UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-1419 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY MEMORANDUM 

 ) 

 Defendant, ) 

 ) 

AMERICAN ACTION NETWORK, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

May 23, 2016 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

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i

TABLE OF CONTENTS 

 

 Page 

ARGUMENT .............................................................................................................................1 

I. THE COURT’S REVIEW IS REQUIRED TO BE EXTREMELY 

DEFERENTIAL, CONFINED TO THE ISSUES PRESENTED, AND 

BASED ON THE ADMINISTRATIVE RECORD .....................................................2 

A. The Court Must Accord the FEC’s Dismissal Decisions 

Chevron Deference .........................................................................................2 

B. Plaintiffs’ Arguments in Favor of De Novo Review Are Meritless and 

Contravene Binding Precedent Requiring Chevron Deference Here .............4 

1. The Controlling Commissioners Interpreted FECA ..........................5 

2. The Controlling Dismissal Decisions Carry the Force of Law .........8 

3. Section 30109 Review Is “Limited” ................................................13 

C. Plaintiffs’ Arguments About Disclosure Fail to Satisfy Their 

Heavy Burden ...............................................................................................13 

D. Plaintiffs Cannot Rely on Material That Is Not In the 

Administrative Record ..................................................................................15 

II. THE FEC’S DISMISSALS MUST BE AFFIRMED BECAUSE THEY 

WERE NOT CONTRARY TO LAW ........................................................................16 

 A. Plaintiffs Fail to Identify Any Prior Interpretation or Law Contrary to the 

Controlling Commissioners’ Approaches ...................................................16 

 B. The Controlling Commissioners’ Analyses of AJS’s and AAN’s Public 

Statements and Spending Were Reasonable ...............................................18 

 1. The Controlling Commissioners’ Determinations of AJS’s 

 and AAN’s Relevant Spending Were Reasonable .........................18 

 2. The Controlling Commissioners’ Determinations of the 

 Relevant Time Periods Were Reasonable ......................................21 

III. THE FEC’S BROAD PROSECUTORIAL DISCRETION INDEPENDENTLY 

 SUPPORTS AFFIRMANCE ....................................................................................24 

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CONCLUSION ........................................................................................................................25 

 

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TABLE OF AUTHORITIES 

Cases 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) ....................................................................... 7, 8 

Akins v. FEC, 524 U.S. 11 (1998) ............................................................................................. 8 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ....................................................................... 3 

Beach Commc’ns, Inc. v. FCC, 959 F.2d 975 (D.C. Cir. 1992) ............................................. 16 

*Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................................. 5, 23 

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

 467 U.S. 837 (1984) .............................................................................................. 1, 4, 6 

Christensen v. Harris County, 529 U.S. 576 (2000) ............................................................... 10 

Citizens United v. FEC, 558 U.S. 310 (2010) ..........................................................................20 

City of Arlington, Tex. v. FCC, 133 S. Ct. 1863 (2013) ......................................................... 10 

Combat Veterans for Congress Political Action Comm. v. FEC, 

 795 F.3d 151 (D.C. Cir. 2015) .................................................................................... 12 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) .......................................................... 3 

Common Cause v. FEC, 729 F. Supp. 148 (D.D.C. 1990) ..................................................... 17 

Contech Const. Products, Inc. v. Heierli, 764 F. Supp. 2d 96 (D.D.C. 2011) ........................ 12 

Democratic Congressional Campaign Comm. v. FEC, 

 831 F.2d 1131 (D.C. Cir. 1987) .................................................................................... 4 

*FEC v. Democratic Senatorial Campaign Comm.,

 454 U.S. 27 (1981) ............................................................................................ 3, 13, 18 

FEC v. GOPAC, Inc., 

 917 F. Supp. 851 (D.D.C. 1996) ........................................................................... 18, 24 

*FEC v. Machinists Non-Partisan Political League,

 655 F.2d 380 (D.C. Cir. 1981) .............................................................................. 17, 24 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ..................................................... 18, 24 

Case 1:14-cv-01419-CRC Document 42 Filed 05/23/16 Page 4 of 32
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*FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ....................................... 5

FEC v. Nat’l Rifle Association of Am.,

 254 F.3d 173 (D.C. Cir. 2001) ................................................................................ 4, 11 

*FEC v. Nat’l Republican Senatorial Comm., 

 966 F.2d 1471 (D.C. Cir. 1992) .................................................................................... 4 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ........................................................................ 25 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) .......................................................6

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Security, 

 769 F.3d 1127 (D.C. Cir. 2014) ............................................................................ 10, 11 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) ................................................ 7, 8, 22, 23 

Gonzales v. Oregon, 546 U.S. 243 (2006) ........................................................................ 10, 11 

*In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ...................................................3, 4, 11, 12 

Jarita Mesa Livestock Grazing Association v. United States Forest Service, 

 305 F.R.D. 256 (D.N.M. 2015) ................................................................................... 15 

Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) .................................................................. 11 

McConnell v. FEC, 540 U.S. 93 (2003) .............................................................................. 7, 19 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ............................ 23 

Negusie v. Holder, 555 U.S. 511 (2009) ....................................................................................7 

*New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) .......................... 18 

*Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .................................................................. 3, 6 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544 (4th Cir. 2012) .................. 7, 8, 22, 23 

Shays v. FEC, 511 F. Supp. 2d 19 (2007) ........................................................................... 8, 22 

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....................................................................... 11 

Stark v. FEC, 683 F. Supp. 836 (D.D.C. 1988) ........................................................................ 4 

United States v. Mead Corp., 533 U.S. 218 (2001) ............................................................ 9, 11 

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Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) ............................................... 7 

*Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) ........................... 6, 18 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ...................................................... 6, 24-25 

Statutes and Regulations 

*52 U.S.C. § 30101(4)(A)..................................................................................................... 5, 6 

52 U.S.C. § 30101(20)(A)(iii)................................................................................................. 20 

52 U.S.C. § 30109(a)(8) ............................................................................................................ 2 

Miscellaneous 

MUR 6396 (Crossroads), Statement of Reasons of Chairman Goodman and Commissioners 

 Hunter and Petersen, (Jan. 8, 2014) 

 http://eqs.fec.gov/eqsdocsMUR/14044350970.pdf .................................................25 

*Rules and Regulations: Political Committee Status,

 72 Fed. Reg. 5595 (Feb. 7, 2007) ............................................................................ 22 

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ARGUMENT 

In its opening brief, the Federal Election Commission (“FEC” or “Commission”) detailed 

why the agency’s dismissals of plaintiffs’ administrative complaints against Americans for Job 

Security (“AJS”) and American Action Network (“AAN”), as explained in the controlling 

statements of reasons of three Commissioners, were reasonable and not contrary to law. (FEC’s 

Mem. in Supp. of its Cross-Mot. for Summ. J. and in Opp’n to Pls.’ Mot. for Summ. J. at 19-50 

(Docket No. 36) (“Mem.”).) The standard of review here is limited and extremely deferential. 

And, with respect to the substantive “major purpose” analyses at issue, the controlling 

Commissioners’ approach in each matter was consistent with court guidance and the FEC’s own 

lengthy 2007 policy statement regarding its case-by-case approach to the major-purpose test. 

