UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, et al,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant,

CROSSROADS GRASSROOTS POLICY 

STRATEGIES,

IntervenorDefendant.

Civil Action No. 1:14-cv-00148 (RJL)

ORAL ARGUMENT REQUESTED

MOTION FOR SUMMARY JUDGMENT

CROSSROADS GRASSROOTS POLICY STRATEGIES’ 

MOTION FOR SUMMARY JUDGMENT 

Intervenor-Defendant Crossroads Grassroots Policy Strategies (“Crossroads GPS”) crossmoves this Court for an order (1) granting its motion for summary judgment under Rule 56 of the 

Federal Rules of Civil Procedure and Local Rule 7(h) and dismissing the plaintiffs’ (collectively, 

“Public Citizen”) complaint for lack of jurisdiction with prejudice, and (2) denying plaintiffs’ 

motion for summary judgment (Dkt. No. 23). 

In support of this motion, Crossroads GPS files (1) a Memorandum of Points and 

Authorities in Support of Its Cross-Motion for Summary Judgment and in Opposition to 

Plaintiffs’ Motion for Summary Judgment, and (2) a Proposed Order. Crossroads GPS requests 

oral argument on this motion. 

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 1 of 64
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Respectfully submitted,

Thomas J. Josefiak

J. Michael Bayes (D.C. Bar No. 501845)

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel.: 540.341.8808

Fax: 540.341.8809

February 8, 2016

/s/ Thomas W. Kirby

Michael E. Toner (D.C. Bar No: 439707)

Thomas W. Kirby (D.C. Bar No. 915231)

Stephen J. Kenny (D.C. Bar No. 1027711)

WILEY REIN LLP

1776 K Street NW

Washington, DC 20006

Tel.: 202.719.7000

Fax: 202.719.7049

Counsel for Crossroads Grassroots Policy 

Strategies

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 2 of 64
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, et al,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant,

CROSSROADS GRASSROOTS POLICY 

STRATEGIES,

IntervenorDefendant.

Civil Action No. 1:14-cv-00148 (RJL)

MEMORANDUM OF POINTS AND 

AUTHORITIES

CROSSROADS GRASSROOTS POLICY STRATEGIES’ MEMORANDUM OF POINTS 

AND AUTHORITIES (1) IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY 

JUDGMENT AND (2) IN OPPOSITION TO PLAINTIFFS’ MOTION 

FOR SUMMARY JUDGMENT 

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 3 of 64
TABLE OF CONTENTS

Page

-iINTRODUCTION ...........................................................................................................................1

STATEMENT OF THE CASE........................................................................................................4

A. Statutory and Regulatory Background.....................................................................4

B. Public Citizen’s Administrative Complaint.............................................................8

C. The Commission’s Decision..................................................................................11

ARGUMENT.................................................................................................................................15

I. The FEC Dismissal Easily Survives Review.....................................................................15

A. Courts in this Circuit Review the Interpretations of Controlling FEC 

Commissioners Under Chevron.............................................................................15

B. The Commission’s Dismissal of Public Citizen’s Complaint Was Reasonably 

Explained and Followed from a Permissible Interpretation of the Law. ...............18

1. The Commission acted reasonably in identifying Crossroads GPS’s 

electoral and non-electoral spending. ........................................................19

a. The Commission reasonably measured Crossroads GPS’s “major 

purpose” based on the organization’s broader pattern of spending 

rather than based solely on a calendar-year metric..............................19

b. In determining whether Crossroads GPS’s major purpose is electoral, 

the Commission reasonably declined to factor in speech that Congress 

has not regulated as electoral advocacy. ..............................................26

2. The Commission reasonably weighed the evidence in finding no reason to 

believe that Crossroads GPS’s “central organizational purpose” was 

electoral......................................................................................................40

3. Public Citizen’s residual arguments lack merit. ........................................41

II. Because the Statute of Limitations Has Expired on the Charges Against Crossroads GPS, 

Public Citizen Cannot Show Its Claimed Injury is Substantially Likely to be Redressed 

by the Relief It Seeks, So this Case Must be Dismissed For Lack of Standing.................43

A. Plaintiff Public Citizen bears the continuing burden of showing that success in

this action is significantly likely to redress its claimed injury...............................44

B. The statute of limitations on Public Citizen’s FEC complaint has expired. ..........46

C. There is no substantial likelihood the relief Public Citizen seeks here would cause 

the FEC to pursue this case....................................................................................47

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

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TABLE OF AUTHORITIES

Page(s)

-iiCases

3M Co. v. Browner,

17 F.3d 1453 (D.C. Cir. 1994).................................................................................................49

Adirondack Medical Center v. Sebelius,

740 F.3d 692 (D.C. Cir. 2014).................................................................................................21

