dismissal of the 

complaint. Id. at 12–13. Regardless of whether the Rule fails

to require disclosures mandated by FECA (c)(1), OGC argued, 

it would be inequitable to enforce any broader obligation 

against Crossroads in view of Crossroads’s reliance on the 

Rule. Id.

The Commissioners deadlocked 3-3 on OGC’s 

recommendations. Adhering to their typical practice when 

there is no majority decision, the Commissioners voted 

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unanimously to dismiss the administrative complaint. Because 

a majority of the Commission did not offer a Statement of 

Reasons for its dismissal, the OGC memorandum

recommending dismissal became the Commission’s

controlling statement. See FEC v. Nat’l Republican Sen. 

Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992).

D.

CREW then brought this action against the Commission in 

the United States District Court for the District of Columbia. 

See Citizens for Responsibility and Ethics in Washington v. 

FEC, 316 F. Supp. 3d 349, 364 (D.D.C. 2018) (“CREW I”). 

CREW’s complaint included three counts, each containing a 

claim under the FECA and a claim under the Administrative 

Procedure Act. See 5 U.S.C. § 706; 52 U.S.C. 

§ 30109(a)(8)(A). First, CREW alleged that the Commission’s 

dismissal of the complaint was arbitrary and capricious because 

there was ample record evidence that the contributions at issue 

were intended to support specific IEs, as required by the Rule. 

Second, CREW asserted that the Commission’s reliance on the 

Rule was contrary to law because the regulation conflicts with 

FECA (c)(2)(C). Third, CREW alleged that the Commission’s 

failure to apply the disclosure obligation in FECA (c)(1) was 

contrary to law. See CREW I, 316 F. Supp. 3d at 364.

After permitting Crossroads to intervene to defend the 

Commission’s decision, the court granted summary judgment 

for CREW. Id. at 357. Applying the Chevron framework, the

court declared the Rule inconsistent with both FECA (c)(1) and 

(c)(2)(C). Id. at 422–23. As a result, the Commission’s 

decision, which had relied on the Rule to dismiss the complaint, 

was contrary to law. The court remanded the enforcement 

complaint to the Commission for further proceedings. Id. It

also vacated the regulation, staying that order for 45 days to 

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allow the Commission to adopt new regulations. Id. The 

Commission has not done so, although it issued enforcement 

guidance consistent with the district court’s opinion. See FEC 

Provides Guidance Following U.S. District Court Decision in 

CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018) (Oct. 4, 

2018), https://www.fec.gov/updates/fec-provides-guidancefollowing-us-district-court-decision-crew-v-fec-316-f-supp3d-349-ddc-2018.

On remand, OGC again recommended dismissal of 

CREW’s complaint. FEC MUR 6696R, First General 

Counsel’s Report 14–17 (Aug. 5, 2018), https://eqs.fec.

gov/eqsdocsMUR/6696R_2.pdf. OGC acknowledged that 

Crossroads had violated the FECA’s disclosure obligations as 

construed by the district court. But OGC thought dismissal 

remained warranted as a matter of prosecutorial discretion

because Crossroads had relied on the now-invalidated Rule. Id. 

The Commissioners again deadlocked and thus again 

dismissed the complaint. See FEC, MUR # 6696R, Summary, 

https://www.fec.gov/data/legal/matter-under-review/6696R. 

CREW did not seek judicial review.

Two days after the Commission’s second dismissal, 

Crossroads appealed the district court’s judgment. The 

Commission declined to appeal. Crossroads also sought a stay 

of the district court’s decision to vacate the Rule. Our court 

denied a stay, concluding, among other things, that Crossroads

had not shown a likelihood of success on the merits. Citizens 

for Responsibility & Ethics in Washington v. FEC, 904 F.3d 

1014, 1017 (D.C. Cir. 2018) (“CREW II”). Crossroads then 

unsuccessfully sought a stay from the Supreme Court. 139 S. 

Ct. 50 (2018) (mem.).

The parties have agreed that the Commission’s dismissal 

of CREW’s administrative complaint on remand moots

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CREW’s claims for relief as to the complaint itself. See CREW

II, 904 F.3d at 1017. What remains live is CREW’s claim 

under the APA that the Rule is invalid as inconsistent with 

FECA (c)(1) and (c)(2)(C).

II.

We initially consider (and reject) various threshold

jurisdictional and procedural arguments made by both CREW 

and Crossroads.

