UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

PUBLIC CITIZEN, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-148 (RJL) 

 ) 

 ) 

 v. ) 

 ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM OF POINTS AND 

 ) AUTHORITIES 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

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

Deputy General Counsel — Law 

 

Kevin Deeley 

Acting Associate General Counsel 

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

Acting Assistant General Counsel 

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

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

 Attorneys 

 

FEDERAL ELECTION COMMISSION 

999 E Street N.W. 

 Washington, DC 20463 

September 10, 2014 (202) 694-1650 

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TABLE OF CONTENTS 

 Page 

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

BACKGROUND .......................................................................................................................2 

I. STATUTORY AND REGULATORY BACKGROUND .............................................2 

A. The FEC and FECA’s Administrative Enforcement Process ............................2 

1. The Commission ....................................................................................2 

2. FECA’s Administrative Enforcement Process and 

Judicial-Review Standard ......................................................................3 

B. FECA’s Registration and Reporting Requirements ...........................................5 

1. Event-Driven Reporting Requirements ..................................................5 

2. Political-Committee Status ....................................................................7 

II. FACTUAL BACKGROUND ......................................................................................10 

A. Plaintiffs’ Administrative Complaint ...............................................................10 

B. The Commission’s Dismissal of the Administrative Complaint .....................11 

1. Crossroads ............................................................................................12 

2. Crossroads’s “Major Purpose” .............................................................14 

ARGUMENT ...........................................................................................................................18 

I. STANDARD OF REVIEW .........................................................................................18 

A. Judicial Review Under Section 30109(a)(8) (437g(a)(8)) Is “Limited” 

and “Extremely Deferential” ............................................................................19 

B. The Court Must Accord the FEC’s Dismissal Decision Chevron

Deference .........................................................................................................21 

C. The Government’s Disclosure Interest Does Not Alter the Standard 

of Review .........................................................................................................26 

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D. The Court Reviews the Commission’s Dismissal Based Solely on the 

Administrative Record and As If It Were an Appellate Tribunal ....................27 

II. THE FEC’S DISMISSAL WAS CLEARLY NOT CONTRARY TO LAW ..............28 

 

A. The Controlling Commissioners’ Approach to Determining Crossroads’s 

“Major Purpose” Was Reasonable ...................................................................29 

1. Buckley and Its Progeny Narrowly Construed the Meaning of 

“Political Committee” ..........................................................................29 

2. The Controlling Commissioners’ Approach to Determining PoliticalCommittee Status Was Based on Judicial Decisions and the 

Commission’s Precedents ....................................................................31 

B. The Controlling Group of Commissioners’ Determination of Crossroads’s 

“Major Purpose” Was Reasonable ...................................................................34 

1. The Controlling Commissioners’ Determination That Crossroads’s 

Central Organizational Purpose Was Not the Nomination or Election 

of Candidates Was Reasonable ............................................................35 

2. The Controlling Commissioners’ Assessment of 

Crossroads’s Comparative Spending Was Reasonable ........................37 

a. Relevant Federal Campaign Spending (Numerator) ...............38

b. Time Period (Denominator) .....................................................42 

c. Alternative Analyses.................................................................46 

C. The Dismissal Was Not Contrary to Law For the Separate Reason That It 

Was a Reasonable Exercise of the Commission’s Prosecutorial Discretion ...49 

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

 

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TABLE OF AUTHORITIES 

Cases 

*Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ..................................................19, 20, 21, 42 

Brown v. United States, 327 F.3d 1198 (D.C. Cir. 2003) ........................................................25

*Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) .............................5, 6, 8, 29, 34, 39, 42, 44 

Chelsea Industries, Inc. v. NLRB, 285 F.3d 1073 (D.C. Cir. 2002) ........................................42 

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ................. 20-21 

Citizens for Responsibility & Ethics in Washington v. FEC, 475 F.3d 337 

(D.C. Cir. 2007) ..........................................................................................................19 

Citizens United v. FEC, 558 U.S. 310 (2010) ..........................................................................30

Common Cause v. FEC, 655 F. Supp. 619 (D.D.C. 1986) ......................................................49 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ............................... 4-5, 19, 21, 22, 33 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ...................................................19, 26 

Democratic Congressional Campaign Comm. v. FEC, 831 F.2d 1131 

(D.C. Cir. 1987) .................................................................................................4, 22, 49 

FEC v. Akins, 524 U.S. 11 (1998) ......................................................................................30, 49

*FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ..........................20, 48 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ........................................26, 34, 35, 40

*FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) .......30, 31 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ......................................................35, 40 

*FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ....................................................30 

*FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 

(D.C. Cir. 1992) .....................................................................4, 5, 10, 21, 22, 23, 33, 42 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001).................................21, 24, 25

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) .........................................................................49 

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FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) .....................................................41

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

Ct. 2288 (2014) ....................................................................................10, 28, 32, 34, 44 

*Heckler v. Chaney, 470 U.S. 821 (1985) .........................................................................49, 50

Hispanic Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407 (E.D. Va. 2012) .....................24 

*In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) .........................................21, 23, 24, 25, 42 

La Botz v. FEC, ___ F. Supp. 2d ___, 2014 WL 3686764 (D.D.C. July 25, 2014) ................49 

McConnell v. FEC, 540 U.S. 93 (2003) ....................................................................... 6-7, 7, 30 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ............................................................................5 

*New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) ...............33, 40, 46 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ........... 34, 41, 41-42 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ...................................................................5, 49 

Palisades Gen. Hosp. Inc. v. Leavitt, 426 F.3d 400 (D.C. Cir. 2005) .....................................27 

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ...............................................20 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544 (4th Cir. 2012), cert. denied, 

133 S. Ct. 841 (2013) .................................................................................10, 32, 34, 46 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ...................................................9, 10, 32, 46 

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ........................................................................25 

Stark v. FEC, 683 F. Supp. 836 (D.D.C. 1988) .................................................................23, 49 

Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) ............27 

United States v. Mead Corp., 533 U.S. 218 (2001) .................................................................24 

Unity08 v FEC, 596 F.3d 861 (D.C. Cir. 2010) .......................................................................31 

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) ......................27, 39, 40 

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Statutes and Regulations 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 211, 116 Stat. 81 .............6 

26 U.S.C. §§ 527(a), (e)(1) ........................................................................................................9 

52 U.S.C. § 30101(4)(A) (2 U.S.C. § 431(4)(A)) ................................................................8, 44 

52 U.S.C. §§ 30101(8)(A)(i), (9)(A)(i) (2 U.S.C. §§ 431(8)(A)(i), (9)(A)(i)) ..........................8 

52 U.S.C. § 30101(17) (2 U.S.C. § 431(17)) .............................................................................6 

52 U.S.C. §§ 30103, 30104(a)-(b) (2 U.S.C. §§ 433, 434(a)-(b)) .............................................8 

52 U.S.C. §§ 30104(c)(1), (2)(A), (C) (2 U.S.C. §§ 434(c)(1), (2)(A), (C)) .............................7 

52 U.S.C. §§ 30104(f)(1)-(2) (2 U.S.C. §§ 434(f)(1)-(2)) .........................................................7 

52 U.S.C. § 30104(f)(3) (2 U.S.C. § 434(f)(3)) .........................................................................6 

52 U.S.C. § 30106(b)(1) (2 U.S.C. § 437c(b)(1)) ..................................................................2, 3 

52 U.S.C. § 30106(c) (2 U.S.C. § 437c(c)) ............................................................................3, 4 

52 U.S.C. § 30107(a)(8) (2 U.S.C. § 437d(a)(8)) ......................................................................2 

52 U.S.C. §§ 30109(a)(1)-(2) (2 U.S.C. §§ 437g(a)(1)-(2)) .................................................. 2-3 

52 U.S.C. § 30109(a)(4)(A)(i) (2 U.S.C. § 437g(a)(4)(A)(i)) ...................................................3 

52 U.S.C. § 30109(a)(6)(A) (2 U.S.C. § 437g(a)(6)(A)) .......................................................3, 4 

*52 U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)) ..............................................................4, 19 

52 U.S.C. § 30109(a)(8)(A) (2 U.S.C. § 437g(a)(8)(A)) ...........................................................4 

*52 U.S.C. § 30109(a)(8)(C) (2 U.S.C. § 437g(a)(8)(C)) .......................................................19 

52 U.S.C. § 30109(a)(12) (2 U.S.C. § 437g(a)(12)) ..................................................................3 

52 U.S.C. § 30111(a)(8) (2 U.S.C. § 438(a)(8)) ........................................................................2 

11 C.F.R. § 100.5(a)...................................................................................................................8 

11 C.F.R. § 100.16 .....................................................................................................................6 

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11 C.F.R. § 100.29 .....................................................................................................................6 

11 C.F.R. § 104.20 .....................................................................................................................7 

11 C.F.R. § 104.20(c)(9) ............................................................................................................7 

11 C.F.R. § 109.10(e).................................................................................................................7 

11 C.F.R. § 111.4 .......................................................................................................................3 

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 

90 Stat. 479 ................................................................................................................................6 

Proposed Rules: Political Committee Status, 69 Fed. Reg. 11,736 (Mar. 11, 2004) ................9 

*Rules and Regulations: Political Committee Status, 72 Fed. Reg. 5595 

(Feb. 7, 2007) .............................................................................9, 32, 33, 35, 36, 43, 47 

 

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

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

H.R. 12406, H. Rep. No. 917, 94th Cong., 2d Sess. at 3 (1976) .............................................25 

Public Citizen, Comments on the Notice of Proposed Rulemaking on Political Committee 

Status (NPRM 2004-06), available at http://www.fec.gov/pdf/nprm/political_ 

comm_status/public_citizen_holman.pdf ...................................... 31, 38, 40-41, 46, 47 

Advisory Opinion 2006-20 (Unity 08) .............................................................................. 36-37

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INTRODUCTION 

Plaintiffs Public Citizen, Inc., ProtectOurElections.org, Craig Holman, and Kevin Zeese 

challenge the Federal Election Commission’s (“FEC” or “Commission”) dismissal of their 

administrative complaint alleging certain campaign-finance violations by Crossroads Grassroots 

Policy Strategies (“Crossroads”). Plaintiffs alleged that Crossroads violated the Federal Election 

Campaign Act (“FECA” or “Act”) by spending substantial sums of money on advertising 

referencing federal candidates and legislative issues without registering with the Commission as 

a “political committee” and complying with the disclosure requirements that apply to such 

groups. In December 2013, the Commission voted on whether to find “reason to believe” that 

Crossroads had violated FECA and pursue an investigation. The Commission did not approve 

pursuing the matter further, and so voted to close its file, thereby dismissing plaintiffs’ 

administrative complaint. 

Plaintiffs disagree with the Commission’s dismissal of their administrative complaint but 

they cannot meet their heavy burden of demonstrating that the dismissal was arbitrary, 

capricious, an abuse of the agency’s broad discretion, or otherwise contrary to law. Instead, 

plaintiffs seek to escape the well-established standard of review by urging the Court to disregard 

binding precedent in favor of a results-oriented analysis that plaintiffs claim is necessary to 

protect the government’s interest in disclosure. But the undisputed importance of the 

government’s disclosure interest is irrelevant here. The value of the information Crossroads 

would have to disclose were it found to be a political committee does not bear on whether

Crossroads is a political committee in the first place. Plaintiffs’ disclosure argument wholly begs 

the question. 

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The sole issue in this case is whether the Commission’s analysis of Crossroads’s 

political-committee status and concomitant dismissal of plaintiffs’ administrative complaint was 

contrary to law. It clearly was not. The decision of the three Commissioners who voted not to 

proceed, which they thoroughly explained in a statement of their reasons, was grounded in the 

administrative record, reflects a reasonable application of the FEC’s repeatedly upheld case-bycase method for determining political-committee status using the Supreme Court’s “major 

purpose” test, and accords with other courts’ applications of that test. It is also consistent with 

courts’ repeated admonitions to interpret the Act with sensitivity to the First Amendment area in 

which the Commission regulates. The decision easily satisfies the low threshold that requires 

this Court to affirm the Commission’s dismissal. The Court accordingly should deny plaintiffs’ 

motion for summary judgment and grant the Commission’s cross-motion. 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

A. The FEC and FECA’s Administrative Enforcement Process 

1. The Commission 

The FEC is a six-member, independent agency vested with statutory authority over the 

administration, interpretation, and civil enforcement of FECA and other federal campaignfinance statutes. Congress authorized the Commission to “formulate policy” with respect to 

FECA, 52 U.S.C. § 30106(b)(1) (formerly 2 U.S.C. § 437c(b)(1)),1

 “to make, amend, and repeal 

such rules . . . as are necessary to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 

30111(a)(8) (§§ 437d(a)(8), 438(a)(8)), and to investigate possible violations of the Act, id. 