Plaintiffs’ response to the briefs filed by the FEC and AAN provides no basis for the 

Court to rule in their favor. Their argument for an unprecedented de novo standard of review 

and against deferential review under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984), contravenes controlling Circuit authority compelling the Court to 

apply Chevron deference. And their argument that AJS and AAN could be regulated as political 

committees because FECA’s disclosure programs are constitutional purports to address a 

question that is not presented in this case. This Court is not asked to decide the constitutional 

permissibility of requiring disclosure for any groups distributing electioneering communications. 

The narrow issue in this case is whether it was contrary to law for the FEC not to find reason to 

believe that AJS and AAN violated FECA by not registering as political committees. In these 

matters, the controlling Commissioners applied the major-purpose test in a First Amendmentsensitive manner, as higher courts have reiterated the FEC must do when interpreting FECA, and 

they concluded that there was no reason to believe AJS and AAN were political committees. 

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Critically, plaintiffs have failed to carry their burden of establishing that the controlling 

Commissioners’ major-purpose analyses were contrary to law. The extremely deferential 

standard of review that applies under 52 U.S.C. § 30109(a)(8), combined with plaintiffs’ evident 

failure to identify any law contrary to the controlling Commissioners’ decisions, is dispositive 

and requires the Court to sustain the challenged dismissal decisions. Plaintiffs’ attempted 

showing that their preferred approach is constitutionally permissible does not nearly satisfy their 

burden of showing that the controlling Commissioners’ approach was contrary to law. Because 

plaintiffs have failed to meet their burden, and because the controlling Commissioners’ analyses 

were reasonable, consistent with applicable law, and independently supported by the FEC’s 

broad prosecutorial discretion, the Court must grant summary judgment to the Commission. 

I. THE COURT’S REVIEW IS REQUIRED TO BE EXTREMELY DEFERENTIAL, 

CONFINED TO THE ISSUES PRESENTED, AND BASED ON THE 

ADMINISTRATIVE RECORD 

In this section 30109(a)(8) case, the Court must apply Chevron deference in evaluating 

the dismissal decisions and decline plaintiffs’ new request for de novo review. It should also 

reject plaintiffs’ efforts to reframe the case as a dispute about whether disclosure requirements 

are constitutional, as well as their improper reliance on extra-record material. 

A. The Court Must Accord the FEC’s Dismissal Decisions Chevron Deference 

The Court must apply Chevron deference here because Congress’s design of the agency’s 

relatively formal adjudication process fits in the heartland of agency action that the Supreme 

Court has defined to be accorded that level of deference, and because the Court of Appeals has 

so held as a matter of Circuit law. Circuit precedent requires that the dismissals of plaintiffs’ 

administrative complaints must be sustained under the Act’s contrary-to-law standard, 52 U.S.C. 

§ 30109(a)(8), unless they were based on (1) an “impermissible interpretation” of FECA or 

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(2) even “under a permissible interpretation of the statute, w[ere] arbitrary or capricious, or an 

abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986)); see also, e.g., 

Common Cause v. FEC, 108 F.3d 413, 415 (D.C. Cir. 1997) (per curiam) (same); Akins v. FEC, 

736 F. Supp. 2d 9, 16-17 (D.D.C. 2010) (same). The contrary-to-law standard is “extremely 

deferential” and “requires affirmance if a rational basis for the agency’s decision is shown.” 

Orloski, 795 F.2d at 167 (emphases added) (internal quotation marks omitted). Accordingly, the 

Court’s task in this case is “not to interpret the statute as it [thinks] best but rather the narrower 

inquiry into whether the Commission’s construction was sufficiently reasonable to be accepted.” 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) (“DSCC”) (internal 

quotation marks omitted); see also Mem. at 20-28. 

As explained in the FEC’s opening brief, in In re Sealed Case, the Court of Appeals 

accorded “Chevron deference” to an FEC split-vote enforcement dismissal decision materially 

identical to the ones at issue here, 223 F.3d 775, 780 (D.C. Cir. 2000). (Mem. at 24-26.) 

Plaintiffs attempt to distinguish In re Sealed Case’s lengthy discussion of Chevron deference as 

“dicta” and argue that the decision “implied” the possibility that Chevron deference might not 

apply in this direct review context. (Pls.’ Reply in Supp. of Pls.’ Mot. for Summ. J. and in Opp’n 

to Defs.’ Cross-Mots. for Summ. J. at 10 & n.4 (Docket No. 40) (“Pls.’ Reply”).) But plaintiffs’ 

suggestion that the opinion’s discussion of deference was dicta is contradicted by the D.C. 

Circuit’s plainly deferential approach as well as its explicit acknowledgement that “[p]rinciples 

governing the relationships of courts and agencies . . . compel us to address — and, indeed, 

ultimately defer to — a civil enforcement [statement] issued by the [FEC].” 223 F.3d at 776 

(emphasis added). Furthermore, plaintiffs’ attempt to distinguish the case based on its criminal 

context (Pls.’ Reply at 10) is unavailing because the D.C. Circuit made clear that the criminal 

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nature of the case was immaterial, 223 F.3d at 779-80, and that its analysis was grounded in its 

prior holding “that we owe deference to a legal interpretation supporting a negative probable 

cause determination that prevails on a 3-3 deadlock,” id. at 779 (citing FEC v. Nat’l Republican 

Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”)). 

The D.C. Circuit’s express and controlling recognition in In re Sealed Case (and 

reiterated in FEC v. National Rifle Association of America, 254 F.3d 173, 185 (D.C. Cir. 2001)) 

that Chevron deference is accorded to split-vote dismissals by the FEC follows from earlier — 

and also controlling — decisions in NRSC, 966 F.2d at 1475-76 (applying “ordinar[y]” principles 

of agency deference), Democratic Congressional Campaign Committee v. FEC, 831 F.2d 1131, 

1135 n.5 (D.C. Cir. 1987) (“In the absence of prior Commission precedent . . . judicial deference 

to the agency’s initial decision or indecision would be at its zenith.” (emphasis added)), and 

DSCC, 454 U.S. at 37 (explaining that the FEC “is precisely the type of agency to which 

deference should presumptively be afforded”). (Mem. at 22-28.) Lest there could be any doubt, 

Chevron itself relied on DSCC in articulating the standard which now bears Chevron’s name. 

467 U.S. at 843 n.11; Stark v. FEC, 683 F. Supp. 836, 840-41 (D.D.C. 1988). 

B. Plaintiffs’ Arguments in Favor of De Novo Review Are Meritless and 

Contravene Binding Precedent Requiring Chevron Deference Here 

In their opening brief, plaintiffs agreed that section 30109(a)(8)’s contrary-to-law 

standard requires the Court to determine if either of the agency’s dismissal decisions resulted 

from an impermissible interpretation of the Act or, even, under a permissible interpretation, was 

arbitrary or capricious, or an abuse of discretion. (Pls.’ Mem. of P.&A. in Supp. of Pls.’ Mot. for 

Summ. J. at 14 (Docket No. 33) (citing Orloski, 795 F.2d at 161).) Now, plaintiffs have reversed 

course and urge the Court to disregard controlling authority in order to review the dismissal 

decisions de novo. (Pls.’ Reply at 2-13.) In support of this dramatic new standard, plaintiffs 

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argue: (1) the controlling Commissioners purportedly did not interpret FECA; (2) the dismissal 

decisions lack the requisite force of law and the FEC is estopped from arguing otherwise; and 

(3) section 30109(a)(8) is not a deferential standard. (Id.) All of these arguments are meritless. 