A.

Although the district court permitted Crossroads to 

intervene in the proceedings before that court, Crossroads must 

demonstrate that it has standing to appeal the district court’s 

judgment. See Diamond v. Charles, 476 U.S. 54, 68 (1986). 

To do so, Crossroads must point to an “injury caused by the 

judgment rather than an injury caused by the underlying facts.” 

Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1018 (D.C. Cir. 

1998) (internal quotation marks omitted). Crossroads clears 

that hurdle.

Crossroads will be required, as a result of the district 

court’s judgment, to disclose nearly all contributions it receives

during any reporting period in which it makes IEs. That is a 

significant new disclosure obligation. And that obligation 

likely affects Crossroads’s ability to pursue its mission. Given 

Crossroads’s focus on associational privacy, Crossroads claims 

that the judgment “deter[s] [it] from making independent 

expenditures” at all. Aff. of Steven J. Law 2, Docket 1757141. 

The new disclosure obligations also threaten to impair

Crossroads’s fundraising prospects, as privacy-conscious 

donors might cease writing checks. See N.Y. Republican State 

Comm. v. SEC, 927 F.3d 499, 504 (D.C. Cir. 2019) (political 

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party’s “reduced ability to raise funds is a concrete and 

particularized injury”).

CREW contends that Crossroads suffers no concrete injury 

from the district court’s judgment because Crossroads no 

longer makes IEs. But while Crossroads has not made an IE 

since 2014, it has shown its intent to resume doing so in 

sufficiently concrete terms. Its president avers in an affidavit 

that, “once our statutory and constitutional rights are 

vindicated”—in other words, if Crossroads wins this appeal—

“it is our intention to resume making independent 

expenditures.” Aff. of Steven J. Law 3, Docket 1757141. That

averment suffices to demonstrate Crossroad’s intent, and hence 

its standing to bring this appeal. See N.Y. Republican State 

Comm., 927 F.3d at 503–04 (affiant’s declaration that he 

“would solicit contributions,” if challenged regulation were not 

in effect, established cognizable injury).

B.

Crossroads urges us to resolve its appeal in its favor on two 

threshold procedural grounds. Neither of its arguments 

persuades us.

1.

Noting that the Rule was promulgated in 1980, Crossroads 

contends that CREW’s challenge is barred by the six-year 

statute of limitations on suits against the United States, 28 

U.S.C. § 2401(a). CREW agrees that the six-year limit applies, 

but argues that its action falls within a long-recognized 

exception under which “those affected” when an agency “seeks 

to apply [a] rule” after the statute of limitations has passed 

“may challenge that application on the grounds that it conflicts 

with the statute from which its authority derives.” Weaver v. 

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Fed. Motor Carrier Safety Admin., 744 F.3d 142, 145 (D.C. 

Cir. 2014) (internal quotation marks omitted); see NLRB Union 

v. Fed. Labor Relations Auth., 834 F.2d 191, 195 (D.C. Cir. 

1987).

CREW’s suit fits within the Weaver exception. OGC’s 

recommendation to dismiss the complaint concluded that 

Crossroads was not required to disclose “under the applicable 

Commission regulation,” OGC Report at 2, because 

Crossroads did not “violate[] the regulatory standard,” id. at 12 

n.57, 13. OGC (and hence the Commission) thus relied on the 

Rule to dismiss CREW’s complaint. The question, then, is 

whether in doing so the agency “appl[ied]” the Rule to CREW 

in the sense contemplated by Weaver. 

We think it did. A party may challenge a rule’s validity as 

a defense against the rule’s enforcement. See NLRB Union, 

834 F.2d at 195. Here, the Commission, just as it would have 

done in an enforcement action, applied the Rule to the facts as 

it ascertained them. And this court has already held, in Weaver

itself, that the Weaver exception is not limited to agency 

enforcement actions. 744 F.3d at 145–46. Thus, just as the 

Commission’s decision to enforce the Rule would be a 

sufficient “application” of the Rule for purposes of the Weaver

exception, so too is the Commission’s decision not to enforce 

the Rule. Cf. Am. Tel. & Tel. Co. v. FCC, 978 F.2d 727, 734 

(D.C. Cir. 1992) (citing NLRB Union, 834 F.2d at 195) (earlier 

agency order’s validity was “properly before” the court, when 

considering agency’s dismissal of enforcement complaint, 

because the dismissal “necessarily must have rested” on the 

earlier order); see also Am. Scholastic TV Programming 

Found. v. FCC, 46 F.3d 1173, 1178 n.2 (D.C. Cir. 1995) 

(interpreting AT&T as “suggesting” that NLRB Union can be 

triggered by “nonenforcement proceedings where the 

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[plaintiff] is nevertheless harmed by application of the 

regulation”).