 

1

 Effective September 1, 2014, the provisions of FECA that were codified in Title 2 of the 

United States Code were recodified in a new title, Title 52. See Editorial Reclassification Table, 

http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.html. To avoid 

confusion, this submission will indicate in parentheses the former Title 2 citations.

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§§ 30109(a)(1)-(2) (§§ 437g(a)(1)-(2)). The Commission has exclusive jurisdiction to initiate 

civil enforcement actions for violations of FECA in the United States district courts. Id.

§§ 30106(b)(1), 30109(a)(6) (§§ 437c(b)(1), 437g(a)(6)). 

2. FECA’s Administrative Enforcement Process and Judicial-Review 

Standard 

FECA permits any person to file an administrative complaint with the Commission 

alleging a violation of the Act. Id. § 30109(a)(1) (§ 437g(a)(1)); see also 11 C.F.R. § 111.4. 

After reviewing the complaint and any response filed by the respondent, the Commission 

considers the complaint to determine whether it provides “reason to believe” that FECA has been 

violated. 52 U.S.C. § 30109(a)(2) (2 U.S.C. § 437g(a)(2)). Any administrative investigation 

under this provision is confidential until the administrative process is complete. Id.

§ 30109(a)(12) (§ 437g(a)(12)). If at least four of the FEC’s six Commissioners vote to find 

such reason to believe, the FEC may investigate the alleged violation; otherwise, the agency 

dismisses the administrative complaint. Id. §§ 30106(c), 30109(a)(2) (§§ 437c(c), 437g(a)(2)). 

If the Commission votes to proceed with an investigation, it then must determine whether 

there is “probable cause” to believe that FECA has been violated. Id. § 30109(a)(4)(A)(i) 

(§ 437g(a)(4)(A)(i)). Like a reason-to-believe determination, a determination to find probable 

cause that a violation of FECA has occurred requires an affirmative vote of at least four 

Commissioners. Id. §§ 30106(c), 30109(a)(4)(A)(i) (§§ 437c(c), 437g(a)(4)(A)(i)). If the 

Commission so votes, it is statutorily required to attempt to remedy the violation informally by 

attempting to reach a conciliation agreement with the respondent. Id. The Commission’s assent 

to a conciliation agreement requires an affirmative vote of at least four Commissioners and such 

an agreement, unless violated, operates as a bar to any further action by the Commission related 

to the violation underlying that agreement. Id. If the Commission is unable to reach a 

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conciliation agreement, FECA authorizes the agency to institute a de novo civil enforcement 

action in federal district court. Id. § 30109(a)(6)(A) (§ 437g(a)(6)(A)). The institution of a civil 

action under section 30109(a)(6)(A) (437g(a)(6)(A)) requires an affirmative vote of at least four 

Commissioners. Id. § 30106(c) (§ 437c(c)).

If, at any point in the administrative process, the Commission determines that no 

violation has occurred or decides to dismiss the administrative complaint for some other reason, 

the complainant may file suit in this District against the Commission to obtain judicial review of 

the Commission’s dismissal decision. Id. § 30109(a)(8)(A) (§ 437g(a)(8)(A)). Reviewable 

dismissal decisions include instances in which “the Commission deadlocks 3-3 and so dismisses 

a complaint.” FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 

1992) (“NRSC”) (“[A split vote] dismissal, like any other, is judicially reviewable under 

[§ 30109(a)(8) (§ 437g(a)(8))].”); Democratic Congressional Campaign Comm. v. FEC, 831 

F.2d 1131, 1133 (D.C. Cir. 1987) (“DCCC”) (same). In such split-vote cases, in order “to make 

judicial review a meaningful exercise, the three Commissioners who voted to dismiss must 

provide a statement of their reasons for so voting. Since those Commissioners constitute a 

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

reasons for acting as it did.” NRSC, 966 F.2d at 1476. 

As the D.C. Circuit has explained, judicial review in an action brought pursuant to 

section 30109(a)(8)(A) (437g(a)(8)) is “limited”: “[T]he Commission’s dismissal of a complaint 

should be reversed only if contrary to law. Thus, in resolving questions involving the FEC’s 

construction of the Act, our task is . . . [only to determine] whether the Commission’s 

construction [is] sufficiently reasonable to be accepted.” Common Cause v. FEC, 842 F.2d 436, 

448 (D.C. Cir. 1988) (quoting FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 

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39 (1981) (“DSCC”)) (citations and internal quotation marks omitted); Orloski v. FEC, 795 F.2d 

156, 161 (D.C. Cir. 1986) (explaining that FEC dismissal of an administrative complaint cannot 

be disturbed unless it was based on an “impermissible interpretation of the Act . . . [or] was 

arbitrary or capricious, or an abuse of discretion”). That limited judicial review of FEC 

dismissals applies equally to those dismissals that result from a split vote. NRSC, 966 F.2d at 

1475-76; see also infra pp. 21-26. 

B. FECA’s Registration and Reporting Requirements 

One of the ways FECA advances its important purpose of reducing corruption of the 

political process is by requiring that the financing of certain kinds of election-related 

communications be disclosed to the public. Buckley v. Valeo, 424 U.S. 1, 67 (1976) (per curiam) 

(“[D]isclosure requirements deter actual corruption and avoid the appearance of corruption by 

exposing large contributions and expenditures to the light of publicity.”). Disclosure also serves 

the “governmental interest in provid[ing] the electorate with information about the sources of 

election-related spending.” McCutcheon v. FEC, 134 S. Ct. 1434, 1459 (2014) (internal 

quotation marks omitted) (alteration in original). FECA imposes several different kinds of 

disclosure obligations that apply depending upon the nature of the organization making the 

communications and the timing, form, and content of the communications. 

1. Event-Driven Reporting Requirements 

The Act’s event-driven reporting requirements apply whenever speakers’ 

communications meet certain regulatory criteria. As relevant here, FECA requires that spending 

above certain thresholds on communications that are “independent expenditures” and 

“electioneering communications” must be disclosed. 

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An “independent expenditure” is a communication “expressly advocating the election or 

defeat of a clearly identified candidate” and that is made without coordinating with the candidate 

or a political party. 52 U.S.C. § 30101(17) (2 U.S.C. § 431(17)); 11 C.F.R. § 100.16. The term 

“independent expenditure” was not part of FECA or the 1974 amendments to the Act. In 

Buckley v. Valeo, the Supreme Court reviewed a provision in the original version of FECA 

prohibiting expenditures of more than $1,000 “relative to” a federal candidate. 424 U.S. at 39-

44. To avoid vagueness concerns, the Court construed that prohibition “to apply only to 

expenditures for communications that in express terms advocate the election or defeat of a 

clearly identified candidate for federal office” and held that these communications could not 

constitutionally be limited as the Act required. Id. at 44-45. 

After Buckley was decided, Congress embraced the Court’s “express advocacy” holding 

in its definition of a new statutory term, “independent expenditure.” Federal Election Campaign 

Act Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 479. In the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”), Congress revised the definition of “independent 

expenditure” into its current form. Pub. L. No. 107-155, § 211, 116 Stat. 81, 92-93. 

BCRA also added to FECA a new statutory term, “electioneering communications.” An 

electioneering communication is (1) a “broadcast, cable, or satellite communication” 

(2) referring to a “clearly identified” federal candidate (3) that is made within a 30- or 60-day run 

up to an election, convention, or caucus (depending upon what kind of election or other event it 

is) and (4) is “targeted to the relevant electorate.” 52 U.S.C. § 30104(f)(3) (2 U.S.C. 

§ 434(f)(3)); 11 C.F.R. § 100.29. Communications falling within the 30- or 60-day statutory 

windows may be electioneering communications without being express advocacy. McConnell v. 

FEC, 540 U.S. 93, 189 (2003) (explaining that, in comparison to Buckley’s holding concerning 

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express advocacy, electioneering communications are “not so limited”). That is, such 

communications may mention candidates without expressly advocating for their election or 

defeat. In upholding the provisions of BCRA associated with electioneering communications, 

the Supreme Court concluded that the four “components are both easily understood and 

objectively determinable.” Id. at 194. 

FECA requires that spending above certain thresholds on independent expenditures and 

electioneering communications be disclosed. Any entity that spends more than $250 to finance 

independent expenditures must file with the Commission a disclosure report that includes, inter 

alia, the date and amount of each expenditure and the identification of anyone who contributed 

more than $200 to further it. See 52 U.S.C. §§ 30104(c)(1), (2)(A), (C) (2 U.S.C. §§ 434(c)(1), 

(2)(A), (C)); 11 C.F.R. § 109.10(e). Similarly, any entity making electioneering communications 

aggregating more than $10,000 must file a report that includes, inter alia, the date and amount of 

each disbursement, the identity of all clearly-identified candidates mentioned and the elections in 

which they are running, and the name and address of each donor who gave an aggregate of 

$1,000 or more to a segregated bank account if that account was used to make the disbursements. 

52 U.S.C. §§ 30104(f)(1)-(2) (2 U.S.C. §§ 434(f)(1)-(2)); 11 C.F.R. § 104.20. If the 

disbursements were made by a corporation or labor union, the organization must identify the 

name and address of each person who contributed an aggregate of $1,000 or more over the 

course of the previous 12 to 24 months “for the purpose of furthering electioneering 

communications.” 11 C.F.R. § 104.20(c)(9). 

2. Political-Committee Status 

In addition to the foregoing reporting requirements for independent expenditures and 

electioneering communications, which apply to every person or entity upon reaching the relevant 

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spending thresholds, FECA provides that certain organizations, which qualify as “political 

committees,” are subject to additional disclosure requirements. Political committees must, inter 

alia, register with the Commission, appoint a treasurer, maintain names and addresses of 

contributors, and file periodic reports disclosing to the public most receipts of $200 or more. 52 

U.S.C. §§ 30103, 30104(a)-(b) (2 U.S.C. §§ 433, 434(a)-(b)). 

Under FECA, any “committee, club, association, or other group of persons” that receives 

more than $1,000 in “contributions” or makes more than $1,000 in “expenditures” in a calendar 

year is a “political committee.” 52 U.S.C. § 30101(4)(A) (2 U.S.C. § 431(4)(A)); 11 C.F.R. 

§ 100.5(a). The Act defines “contribution” and “expenditure” to include any payment of money 

to or by any person “for the purpose of influencing any election for Federal office.” 52 U.S.C. 

§§ 30101(8)(A)(i), (9)(A)(i) (2 U.S.C. §§ 431(8)(A)(i), (9)(A)(i)). In Buckley, however, the 

Supreme Court explained that the way FECA defined political-committee status “only in terms 

of amount of annual ‘contributions’ and ‘expenditures’” might result in an overbroad application 

by reaching “groups engaged purely in issue discussion.” 424 U.S. at 79. The Court therefore 

concluded that, in order to “fulfill the purposes of the Act,” FECA’s political-committee 

provisions “need only encompass organizations that are under the control of a candidate or the 

major purpose of which is the nomination or election of a candidate.” Id. Buckley thus 

established that an entity that is not controlled by a candidate must register as a political 

committee only if the group (1) crosses the $1,000 threshold of contributions or expenditures and 

(2) has as its “major purpose” the nomination or election of federal candidates. 

In March 2004, the Commission issued a notice of proposed rulemaking seeking 

comment on whether the FEC should, inter alia, promulgate a regulatory definition of “political 

committee” that would encompass all “527” groups — i.e., political organizations holding taxCase 1:14-cv-00148-RJL Document 33 Filed 09/10/14 Page 15 of 58
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exempt status under Section 527 of the Internal Revenue Code. Proposed Rules: Political 

Committee Status, 69 Fed. Reg. 11,736, 11,748-11,749 (Mar. 11, 2004); see 26 U.S.C. §§ 527(a), 

(e)(1). In 2004, after receiving comments — including from Public Citizen, the lead plaintiff in 

this case — and hearing testimony, the Commission issued an Explanation and Justification 

“explaining why it took no action to re-define ‘political committee.’” Shays v. FEC, 511 F. 

Supp. 2d 19, 23 (D.D.C. 2007). A court of this District rejected a challenge to the agency’s 

decision to “pursue adjudication over rulemaking” but found that the Commission should “better 

explain its decision.” Id. Accordingly, in February 2007 the Commission published in the 

Federal Register a Supplemental Explanation and Justification further explaining its decision not 

to promulgate such a regulation. Rules and Regulations: Political Committee Status, 72 Fed. 

Reg. 5595 (Feb. 7, 2007) (“Supplemental E&J”). 

The Supplemental E&J stated that, rather than adopting a new regulation, the 

Commission would instead continue its longstanding practice of determining an organization’s 

major purpose through case-by-case adjudication. See id. at 5596-97. It also explained that 

although the major-purpose requirement can be satisfied “through sufficiently extensive 

spending on Federal campaign activity,” id. at 5601 (citing FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238, 262 (1986) (“MCFL”)), a fact-specific analysis of an organization’s conduct — by 

reference to its public statements and spending on other activity — can be necessary to evaluate 

whether the organization’s major purpose is the nomination or election of federal candidates, id. 