1. The Controlling Commissioners Interpreted FECA 

As explained in the FEC’s opening brief, in light of the Supreme Court’s imposition of 

the major purpose requirement in Buckley v. Valeo, 424 U.S. 1, 79 (1976) (per curiam), it plainly 

was not contrary to law for the FEC to interpret FECA’s statutory provision defining “political 

committee” with the major purpose limitation when exercising its enforcement authority. (Mem. 

at 22.) The Court is required to defer to the agency’s interpretation of the applicable provision of 

the Act, 52 U.S.C. § 30101(4)(A), through the process of case-by-case adjudication. When 

interpreting that provision, as here, the FEC exercises its congressionally delegated gap-filling 

authority in enforcing FECA’s core political-committee provisions. (See Mem. at 2-3 

(explaining that Congress vested the FEC “with statutory authority over the administration, 

interpretation, and civil enforcement of FECA”).) 

Plaintiffs nevertheless contend that the controlling Commissioners were not interpreting 

section 30101(4)(A) at all, but solely the major-purpose test, as if that test were unmoored from 

any of the Act’s provisions. (Pls.’ Reply at 5-7.) In addition, they also repeatedly claim that the 

controlling Commissioners “interpreted” the First Amendment and the major-purpose test to 

conclude that “the [FEC] is barred from treating” AJS and AAN as “political committees.” 

(Id. at 1 (emphasis added); see also id. at 2-3.) These claims are incorrect. What the 

Commissioners concluded in applying the major-purpose test to AJS and AAN was that neither 

group’s relevant spending was “‘so extensive that [its] major purpose may be regarded as 

campaign activity.’” (AR 1458 (quoting FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 

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(1986) (“MCFL”)); AR 1709.) The Court should also reject plaintiffs’ baseless and conflicting 

suggestion that the agency may have been improperly attempting to “disregard the [Supreme] 

Court’s” major-purpose test (Pls.’ Reply at 6-7). 

Importantly, plaintiffs themselves concede that the controlling Commissioners were 

interpreting section 30101(4)(A) in arguing that their “challenge raises” the question of whether 

“the FEC dismissed the complaint as a result of an impermissible interpretation of the Act.” (Id.

at 13 (internal quotation marks omitted) (emphasis added).) In accordance with that concession, 

and consistent with the principle that the Supreme Court’s interpretation of section 30101(4)(A) 

in Buckley “is the law and must be given effect,” Chevron, 467 U.S. at 843 n.9, all parties agree 

that the test has become part of the Act’s political-committee definition. The Commission’s 

interpretation of that narrowed definition is therefore entitled to Chevron deference. Cf. Orloski, 

795 F.2d at 161-68 (according Chevron deference to FEC’s manner of distinguishing permissible 

donations to non-political events from prohibited corporate donations to campaign events and 

upholding the agency’s dismissal of the administrative complaint); id. at 167 (explaining that 

although it could “be argued that [the FEC’s] interpretation is at the outer bounds of permissible 

choice” it was still a “‘reasonable choice within a gap left open by Congress’” and thus that the 

challenge must fail (quoting Chevron, 467 U.S. at 866)). In Van Hollen v. FEC, the Court of 

Appeals recently and analogously applied Chevron deference in evaluating an FEC regulation 

implementing FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”). 811 F.3d 

486, 496 (D.C. Cir. 2016), pet. for rehearing en banc filed, No. 15-5016 (D.C. Cir.).1

 

1

 Plaintiffs’ attempt to distinguish Van Hollen on the basis that the regulation at issue there 

did not “‘implement[]’” WRTL (Pls.’ Reply at 5) is unavailing. See Van Hollen, 811 F.3d at 491 

(“The FEC published a Notice of Proposed Rulemaking . . . and requested comments on 

proposed rules that ‘would implement the Supreme Court’s decision in [WRTL].’” (quoting 72 

Fed. Reg. 50261, 50262 (Aug. 31, 2007) (emphasis added))). 

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Plaintiffs’ authorities do not support their claim that Chevron deference is not owed to the 

controlling Commissioners’ decisions. The interpretive errors by the National Labor Relations 

Board plaintiffs cite (Pls.’ Reply at 3) are inapposite because, in contrast to those errors, here 

there is no dispute that the major-purpose test is an “‘additional hurdle to establishing political 

committee status’” that AAN and AJS must clear in order to be regulated as political committees. 

Free Speech v. FEC, 720 F.3d 788, 797 (10th Cir. 2013), cert. denied, 134 S. Ct. 2288 (2014) 

(quoting Rules and Regulations: Political Committee Status, 72 Fed. Reg. 5595, 5601 (Feb. 7, 

2007) (“Supplemental E&J”)). The controlling group’s use of the major-purpose test is therefore 

nothing like, e.g., the NLRB’s attempt to interpret a Supreme Court case in order to engage in 

“the exact kind of questioning into religious matters which [that case] specifically sought to 

avoid.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1343 (D.C. Cir. 2002). And in Negusie v. 

Holder, which plaintiffs also cite (Pls.’ Reply at 3), the Supreme Court confirmed the subject 

agency’s entitlement to Chevron deference “as it gives ambiguous statutory terms concrete 

meaning through a process of case-by-case adjudication.” 555 U.S. 511, 517 (2009) (internal 

quotation marks omitted); see also Mem. Op. at 8 (Docket No. 20). 

Plaintiffs’ reliance (Pls.’ Reply at 4-5) on the D.C. Circuit’s vacated opinion in Akins v. 

FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11 

(1998) remains misplaced. As the FEC explained in its opening memorandum, that opinion is 

nonprecedential and inconsistent with the D.C. Circuit’s subsequent reaffirmations of the majorpurpose test during the last twenty years. (Mem. at 22 n.4 (citing cases).) Those reaffirmations 

are in accord with the Supreme Court’s decision in McConnell v. FEC, 540 U.S. 93, 170 n.64 

(2003) (citing the major-purpose discussion with approval), overruled in part by Citizens United 

v. FEC, 558 U.S. 310 (2010), the more recent decisions in Real Truth About Abortion, Inc. v. 

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FEC, 681 F.3d. 544 (4th Cir. 2012) (“RTAA”) and Free Speech, the FEC’s issuance of the 2007 

Supplemental E&J explaining its approach to the major-purpose test, and the lengthy litigation 

ultimately resolved in Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007). This post-Akins body of 

law leaves far behind the D.C. Circuit’s vacated suggestion that, on the facts of the Akins case, 

whether the test “categorically” applies is unclear, Akins, 101 F.3d at 741.2

 The test applies. 

Most fundamentally, plaintiffs’ argument misconceives the relative domains of expertise 

of the FEC and the courts upon which Chevron deference and the contrary-to-law standard are 

partially based. The courts, while experts in matters of constitutional law, do not possess special 

expertise regarding whether the nomination or election of a candidate is the major purpose of an 

organization. But that determination is centrally within the ambit of the FEC’s expertise and 

regulatory authority, and the Supreme Court accordingly did not “mandate a particular 

methodology for determining an organization’s major purpose,” leaving the FEC “free to 

administer FECA political committee regulations . . . through individualized adjudications.” 