Crossroads contends that the Weaver exception is 

unavailable because CREW did not seek judicial review of the 

Commission’s second dismissal on remand. That is irrelevant. 

The question is whether CREW’s live challenge to the Rule 

under the APA was time-barred at the time the complaint was 

filed. See 28 U.S.C. § 2401(a) (actions are time-barred “unless 

the complaint is filed within six years after the right of action 

first accrues” (emphasis added)). Crossroads also notes that 

CREW could have petitioned for rulemaking and then 

challenged the Commission’s denial of the petition. That 

would have been an option, but a party can also opt to challenge 

a regulation applied against it. See NLRB Union, 834 F.2d at 

195–96.

Lastly, Crossroads argues that the Rule’s validity or 

invalidity would not have affected the Commission’s ultimate 

decision because the FECA provides a safe harbor from 

enforcement for any person who “acts in good faith in 

accordance with” a Commission rule, even if the rule is later 

declared invalid. See 52 U.S.C. § 30111(e). According to 

Crossroads, if the Rule’s validity did not affect the outcome of 

the enforcement process, then the Rule was not really “applied” 

by the Commission. But Crossroads cites no law suggesting

that an agency does not “apply” a regulation for purposes of 

Weaver just because the agency could have rested its decision 

on alternate grounds. To the contrary, Weaver and its ilk 

“merely stand for the proposition that an agency’s application 

of a rule to a party creates a new, six-year cause of action to 

challenge the agency’s . . . statutory authority.” DunnMcCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 112 

F.3d 1283, 1287 (5th Cir. 1997). The question, then, is whether 

the agency in fact “applied” the Rule in the relevant sense. 

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What the Commission did here, for the reasons explained,

counts as such an application.

2.

Crossroads contends that CREW did not properly preserve

the question of the Rule’s consistency with FECA before the 

Commission or the district court. We disagree.

First, Crossroads argues that CREW did not adequately

raise the statutory issue before the Commission. It is a “hard 

and fast rule of administrative law . . . that issues not raised 

before an agency are waived and will not be considered by a 

court on review.” Coburn v. McHugh, 679 F.3d 924, 929 (D.C. 

Cir. 2012) (internal quotation marks omitted). That issueexhaustion requirement does not apply in every administrative 

context. See Sims v. Apfel, 530 U.S. 103, 108–10 (2000). But 

to the extent it applies here, CREW satisfied it.

CREW’s administrative complaint gave OGC (and hence 

the Commission) the required “fair opportunity” to consider the 

statutory issues. Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 

588, 601–02 (D.C. Cir. 2015) (internal quotation marks

omitted). CREW first set out its view of how both FECA (c)(1) 

and FECA (c)(2)(C) operate. FECA (c)(1), CREW explained, 

“requires [identification of] each person . . . who makes 

[qualifying] contributions . . . to the person making the 

independent expenditure.” Am. Administrative Compl. in 

MUR 6696 at 4. The complaint then asserted, quoting 

(c)(2)(C), that the “FECA further requires reports filed under 

these provisions to identify each person who made a 

contribution in excess of $200 to the person filing the report

‘which was made for the purpose of furthering an independent 

expenditure.’” Id. (emphasis added). Then, just after 

discussing those obligations, CREW cited the Rule and 

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claimed that it “fails to give full effect to these [statutory] 

provisions.” Id. at 5 & n.1. Accordingly, both OGC and 

Crossroads explicitly addressed the statutory argument while 

the matter was before the Commission. Response in MUR 

6696 at 11; OGC Report at 9–10, 12 & n.57, 13 & n.60 (citing 

CREW’s complaint as the reason OGC addressed the statutory 

issue).

Crossroads makes much of the fact that CREW’s clearest 

articulation of the statutory issue came in a footnote in the 

“legal background” of its administrative complaint. 