Finally, the Supplemental E&J discussed several prior matters in which the Commission had 

examined a group’s major purpose, explaining that those decisions, taken together, “provid[ed] 

considerable guidance to all organizations” regarding the Commission’s application of the 

major-purpose test. Id. at 5595, 5605-06. 

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The Commission’s case-by-case approach to determining political-committee status has 

been upheld each of the three times it has been challenged. It was upheld by the district court in 

Shays, 511 F. Supp. 2d at 29-31. More recently, it was upheld by the United States Court of 

Appeals for the Fourth Circuit in Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544, 556 

(4th Cir. 2012) (“RTAA”), cert. denied, 133 S. Ct. 841 (2013), and by the Tenth Circuit Court of 

Appeals in Free Speech v. FEC, 720 F.3d 788, 797-98 (10th Cir. 2013), cert. denied, 134 S. Ct. 

2288 (2014). 

II. FACTUAL BACKGROUND 

A. Plaintiffs’ Administrative Complaint 

In an administrative complaint dated October 12, 2010, plaintiffs (and two other entities, 

ProsperityAgenda.us and AmericanCrossroadsWatch.org) alleged that Crossroads had violated 

FECA by “raising and spending significant amounts of money to influence the 2010 

congressional elections without (1) registering as a political committee, . . . (2) filing political 

committee disclosure reports, . . . and (3) complying with the political committee organizational 

requirements.” (AR 1-2.) Plaintiffs’ administrative complaint requested that the Commission 

find reason to believe that Crossroads had violated certain of FECA’s provisions, “conduct an 

immediate investigation under [52 U.S.C. § 30109(a)(8)(A) (2 U.S.C. § 437g(a)(2))],” and 

“determine and impose appropriate sanctions for any and all violations,” including enjoining 

Crossroads “from any and all violations in the future” and imposing “such additional remedies 

. . . necessary and proper to ensure compliance with FECA.” (AR 19-20.) 

Crossroads responded to plaintiffs’ administrative complaint in a submission to the 

Commission dated December 22, 2010. (AR 32-90.) Crossroads thereafter submitted two 

supplemental responses dated September 9, 2011 and October 10, 2011. (AR 92-176; AR 228-

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37.) On April 23, 2012, Crossroads further submitted two Form 990 annual returns it had filed 

with the IRS detailing its financial activities between June 1, 2010, and December 31, 2011. 

(AR 239-339.) On November 21, 2012, the FEC’s Office of General Counsel submitted to the 

Commission its First General Counsel’s Report and Proposed Factual and Legal Analysis 

concerning the Crossroads matter. (AR 340-93.) This staff report recommended that the 

Commission find reason to believe that Crossroads violated FECA “by failing to organize, 

register, and report as a political committee, and that the Commission authorize an 

investigation.” (AR 366.) 

B. The Commission’s Dismissal of the Administrative Complaint 

On December 3, 2013, the Commission, by a vote of 3-3, did not find reason to believe 

that Crossroads had violated FECA’s registration and reporting requirements for political 

committees. (AR 395.) Vice Chair Ravel and Commissioners Walther and Weintraub voted to 

find reason to believe and to authorize an investigation. (Id.) Chairman Goodman and 

Commissioners Hunter and Petersen voted against finding reason to believe. (Id.) The 

Commission then voted 6-0 to close the file. (Id.) 

On January 8, 2014, Chairman Goodman and Commissioners Hunter and Petersen issued 

a Statement of Reasons (“statement”) explaining their vote against finding reason to believe 

Crossroads had violated the Act. (AR 400-504.) On January 10, Vice Chair Ravel and 

Commissioners Walther and Weintraub issued a separate statement explaining their votes to 

proceed. (AR 505-09.) Because Chairman Goodman and Commissioners Hunter and Petersen 

were the Commissioners voting against a reason-to-believe finding, their “rationale necessarily 

states the agency’s reasons for acting as it did” and they accordingly constitute the “controlling 

group” of Commissioners in this case. NRSC, 966 F. 2d at 1476. 

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Chairman Goodman and Commissioners Hunter and Petersen found that Crossroads’s 

“public statements, organizational documents, and overall spending history objectively indicate 

that the organization’s major purpose has been, and continues to be, issue advocacy and 

grassroots lobbying and organizing.” (AR 400.) Their statement relied upon certain key facts 

about Crossroads that are not materially disputed. Based on those facts, which are set forth 

below, see infra pp. 12-14, the controlling group analyzed Crossroads’s central organizational 

purpose and its federal campaign spending as compared to its other spending, and concluded that 

Crossroads “was not required to register with the Commission and file reports with the 

Commission as a political committee.” (AR 427.) 

1. Crossroads 

Crossroads established itself in June 2010 as a nonprofit corporation (AR 401) and has 

applied for section 501(c)(4) status as a social welfare organization (Pls.’ Mem. of Points and 

Authorities in Supp. of Pls.’ Mot. for Summ. J. at 4 (Docket No. 23) (“Pls.’ Mem.”)). 

Crossroads’s Articles of Incorporation and Mission Statement declare its purpose to be “‘to 

further the common good . . . by engaging in research, education, and communication efforts 

regarding policy issues of national importance’” and to provide “‘a road map for action’” by 

concerned Americans. (AR 401.) In 2010 and 2011, Crossroads articulated a “‘7 in ’11’ 

National Action Plan” promoting seven policy objectives for “legislative action,” addressing 

issues like tax rates, Congressional spending, national debt, health care reform, and American 

energy. (AR 402.) Crossroads is distinct from another entity, American Crossroads, which is 

organized under section 527 of the Internal Revenue Code and files reports with the Commission 

as an independent expenditure-only political committee. (AR 403-04.) The two organizations 

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share some employees, including Steven Law, who serves as president of both. (AR 403-04; 

Pls.’ Mem. at 4.) 

Between its formation in June 2010 and December 15, 2010, Crossroads raised 

approximately $43.6 million and spent approximately $39.1 million. (AR 402; Pls.’ Mem. at 6.) 

Of that $39.1 million, Crossroads spent $15,445,049.50 on independent expenditures that 

expressly advocated the election or defeat of candidates. (AR 402; Pls.’ Mem. at 6.) During that 

period, Crossroads also spent an additional $5.4 million on ten advertisements that criticized 

certain federal candidates while advocating some of Crossroads’s stated policy goals, but that did 

not contain express advocacy (AR 415), including $1,104,783.48 that Crossroads reported to the 

Commission as electioneering communications (AR 402). (See also Pls.’ Mem. at 6, 8-10.) 

Crossroads did not disband or wind down its operations at the end of 2010. (AR 402.) 

During the first five months of 2011, Crossroads raised (approximately) an additional $5 million 

and spent $3 million — none of which it spent on independent expenditures. (AR 402; AR 240.) 

Therefore, for its first fiscal year running from its formation in June 2010 to May 31, 2011, 

Crossroads raised a total of $48,404,791 and spent $42,344,884. (AR 240.) During the 

remainder of 2011, Crossroads raised an additional $28,402,008 and spent $22,375,630 more — 

again, none of which it spent on independent expenditures. (AR 402-03 & n.10; AR 293; see 

also AR 414 & n.66 (noting that Crossroads’s reports filed with the Commission showed that its 

cumulative independent expenditures during the entire 2010-2011 election cycle totaled 

$15,445,049).) Thus, in its first two years of existence, Crossroads raised a total of $76,806,799 

and spent a total of $64,720,514. (AR 403;2

 AR 240, 293.) 

 

2

 The controlling group’s statement contains some immaterial typographical errors 

regarding these totals. The correct figures are those reflected on Crossroads’s tax returns. 

(Compare AR 403 (statement) (identifying $78,806,799 in total receipts and $62,740,514 in total 

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Crossroads’s financials can thus be summarized as follows: 

By 12/15/2010 By 5/31/2011 By 12/31/2011 

Cumulative Receipts $43.6 million $48.4 million $76.8 million 

Cumulative Expenses $39.1 million $42.3 million $64.7 million 

Cumulative Independent 

Expenditures (Express 

Advocacy) 

$15.4 million 

(39% of expenses) 

$15.4 million 

(36% of expenses) 

$15.4 million 

(24% of expenses) 

2. Crossroads’s “Major Purpose” 

There is no dispute that Crossroads “crossed the statutory threshold for political 

committee status by making over $1,000 in independent expenditures.” (AR 404-05; Pls.’ Mem. 

at 7.) For that reason, the controlling group of Commissioners’ analysis of whether Crossroads 

was a political committee focused on assessing the organization’s “major purpose.” 

To determine Crossroads’s major purpose, the controlling group relied on judicial 

decisions creating, evaluating, and applying the major-purpose test, as well as the Commission’s 

own 2007 Supplemental E&J explaining the Commission’s approach to the test. Their statement 

first discussed the major-purpose test’s origins in Buckley, noting that the test was then 

“reaffirmed” in MCFL and “reiterate[d]” in the Commission’s Supplemental E&J. (AR 405-06.) 

Additionally, the statement explained that MCFL established both (1) that an issue advocacy 

organization could engage in activities on behalf of federal candidates without becoming a 

political committee, and (2) that an organization could be classified as a political committee if its 

political spending became “‘so extensive’” that its “‘major purpose may be regarded as 

campaign activity.’” (AR 406 (quoting MCFL, 479 U.S. at 262).) 

Turning to lower courts’ applications of the major-purpose test, the controlling statement 

explained that the Fourth and Tenth Circuit Courts of Appeals have interpreted Buckley to hold 

 

spending), with AR 240, 293 (tax returns) (identifying $76,806,799 in total receipts and 

$64,720,514 in total spending).) 

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that an organization may be classified as a political committee only if it has “the” major purpose 

of electing or nominating federal candidates, as opposed to “a” major purpose, North Carolina 

Right to Life, Inc. v. Leake, 525 F.3d 274, 288-89 (4th Cir. 2008); RTAA, 681 F.3d at 556; Free 

Speech, 720 F.3d at 797. (AR 407-08.) The statement further described the Tenth Circuit’s factbased approach to the major-purpose test, which analyzes organizations’ public statements or 

comparative spending: “There are two methods to determine an organization’s ‘major purpose’: 

(1) examination of the organization’s central organizational purpose; or (2) comparison of the 

organization’s electioneering spending with overall spending to determine whether the 

preponderance of expenditures is for express advocacy or contributions to candidates,” New 

Mexico Youth Organized v. Herrera, 611 F.3d 669, 678 (10th Cir. 2010) (citing Colorado Right 

to Life Comm., Inc. v. Coffman, 498 F.3d 1127, 1152 (10th Cir. 2007)). (AR 406-07.) 

The statement also discussed the decisions of courts in this District in FEC v. Malenick, 

310 F. Supp. 2d 230 (D.D.C. 2004), and FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 

1996), explaining that these decisions shed additional light on how courts have applied the 

major-purpose test at the federal regulatory level. (AR 408-09.) 

Based upon these judicial decisions and the Commission’s Supplemental E&J, the 

statement summarized the major-purpose inquiry as follows: 

While these are not the only factors that may be considered, assessing a 

group’s central organization purpose by examining an organization’s 

public and non-public statements, like those reviewed by district courts in 

Malenick and GOPAC, and comparing a group’s spending on campaign 

activities with its spending on activities unrelated to the election or defeat 

of a specific candidate to assess whether a group’s “independent spending 

[has] become so extensive that the organization’s major purpose may be 

regarded as campaign activity,” are “important considerations when 

determining whether an organization qualifies as a PAC.” 

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(AR 408-09 (footnotes and citations omitted).) Explaining that “it would be an unusual case for 

a group whose central organization purpose is not the nomination or election of a candidate and 

whose spending is not predominantly campaign-related to otherwise meet the major purpose test 

on the basis of other factors” (AR 409), the controlling group then analyzed Crossroads’s major 

purpose in view of its (1) central organizational purpose and (2) comparative spending. 

With respect to Crossroads’s central organizational purpose, the controlling group found 

that Crossroads’s “primary political activities since its inception have been focused on advancing 

public policy objectives.” (AR 410.) Relying on GOPAC and the Supplemental E&J, the 

controlling group found that it was required to give Crossroads’s official documents “significant 

weight” and that press reports about Crossroads did not alter this conclusion. (AR 410-12.) 

Accordingly, the controlling group concluded that “nothing in Crossroads[’s] official documents 

— including its articles of incorporation, mission statement, and website — indicates that its 

central organizational purpose was the nomination or election of a federal candidate.” (AR 412.) 

Next, the Commissioners found that they must test that conclusion by “determin[ing] 

whether [the] group’s ex ante subjective determination of its major purpose is established ex post 

by its objectively verifiable statements and spending.” (AR 412.) The controlling group thus 

analyzed Crossroads’s spending in mathematical terms, dividing the organization’s relevant 

spending (the “numerator”) by the organization’s total spending during the relevant time period 

(the “denominator”) in order to determine its comparative spending percentage. (AR 412-24.) 