RTAA, 681 F.3d. at 556; Free Speech, 720 F.3d at 797. As in these matters, that “inherently . . . 

comparative task” is performed by the agency in accordance with its approved “sensible” and 

“flexibl[e] . . . case-by-case” method of determining an organization’s major purpose. RTAA, 

681 F.3d at 556, 558; Free Speech, 720 F.3d at 797-98. Chevron deference is owed to the 

resulting determinations, including the dismissals at issue here. 

2. The Controlling Dismissal Decisions Carry the Force of Law 

Plaintiffs are also mistaken in arguing that deference is not owed because the FEC’s 

dismissal decisions supposedly lack the force of law. (Pls.’ Reply at 7-11.) The determinations 

 

2

 Plaintiffs’ view that the Supreme Court in Akins “could have” ignored the issue it 

remanded for further consideration (Pls.’ Reply at 4) misapprehends the purpose of the remand, 

which was to “take advantage of the [FEC’s] expertise” in order to dispose of the case or clarify 

the issues, Akins v. FEC, 524 U.S. 11, 29 (1998). 

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not to proceed do have legal force, notwithstanding the 3-3 split vote of the agency’s 

Commissioners, because that is how Congress designed FECA’s relatively formal adjudication 

procedure to operate, as the D.C. Circuit has recognized in decisions the Court is bound to 

follow. (Mem. at 24-28.) These “ordinary adjudications” (Mem. Op. at 2) fully resolved the 

underlying matters and fall on the Chevron side of the line because they preclude further 

enforcement proceedings in the absence of a remand from this Court. (Mem. at 27.) 

Plaintiffs also contend that, under United States v. Mead Corp., 533 U.S. 218 (2001), 

whether Commission dismissal decisions are “binding on third parties in future cases” is the 

dispositive part of the analysis in determining the level of deference here. (Pls.’ Reply at 7-8.) 

Contrary to plaintiffs’ oversimplified reading, however, the Supreme Court in Mead explained 

that an “administrative implementation of a particular statutory provision qualifies for Chevron

deference 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. “Delegation of such 

authority” the Court instructed, “may be shown in a variety of ways, as by an agency’s power to 

engage in adjudication or notice-and-comment rulemaking, or by some other indication of a 

comparable congressional intent.” Id. at 227. In Mead, the Court determined that the generally 

unexplained tariff classifications made by some 46 port-of-entry Customs offices at issue were 

not entitled to Chevron deference because they were too far “removed not only from notice-andcomment [rulemaking] process” but also other indicia that Congress intended deference. 

Id. at 231. By contrast, the Court reiterated that, as here, “a very good indicator of delegation 

meriting Chevron treatment” is “express congressional authorizations to engage in the process of 

rulemaking or adjudication,” and recognized that “the overwhelming number of our cases 

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applying Chevron deference have reviewed the fruits of notice-and comment rulemaking or 

formal adjudication.” Id. at 229-30 (emphases added); id. at 230 n.12. 

Here, the Court is reviewing dismissals resulting from the FEC’s relatively formal 

adjudication procedure, exercised in accordance with the Act. “What the [plaintiffs] need[], and 

[have] fail[ed] to produce, is a single case in which a general conferral of rulemaking or 

adjudicative authority has been held insufficient to support Chevron deference for an exercise of 

that authority within the agency’s substantive field.” City of Arlington, Tex. v. FCC, 133 S. Ct. 

1863, 1874 (2013) (emphasis added). There is no dispute that the FEC has the authority to 

enforce FECA through the Act’s detailed enforcement procedure. (Mem. at 3-4.) And the Court 

has held here that new principles and standards may be announced through adjudicatory 

procedures like the FEC’s. (Mem. Op. at 7-9.) Plaintiffs’ citations to cases involving other 

agencies with dissimilar structures and procedures that generically recite that Chevron deference 

is not owed where, e.g., the interpretation “under consideration” does not fall under the relevant 

administrative body’s designated “authority,” Gonzales v. Oregon, 546 U.S. 243, 260 (2006), fail 

to negate the applicability of Chevron deference here. Likewise misplaced is plaintiffs’ reliance 

(Pls.’ Reply at 8) on Fogo De Chao (Holdings) Inc. v. U.S. Department of Homeland Security, in 

which the D.C. Circuit found that the subject agency’s decision was “the product of informal

adjudication within the [agency], rather than a formal adjudication or notice-and-comment 

rulemaking.” 769 F.3d 1127, 1136 (D.C. Cir. 2014) (emphases added). The dismissals at issue 

here were not such informal adjudications. 

Plaintiffs’ notion that Mead undercuts In re Sealed Case’s conclusions regarding 

Chevron deference (Pls.’ Reply at 9-10) is also meritless. Following Christensen v. Harris 

County, 529 U.S. 576 (2000), Mead held that cursory Customs classification rulings were 

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11

“beyond the Chevron pale” because they were “best treated like ‘interpretations contained in 

policy statements, agency manuals, and enforcement guidelines.’” 533 U.S. at 234 (quoting 

Christensen, 529 U.S. at 587). In In re Sealed Case, in contrast, the D.C. Circuit expressly 

considered whether controlling statements by declining-to-go-ahead FEC Commissioners were 

like the “interpretations” discussed in Christensen and Mead. The Court of Appeals concluded 

that the FEC Commissioners’ statements were not like such interpretations; instead, the 

Commissioners’ statements fell on the “Chevron side of the line.” 223 F.3d at 780; compare 

Fogo De Chao, 769 F.3d at 1136-37 (finding that “[t]he absence of those relatively formal 

administrative procedure[s] that tend[] to foster the fairness and deliberation that should underlie 

a pronouncement of legal interpretation” in the agency proceeding at issue “weigh[ed] against 

the application of Chevron deference” in that case (internal quotation marks and citation 

omitted)).3

 Consistent with NRSC (which did not “misread[]” Common Cause (contra Pls.’ 

Reply at 9)), In re Sealed Case establishes that a decision of the FEC’s Commissioners, pursuant 

to the Act’s relatively formal adjudication procedure is accorded Chevron deference under 

section 30109(a)(8). In National Rifle Association, which was decided post-Mead, the D.C. 

Circuit itself viewed the analysis in In re Sealed Case as consistent with Christensen and Mead. 

254 F.3d at 184-86. 

Ultimately, plaintiffs’ attempt to distinguish between the level of deference applied in 

review of FEC dismissals supported by four or more Commissioners, on the one hand, and those 

compelled by three Commissioners, on the other, misapprehends that the “‘inherently 

 

3

 Even if the Court could ignore the D.C. Circuit’s instruction to accord Chevron deference 

here, the standard of review would not be de novo. In the cases cited by plaintiffs, the courts 

refusing to apply Chevron deference still applied the deference of Skidmore v. Swift & Company, 

323 U.S. 134 (1944). See Gonzales, 546 U.S. at 256; Fogo De Chao, 769 F.3d at 1137; Martinez 

v. Holder, 740 F.3d 902, 910 (4th Cir. 2014). 

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bipartisan’” structure of the agency (Pls.’ Reply at 9) is employed in both situations. The Court 

of Appeals made that very point in Combat Veterans for Congress Political Action Committee v. 