Crossroads cites Coburn, in which we declined to review an 

earlier agency decision that the plaintiff had mentioned only in 

the “background” section of his application, rather than in the 

“discussion” section. 679 F.3d at 930–31. But the Coburn 

plaintiff, unlike CREW, never asserted that the earlier decision 

was unlawful, never asked that it be corrected, and never

“posit[ed] issues related to [it] as a basis for error.” Id. At any 

rate, Coburn does not establish a bright-line exhaustion rule 

focused on where precisely an issue is raised in the papers 

before an agency. Rather, the inquiry is contextual, 

“depend[ing] on, among other things, the size of the record, the 

technical complexity of the subject, and the clarity of the 

objection.” Jewell, 779 F.3d at 602. Here, the record was 

confined, the issue a straightforward question of statutory 

construction, and CREW’s objection clear enough to elicit 

responses from both the agency and the opposing party.

With regard to CREW’s challenge to the Rule under FECA 

(c)(1), Crossroads contends that CREW failed to preserve that 

aspect of its challenge in the district court. Crossroads points 

to the fact that “Claim II” of CREW’s judicial complaint, 

which expressly alleges a “conflict with the . . . statute,” does 

not reference FECA (c)(1), instead only mentioning (c)(2)(C). 

CREW instead mentioned (c)(1) in “Claim III,” arguing that 

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“52 U.S.C. § 30104(c)(1) imposes a separate obligation” and 

that “OGC recognized that” but then failed to apply it. Compl. 

at 26. Crossroads notes that the district court, early in the 

litigation, dismissed the APA claims present in “Claim I” and 

“Claim III” because they were duplicative of the FECA claims 

also found in those two counts. Consequently, says 

Crossroads, CREW’s challenge as to (c)(1) is no longer in the 

case.

However finely one might slice CREW’s complaint in the 

district court, the (c)(1) argument is properly before us. 

Crossroads itself squarely raised the issue of the Rule’s 

consistency with subsection (c)(1) in its summary judgment 

filings in the district court. Crossroads GPS’s Cross-Mot. for 

Summ.J. at 49–50. So did the Commission, which participated 

in the proceedings before that court. See FEC’s Mot. for 

Summ. J. at 24–28. Analysis of subsection (c)(1) took up 

several pages of the district court’s opinion and was central to 

its statutory analysis. CREW I, 316 F. Supp. 3d at 388–397. 

Unsurprisingly, the district court itself rejected Crossroads’s 

argument that the court had dismissed CREW’s APA challenge 

to (c)(1). See id. at 386 n.32. CREW thus preserved its 

challenge under FECA (c)(1).

III.

We come finally to the heart of the matter: whether the 

Rule’s requirement that IE makers disclose only those 

contributions aimed at supporting a specific IE can be squared 

with FECA (c)(1) and (c)(2)(C). Our analysis is governed by 

Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 

837 (1984), under which we accept an agency’s reasonable 

construction of an ambiguous statutory provision. City of 

Arlington v. FCC, 569 U.S. 290, 296 (2013). Yet “under 

Chevron, we owe [the Commission’s] interpretation of the law 

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no deference unless, after employing traditional tools of 

statutory construction, we find ourselves unable to discern 

Congress’s meaning.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 

1358 (2018) (internal quotation marks omitted). “If the intent 

of Congress is clear, that is the end of the matter.” Chevron, 

467 U.S. at 842.

That is the case here. The Rule conflicts with the FECA’s 

unambiguous terms twice over. First, the Rule disregards

(c)(1)’s requirement that IE makers disclose each donation

from contributors who give more than $200, regardless of any 

connection to IEs eventually made. Second, by requiring 

disclosure only of donations linked to a particular IE, the Rule 

impermissibly narrows (c)(2)(C)’s requirement that

contributors be identified if their donations are “made for the 

purpose of furthering an independent expenditure.”

A.

We first consider FECA (c)(1). It states that any person 

who makes over $250 worth of IEs in a calendar year “shall file 

a statement containing the information required under 

subsection (b)(3)(A) for all contributions received by such 

person.” 52 U.S.C. § 30104(c)(1). 

The language of (c)(1) yields a straightforward 

interpretation. Any IE maker who surpasses the $250 trigger

must “file a statement containing” certain “information.” That 

“information” is found in subsection (b)(3)(A), which governs 

the disclosure obligations of political committees. Subsection

(b)(3)(A) requires “the identification of each . . . 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 . . . together 

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with the date and amount of any such contribution.” Id.