Because “[c]ourts . . . in political committee cases have focused on express advocacy spending” 

(AR 413 (citing Herrera, Coffman, GOPAC, and Malenick)), the controlling group found that the 

relevant portion of Crossroads’s 2010 spending was the $15.4 million it spent on independent 

expenditures (AR 413-14). The controlling group then considered the full administrative record 

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and calculated that this level of spending was 36 percent of Crossroads’s total spending during 

its first fiscal year of June 2010 through May 2011 (in which Crossroads’s total spending was 

$42.3 million) and only 25 percent of its total spending in all of 2010 and 2011 ($64.7 million). 

(AR 414-15.)3

 

The controlling group further explained that even if Crossroads’s relevant spending were 

calculated by including Crossroads’s 2010 non-express advocacy electioneering communications 

(adding $1.1 million to the numerator), Crossroads’s relevant spending would be “only 42 

percent of total spending.” (AR 424.) And it further explained that even if the rest of the $4.3 

million in non-express-advocacy issue ads that criticized federal candidates were included, 

increasing Crossroads’s relevant spending to $20.8 million, Crossroads’s relevant spending 

would still amount to less than half of its total spending during its first fiscal year ($42.3 

million), or 49 percent. (Id.) Their statement pointed out that only by using that full $20.8 

million spending amount as the numerator and by limiting the denominator to the calendar, not 

fiscal, year ($39.1 million) would Crossroads’s comparative spending appear to make up the 

majority of its expenses. (Id.) Given the controlling group’s disagreement that “such 

mathematics or methods are appropriate, let alone permitted,” it found that Crossroads “cannot 

be considered a political committee based on its spending.” (Id.) 

Finally, the controlling group noted that the Commission’s “broad discretion to dismiss 

matters” pursuant to Heckler v. Chaney, 470 U.S. 821, 831 (1985), independently warranted 

dismissal. The Commissioners explained that the broader spending analysis it declined to 

embrace had not been “properly noticed.” (AR 427 n.117.) 

 

3

 The controlling group’s calculation of 25 percent of total spending in 2010-11 was 

reached using total expenses of $62.7 million. See supra n.2. Substitution of the correct 

denominator, $64.7 million, results in a slightly lower 24 percent spending ratio. 

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ARGUMENT 

The Commission’s dismissal of plaintiffs’ administrative complaint must be sustained 

because it was clearly not contrary to law. The rationale of the three Commissioners who voted 

not to find reason to believe that Crossroads had violated FECA reflects a thorough review of the 

record before the Commission, including a careful analysis of Crossroads’s statements and a 

detailed review of its financial activities. It also accords with the courts’ instruction that FECA 

be interpreted in a manner that is sensitive to the First Amendment activity being regulated by 

the statute. Because that analysis was plainly reasonable and concerns an area in which the 

Commission’s inquiry is necessarily both flexible and required to be accorded extreme 

deference, the Court must affirm the agency’s action. 

I. STANDARD OF REVIEW 

In reviewing the agency’s decision, the Court is bound to follow the well-established 

decisions of the Supreme Court and D.C. Circuit explicitly requiring that the Commission’s 

adjudicatory dismissal decision be accorded full deference. Although plaintiffs attempt to reduce 

their heavy burden by urging the Court to apply a lesser degree of deference in this case because 

the dismissal was not the result of a majority vote of Commissioners, as well as on the ground 

that disclosure is an important interest, the Court must reject these arguments.4

 Longstanding, 

 

4

 Plaintiffs also attempt to reduce their heavy burden by arguing that the reason-to-believe 

standard is “low” or “undemanding.” (Pls.’ Mem. at 3, 24-25.) But the FEC Policy Statement 

plaintiffs rely on for that proposition does not establish that this is so. Rather, the statement 

generically explains that while the Commission will find reason to believe “in cases where the 

available evidence in the matter is at least sufficient to warrant conducting an investigation, and 

where the seriousness of the alleged violation warrants either further investigation or immediate 

conciliation,” it finds no reason to believe when the submitted materials “fail to give rise to a 

reasonable inference that a violation has occurred.” Statement of Policy Regarding Commission 

Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545, 12,546 

(Mar. 16, 2007). Here, three of the Commissioners reached the former conclusion and three 

reached the latter one. 

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settled precedent requires that the Court limit its review and accord full deference to the 

Commission’s duly articulated decision not to proceed on the administrative enforcement matter 

plaintiffs initiated against Crossroads, irrespective of how the decision was reached. 

Additionally, this is an administrative review case in which the Court acts as an appellate 

tribunal and limits its review to the administrative record. 

A. Judicial Review Under Section 30109(a)(8) (437g(a)(8)) Is “Limited” and 

“Extremely Deferential” 

Congress provided in FECA that the judicial task in section 30109(a)(8) (437g(a)(8)) 

cases like this is to determine whether the Commission’s dismissal of plaintiffs’ administrative 

complaint is “contrary to law.” 52 U.S.C. § 30109(a)(8)(C) (2 U.S.C. § 437g(a)(8)(C)). Under 

well-settled, controlling decisions construing section 30109(a)(8) (437g(a)(8)), that standard of 

review is “limited.” Common Cause, 842 F.2d at 448; Citizens for Responsibility & Ethics in 

Washington v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (“At this stage, judicial review of the 

Commission’s refusal to act on complaints is limited to correcting errors of law.” (citing 52 

U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)))). As this Court has explained, and as plaintiffs 

acknowledge (Pls.’ Mem. at 15), the Commission’s dismissal of an administrative complaint 

cannot be disturbed unless it was based on (1) an “‘impermissible interpretation of’” FECA or 

(2) “‘if the FEC’s dismissal of the complaint, under a permissible interpretation of the statute, 

was arbitrary or capricious, or an abuse of discretion.’” Akins v. FEC, 736 F. Supp. 2d 9, 16-17 

(D.D.C. 2010) (quoting Orloski, 795 F.2d at 161); see also, e.g., Common Cause v. FEC, 108 

F.3d 413, 415 (D.C. Cir. 1997) (per curiam). 

The contrary-to-law standard is “‘extremely deferential’” to the agency’s decision and 

“‘requires affirmance if a rational basis for the agency’s decision is shown.’” Akins, 736 F. 

Supp. at 17 (quoting Orloski, 795 F.2d at 167); see also Pls.’ Mem. at 15 (acknowledging that 

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“the standard of review is deferential”). As the Supreme Court explained more than three 

decades ago, in another section 30109(a)(8) (437g(a)(8)) case in which the FEC dismissed an 

administrative complaint, “the Commission is precisely the type of agency to which deference 

should presumptively be afforded.” DSCC, 454 U.S. at 37 (emphasis added). This is due to its 

“‘primary and substantial responsibility for administering and enforcing [FECA],’” its authority 

to “‘formulate general policy with respect to the administration of [the] Act,’” its “‘sole 

discretionary power’ to determine in the first instance whether or not a civil violation of the Act 

has occurred,” and its “inherently bipartisan” nature resulting from the fact that “no more than 

three of its six voting members may be of the same political party.” Id. “For these reasons” and 

others, the Court said, Congress “wisely provided” that the “dismissal of a[n administrative] 

complaint should be reversed only if ‘contrary to law.’” Id. 

In assessing whether the Commission’s decision resulted either from an impermissible 

interpretation of the Act or, even under a permissible interpretation of the statute, was arbitrary 

or capricious, or an abuse of discretion, Akins, 736 F. Supp. 2d at 16, 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,” DSCC, 454 U.S. at 39 

(internal quotation marks omitted). Indeed, “[t]o satisfy this standard it is not necessary for [the 

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

[C]ourt would have reached” on its own “if the question initially had arisen in a judicial 

proceeding.” Id. In applying this “Chevron” deference, which is “principal[ly] justifi[ed]” by 

the agency’s “practical . . . expertise,” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 

651-52 (1990), the Court must affirm the dismissal so long as the agency’s construction was 

permissible and its application of that construction not arbitrary and capricious, see Chevron 

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U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.11 (1984) (citing DSCC for 

the proposition that the “court need not conclude that the agency construction was the only one it 

permissibly could have adopted to uphold the construction, or even the reading the court would 

have reached if the question initially had arisen in a judicial proceeding”); Akins, 736 F. Supp. 2d 

at 18 (likening Chevron deference to that described in DSCC). 

B. The Court Must Accord the FEC’s Dismissal Decision Chevron Deference 

The extremely deferential standard of review that applies in this case is not altered, as 

plaintiffs’ contend (see Pls.’ Mem. at 15-18), by the nature of the dismissal, which resulted from 

a 3-3 split vote instead of a majority vote such as 6-0, 5-1, or 4-2. The D.C. Circuit has squarely 

held that it owes deference to an FEC legal interpretation supporting a decision not to proceed on 

an enforcement matter, even if it only “prevails on a 3-3 deadlock.” In re Sealed Case, 223 F.3d 

775, 779 (D.C. Cir. 2000); FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001). 

In NRSC, another matter in which the Commission split 3-3, the Court of Appeals applied 

“ordinar[y]” principles of agency deference to the rationale of dissenting Commissioners because 

“those Commissioners constitute[d] a controlling group for purposes of the decision, [and] their 

rationale necessarily state[d] the agency’s reasons for acting as it did.” 966 F.2d at 1475-76. 

Under that deferential standard of review, the Court of Appeals found that the construction of a 

disputed regulation articulated by the three “declining-to-go-ahead Commissioners,” Common 

Cause, 842 F.2d at 449, could be sustained in light of the “Commission’s precedents and 

statements,” which did not “clearly establish” what the disputed regulation meant. NRSC, 966 

F.2d at 1476-77. The Court of Appeals held that it was “enough to say” that the Commission 

had provided, through the statement of the declining Commissioners, “a reasoned justification 

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for not doing so” and found that “[i]t was error for the district court to force a different 

construction upon the Commission and the entities subject to its regulation.” Id. at 1478. 

The deference that the D.C. Circuit accorded the dissenting Commissioners in NRSC had 

its roots in two earlier FEC cases that also arose from split-vote dismissals: DCCC, 831 F.2d 

1131, and Common Cause, 842 F.2d 436.5

 In DCCC, in an opinion authored by then-Judge Ruth 

Bader Ginsburg, the D.C. Circuit had “held that, to make judicial review a meaningful exercise, 

the three Commissioners who voted to dismiss must provide a statement of their reasons for so 

voting.” NRSC, 966 F.2d at 1476 (discussing DCCC). A footnote in the DCCC opinion 

“strongly suggest[ed] that, if the meaning of the statute is not clear, a reviewing court should 

accord deference to the Commission’s rationale,” even in a situation in which the Commission 

was divided. Id. The DCCC footnote stated that “[i]n the absence of prior Commission 

precedent . . . judicial deference to the agency’s initial decision or indecision would be at its 

zenith.” DCCC, 831 F.2d at 1135 n.5 (emphasis added). 

Shortly after DCCC was decided, the D.C. Circuit “expanded it to control generally 

situations in which the Commission deadlocks and dismisses.” NRSC, 966 F.2d at 1476. In 

Common Cause, another case presenting that situation, the Court of Appeals reasoned that 

“[a]lthough the panel in DCCC limited its holding to the facts of that case, we cannot find a 

principled distinction between the situation in DCCC and the case at bar.” 842 F.2d at 449 

(internal citation omitted). With that extension of DCCC, the D.C. Circuit in NRSC accordingly 

 

5

 These two cases, like DSCC, were dismissed at the “reason to believe” stage of the 

Commission’s enforcement process. In NRSC, the court considered the Commission’s actions at 

the subsequent “probable cause” stage. Like a reason to believe finding, a probable cause 

finding requires four affirmative votes of Commissioners to proceed to the next step. See supra

p. 3. Because of the highly analogous nature of the inquiries, the D.C. Circuit and courts in this 

District have made no distinctions in reviewing FEC dismissals based upon whether they 

occurred at the reason to believe or probable cause stages. 

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determined that the “import of DCCC today is that we see no material distinction between” a 

case reviewing a deadlock dismissal “and the Supreme Court’s decision in DSCC” reviewing a 

unanimous dismissal. NRSC, 966 F.2d at 1476. “[B]oth DCCC and DSCC were on review of 

Commission decisions, with supporting rationales, to dismiss complaints.” Id.; see also Stark v. 

FEC, 683 F. Supp. 836, 840-41 (D.D.C. 1988) (“[T]his Court reads DCCC to require that the 

same deference [accorded by the Supreme Court in DSCC] be accorded the reasoning of 

‘dissenting’ Commissioners who prevent Commission action by voting to deadlock as is given 

the reasoning of the Commission when it acts affirmatively as a body to dismiss a complaint.”). 

Accordingly, the same level of deference is owed when considering dismissals resulting from 

split votes as is owed to majority or unanimous dismissals. 