FEC, which plaintiffs quote (Pls.’ Reply at 9): “[t]he four-vote requirement serves to assure that 

enforcement actions, as to which Congress has no continuing voice, will be the product of a 

mature and considered judgment.” 795 F.3d 151, 153 (D.C. Cir. 2015) (internal quotation marks 

omitted). The dismissal decisions reflect exactly how the agency was designed to operate in the 

adjudicative realm. See In re Sealed Case, 223 F.3d at 780 (finding in the context of a criminal 

investigation that “Congress could not have intended” the prosecutions that could result “[i]f 

courts do not accord Chevron deference to a prevailing decision that specific conduct is not a 

[FECA] violation”). “Congress vested enforcement power in the FEC, carefully establishing 

rules that tend to preclude coercive Commission action in a partisan situation, where the 

Commission, itself statutorily balanced between the major parties, is evenly split.” Id. (citation 

omitted) (emphasis added); Mem. at 26-27. Accordingly, in conducting its review, this Court 

must accord Chevron deference to the controlling dismissal decisions, just as the D.C. Circuit 

itself did in In re Sealed Case and in the cases that preceded it.4

 

 

4

 The Commission plainly is not estopped from seeking Chevron deference. (Contra Pls.’ 

Reply at 11-12.) Setting aside whether the Court could ignore binding Circuit authority on the 

applicability of Chevron deference here, plaintiffs’ estoppel argument is misplaced because the 

FEC has advanced no inconsistent positions. See, e.g., Contech Const. Products, Inc. v. Heierli, 

764 F. Supp. 2d 96, 106-07 (D.D.C. 2011) (refusing to apply judicial estoppel because party was 

“not attempting to advance arguments inconsistent with arguments it made during the arbitration 

proceedings”). The Commission’s position in this litigation has remained consistent. Plaintiffs’ 

rejected attempt to challenge a perceived FEC policy supposedly establishing a “massive 

loophole in the campaign finance disclosure system” (Pls.’ Reply. at 1) is precluded, among 

other things, by the fact that a statement of reasons adopted by three Commissioners does not 

establish an agency policy. The controlling statements of reasons were the result of the agency’s 

relatively formal adjudication process and are entitled to Chevron deference in this challenge to 

the legality of those specific dismissal decisions. Far from conceding plaintiffs’ claim of 

estoppel, the Commission’s extensive discussion of these issues in its opening brief (Mem. at 22-

28) was responsive to plaintiffs’ argument. 

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3. Section 30109 Review Is “Limited” 

Plaintiffs also assert that “section 30109(a)(8) imposes no [deferential review]: it asks 

only whether the FEC’s dismissal is ‘contrary to law’ and, if so, then authorizes judicial relief.” 

(Pls.’ Reply at 12-13.) This argument flies in the face of an unbroken series of higher court 

opinions holding that section 30109(a)(8) review is “‘limited.’” (Mem. at 20 (collecting cases).) 

It also contravenes the Supreme Court’s instructions in DSCC, where, after reciting the agency’s 

congressionally authorized powers, responsibilities, and bipartisan structure, the Court explained 

that Congress “wisely” established the contrary-to-law standard because the FEC is “precisely” 

the type of agency “to which deference should presumptively be afforded.” 454 U.S. at 37. In 

accordance with these precedents, the Court must reject plaintiffs’ request to act beyond its wellestablished role by substituting its judgment for that of the controlling Commissioners. 

C. Plaintiffs’ Arguments About Disclosure Fail to Satisfy Their Heavy Burden 

Plaintiffs also continue to seek to reduce their burden by stressing their general interests 

in disclosure, interests they share with the public and the government. (Pls.’ Reply at 14-27.) 

But plaintiffs’ argument continues to be improperly results-oriented because it assumes the 

answer to the central issue here — whether the activities of AJS and AAN required that they be 

regulated as political committees. (See Mem. at 47-49.) 

This case is not about whether “the First Amendment [p]ermits [d]isclosure.” (Pls.’ 

Reply at 14.) All parties agree that the First Amendment permits certain disclosure 

requirements, including the particular disclosure requirements of political committees, as courts 

have overwhelmingly held. For that reason, plaintiffs’ attempted showing that “FECA’s 

[p]olitical [c]ommittee [d]isclosure [o]bligations [a]re [s]ubstantially [r]elated to [p]laintiffs’ 

[u]ndisputed [i]nterest in AAN and AJS” (Pls.’ Reply at 22-27) seeks to have the Court answer 

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the wrong question. The question for the Court here is whether AJS and AAN must be regulated 

as political committees, not whether groups that are political committees can be required to 

make disclosures as a constitutional matter. 

The Court should reject plaintiffs’ efforts to swap burdens with the FEC. Plaintiffs’ 

argument that “the First Amendment does not bar requiring disclosure from groups like AAN 

and AJS” (Pls.’ Reply at 20) only attempts to establish that AJS and AAN could be regulated as 

political committees if either organization has the major purpose of electing or nominating a 

candidate (id. at 14-22). Plaintiffs attempt to bridge the gap between their showing and their 

burden by arguing that “if the First Amendment permits disclosure from AAN and AJS, then the 

controlling [C]ommissioners’ interpretation that the [A]mendment does not permit disclosure 

from them was contrary to law.” (Pls.’ Reply at 21.) But, once again, this argument assumes the 

answer to the threshold question of whether AAN and AJS are political committees in the first 

place. Plaintiffs’ wish to know who has contributed to AJS and AAN does not establish that 

either group must be regulated as a political committee. Nor does the fact that FECA’s 

disclosure programs have been upheld as constitutional answer whether it was contrary to law for 

the FEC not to require AAN and AJS to register as political committees. 

In addition, it is undisputed that AJS and AAN already make disclosures about their 

express advocacy and electioneering communications, which, contrary to plaintiffs’ notion, do 

permit the public to know “‘who is speaking . . . shortly before an election.’” (Pls.’ Reply at 22-

23 (quoting Citizens United, 558 U.S. at 369).) These communications do not exemplify AJS 

and AAN hiding themselves “behind electioneering communications” (id. at 25-26). Rather, 

they disclose that AJS and AAN are making the communications. Plaintiffs’ argument that the 

propriety of requiring event-driven reporting from AJS and AAN also establishes the propriety 

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of imposing political-committee reporting obligations on them makes no sense and is belied by 

Congress’s express establishment of different disclosure programs in FECA. (Mem. at 38-39.) 

D. Plaintiffs Cannot Rely on Material That Is Not In the Administrative Record 

The Commission previously explained that because this case is one in which the Court 

reviews agency action on an administrative record, such review must be limited to materials that 

were before the agency when it made its decisions. (Mem. at 28-30.) In response, plaintiffs do 

not dispute this well-established, broadly applicable rule, but erroneously suggest the Court may 

consider the extra-record declaration and voluminous attachments it submitted, as legislative 

facts to “enable [the Court] to understand the issues clearly,” even though that material was not 

before the FEC. (Pls.’ Reply at 13-14 (internal quotation marks omitted).) This extra-record 

evidence remains improper, both because it contravenes this Circuit’s record rule and because 

any necessary legislative facts must be developed at the agency level, not submitted by a party to 

the litigation after the fact. 