§ 30104(b)(3)(A). That “information,” according to (c)(1),

must be disclosed “for all contributions received by” the IE 

maker. Putting it all together, (c)(1)’s meaning is apparent: 

any entity (excluding political committees) that makes over 

$250 worth of IEs in a calendar year must disclose the name of 

every donor who has given the entity over $200 in the 

aggregate in “contributions,” along with the date and amount 

of each of those contributions. 

Both the Supreme Court and this court have interpreted

FECA (c)(1) in that way. In FEC v. Mass. Citizens for Life, 

Inc. (MCFL), 479 U.S. 238, 263–64 (1986), the Supreme Court 

carved out a narrow exception to the then-existing ban on 

corporate IEs, allowing IEs to be made by nonprofit 

corporations organized for the purpose of promoting political 

ideas. The Commission urged the Court against doing so in 

order to prevent opening the door to “massive undisclosed 

political spending.” Id. at 262. The Court responded by noting 

that MCFL and similar entities remained subject to subsection

30104(c)’s disclosure obligations. Among those was (c)(1), 

which, according to the Court, requires entities making IEs to

“identify all contributors who annually provide in the aggregate 

$200 in funds intended to influence elections.” Id. 

This court adopted the same reading of (c)(1) when it 

denied Crossroads’s stay application in this case. The panel

reasoned that the Rule “empties Subsection (c)(1)’s disclosure 

obligation of a large portion of its intended operation” and that 

Crossroads thus was “unable to demonstrate any ‘likelihood’ 

of success” on its statutory argument. CREW II, 904 F.3d at

1017. Although that decision’s explanation of (c)(1) does not 

bind us given that the court considered only whether 

Crossroads’s reading of (c)(1) was “likely” to succeed for 

purposes of resolving the stay application, and although 

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MCFL’s description likewise is non-binding because it was not 

an essential part of the Supreme Court’s holding, we think it

significant that those decisions read the plain words of 

subsection (c)(1) as we do. See United States v. Fields, 699 

F.3d 518, 522 (D.C. Cir. 2012) (“[C]arefully considered 

language of the Supreme Court, even if technically dictum, 

generally must be treated as authoritative.”)

The FECA’s history supports that reading. Before the 

1979 FECA Amendments, each previous version of the FECA 

called for IE makers to disclose all contributors. As originally 

enacted, the Act required “[e]very person (other than a political 

committee or candidate) who makes contributions or 

expenditures, other than by contribution to a political 

committee or candidate,” to file “a statement containing the 

information required by section 434 of this title.” 2 U.S.C. 

§ 435 (1972). That information included “the full name . . . of 

each person who has made one or more contributions to [the 

reporting entity] . . . together with the date and amount of such 

contributions.” Id. § 434(b)(2). In 1976, after Congress 

amended the statute to comply with Buckley v. Valeo, 424 U.S. 

1 (1976), IE makers were obligated to provide “the information 

required of a person who makes a [contribution] to a candidate 

or a political committee and the information required of a 

candidate or political committee receiving such a 

contribution.” 2 U.S.C. § 434(e)(1) (1976). That information

again included “the full name . . . of each person who has made 

one or more contributions to or for such committee or 

candidate . . . together with the amount and date of such 

contributions.” Id. § 434(b)(2). 

The 1979 FECA Amendments thus merely retained a

contributor-disclosure requirement already present in the Act. 

And as the legislative history suggests, the Amendments

“simplif[ied] reporting without affecting meaningful 

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disclosure.” Federal Election Campaign Act Amendments, 

1979: Hearing Before the S. Comm. on Rules and Admin., 96th 

Cong. 97 (1979), reprinted in Federal Election Commission, 

Legislative History of Federal Election Campaign Act 

Amendments of 1979, at 103.

The lack of ambiguity in (c)(1) draws further confirmation 

from Crossroads’s inability to present a plausible alternative 

reading. Crossroads proposes understanding (c)(1) as a 

generalized opening statement that merely instructs an IE 

maker to file a report, without specifying any of the report’s 

underlying contents. According to that reading, (c)(2) then

supplies all the information that must be disclosed. That 

account of Congress’s intent falls short for several reasons.