More recently, the Court of Appeals has reaffirmed the deference afforded to decliningto-go-ahead Commissioners and elaborated on its bases. In In re Sealed Case, 223 F.3d 775 

(D.C. Cir. 2000), which plaintiffs do not mention, the D.C. Circuit deferred to the interpretation 

of such a controlling group with respect to whether a financial transaction involving a foreign 

national was illegal under FECA. Id. at 780 (“[W]e find the Commission’s probable cause 

determination here entitled to deference.”). That decision foreclosed the Department of Justice’s 

argument that the crime-fraud exception to privilege required the production of documents that 

could have been associated with the transaction. Id. at 779 (“This case does not fall within the 

crime-fraud exception because what [the Republican National Committee] and its officials are 

accused of is not criminal.”). Although the context of the case was different from NRSC — 

NRSC concerned an interpretation of an FEC regulation (not FECA itself) and concerned a civil 

(not criminal) matter — the Court of Appeals found these differences immaterial in deferring to 

the dissenting Commissioners’ adjudicative decision. Id. at 779-80. 

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In re Sealed Case further explains why Chevron deference is appropriate in instances in 

which the Commission deadlocks in enforcement proceedings. Based upon the structure of 

section 30109 (437g), FECA’s enforcement provision, the court explained that “the probable 

cause determination is part of a detailed statutory framework for civil enforcement and is 

analogous to a formal adjudication,” thus falling on the “Chevron side of the line.” Id. at 780; 

Nat’l Rifle Ass’n of Am., 254 F.3d at 185 (explaining that “in making probable cause 

determinations, the Commission . . . giv[es] ambiguous statutory language concrete meaning 

through case-by-case adjudication”; these were among the reasons why the court in In re Sealed 

Case determined that the FEC’s “probable cause determination and its underlying statutory 

interpretation had sufficient legal effect to warrant Chevron deference”); see also United States 

v. Mead Corp., 533 U.S. 218, 230 (2001) (“It is fair to assume generally that Congress 

contemplates administrative action with the effect of law when it provides for a relatively formal 

administrative procedure tending to foster the fairness and deliberation that should underlie a 

pronouncement of such force.”); id. at 230 n.12 (collecting instances of Chevron deference in 

adjudication cases).6

Indeed, unlike other agencies, which may issue no-action letters prepared by staff, the 

FEC’s “no-action decision here was made by the Commission itself.” In re Sealed Case, 223 

F.3d at 780; see also Nat’l Rifle Ass’n of Am., 254 F.3d at 185. By providing in FECA that it 

 

6

 Hispanic Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407 (E.D. Va. 2012), upon 

which plaintiffs rely (Pls.’ Mem. at 16-17), actually supports the Commission here. Contrary to 

plaintiffs’ notion that a dismissal of an enforcement matter establishes “no cognizable agency 

action for Chevron purposes” (Pls.’ Mem. at 16), the court explained in that case that in the 

enforcement context in which NRSC was decided, “the deadlock amounted to final agency action 

that was reviewable in federal district court.” Hispanic Leadership Fund, Inc., 897 F. Supp. 2d 

at 428. The court distinguished NRSC on this basis, explaining that the Commission’s deadlock 

in the very different context of responding to an advisory opinion request, by contrast, “did not 

result in[] reviewable agency action.” Id. That was why the Virginia district court did not defer 

to the views of the Commissioners on either side of the divide. 

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takes four Commissioner votes to proceed on an enforcement matter, but only three to dismiss, 

Congress sought to ensure that the agency would not “provide room for partisan misuse.” H.R. 

12406, H. Rep. No. 94-917, 94th Cong., 2d Sess. at 3 (1976). The legislative history concerning 

the FEC’s structure confirms that Congress designed the Commission to “initiate investigations, 

. . . and take other steps of comparable importance only upon the affirmative vote of four . . . 

members. The four-vote requirement serves to assure that enforcement actions as to which the 

Congress has no continuing voice, will be the product of a mature and considered judgment.” Id. 

The D.C. Circuit has echoed these concerns, explaining that Chevron deference to a 

Commission’s split-vote enforcement dismissal is warranted both because it is consistent with 

Congress’s design of the agency to be “statutorily balanced between the major parties” and with 

the Supreme Court’s instructions in DSCC, which were “more consonant with Chevron” 

deference (even though Chevron had not been decided yet) than with “Skidmore” deference. In 

re Sealed Case, 223 F.3d at 780-81.7

 “If courts do not accord Chevron deference to a prevailing 

decision that specific conduct is not a violation, parties may be subject to criminal penalties 

where Congress could not have intended that result.” Id. at 780 (emphasis added). Plaintiffs 

contend that deference to three Commissions here would “frustrate the purposes of the Act” 

(Pls.’ Mem. at 16), but deference to a dismissal resulting from an absence of a bipartisan 

majority furthers the Congressional intent of enforcement that is expert and bipartisan. 

 

7

 Under Skidmore v. Swift & Co., 323 U.S. 134 (1944), agency “interpretations contained 

in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of 

law” “do not warrant Chevron-style deference” and are only “‘entitled to respect.’” Nat’l Rifle 

Ass’n of Am., 254 F.3d at 184-85 (quoting Christensen v. Harris County, 529 U.S. 576, 587 

(2000)). “[T]he court grants an agency’s interpretation only as much deference as its 

persuasiveness warrants,” examining “the thoroughness evident in [the agency’s] consideration, 

the validity of its reasoning, its consistency with earlier and later pronouncements, and all those 

factors which give it power to persuade, if lacking power to control.” Brown v. United States, 

327 F.3d 1198, 1205 (D.C. Cir. 2003) (internal quotation marks omitted); Skidmore, 323 U.S. at 

139-40. 

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For these reasons, the Court must refuse plaintiffs’ request to lessen their burden by 

disregarding binding precedent and refusing to apply Chevron deference to a “prevailing 

decision” that specific conduct does not provide reason to believe that a violation of FECA has 

occurred. Plaintiffs’ request (Pls.’ Mem. at 17) that the Court apply “Skidmore” deference must 

be rejected because this Court is bound to follow the Court of Appeals’s controlling decisions in 

NRSC, In re Sealed Case, National Rifle Association, DCCC, and Common Cause, as well as the 

Supreme Court’s decision in DSCC. This Court must therefore accord Chevron deference to the 

controlling group of Commissioners in this case, just as other courts in this District have done 

when reviewing Commission dismissals resulting from split votes. See, e.g., Common Cause, 

108 F.3d at 415 (reciting the district court’s application of “Chevron deference” to the 

“‘declining-to-go-ahead’ Commissioners”); GOPAC, Inc., 917 F. Supp. at 860 (noting that the 

statutory provision entitling the FEC to DSCC deference is section 30109(a)(8) (437g(a)(8))). 

C. The Government’s Disclosure Interest Does Not Alter the Standard of 

Review 

Although plaintiffs devote substantial space to their arguments that FECA’s “political 

committee disclosure requirements . . . directly advance the compelling governmental interests in 

‘providing the electorate with information’” (Pls.’ Mem. at 21), the government’s interest in 

disclosure is neither disputed nor relevant to the level of judicial scrutiny of an agency dismissal. 

This is not a challenge to FECA’s disclosure provisions and the importance of the government’s 

disclosure interest does not change the standard of review that governs this section 30109(a)(8) 

(437g(a)(8)) case. The Court must therefore decline plaintiffs’ insistence that it “assess[] . . . the 

adequacy of the FEC’s reasons for its decision” based on “the effect” of that decision on the 

disclosure of the information plaintiffs wish to obtain. (Pls.’ Mem. 21 (emphasis added).) 

Whether the FEC’s decision was contrary to law is the only question before the Court and the 

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answer to that question is what determines whether plaintiffs or the public were potentially 

deprived of information to which they were entitled, not the other way around. Plaintiffs’ 

backwards, results-oriented approach places the cart before the horse, and must be rejected.8

D. The Court Reviews the Commission’s Dismissal Based Solely on the 

Administrative Record and As If It Were an Appellate Tribunal 

Finally, because this is an administrative review proceeding, the Court’s review is limited 

to the administrative record. See, e.g., Theodore Roosevelt Conservation P’ship v. Salazar, 616 

F.3d 497, 514 (D.C. Cir. 2010) (“The [Administrative Procedure Act] limits judicial review to 

the administrative record except when there has been a strong showing of bad faith or improper 

behavior or when the record is so bare that it prevents effective judicial review.” (internal 

quotation marks omitted)). In reviewing the Commission’s dismissal, the “district court . . . does 

not perform its normal role but instead sits as an appellate tribunal.” Palisades Gen. Hosp. Inc. 

v. Leavitt, 426 F.3d 400, 403 (D.C. Cir. 2005) (explaining further that if the court “determines 

that an agency made an error of law, the court’s inquiry is at an end: the case must be remanded 

to the agency for further action consistent with the correct legal standards” (citations and internal 

quotation marks omitted)). 

 

8

 Plaintiffs’ disclosure argument is also exaggerated. Plaintiffs complain (Pls.’ Mem. at 

18) that, absent classification as a political committee, “none of [the Act’s full] disclosure 

obligations” will apply to Crossroads. Not so. As the Seventh Circuit Court of Appeals recently 

recognized, it is clear that even groups “whose major purpose is not express advocacy — are not 

completely immune from disclosure and disclaimer rules for their occasional spending on 

express election advocacy.” Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804, 839 (7th Cir. 

2014). Plaintiffs themselves acknowledge that is the case here, asserting in their brief that even 

though Crossroads is not a political committee, it “self-reported more than $15 million in 

independent expenditures” in 2010 (Pls.’ Mem. at 27). Crossroads has also reported its 

electioneering communications. See supra p. 13. It has thus submitted reports pursuant to eventdriven disclosure requirements established by Congress. 

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II. THE FEC’S DISMISSAL WAS CLEARLY NOT CONTRARY TO LAW 

There is no dispute that Crossroads met the $1,000 statutory threshold for politicalcommittee status. Thus, the only question here is whether the controlling group of 

Commissioners reasonably concluded that Crossroads did not clear the “‘additional hurdle to 

establishing political committee status’” of having as its major purpose the nomination or 

election of federal candidates. Free Speech, 720 F.3d at 797 (quoting Supplemental E&J, 72 

Fed. Reg. at 5601). 

The controlling group reasonably concluded that Crossroads did not have that purpose. 

Their reasoning accords with the narrow construction of FECA’s political-committee definition 

that the Supreme Court and the federal courts of appeals, including the D.C. Circuit, have 

followed for nearly four decades, as well as the Commission’s own Supplemental E&J and 

historical practices. The controlling group’s approach to analyzing Crossroads’s major purpose 

— by examining its central organizational purpose and comparative spending — was squarely 

justified and reasonable. 

To determine Crossroads’s central organizational purpose, the controlling statement 

analyzed Crossroads’s public statements, evaluating these statements and other information that 

was in the record before the agency. In assessing Crossroads’s comparative spending, the 

controlling group identified what it determined to be Crossroads’s relevant federal campaign 

activity and compared it to Crossroads’s total spending. Based on this analysis, the controlling 

Commissioners reasonably determined that Crossroads’s major purpose was “issue advocacy and 

grassroots lobbying and organizing” (AR 400), and that Crossroads’s allocation of one third or 

one quarter of its total spending on federal campaign spending further showed that its major 

purpose was not the nomination or election of federal candidates. Indeed, the controlling 

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Commissioners’ nuanced analysis even reasonably justified dismissal under several more 

sweeping approaches with which they disagreed. In any event, they also concluded that these 

more sweeping approaches had not been made clear to potentially regulated individuals and 

entities and therefore warranted the exercise of the agency’s broad discretion not to prosecute, an 

independently valid reason for affirmance here. 

Because this application of the major-purpose test was consistent with FECA, multiple 

court decisions, and the Commission’s own statements and practice, it was reasonable and 

certainly not contrary to law. 

A. The Controlling Commissioners’ Approach to Determining Crossroads’s 

“Major Purpose” Was Reasonable 

1. Buckley and Its Progeny Narrowly Construed the Meaning of 

“Political Committee” 

The controlling group’s approach to the major-purpose test was based upon First 

Amendment concerns that have been expressed by various courts and commentators, including 

even lead plaintiff Public Citizen. The test itself arose out of the Supreme Court’s concern that 

FECA’s political-committee definition, if mechanically applied, might sweep too broadly. In 

Buckley, the Court feared that defining political-committee status “only in terms of amount of 

annual ‘contributions’ and ‘expenditures’ . . . could be interpreted to reach groups engaged 

purely in issue discussion.” 424 U.S. at 79 (footnote omitted). Noting that lower courts had 

construed “‘political committee’ more narrowly” in order to “avoid questions of 

unconstitutionality,” id. at 79 & n.106, the Court limited the reach of FECA’s definition of 

“political committee” to “organizations that are under the control of a candidate or the major 

purpose of which is the nomination or election of a candidate,” id. This construction was 

sufficient, the Court said, “[t]o fulfill the purposes of the Act”; the expenditures of such “major 

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purpose” groups could be “assumed to fall within the core area sought to be addressed by 

Congress,” which are, “by definition, campaign related.” Id. 