In Jarita Mesa Livestock Grazing Association v. United States Forest Service, the out-ofdistrict case plaintiffs cite concerning legislative facts (Pls.’ Reply at 13), the question turned on 

“whether the fact goes to illuminating a question of fact or a question of law.” 305 F.R.D. 256, 

298 (D.N.M. 2015) (explaining that legislative facts are not properly introduced to elucidate the 

facts of the case). In this case, however, plaintiffs use the extra-record material to show the 

characteristics of committees and other disputed factual issues (Mem. at 29), not to address a 

question of law. This use renders the material improper for judicial notice and beyond the proper 

scope of this proceeding. This case is not about how “the FEC’s unreasonably narrow readings 

of Buckley’s ‘major purpose’ test and the First Amendment have led to an explosion of dark 

money” (Pls.’ Reply at 14) but about whether it was contrary to law not to find that there was 

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reason to believe AJS and AAN were required to register and report as political committees. 

(Mem. at 29 (summarizing plaintiffs’ use of extra-record evidence).) And even if the Court 

required evidence of the type plaintiffs have presented, the Court’s recourse is not to use a onesided presentation of facts, submitted for the first time in litigation reviewing administrative 

decisions, but to remand the matters to the agency for legislative fact finding. E.g., Beach 

Commc’ns, Inc. v. FCC, 959 F.2d 975, 987 (D.C. Cir. 1992) (remanding to agency because the 

court “require[s] additional ‘legislative facts’”). Here, no such remand is necessary because this 

case is not about the broad disclosure question plaintiffs would prefer to litigate. 

II. THE FEC’S DISMISSALS MUST BE AFFIRMED BECAUSE THEY WERE NOT 

CONTRARY TO LAW 

The controlling Commissioners’ statements explaining the dismissals of plaintiffs’ 

administrative complaints reasonably analyzed whether AJS and AAN had the major purpose of 

nominating or electing a federal candidate. These analyses were consistent with case law and 

Commission policy and precedents. Critically, plaintiffs’ complaints about the evaluation of the 

groups’ public statements and spending fail to establish that the controlling Commissioners’ 

analyses were contrary to law under the prevailing standard. The simple answer to plaintiffs’ 

case is that the controlling Commissioners’ dismissal decisions must be sustained because there 

is no law to which either of their decisions is contrary. In addition to clearing that low bar, the 

controlling Commissioners’ dismissals should be sustained because they reasonably analyzed 

each of AJS’s and AAN’s central organizational purposes and comparative spending in light of 

the law, Commission precedents, and the undisputed factual records that were before the agency. 

A. Plaintiffs Fail to Identify Any Prior Interpretation or Law Contrary to the 

Controlling Commissioners’ Approaches 

As the FEC previously demonstrated, the leading Supreme Court and D.C. Circuit cases 

are consistent with the controlling Commissioners’ approaches here. (Mem. at 31-33 (discussing 

Case 1:14-cv-01419-CRC Document 42 Filed 05/23/16 Page 22 of 32
17

Buckley, MCFL, and FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 

1981) (“Machinists”)).) Those approaches were also consistent with more recent lower court 

decisions concerning the major-purpose test and the FEC’s Supplemental E&J. (Id. at 33-35.) 

Plaintiffs cite no cases holding that the major-purpose test must be applied in some way 

that the controlling Commissioners ignored or contradicted. Compare Common Cause v. FEC, 

729 F. Supp. 148, 152 (D.D.C. 1990) (remanding partial dismissal on section 30109(a)(8) review 

because the controlling Commissioners’ analysis “ignored the plain language of the applicable 

regulation and was not rationally explained”). Instead, plaintiffs continue to attempt to rewrite 

the standard to shift the analysis from whether what the controlling Commissioners did was 

reasonable to whether plaintiffs’ preferred approach would have been reasonable. (E.g., Pls.’ 

Reply at 29 (arguing that FEC and AAN “cite no cases holding that electioneering 

communications may not count toward satisfying Buckley’s ‘major purpose’ test”); see also id. at 

15 & n.7 (“The majority of circuits, including the D.C. Circuit, have found that the First 

Amendment poses no barrier to requiring disclosure from groups engaged in electoral advocacy, 

even where the groups do not devote a majority of their spending to express advocacy.” (citing 

cases)); id. at 28-29 (“The authority on which the FEC and AAN rely . . . fails to demonstrate the 

correctness of the controlling [C]ommissioners’ interpretation of Buckley.”); Mem. at 40.)5

 

Whatever the merits of these arguments, plaintiffs fail to carry their burden. In determining 

“whether the Commission’s construction was sufficiently reasonable,” “it is not necessary for 

[the Court] to find that the agency’s construction was the only reasonable one or even the reading 

 

5

 Plaintiffs continue to assert erroneously that the controlling Commissioners applied a 

“higher” reason-to-believe standard than appropriate. (Pls.’ Reply at 46-47.) As the FEC 

explained in its opening brief, this assertion does not identify any error but merely evinces 

disagreement with the application of that standard in the controlling analyses. (Mem. at 43 n.9.) 

Case 1:14-cv-01419-CRC Document 42 Filed 05/23/16 Page 23 of 32
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the [C]ourt would have reached” on its own “if the question initially had arisen in a judicial 

proceeding.” DSCC, 454 U.S. at 39 (internal quotation marks omitted). 

B. The Controlling Commissioners’ Analyses of AJS’s and AAN’s Public 

Statements and Spending Were Reasonable 

Not only did the controlling Commissioners not depart from any identified law, but those 

Commissioners’ analyses of AJS’s and AAN’s central organizational purposes and spending 

were also reasonable. As before, plaintiffs do not seriously dispute the Commissioners’ findings 

with respect to central organizational purposes6 and focus on the spending analyses. They claim 

that the controlling Commissioners (1) improperly failed to include as relevant spending amounts 

spent on electioneering communications and (2) improperly viewed the groups’ activities over 

too broad a time period. Both claims are incorrect. 

1. The Controlling Commissioners’ Determinations of AJS’s and AAN’s 

Relevant Spending Were Reasonable 

As explained in the Commission’s opening brief (Mem. at 36-41), the controlling group’s 

identification of the relevant universe of spending as AJS’s and AAN’s independent expenditures 

was reasonable and not contrary to law. The controlling analyses were also consistent with the 

Supreme Court’s decisions in Buckley and MCFL, the Court of Appeals’s decision in Machinists, 

the Tenth Circuit’s decision in N.M. Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010), 

the decisions of other judges of this Court in FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 

(D.D.C. 1996) and FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), and with the Seventh 

Circuit’s decision in Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014). 

 

6

 Although plaintiffs now for the first time speculate that AAN’s central organizational 

purpose is “very much in question” due to the possibility that an FEC investigation might have 

turned up “relevant internal documents” (Pls.’ Reply at 47 n.24), plaintiffs have never argued 

that either AJS’s or AAN’s organizational documents indicate that they have the primary 

purpose of electing or nominating candidates. (Mem. at 35-36.) 

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(Mem. at 36-38.) Plaintiffs, by contrast, have failed to demonstrate that the Commissioners’ 

comparative spending analyses conflict with any judicial decision or authority. 