First, it is incompatible with the statutory text. Crossroads 

admits that (c)(1) requires disclosing “the information required 

under subsection (b)(3)(A).” 52 U.S.C. § 30104(c)(1). But 

according to Crossroads, that language only calls for disclosing 

the date and amount of any contribution already required to be 

disclosed by (c)(2)(C). Subsection (c)(1)’s cross-reference to 

subsection (b)(3)(A), in other words, would pull in only the 

“date and amount” language of the latter subsection. Nothing 

in (c)(1), though, cabins the information required to be 

disclosed in that way. Rather, (c)(1) refers generally to “the 

information required under subsection (b)(3)(A),” not some of 

the information required under (b)(3)(A). And (b)(3)(A) in 

turn requires “identification of each . . . person . . . whose 

contribution or contributions have an aggregate amount or 

value in excess of $200.” Indeed, that information—i.e., the 

name of any such person—is the first and principal item of 

information listed in (b)(3)(A), yet Crossroads’s reading would 

leave that information out of the required disclosure, while 

leaving in supplemental date-and-amount information 

mentioned later in (b)(3)(A).

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Crossroads looks for support for its reading in subsection

30104(c)’s title, which reads as follows: “Statements by other 

than political committees; filing; contents; indices of 

expenditures.” Connecting each clause to a different

subsection, Crossroads claims that “filing” refers to (c)(1), 

“contents” to (c)(2), and “indices” to (c)(3). As a result, 

Crossroads urges, subsection (c)(1) merely contains a filing 

obligation. But “[t]he plain meaning of a statute cannot be 

limited by its title,” especially when, as here, the “provisions in 

[the] statute do not . . . align with its title.” Nat’l Ctr. for Mfg. 

Scis. v. Dep’t of Defense, 199 F.3d 507, 511 (D.C. Cir. 2000). 

Subsection (c)(1) must pertain to at least some “contents,” as it 

expressly requires that statements filed “contain[]” certain 

“information.” 52 U.S.C. § 30104(c)(1). And (c)(2), for its 

part, pertains not only to “contents” of reports, but also to the 

timing of when the reports shall be filed: “in accordance with 

subsection (a)(2).” Id. § 30104(c)(2)(A). 

Lastly, Crossroads points to two decisions that ostensibly 

adopt its ‘opening statement’ reading of (c)(1). The first is Van 

Hollen, Jr. v. FEC, 811 F.3d 486 (D.C. Cir. 2016). In dicta, 

Van Hollen stated that the FECA’s “express advocacy 

disclosure” provisions require IE makers “to disclose only 

those ‘persons who made a contribution for the purpose of 

furthering an independent expenditure.’” Id. at 493 (formatting 

modified). Crossroads insists that, by using the word “only” 

before quoting the language of subsection (c)(2)(C), Van 

Hollen declared that subsection (c)(1) contains no contributordisclosure requirement of its own. 

We disagree. Subsection (c)(1) is not mentioned in the 

opinion. Even the briefing in the case referenced (c)(1) only 

once, on an unrelated point. See Brief for Appellee Chris Van 

Hollen at 33, Van Hollen, Jr. v. FEC, 811 F.3d 486 (D.C. Cir. 

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2016) (No. 15-5017). Rather than conclude that Van Hollen’s 

silence on (c)(1) amounted to an interpretation of (c)(1)’s 

language, we think Van Hollen meant that (c)(2)(C) itself only 

covers those who contribute for the purpose of furthering an 

IE, consistent with that provision’s terms. As to Crossroads’s 

second (and out-of-circuit) decision, FEC v. Furgatch, 807 

F.2d 857 (9th Cir. 1987), its fleeting description of subsection 

30104(c) was dicta offered in a footnote and does not mention 

the cross-reference of (b)(3)(A). See id. at 859 n.2.

In its reply brief, Crossroads advanced an alternative 

argument tied to the meaning of “contribution.” Although the 

FECA defines “contribution” to include “any [donation] made 

by any person for the purpose of influencing any election for 

Federal office,” 52 U.S.C. § 30101(8)(A)(i), Crossroads insists

that Buckley imposed a narrowing construction for purposes of

subsection 30104(c): a donation made for the purpose of 

furthering IEs. The upshot of that argument is that, even if 

(c)(1) mandates disclosure of all “contributors” who give over 

$200 in the aggregate, the universe of donors covered by the 

term “contributor” entirely overlaps with the reach of (c)(2)(C), 

such that the only donors who count are those who give “for 

the purpose of furthering an independent expenditure.” Id. 

§ 30104(c)(2)(C).