MCFL reaffirmed Buckley’s major-purpose holding. 479 U.S. at 252 n.6 (quoting 

Buckley, 424 U.S. at 79). Even though the organization at issue in the case, MCFL, occasionally 

“engage[d] in activities on behalf of political candidates,” it could not be regulated as a political 

committee because “[i]ts central organizational purpose [was] issue advocacy.” Id. Only if a 

group’s spending “become[s] so extensive that [its] major purpose may be regarded as campaign 

activity, [can it properly] . . . be classified as a political committee.” Id. at 262. Organizations 

that do have that major purpose are political committees and are subject to “extensive 

requirements,” including recordkeeping and reporting requirements. Id. at 254; Citizens United 

v. FEC, 558 U.S. 310, 337 (2010) (noting that political-committee obligations are “extensive”). 

The Supreme Court has not directly addressed the major-purpose test since its decisions 

in Buckley and MCFL.

9

 The Court of Appeals for the D.C. Circuit has likewise not refined the 

particulars of the major-purpose test, though it has followed the Supreme Court’s cautious 

approach. In FEC v. Machinists Non-Partisan Political League, the Court of Appeals explained 

that because evaluating political-committee status arises in the “delicate” First Amendment area, 

“there is no imperative” to stretch the statute or to “read into it oblique inferences of 

Congressional intent.” 655 F.2d 380, 394 (D.C. Cir. 1981). “Achieving a reasonable, 

constitutionally sound conclusion in this case requires just the opposite,” the court observed, id., 

before holding that the FEC lacked jurisdiction to regulate contributions of a group seeking to 

 

9

 Although a question about the test was raised in FEC v. Akins, 524 U.S. 11 (1998), the 

Court declined to answer it, instead permitting the Commission to address a threshold question 

about new rules defining the term “members” for purposes of a “membership organization.” Id.

at 26-29. In McConnell v. FEC, 540 U.S. 93 (2003), in the course of upholding a definition of 

“federal election activity” added to FECA by BCRA, the Court cited Buckley’s major-purpose 

discussion with approval but did not otherwise elaborate on its focus. Id. at 170 n.64. 

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“draft” Edward Kennedy as a candidate for president, id. at 390-97. The Court of Appeals’s 

approach in Machinists reflects the Supreme Court’s conclusion that political-committee status 

should be narrowly construed to avoid the constitutional problems about which “Buckley and its 

lower court predecessors” were concerned. Id. at 394; see also Unity08 v FEC, 596 F.3d 861, 

867-69 (D.C. Cir. 2010) (following Machinists). 

Consistent with the foregoing authorities, Public Citizen itself has similarly observed in 

formal comments submitted to the Commission in response to the Commission’s 2004 notice of 

proposed rulemaking, see supra pp. 8-9, that it is “essential” that the definition of political 

committee not be overextended. It explained that “a legitimate 501(c) organization should not 

have to fear that it will become a political committee simply by engaging in political issuerelated criticisms of public officials.” Public Citizen, Comments on the Notice of Proposed 

Rulemaking on Political Committee Status (NPRM 2004-06) at 10 (“Public Citizen Comments”), 

available at http://www.fec.gov/pdf/nprm/political_comm_status/public_citizen_holman.pdf 

(last visited Sept. 10, 2014). 

2. The Controlling Commissioners’ Approach to Determining PoliticalCommittee Status Was Based on Judicial Decisions and the 

Commission’s Precedents 

The controlling group’s approach not only hewed to the “reasons that the Court in 

Buckley and MFCL narrowed the statutory definition of political committee” (AR 410), but also 

followed the judicial opinions considering the test and the Commission’s case-by-case method. 

Because the Supreme Court did not “mandate a particular methodology for determining 

an organization’s major purpose,” the courts that have considered challenges to the 

Commission’s methodology have agreed with the Commission that it is “free to administer 

FECA political committee regulations either through categorical rules or through individualized 

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adjudications.” RTAA, 681 F.3d at 556; Free Speech, 720 F.3d at 797; see also Shays, 511 F. 

Supp. 2d at 30-31. “The determination of whether the election or defeat of federal candidates for 

office is the major purpose of an organization, and not simply a major purpose, is inherently a 

comparative task.” RTAA, 681 F.3d at 556; Free Speech, 720 F.3d at 797. The Fourth and Tenth 

Circuits, as well as Judge Sullivan in this District, therefore agreed that the major-purpose 

determination requires a “fact-intensive analysis,” and is “incompatible with a one-size-fits-all 

rule.” RTAA, 681 F.3d at 556-57; Free Speech, 720 F.3d at 797-98; see also Shays, 511 F. Supp. 

2d at 29-31. “The necessity of a contextual inquiry is supported by judicial decisions applying 

the major purpose test, which have used the same fact-intensive analysis that the Commission 

has adopted.” RTAA, 681 F.3d at 557 (citing Malenick, 310 F. Supp. 2d at 234-37, GOPAC, Inc., 

917 F. Supp. at 859, 864-66, and Shays, 511 F. Supp. 2d at 29-31); Free Speech, 720 F.3d at 798. 

Accordingly, as plaintiffs acknowledge, courts have “consistently . . . upheld” (Pls.’ Mem. at 23) 

the Commission’s “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; 

see also Shays, 511 F. Supp. 2d at 29-31. 

The Commission’s Supplemental E&J explains that the FEC performs the major-purpose 

analysis by consulting sources such as the group’s public statements, government filings, 

charters, and bylaws. See 72 Fed. Reg. at 5601, 5605 (describing sources). For example, “[a]n 

analysis of [an organization’s] public statements can . . . be instructive in determining an 

organization’s purpose.” 72 Fed. Reg. at 5601 (citing Malenick, 310 F. Supp. 2d at 234-36; 

GOPAC, Inc., 917 F. Supp. at 859; Advisory Opinion 2006-20 (Unity 08)); see also id. (“The 

Commission may need to examine statements by the organization that characterize its activities 

and purposes.”); id. at 5605 (noting use of “organizational planning documents”). In addition, 

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the Commission has also explained that it “may . . . need to evaluate the organization’s spending 

on Federal campaign activity, as well as any other spending by the organization.” Id. at 5601. 

Here, the controlling group’s approach was based upon these factors articulated in the 

Supplemental E&J. Their statement analyzed Crossroads’s major purpose by reviewing its 

“public and non-public statements” and by comparing its “spending on campaign activities with 

its spending on activities unrelated to the election or defeat of a specific candidate to assess 

whether” its “‘independent spending [had] become so extensive that [Crossroads’s] major 

purpose [could] be regarded as campaign activity.’” (AR 406 (quoting MCFL, 479 U.S. at 

262).).10 Thus, to the extent plaintiffs acknowledge (Pls.’ Mem. at 16 n.2) that the Commission’s 

Supplemental E&J should be accorded Chevron deference, they cannot dispute that the 

reasonable construction of that Supplemental E&J reflected in the controlling Commissioners’ 

statement should also be accorded Chevron deference, NRSC, 966 F.2d at 1476-77. 

The controlling group’s approach was also consistent with lower courts’ approaches to 

the major-purpose test, including the methods employed by the Courts of Appeals for the Tenth 

and Fourth Circuits. In the course of analyzing a state law, the Tenth Circuit held that there are 

“two methods” to determine major purpose: (1) examination of the organization’s central 

organizational purpose or (2) comparing election-related “spending with overall spending to 

determine whether the preponderance of expenditures is for express advocacy or contributions to 

candidates.” Herrera, 611 F.3d at 678. The approach taken here uses the same areas of inquiry, 

while employing an analysis that is more thorough than the alternative methods of analysis 

described in Herrera. The controlling group treated both the central organizational purpose and

 

10 The controlling group in no way purported to change the agency’s position. (Pls.’ Mem. 

at 18, 30-31 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 

(1983).) Nor could three members of the Commission do so without a fourth vote. Common 

Cause, 842 F.2d at 449 n.32. 

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spending inquiries as necessary to the major-purpose analysis (rather than the Tenth Circuit’s 

disjunctive test) and noted that the test is met “if either prong is satisfied.” (AR 407.) 

The approach used here also conforms with the Fourth Circuit’s explanation that “the 

Commission first considers a group’s political activities, such as spending on a particular 

electoral or issue-advocacy campaign, . . . and then it evaluates an organization’s ‘major 

purpose,’ as revealed by that group’s public statements, fundraising appeals, government filings, 

and organizational documents.” RTAA, 681 F.3d at 555 (citation omitted). And it is consistent 

with the way the district court in GOPAC explained that an “organization’s purpose may be 

evidenced by its public statements of its purpose or by other means, such as its expenditures in 

cash or in kind to or for the benefit of a particular candidate or candidates.” 917 F. Supp. at 859. 

Accordingly, the controlling group’s method of determining Crossroads’s politicalcommittee status by considering its organizational documents and spending was consistent with 

the FEC’s Supplemental E&J and various judicial decisions applying the major-purpose test. 

B. The Controlling Group of Commissioners’ Determination of Crossroads’s 

“Major Purpose” Was Reasonable 

In applying the major-purpose test, the controlling group of Commissioners correctly 

sought to determine Crossroads’s sole major purpose. As their statement explained (AR 407-

08), Buckley and its progeny have made clear that the question is whether Crossroads had “the

major purpose” of “the nomination or election of a candidate.” Buckley, 424 U.S. at 79 

(emphasis added). “If organizations were regulable merely for having the support or opposition 

of a candidate as ‘a major purpose,’” political-committee status could reach “organizations 

primarily engaged in speech on political issues unrelated to a particular candidate.” Leake, 525 

F.3d at 287-88; see also RTAA, 681 F.3d at 556; Free Speech, 720 F.3d at 797. The controlling 

group thus analyzed whether Crossroads’s sole major purpose was nominating or electing 

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candidates by evaluating Crossroads’s central organizational purpose as described in its public 

statements and its relevant electoral spending in comparison to its other spending. 

1. The Controlling Commissioners’ Determination That Crossroads’s 

Central Organizational Purpose Was Not the Nomination or Election 

of Candidates Was Reasonable 

The controlling group analyzed Crossroads’s central organizational purpose by analyzing 

its public statements and records. Just as the relevant portion of the Commission’s Supplemental 

E&J relied on decisions of courts in this District, Malenick and GOPAC, see 72 Fed. Reg. at 

5601, the controlling Commissioners reviewed these decisions for guidance. The controlling 

group’s statement explained that in Malenick, for example, “the court reviewed the 

organization’s announced goals, brochures, fundraising letters, and express advocacy 

communications sent to its members, all of which indicated that the major purpose of the group 

in question was the election of federal candidates.” AR 409; Malenick, 310 F. Supp. 2d at 235. 

It similarly explained that GOPAC indicated that “official statements from a group, such as a 

group’s organizing documents or statement of purpose, or other materials put forth under the 

group’s name, including fundraising documents or press releases, are the primary documents by 

which an entity’s central organizational purpose is to be determined.” AR 410; compare

GOPAC, Inc., 917 F. Supp. at 859 (“The organization’s purpose may be evidenced by its public 

statements of its purpose or by other means, such as its expenditures in cash or in kind to or for 

the benefit of a particular candidate or candidates.”), with id. at 862-67 (rejecting reliance on less 

formal evidentiary submissions such as magazine articles and “an audiotape and transcript of a 

conversation or meeting among unidentified persons”). 

As the controlling group correctly determined, Crossroads’s organizational documents do 

not indicate that its primary purpose is the election or nomination of candidates. Crossroads’s 

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Articles of Incorporation and Mission Statement declare its purpose to be “‘to further the 

common good . . . by engaging in research, education, and communication efforts regarding 

policy issues of national importance’” and to provide “‘a road map for action.’” (AR 401.) 

Crossroads’s “‘7 in ’11’ National Action Plan” promotes seven policy objectives for “legislative 

action” and likewise does not call for the election or defeat of particular candidates but focuses 

more broadly on issues (such as those reflected in Crossroads’s ads) like guaranteeing low tax 

rates that encourage American economic growth, aggressively attacking the national debt, 

reforming health care, protecting our borders, and prioritizing American energy development. 