Plaintiffs continue to argue in favor of the supposed equivalency of electioneering 

communications and independent expenditures for purposes of determining political committee 

status. (Pls.’ Reply at 27-33.) But plaintiffs plainly misapprehend McConnell’s upholding of the 

electioneering communication disclosure provisions of the Bipartisan Campaign Reform Act 

(“BCRA”) as an unstated holding that electioneering communications categorically count 

towards finding that a group is a political committee. The McConnell Court made no such 

finding. Plaintiffs’ reliance on an ACLU brief and Justice Kennedy’s opinion in McConnell is 

wholly misplaced because the discussion plaintiffs cite had nothing to do with whether 

electioneering communications should be included when evaluating political-committee status 

but instead concerned BCRA’s requirement that corporate electioneering communications be 

funded through a separate segregated fund, known as the “PAC option.” McConnell, 540 U.S. at 

332-33 (Kennedy, J., concurring in the judgment in part and dissenting in part). 

Moreover, Congress’s decision not to regulate electioneering communications through 

FECA’s political-committee disclosure regime cannot be waived away on the basis that the 

major-purpose test “is not in the statute at all.” (Pls.’ Reply at 30.) At the time Congress passed 

BCRA, the major-purpose test for political committee status had been in place for more than a 

quarter century. Yet it chose neither to refine nor redefine the statutory meaning of “political 

committee,” nor did it incorporate the disclosure of electioneering communications into that 

existing system of disclosure. Instead, Congress created a new and distinct manner of disclosure 

that plaintiffs are seeking to blend into the political committee analysis. Plaintiffs’ argument that 

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the permissibility of disclosure of electioneering communications means that they must be 

included in evaluating political committee status remains unsound. (Mem. at 38-39.) 

Plaintiffs’ attempts to distinguish the FEC’s authorities (Pls.’ Reply at 29-30) are 

similarly unavailing. Their view that Citizens United tacitly overruled “the distinction between 

electioneering communications and express advocacy” by striking “the ban on corporate express 

advocacy” (id. at 29) is squarely contrary to the Court’s application of WRTL’s functionalequivalency test. Citizens United, 558 U.S. at 324-25 (applying the test to conclude that the film 

at issue was “equivalent to express advocacy”). The Court also reiterated the burdens associated 

with the registration and reporting required of political committees. Id. at 337-38. In addition, it 

is to be expected that certain cases that the FEC identified as supportive of an express advocacy 

construction of the major-purpose test (Mem. at 38) did not also explicitly explain, years before 

BCRA defined the term, that communications meeting the definition of “electioneering 

communications” should not count when analyzing an organization’s spending. Plaintiffs’ 

characterizations of Free Speech and RTAA (Pls.’ Reply at 30) are incorrect. Rather than stating 

that spending on electioneering communications must count towards a major-purpose finding, 

the courts in those cases generally upheld the FEC’s flexible, case-by-case method of evaluating 

political committee status. And plaintiffs do not dispute that the controlling analyses accorded 

with the Seventh Circuit’s Barland decision. Rather, they weakly argue that the controlling 

approach is contrary to law because Barland has been “heavily criticized.” (Id.)

7

 

7

 Plaintiff also argue that the Commission must count advertisements meeting “a PASO 

standard,” i.e., spending on non-express advocacy communications that “refer[] to a clearly 

identified candidate for Federal office” and “promote[],” “support[],” “attack[],” or “oppose[]” a 

candidate for that office, 52 U.S.C. § 30101(20)(A)(iii), as relevant spending. (Pls.’ Reply at 36-

37.) But plaintiffs identify no cases holding that failing to use the PASO standard would be 

contrary to law in this context. (Contra Pls.’ Reply at 37 (claiming that the “controlling 

[C]ommissioners interpreted Buckley to exclude groups’ ads which promote, attack, support, or 

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21

Plaintiffs further err in arguing that the controlling Commissioners failed to review AJS’s 

and AAN’s advertisements because they “in fact excluded electioneering communications 

categorically.” (Pls.’ Reply at 34; id. at 33-36.) Plaintiffs’ notion that this aspect of the 

Commissioners’ review is “not supported by the record” (id. at 34) is itself unsupported. The 

record reflects the controlling Commissioners’ assessments that, as to AJS, “all of the 

electioneering communications identified in the [Administrative] Complaint are genuine issue 

advertisements” because “they contain no references to elections, candidacies, or political 

parties, while ‘focus[ing] on a legislative issue, tak[ing] a position on the issue, exhort[ing] the 

public to adopt that position, and urg[ing] the public to contact public officials with respect to the 

matter.” (AR 1457 (footnotes omitted).) They similarly found that AAN’s $13 million worth of 

electioneering communications were “genuine issue advertisements” even though they “may 

have been relevant to an election.” (AR 1709.) These advertisements, they found, “‘focus on a 

legislative issue, take a position on the issue, exhort the public to adopt that position, and urge 

the public to contact public officials with respect to the matter,’” and addressed “a number of 

salient policy issues including federal spending, the stimulus, tax relief, health care, and cap and 

trade.” (Id. (footnote omitted).) 

2. The Controlling Commissioners’ Determinations of the Relevant 

Time Periods Were Reasonable 

Plaintiffs’ arguments that the controlling Commissioners used overly broad time periods 

for comparing AJS’s and AAN’s spending patterns are unavailing. Plaintiffs assert that the Act 

imposes a calendar-year time period for evaluating an organization’s major purpose and that the 

Commissioners’ decision to review AJS’s and AAN’s entire periods of activity in the record 

 

oppose a candidate” and that this “interpretation is contrary to law”); compare AR 1459-61 

(asserting that the Seventh Circuit’s decision in Barland rejected a standard similar to the PASO 

standard plaintiffs urge); AR 1710-13 (same).) 

Case 1:14-cv-01419-CRC Document 42 Filed 05/23/16 Page 27 of 32
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before the agency was unsound for policy reasons and inconsistent with FEC precedents. (Pls.’ 

Reply at 37-41.) Plaintiffs are incorrect. The controlling Commissioners’ uses of the entire 

records before them (AR 1457; AR 1708) were reasonable. (Mem. at 41-45.) 

Contrary to their opening brief, in which plaintiffs argued only that a calendar-year test 

would be superior to the controlling analyses (see Mem. at 42), plaintiffs now contend that 

“FECA unambiguously states the relevant period for evaluating a group’s political committee 

status is a single calendar year,” citing section 30101(4). (Pls.’ Reply at 38.) As explained in 

our opening memorandum, however, the statute contains no such unambiguous statement 

because section 30101(4)(A)’s calendar-year test applies to the determination of whether an 

organization has received contributions or made expenditures exceeding $1,000, whereas the 

major-purpose test is an “‘additional hurdle to establishing political committee status’” that the 

Supreme Court established in Buckley, Free Speech, 720 F.3d at 797 (quoting Supplemental 

E&J, 72 Fed. Reg. at 5601). (Mem. at 43-44.) Thus, as summed up in the Supplemental E&J, 

“[p]ursuant to FECA and Supreme Court precedent, the Commission will continue to determine 

political committee status based on whether an organization (1) [r]eceived contributions or made 

expenditures in excess of $1,000 during a calendar year, and (2) whether that organization’s 

major purpose was campaign activity.” 72 Fed. Reg. at 5606. The courts that have considered 

the FEC’s application of the major-purpose test have rejected the idea that the test requires bright 

lines such as the calendar-year measurement plaintiffs advocate: “Because Buckley and MCFL

make clear that the major purpose doctrine requires a fact-intensive analysis of a group’s 

campaign activities compared to its activities unrelated to campaigns, any rule must permit the 

Commission the flexibility to apply the doctrine to a particular organization’s conduct.” 72 Fed. 