Crossroads, however, misreads Buckley. Rather than limit 

the term “contribution” to donations earmarked to support IEs, 

Buckley stated more broadly that the term covers any donation 

“earmarked for political purposes.” 424 U.S. at 78. To the 

same effect, ten years later, MCFL similarly read the term 

“contribution” as used in subsection 30104(c) to cover “funds 

intended to influence elections.” 479 U.S. at 262. 

Crossroads’s final argument about (c)(1) is that the

Commission was entitled to adopt a limiting construction to 

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avoid constitutional concerns. In Crossroads’s view, requiring 

disclosure of all persons who donate over $200 for political

purposes to any entity that makes over $250 in IEs 

“impos[es] . . . burdens on core political speech that are clearly 

not necessary.” Crossroads Br. 51. 

The Rule, though, does not limit disclosure to 

contributions intended to support IEs generally. Instead, it 

requires a link to a particular expenditure. Even if there were

a First Amendment problem to be avoided, then, the narrowing 

construction embodied in the Rule goes much further than 

Crossroads thinks necessary. The Rule cannot, therefore, be 

justified on avoidance grounds. Accordingly, we have no 

occasion to decide any constitutional question concerning

(c)(1), or to delineate the precise scope of its requirement to 

disclose all donations “made . . . for the purpose of influencing 

any election for Federal office.” 52 U.S.C. § 30101(8)(A) 

(definition of “contribution”).

In sum, FECA (c)(1) unambiguously requires an entity 

making over $250 in IEs to disclose the name of any 

contributor whose contributions during the relevant reporting 

period total $200, along with the date and amount of each 

contribution. The Rule does not require such disclosures, and 

yet it purports to implement (c)(1). 45 Fed. Reg. at 15087. The

Rule therefore is invalid.

B.

The Rule is also contrary to (c)(2)(C). That provision

requires “the identification of each person who made a 

contribution in excess of $200 to the [IE maker] which was 

made for the purpose of furthering an independent 

expenditure.” 52 U.S.C. § 30104(c)(2)(C). The Rule, 

however, requires disclosure of the identity only of persons 

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whose contributions were “made for the purpose of furthering 

the reported independent expenditure.” 11 C.F.R. 

§ 109.10(e)(1)(vi) (emphasis added). The Rule thus exempts 

from disclosure any contribution intended to support IEs in 

general, rather than a particular IE.

That contravenes the plain meaning of the phrase, “for the 

purpose of furthering an independent expenditure,” which 

naturally reads more broadly than referring only to a particular 

IE. If we were confronted with a statute that covered grants 

“made for the purpose of furthering an infrastructure project” 

or transactions “made for the purpose of furthering a fraudulent

scheme,” we would assume that Congress intended to reach 

any such project or scheme. So too here: FECA (c)(2)(C) is 

naturally read to cover contributionsintended to support any IE

made by the recipient.

As was the case with (c)(1), our reading accords with both 

the Supreme Court’s understanding of the statute in MCFL and 

our court’s interpretation when denying a stay in this case. In

MCFL, the Court stated that, under subsection (c)(2)(C), IE 

makers are “bound to identify all persons making contributions 

over $200 who request that the money be used for independent 

expenditures.” 479 U.S. at 262. This court agreed in its stay 

decision, concluding that “the regulation shrinks the statutory 

duty to disclose contributions intended for ‘an expenditure’ 

down to only those donations intended to support ‘the’ specific 

‘reported independent expenditure,’” thereby “squeez[ing] the 

Act’s explicit disclosure obligation beyond what the plain 

statutory text can bear.” CREW II, 904 F.3d at 1017. 

Dictionary definitions of the word “an” fortify our reading. 

According to the Oxford English Dictionary, the indefinite 

articles “a” and “an” are used when “referring to something not 

specifically identified . . . but [instead] treated as one of a class: 

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one, some, any.” A, Oxford English Dictionary (3d ed., June 

2008), www.oed.com/view/Entry/4 (last visited June 27, 

2020). Dictionaries from the period in which (c)(2)(C) was 

enacted are in agreement. See A, Random House College 

Dictionary (Rev. ed. 1980) (defining “a” as “any one of some 

class or group”); A, Black’s Law Dictionary (5th ed. 1979) 

(“‘A’ means ‘one’ or ‘any’ . . . [and] is not necessarily a 

singular term; it is more often used in the sense of ‘any’ and is 

then applied to more than one individual object.”); A, 

Webster’s Third New International Dictionary (1976 ed.) 