(AR 402.) The Commissioners’ finding that Crossroads’s “organizational documents,” “mission 

statement,” and “primary political activities since its inception” were “focused on advancing 

public policy objectives” appropriately gave “due weight to the form and nature of the 

statements” in the record, Supplemental E&J, 72 Fed. Reg. at 5601, and thus was plainly 

reasonable. (AR 410.)11

Plaintiffs appear to agree that Crossroads’s official statements support its claim that it is 

not a political committee, and contend only that the controlling group’s reliance upon these “selfserving, self-generated” statements was “arbitrary and capricious and contrary to law” based 

upon an inapposite analogy to the Federal Rules of Evidence. (Pls.’ Mem. at 38, 40.) But the 

agency has often looked to self-generated statements in the past, as evidenced by Malenick and 

GOPAC. See also, e.g., Advisory Opinion 2006-20 at *4 (Unity 08) (“Unity 08’s selfproclaimed major purpose is the nomination and the election of a presidential candidate and a 

 

11 While the Commissioners’ statement also mentioned Crossroads’s “IRS tax status,” it did 

not place “great reliance” on it, as plaintiffs claim. (Pls.’ Mem. at 39.) Rather, the statement 

pointed out that tax status was “certainly relevant” although “not dispositive.” AR 411; 

Supplemental E&J, 72 Fed. Reg. at 5597 (“Neither FECA, its subsequent amendments, nor any 

judicial decision interpreting either, has substituted tax status as an acceptable proxy for this 

conduct-based determination.”). 

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vice-presidential candidate.”). These statements provide a sound basis for determining an 

organization’s objectives. 

Plaintiffs’ suggestion that the controlling group should have relied upon “spending on 

public advertising” (Pls.’ Mem. at 39 (emphasis added)) conflates the central organizational 

purpose and spending analyses and certainly does not demonstrate any error in the controlling 

group’s approach. Plaintiffs also suggest that greater weight should have been placed on “public 

statements” about that spending, but the controlling group examined such statements and found 

them insufficiently specific regarding the actual identity of the organization responsible for such 

statements as well as the specific advertising to which they referred. (AR 403-04, 411-12.) 

With respect to the analysis of Crossroads’s public statements, the controlling 

Commissioners’ statement reflects careful consideration of the record before the Commission 

and reasonably found that the evidence before the agency did not undermine those public 

statements. Based on the facts before the Commission, the statement’s conclusion that 

Crossroads was what it declared itself to be was neither unreasonable nor arbitrary, and it 

certainly was not unlawful. 

2. The Controlling Commissioners’ Assessment of Crossroads’s 

Comparative Spending Was Reasonable 

The controlling group also reviewed Crossroads’s federal campaign spending in order to 

determine whether Crossroads’s “ex post” financial activity was consistent with its “ex ante” 

stated goals. (AR 412.) The controlling group determined that the most relevant universe of 

spending for determining Crossroads’s federal campaign spending was the group’s $15.4 million 

worth of independent expenditures — i.e., express advocacy urging the election or defeat of 

clearly identified federal candidates — and compared that spending with Crossroads’s $42.3 

million total spending in its first fiscal year, running from inception in June 2010 to May 2011. 

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(AR 412-23.) The amount of Crossroads’s express advocacy spending was a little over a third of 

Crossroads’s total spending, or 36 percent. (AR 414-15.) The controlling statement explained 

that if the entire record of Crossroads’s spending during all of 2010 and 2011 were considered, 

its $15.4 million of express advocacy would constitute a quarter of its $64.7 million total outlay. 

(Id.) These considerations of Crossroads’s (1) express advocacy (numerator) and (2) the relevant 

time period (denominator) were both reasonable, as was the controlling group’s conclusion that 

express advocacy spending representing only a third or a quarter of an organization’s total 

spending was not “so extensive” as to provide reason to believe that Crossroads should have 

registered as a political committee. (AR 414-15.) 

a. Relevant Federal Campaign Spending (Numerator) 

The controlling group’s decision to limit the relevant universe of spending to 

Crossroads’s independent expenditures was reasonable and not contrary to law. As a general 

matter and as explained above, narrowly construing which groups may be subject to regulation 

as political committees under FECA is consistent with the Supreme Court’s decisions in Buckley

and MCFL, the Court of Appeals’s decision in Machinists, and even with plaintiffs’ own 

previous comments on the question. See supra pp. 29-31. Indeed, Public Citizen has warned 

that the major purpose standard must not be “circumvented” by sweeping in organizations 

whenever they “spend[] a certain amount of money . . . on communications that ‘attack’ or 

‘support’ a candidate.” Public Citizen Comments at 10. Were it otherwise, “precisely what the 

Buckley Court feared will have come to pass: An organization may become subject to regulation 

as a ‘political committee’ simply by engaging in political issue-related criticisms of public 

officials, and communications that would not otherwise have qualified as covered expenditures 

will become covered by a process of bootstrapping.” Id. (emphasis added). 

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Likewise, the controlling group’s inclusion only of Crossroads’s express advocacy 

spending (and exclusion of activities that were not express advocacy, except perhaps their 

functional equivalent (AR 414-16)), was a reasonable application of the Supreme Court’s 

mandate that political-committee status be construed narrowly to avoid overbreadth concerns. 

Buckley pointed out in the separate context of expenditures made by “an individual other than a 

candidate or a group other than a ‘political committee’” the necessity of construing 

“expenditure” narrowly in order to ensure that such “spending . . . is unambiguously related to 

the campaign of a particular federal candidate.” 424 U.S. at 79-80. The controlling 

Commissioners reasonably determined that “[alt]hough Buckley did not construe ‘expenditure’ to 

mean ‘express advocacy’ with respect to groups that are already political committees, it does not 

follow that the ‘express advocacy’ construction is not, or should not be, part of the major purpose 

test . . . in the first instance.” (AR 418.) 

Indeed, recent court decisions confirm the reasonability of just that approach. For 

example, just a few months ago, the Seventh Circuit in Wisconsin Right to Life, Inc. v. Barland

invalidated part of a state provision under which “ordinary citizens, grass-roots issue-advocacy 

groups, and § 501(c)(4) social-welfare organizations” were required to report as political 

committees if they exceeded a $300 threshold in “communicat[ing] their views about any 

political issue close to an election and include[d] the name or likeness of a candidate in a way 

that could be construed by state regulators as a reference to the candidate’s qualifications or as 

‘support’ or ‘condemnation’ of the candidate’s record or positions.” 751 F.3d 804, 838 (7th Cir. 

2014). The Seventh Circuit held that this more expansive portion of the provision was 

“unconstitutional and must be enjoined,” leaving behind in its place a narrower statutory analysis 

“basically track[ing] the boundaries for express advocacy and its functional equivalent.” Id. The 

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court reasoned that imposing political-committee registration and reporting requirements on 

“groups that engage in express election advocacy as their major purpose . . . is a relevantly 

correlated and reasonably tailored means of achieving the public’s informational interest,” but it 

rejected the imposition of such requirements “on issue-advocacy groups that only occasionally 

engage in express advocacy.” Id. at 841. 

In Herrera, the Tenth Circuit reached a similar conclusion. In analyzing the spending of 

two groups, the court found no indication” that either spent “a preponderance of its expenditures 

on express advocacy or contributions to candidates.” 611 F.3d at 678 (emphasis added). 

Likewise, in GOPAC, Judge Oberdorfer concluded that the organization was not a 

political committee, in part by dismissing the relevance of a letter which, though mentioning the 

name of a federal candidate, “[did] not advocate his election or defeat, nor was . . . directed at 

[his] constituents.” 917 F. Supp. at 863; accord Malenick, 310 F. Supp. 2d at 235 (considering 

communications “advocat[ing] for the election of specific federal candidates” in determining 

group’s major purpose). 

Plaintiffs prefer a broader application of the major-purpose test that would include as 

relevant federal campaign activity spending on non-express-advocacy communications. (Pls.’ 

Mem. at 33-37.) While the controlling group considered a major-purpose analysis that included 

such spending, such as the $5.4 million Crossroads spent on non-express-advocacy 

communications relating to its identified policy concerns, it ultimately decided that including 

such spending would be “problematic.” (AR 415.) The inclusion of this spending, their 

statement explained, would “undermine the function of the major purpose limitation” by 

potentially regulating issue advocacy organizations as political committees. (Id.) Public Citizen 

has expressed similar concerns. Public Citizen Comments at 10 (stating that an organization 

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should not “become subject to regulation as ‘political committee’ simply by engaging in political 

issue-related criticisms of public officials”). The statement also reflected the Commissioners’ 

concerns that the broader approach plaintiffs urge would “count spending wholly outside of the 

Commission’s regulatory jurisdiction for the explicit purpose of asserting that very regulatory 

jurisdiction.” (AR 415.) On this point, the statement explained that in FEC v. Wisconsin Right 

to Life, Inc., 551 U.S. 449 (2007), the Supreme Court explained that “merely mentioning a 

Federal candidate in a critical communication does not necessarily make that communication 

electoral in nature.” (AR 417.) Although the line between campaign advocacy and issue 

advocacy can “‘dissolve in practical application,’” there is a difference between them, and the 

Court has “recognized that the interests held to justify the regulation of campaign speech and its 

‘functional equivalent’ ‘might not apply’ to the regulation of issue advocacy.” Wisconsin Right 

to Life, Inc., 551 U.S. at 456-57 (quoting Buckley, 424 U.S. at 42 and McConnell, 540 U.S. at 

206 & n.88). 

Plaintiffs fail to identify a single court decision requiring that the Commission include 

non-express-advocacy spending in performing its major-purpose analysis. Plaintiffs observe 

(Pls.’ Mem. at 36) that the Fourth Circuit in Leake described the major-purpose test by reference 

to an organization’s “support[] or opposi[tion]” to a candidate, but the context of this passage 

makes clear that the Fourth Circuit was not seeking to expand the scope of the major-purpose 

inquiry. 525 F.3d at 288. In fact, the court’s point was just the opposite, explaining that 

Buckley’s phrasing of “the” major purpose (rather than “a” major purpose) indicated that “[t]he 

Supreme Court has thus not relaxed the requirement that an organization have ‘the major 

purpose’ of supporting or opposing a candidate to be considered a political committee.” Id. 

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(emphasis added); compare Buckley, 424 U.S. at 79 (setting forth the major-purpose inquiry in 

reference to the “nomination or election” of a candidate).12 

Plaintiffs also contend that the FEC has a “well-established” policy for considering 

“federal campaign activity” as part of the major purpose analysis. (Pls.’ Mem. at 37 (referencing 

the Supplemental E&J).) Although the Commission used that construction in the Supplemental 

E&J, plaintiffs fail to establish that the agency has been clear on whether communications 

beyond those that are express advocacy or its functional equivalent are included under that 

standard. There was no “clearly establish[ed]” Commission determination on that issue, and the 

controlling group’s expertise is accordingly entitled to deference in its interpretation. NRSC, 966 

F.2d at 1476-77. Moreover, even if the agency had provided consistent guidance on the 

question, the controlling group’s reliance on intervening appellate court decisions provides an 

eminently reasonable basis for its decision. (AR 416-17.) 

The controlling group’s analysis of Crossroads’s relevant spending was reasonable and 

not contrary to law. 

b. Time Period (Denominator) 

The controlling group’s determination of the appropriate time period in which to consider 

Crossroads’s spending was also reasonable. No particular time period analysis is required by 

 

12 Plaintiffs also embrace the analysis and recommendations of the Commission’s Office of 

General Counsel. (Pls.’ Mem. at 26-27.) But an agency generally has no obligation to accept its 

staff’s views or recommendations, and the D.C. Circuit has specifically minimized the 

importance of staff views in the course of reviewing agency decisions. See, e.g., Chelsea 

Industries, Inc. v. NLRB, 285 F.3d 1073, 1077 (D.C. Cir. 2002) (rejecting the “rather silly 

suggestion” that an agency’s decision was unreasonable due to conflict with a memorandum 

containing “General Counsel’s understanding of the case law before the present decision”). 

Thus, courts reviewing Commission action that was contrary to recommendations of its staff 

have done little more than note that background fact. See, e.g., In re Sealed Case, 223 F.3d at 

781 (noting General Counsel’s position but analyzing Commission’s decision); Akins, 736 F. 

Supp. 2d at 24 (granting summary judgment to Commission despite General Counsel’s 

recommendation to find reason to believe that a violation occurred). 

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FECA or any judicial decision. It therefore fell within the Commission’s considerable discretion 

to determine what appropriate time period to analyze in this case. 

As a threshold matter, plaintiffs are incorrect in contending that “the controlling 

Commissioners took the view that the determination whether Crossroads [] had a major purpose 

of influencing elections must be based on a consideration of its activities in the course of its own 

fiscal year rather than during a calendar year.” (Pls.’ Mem. at 28 (emphasis added); id. at 12.) 

What the controlling Commissioners actually found was that “[l]imiting ourselves to short time 

periods or time periods other than those utilized by the group in question provides an incomplete 

and distorted picture of the group’s major purpose.” (AR 419-20.) They expressly noted that 

they did “not believe that fiscal year is the required time frame in all analyses any more than 

[they] believe calendar year is.” (AR 423 n.101 (emphasis added).) 