Reg. at 5601-02; RTAA, 681 F.3d at 556-57; Shays, 511 F. Supp. 2d at 29-31. 

Case 1:14-cv-01419-CRC Document 42 Filed 05/23/16 Page 28 of 32
23

Plaintiffs’ policy-based argument that using the whole record of AJS’s and AAN’s 

spending “would have absurd results” (Pls.’ Reply at 38) misses the mark. There is nothing 

absurd about looking at an organization’s relevant electoral spending in the context of its greater 

operations, including in other years. Reviewing the broadest available view of the organization’s 

activity is an eminently reasonable way to review an organization with purposes that have 

changed over time, enabling a determination of whether such changes are temporary or more 

permanent. (Mem. at 45.)8 Plaintiffs’ contention that AJS might opportunistically exploit its 

prior non-campaign-related spending in order to dilute its later spending (id. at 38-39) continues 

to presume a nefarious intent, and, in so doing, requests that the Court focus on a relatively small 

and recent subset of activity as AJS’s supposed true purpose by discounting its historical and 

proportionately more substantial activity. In addition, there is no “absurdity” (Pls.’ Reply at 39) 

in the Commission evaluating political committee status on the bases of the available records that 

exist at the time of review. That is the nature of enforcement. At most, plaintiffs’ argument 

about the timing of FEC determinations establishes the unsurprising proposition that fluctuations 

in an organization’s spending pattern will sometimes make it look more like a political 

committee and sometimes less. But plaintiffs are wrong in suggesting that it is the FEC that 

“decides” when “to look.” (Id. at 39.) The timing of the agency’s review flows primarily from 

the filing of an administrative complaint and any submissions to the agency that follow. 

 

8

 Plaintiffs’ notion that Buckley held that an organization need only have a purpose of 

nominating or electing candidates (Pls.’ Reply at 42-43) contravenes Buckley’s clear statement 

that “the” major purpose of the organization must be the nomination or election of a candidate, 

424 U.S. at 79 (emphasis added). N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 287-89 (4th 

Cir. 2008); RTAA, 681 F.3d. at 556; Free Speech, 720 F.3d at 797; AR 1449 n.69; AR 1700 n.65. 

In any event, plaintiffs’ argument that the controlling Commissioners employed a “50%+1” test 

(Pls.’ Reply at 41-43) is incorrect. (Mem. at 45-46.) 

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In sum, plaintiffs have failed to show that the controlling Commissioners’ use of the 

entire records was contrary to law or unreasonable. Their decision to review the entire records 

was consistent with cases such as GOPAC, Inc. and Malenick, and in other enforcement matters 

in which the relevant analyses looked beyond a single calendar year in evaluating groups’ major 

purpose. (AR 1461 n.146.)9

 Accordingly, the Court should sustain the Commissioners’ analyses 

of AJS’s and AAN’s spending by reference to the entire records that were available.10

III. THE FEC’S BROAD PROSECUTORIAL DISCRETION INDEPENDENTLY 

SUPPORTS AFFIRMANCE 

Lastly, the dismissals of plaintiffs’ administrative complaints are separately justified by 

the Commission’s broad prosecutorial discretion. (AR 1460-61 n.142; AR 1712-13 n.137; Mem. 

at 49-50.) Plaintiffs do not contest the FEC’s right to dismiss enforcement matters on the basis 

of prosecutorial discretion. (Pls.’ Reply at 43-46.) Rather, they contend that the controlling 

Commissioners’ statements about exercising the agency’s prosecutorial discretion were too 

“passing” to be effective (id. at 43) and repeat their meritless arguments in favor of de novo 

review (id. at 45-46). These arguments are unavailing. 

The controlling Commissioners expressly stated that the political-committee analysis 

favored by plaintiffs would face “grave constitutional doubt” in light of the Seventh Circuit’s 

decision in Barland and thus favored their “cautious exercise of . . . prosecutorial discretion.” 

AR 1460-61 n.142; AR 1712-13 n.137; cf. Machinists, 655 F.2d at 394 (evaluating politicalcommittee status arises in the “delicate” First Amendment area); Van Hollen, 811 F.3d at 501 

 

9

 Plaintiffs’ suggestion that the courts in Malenick and GOPAC, Inc. “look[ed] to [the] 

group[s’] spending in each year separately” (Pls.’ Reply at 40) fails to recognize that the cited 

portions of the courts’ analyses were considering the $1,000 contribution element, not the major 

purpose element. Malenick, 310 F. Supp. 2d at 236 & n.8; GOPAC, Inc., 917 F. Supp. at 853. 

10 For all the reasons that the FEC’s “major purpose” determinations are reasonable under 

Chevron review, they would similarly be upheld under Skidmore review, see supra p. 11 n.3, 

even if the D.C. Circuit were to revisit the applicable level of deference in any appeal. 

Case 1:14-cv-01419-CRC Document 42 Filed 05/23/16 Page 30 of 32
25

(noting FEC’s “unique prerogative to safeguard the First Amendment”). Referencing the 

controlling statements’ extended critique of the approach preferred by plaintiffs (AR 1458-63; 

AR 1710-15), the Commissioners reiterated their concerns about “the problems [the approach] 

presents” as explained in their statements of reasons in other matters. (AR 1713 n.141.) In their 

cited statement concerning Crossroads Grassroots Policy Strategies (“Crossroads”), the same 

controlling Commissioners explained their concern that expanding “the universe of an 

organization’s communications while contracting the period of time for evaluating an 

organization’s spending for that analysis” was problematic because that approach had not been 

“properly noticed” to individuals and groups that may be affected by the application of that 

analysis. MUR 6396 (Crossroads), Statement of Reasons of Chairman Goodman and 

Commissioners Hunter and Petersen at 28 n.117 (Jan. 8. 2014), 

http://eqs.fec.gov/eqsdocsMUR/14044350970.pdf; see also id. at 23. Accordingly, the 

controlling Commissioners’ invocation of prosecutorial discretion is not an improper attempt to 

immunize the agency from judicial review (Pls.’ Reply at 45-46), but is of a piece with due 

process concerns those Commissioners had recently articulated. 

Finally, plaintiffs’ notion that the Court may review an agency’s exercise of prosecutorial 

discretion using a de novo standard contravenes settled law. (Mem. at 49-50 (citing cases).) 

“[Courts] are not here to run the agencies.” FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986). 

CONCLUSION 

For the foregoing reasons, and for the reasons set out in the FEC’ opening memorandum, 

the Court should grant summary judgment to the Commission. 

Case 1:14-cv-01419-CRC Document 42 Filed 05/23/16 Page 31 of 32
26

 Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

May 23, 2016 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

Charles Kitcher (D.C. Bar No. 986226) 

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:14-cv-01419-CRC Document 42 Filed 05/23/16 Page 32 of 32