(“‘[A]’ is used . . . when the individual in question is 

undetermined, unidentified, or unspecified”). 

The statutory context points to the same understanding. 

Subsection 30104(c)(2) contains the noun phrase “independent 

expenditures” three times, once in each subparagraph. First, 

(c)(2)(A) requires the IE maker to “indicat[e] whether the

independent expenditure [being disclosed] is in support of, or 

in opposition to, the candidate involved.” 52 U.S.C. 

§ 30104(c)(2)(A) (emphasis added). Next, (c)(2)(B) requires 

certifying that “such independent expenditure [was 

not] made in cooperation . . . with . . . any candidate.” Id.

§ 30104(c)(2)(B) (emphasis added). Finally, (c)(2)(C) calls for

identifying “each person who made a contribution . . . which 

was made for the purpose of furthering an independent 

expenditure.” Id. § 30104(c)(2)(C) (emphasis added). The 

change from “such” to “an” indicates that Congress did not 

intend to limit FECA (c)(2)(C)’s coverage to “the reported” IE, 

as the Rule does. If Congress had intended to cover only “the 

reported” IE, it could have retained the pronoun “such,” which 

it had just used to convey that precise meaning.

Crossroads argues that the pre-1979 FECA did not require 

disclosure of contributions generally intended to support IEs, 

and points to legislative history suggesting that the 1979 

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Amendments did not expand the information to be reported as 

compared with previous versions of the Act. Because the 

language of (c)(2)(C) is clear, however, we have no warrant to 

look to the legislative history. At any rate, the 1976 version of 

the FECA is ambiguous as to whether contributions generally 

intended to support IEs, but not earmarked to support a 

particular IE, needed to be disclosed. See 2 U.S.C. § 434(e)(1) 

(1976) (requiring disclosure of “contributions . . . expressly 

advocating the election or defeat of a clearly identified 

candidate”). Crossroads points to disclosure forms used by the 

Commission at the time, in an effort to show that the 

Commission did not require disclosure of contributions 

intended to support IEs generally. The forms, though, do not 

tell us what Congress intended in 1976, let alone what 

Congress intended in 1979. 

Crossroads next observes that Congress did not disapprove 

the Rule when it was submitted for legislative review in 1980

(as required by the FECA, see 52 U.S.C. § 30111), and it has 

never amended subsection 30104(c) despite having made 

several changes to related provisions of the FECA. Therefore, 

Crossroads submits, Congress has ratified the Rule’s approach 

to implementing subsection 30104(c). 

We disagree. By all accounts, disclosure under 30104(c) 

was barely an issue until 2010, much less one we may assume 

would have drawn Congress’s attention. Until the decisions in 

Citizens United and SpeechNow.org, IEs made up a relatively 

small slice of election-related spending. An even smaller 

portion of overall IEs were subject to 30104(c), which is 

limited to IEs produced by entities other than political 

committees. And those IEs were usually made by individuals, 

not organizations soliciting contributions from others. As a 

result, the fact that Congress did not block the Rule in 1980, or 

countermand it when enacting new laws such as the Bipartisan 

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Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 

81, is not probative of Congressional intent vis-a-vis the Rule. 

See Rapanos v. United States, 547 US. 715, 750 (2006) 

(plurality). In any event, as the stay panel aptly put it, 

regulations “that so materially rewrite and recast plain statutory 

text do not improve with age.” CREW II, 904 F.3d at 1018. 

Finally, Crossroads argues that our interpretations of 

FECA (c)(1) and (c)(2)(C) render the two provisions entirely 

duplicative and thus must be erroneous. While it is true that 

every contributor who must be identified under (c)(2)(C) must 

also be disclosed under (c)(1), that does not make the two 

subsections completely coextensive or render (c)(2)(C) 

superfluous. FECA (c)(2)(C) still calls for providing

information that (c)(1) does not—namely, whether a disclosed

“contribution” was intended to support IEs or instead aimed

only at supporting the recipient’s other election-related 

activities. There is then no reason to refrain from giving the 

terms of (c)(2)(C) their natural reading. And because (c)(2)(C), 

on that reading, establishes a broader disclosure mandate than 

the Rule ostensibly implementing it, the Rule is invalid.

* * * * *

For the foregoing reasons, we affirm the judgment of the 

district court.

So ordered.

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