In light of this more nuanced position, the controlling group analyzed Crossroads’s 

spending several different ways, including by reference to (a) its fiscal year, (b) all of its 

activities in calendar years 2010 and 2011 (constituting the complete record before the 

Commission), and (c) even limited to Crossroads’s spending in calendar year 2010. AR 423-24; 

see also infra pp. 46-47. Their deliberately flexible approach is consistent with the Supplemental 

E&J. 72 Fed. Reg. at 5602 (“[A]ny list of factors developed by the Commission would not likely 

be exhaustive . . . , as evidenced by the multitude of fact patterns at issue in the Commission’s 

enforcement matters considering the political committee status of various entities.”). 

Plaintiffs contend (Pls.’ Mem. at 28) that the text of FECA requires that an organization’s 

major purpose be determined based on its “actions during a calendar year,” but that argument is 

misconceived. While it is true that FECA’s political committee definition uses a “calendar year” 

for determining whether an organization has received contributions or made expenditures 

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exceeding $1,000, 52 U.S.C. § 30101(4)(A) (2 U.S.C. § 431(4)(A)), 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). Contrary to plaintiffs’ argument (Pls.’ Mem. at 29-30), Congress has not expressed any 

intent, ambiguous or otherwise, regarding the relevant scope of time for determining an 

organization’s major purpose. 

Nor did Buckley limit consideration of an organization’s major purpose to the statutory 

calendar-year test for contributions and expenditures. 424 U.S. at 79. Rather, it referred to an 

organization’s major purpose without constraints, and no other judicial decisions have sought to 

focus or limit the relevant time period for determining an organization’s major purpose. 

Plaintiffs’ novel argument (Pls.’ Mem. at 29-30) that the lack of any indication by the Supreme 

Court regarding the relevant time period to be considered in determining an organization’s major 

purpose proves that a calendar year is the only relevant time period makes no sense. Moreover, 

the Commission itself, in addition to preserving its need for flexibility and applying the majorpurpose test on a case-by-case basis, has in numerous previous enforcement matters looked 

beyond a single calendar year in evaluating organizations’ major purpose. (AR 421-23 & n.101 

(collecting examples).) 

 Plaintiffs nevertheless contend (Pls.’ Mem. at 32) that allowing a fiscal year analysis 

could lead to “absurd results,” arguing that two organizations with identical spending patterns 

might be treated differently based solely on how they have organized their affairs. But the 

inflexible use of a calendar year could lead to precisely the same arbitrary treatment, including 

causing an entity to be regulated as a political committee due to the Commission ignoring 

evidence of other, non-independent expenditure activities close to the time period under 

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examination. Crossroads engaged in just such spending in early 2011. As the controlling 

statement explained using hypothetical examples (AR 420), an inflexible calendar year analysis 

has just the same tendency towards arbitrary results as an inflexible fiscal year one, except that at 

least in the case of a fiscal year analysis, an organization’s spending will not be truncated in the 

first year of its existence (which unless the organization formed on January 1st will be a period 

of less than 12 months). Indeed, had Crossroads formed six months earlier and engaged in all 

the same activities — i.e., making expenditures in the first five months of 2010 analogous to 

those it made in the first five months of 2011 — there would be no difference between a calendar 

year analysis and a fiscal year one.13 While that is not to say that the Commission should 

invariably treat the moment of an organization’s formation during an election cycle as mere 

happenstance (in some cases, an organization’s formation and cessation are indicative of its 

purpose (see AR 420-21 & n.89)), here there is nothing suspicious about the timing of 

Crossroads’s formation, in part because it has continued to operate well past the 2010 election 

cycle upon which plaintiffs exclusively focus. 

Because neither FECA, nor Commission regulations, nor any court decision requires the 

Commission to determine a group’s major purpose by reference to any particular time period, it 

cannot have been arbitrary for the controlling group to have considered Crossroads’s spending in 

relation to its fiscal year. Practically speaking, one advantage of using a fiscal year analysis is 

that it provides a view of the organization that more closely reflects how the organization sees 

itself. For example, Crossroads’s tax returns provide a readily available summary of its 

financials as they were reported to the IRS. (AR 239-339.) Naturally, these tax returns are based 

on fiscal year figures. Both for recordkeeping and budgetary reasons, an organization’s goals 

 

13 Indeed, Crossroads’s fiscal year now ends on December 31st (AR 293), so there would be 

no difference between a calendar year or fiscal year analysis for its ongoing activities. 

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and priorities are more likely to be determinable from the way it organizes its financial affairs 

over a fiscal year or series of fiscal years — including by reference to things like budgeting, 

determining priorities, establishing goals — rather than some other arbitrary period. (AR 423.) 

Plaintiffs also have no credible explanation why an entity can more readily disguise its 

spending to avoid political-committee status if the relevant time period is a fiscal year instead of 

a calendar year. While it is true that an organization can alter its fiscal year, repeated resort to 

such tactics would be transparent, making such maneuvers of limited use. And the notion that 

the FEC is required to issue a bright-line rule like the one plaintiffs suggest is contrary not only 

to judicial holdings concerning the major-purpose test, RTAA, 681 F.3d at 557; Shays, 511 F. 

Supp. 2d at 29-31; Herrera, 611 F.3d at 679 (rejecting automatic classification of organizations 

as political committees without reference to organizations’ “major purpose”), but to plaintiffs’ 

own previous statements as well, see Public Citizen Comments at 12 (arguing against using a 

“$50,000 disbursement threshold” as determinative of an organization’s major purpose). 

Thus, the controlling group’s determination that the record in each case should be used to 

analyze an organization according to its fiscal year or entire history was reasonable and not 

contrary to law. 

c. Alternative Analyses 

The controlling group not only thoroughly explained its analysis and conclusions based 

on the approach to the major-purpose test it considered to be most correct, but it further 

considered a number of alternative, broader approaches and explained that even under these 

alternatives its conclusion would not have changed. (AR 423-24.) For example, their statement 

observed that even if they were to accept that the relevant time period was the 2010 calendar 

year, Crossroads’s $15.4 million worth of independent expenditures would still only constitute 

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39 percent of its $39.1 million total spending during its first six months of existence. (AR 423.) 

The statement also explained that even if it further included Crossroads’s $1.1 million worth of 

electioneering communications, the proportion would rise to “42 percent of total spending.” (AR 

424.) And it still further calculated that even if all of the express advocacy and non-express 

advocacy spending were considered, that total spending would still make up less than half (49 

percent) of Crossroads’s total expenses during its first fiscal year. (AR 424.) As the statement 

pointed out, however, even that analysis does not require a finding that the dismissal of 

plaintiffs’ administrative complaint was contrary to law. Previous matters in which the 

Commission found reason to believe based on spending involved much higher proportions, such 

as 91 percent, 68 percent, or 50-75 percent, Supplemental E&J, 72 Fed. Reg. at 5605. (AR 424, 

416 & n.75.) 

The controlling group acknowledged that if the broadest numerator and narrowest 

denominator were considered, over their objections, Crossroads’s expenditures would barely 

exceed half of its total spending (AR 424), or 53 percent. This is the analysis that plaintiffs 

prefer. (Pls.’ Mem. at 27.) Moreover, while there is no requirement that a major purpose finding 

be premised upon clearance of a 50 percent threshold, Public Citizen itself has previously 

objected to the Commission’s use of a major-purpose analysis categorically designating an entity 

as a political committee if it spends “more than 50% of an entity’s budget . . . on activities that 

promote, support, oppose or attack federal candidates.” Public Citizen Comments at 12. 

Although Public Citizen previously contended that such automatic classification would be “far 

too sweeping and could unjustly capture legitimate advocacy organizations,” id., plaintiffs now 

request that the Court override the Commission’s exercise of discretion in order make just such a 

“sweeping” finding. 

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* * * 

The Commission’s dismissal of plaintiffs’ administrative complaint was plainly 

reasonable and not arbitrary or capricious, or an abuse of discretion. As their statement of 

reasons demonstrates, the controlling group of Commissioners thoroughly considered the record 

before the Commission and carefully analyzed Crossroads’s central organizational purpose and 

comparative spending. Their analysis was consistent not only with the Commission’s 

Supplemental E&J but also with court decisions describing and applying Buckley’s majorpurpose test. Yet the controlling group went further, explaining that even using more sweeping 

methods for determining major purpose, Crossroads would still not be a political committee. 

Neither FECA nor any court decision requires a specific method for applying Buckley’s 

mandate that political-committee status be imposed only on groups that have the major purpose 

of nominating or electing a federal candidate. The controlling group’s application of that 

requirement reflected their considerable specialized knowledge and expertise, and was clearly 

reasonable and certainly not contrary to law. This is especially so in light of the broad deference 

owed to the Commission’s enforcement decisions and the inherent flexibility necessary for 

proper political-committee-status determinations. Plaintiffs’ preference for an alternative 

method of analyzing Crossroads’s major purpose is irrelevant and does not nearly meet 

plaintiffs’ heavy burden of demonstrating that the controlling group’s analysis was unreasonable. 

Indeed, even if this Court would have employed a different analysis or reached a different 

conclusion, that would not render the Commissioners’ decision unreasonable or impermissible. 

DSCC, 454 U.S. at 39. Their rationale thus easily satisfies the Court’s reasonableness review. 

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C. The Dismissal Was Not Contrary to Law For the Separate Reason that It 

Was a Reasonable Exercise of the Commission’s Prosecutorial Discretion 

Finally, the dismissal is independently justified by the Commission’s broad prosecutorial 

discretion. AR 427 n.117; see Akins, 524 U.S. at 25 (acknowledging that agencies like the FEC 

“often have discretion about whether or not to take a particular action” and commenting that the 

FEC’s “prosecutorial discretion” might have allowed it not to take the enforcement action 

requested in that case, even if it “agreed with [complainants’] view of the law”). 

As courts have explained, the Commission “clearly has a broad grant of discretionary 

power in determining whether to investigate a claim.” Common Cause v. FEC, 655 F. Supp. 

619, 623 (D.D.C. 1986), rev’d on other grounds, 842 F.2d 436 (D.C. Cir. 1988); see also DCCC, 

831 F.2d at 1133-34 (discussing the Commission’s prosecutorial discretion). In Orloski, the 

D.C. Circuit concluded that the Commission is entitled to decide not even to begin an 

investigation based on a “subjective evaluation of claims.” 795 F.2d at 168. “It is not for the 

judiciary to ride roughshod over agency procedures or sit as a board of superintendance [sic] 

directing where limited agency resources will be devoted. [Courts] are not here to run the 

agencies.” FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986); see also La Botz v. FEC, ___ F. 

Supp. 2d ___, 2014 WL 3686764, at *7-9 (D.D.C. July 25, 2014) (sustaining the Commission’s 

decision not to prosecute based upon its “considerable” discretion); Stark, 683 F. Supp. at 840 

(“[I]t is . . . surely committed to the Commission’s discretion to determine where and when to 

commit its investigative resources”). 

In Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court rearticulated the bases for 

an agency’s discretion not to prosecute or enforce. Id. at 831 (collecting cases). The Court 

observed that “[t]his recognition of the existence of discretion is attributable in no small part to 

the general unsuitability for judicial review of agency decisions to refuse enforcement,” setting 

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forth the “many” reasons for “this general unsuitability” and noting that “an agency decision not 

to enforce often involves a complicated balancing of a number of factors which are peculiarly 

within its expertise.” Id. The relevant balancing includes consideration not only about “whether 

a violation has occurred, but whether agency resources are best spent on this violation or another, 

whether the agency is likely to succeed if it acts, whether the particular enforcement action 

requested best fits the agency’s overall policies, and, indeed, whether the agency has enough 

resources to undertake the action at all.” Id. 

Here, the controlling group noted the agency’s prosecutorial discretion as a discrete basis 

for its decision not to prosecute. (AR 427 n.117.) It expressed concern that Crossroads could 

only be deemed a political committee if the Commission evaluated the group’s spending by 

“expand[ing] the universe of [its] communications while contracting the period of time for 

evaluating [its] spending for that analysis,” and that that way of approaching the major-purpose 

analysis had not been “properly noticed” to potentially regulated actors. (Id.) While the 

Commission’s case-by-case method of determining political-committee status necessarily 

imposes some amount of uncertainty, it was clearly reasonable for the controlling group to 

decline to pursue enforcement based on the numerator- and denominator-analysis urged by 

plaintiffs here given the lack of earlier, clear court or Commission endorsement of that approach. 

The Commission’s dismissal was thus a reasonable exercise of its broad prosecutorial discretion. 

CONCLUSION 

For the foregoing reasons, the Court should grant the Commission’s cross-motion for 

summary judgment and deny plaintiffs’ motion for summary judgment. 

 Respectfully submitted, 

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

Deputy General Counsel — Law 

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lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

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

Acting Assistant General Counsel 

echlopak@fec.gov 

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

/s/ Charles Kitcher 

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

 Attorneys 

 gmueller@fec.gov 

 ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

September 10, 2014 (202) 694-1650 

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