AFL-CIO v. FEC,

333 F.3d 168 (D.C. Cir. 2003).................................................................................................32

Agape Church, Inc. v. FCC,

738 F.3d 397 (D.C. Cir. 2013)...........................................................................................20, 26

Akins v. FEC,

66 F.3d 348 (D.C. Cir. 1995)...................................................................................................38

Akins v. FEC,

736 F. Supp. 2d 9 (D.D.C. 2010).......................................................................................29, 46

Al-Zahrani v. Rumsfeld,

684 F. Supp. 2d 103 (D.D.C. 2010).........................................................................................15

American Tunaboat Association v. Brown,

67 F.3d 1404 (9th Cir. 1995) ...................................................................................................21

Bismullah v. Gates,

551 F.3d 1068 (D.C. Cir. 2009)...............................................................................................46

*Buckley v. Valeo,

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

Cassell v. FCC,

154 F.3d 478 (D.C. Cir. 1998).................................................................................................28

Center for Individual Freedom v. Madigan,

697 F.3d 464 (7th Cir. 2012) ...................................................................................................34

Center for Individual Freedom v. Van Hollen,

694 F.3d 108 (D.C. Cir. 2012) (per curiam)............................................................................21

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

467 U.S. 837 (1984).........................................................................................15, 20, 21, 22, 27

Christensen v. Harris County,

529 U.S. 576 (2000).................................................................................................................17

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 5 of 64
TABLE OF AUTHORITIES

(Continued)

Page(s)

-iiiChristopher v. SmithKline Beecham Corp.,

132 S. Ct. 2156 (2012).............................................................................................................25

Citizens for Percy v. FEC,

No. 84-2653, 1984 WL 6601 (D.D.C. Nov. 19, 1984)............................................................47

Citizens United v. FEC,

558 U.S. 310 (2010).........................................................................................................5, 6, 36

City of Arlington, Texas v. FCC,

133 S. Ct. 1863 (2013).............................................................................................................18

Cope v. Anderson,

331 U.S. 461, 464 (1947) ........................................................................................................48

Davis v. FEC,

554 U.S. 724 (2008)...................................................................................................................7

Democratic Congressional Campaign Commiteee v. FEC,

831 F.2d 1131 (D.C. Cir. 1987).........................................................................................15, 39

Dickinson v. Zurko,

527 U.S. 150 (1999).................................................................................................................41

Democratic Senatorial Campaign Committee v. FEC,

No. 95-0349, 1996 WL 34301203 (D.D.C. Apr. 17, 1996).....................................................47

FCC v. Fox Television Stations, Inc.,

132 S. Ct. 2307 (2012).................................................................................................25, 26, 32

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009).................................................................................................................37

FEC v. Akins,

524 U.S. 11 (1998)........................................................................................................... passim

FEC v. Christian Coalition,

965 F.Supp. 66 (D.D.C. 1997).................................................................................................49

FEC v. GOPAC, Inc.,

917 F. Supp. 851 (D.D.C. 1996)..................................................................................22, 39, 40

FEC v. Malenick,

310 F. Supp. 2d 230 (D.D.C. 2004)...................................................................................22, 40

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 6 of 64
TABLE OF AUTHORITIES

(Continued)

Page(s)

-ivFEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986)...................................................................................................................5

FEC v. National Republican Senatorial Committee,

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

FEC v. National Republican Senatorial Committee,

877 F. Supp. 15 (D.D.C. 1995)..........................................................................................46, 47

FEC v. National Rifle Ass’n of America,

254 F.3d 173 (D.C. Cir. 2001).................................................................................................18

FEC v. National Right To Work Committee, Inc.,

916 F. Supp. 10 (D.D.C. 1996)..........................................................................................47, 49

*FEC v. Williams,

104 F.3d 237 (9th Cir. 1996) .......................................................................................47, 48, 49

FEC v. Wisconsin Right to Life, Inc.,

551 U.S. 449 (2007).................................................................................................................11

Florida Gas Transmission Co. v. FERC,

604 F.3d 636 (D.C. Cir. 2010).................................................................................................41

Gabelli v. SEC,

133 S. Ct. 1216 (2013).............................................................................................................49

Graff v. FBI,

822 F. Supp. 2d 23 (D.D.C. 2011)...........................................................................................39

Grocery Manufacturers Ass’n v. E.P.A.,

693 F.3d 169 (D.C. Cir. 2012).................................................................................................17

Heckler v. Chaney, 

470 U.S. 821 (1985).................................................................................................................49

Independent Petroleum Ass’n v. Babbitt,

235 F.3d 588 (D.C. Cir. 2001).................................................................................................46

Iowa Right to Life Commission, Inc. v. Tooker,

717 F.3d 576 (8th Cir. 2013) ...................................................................................................36

LaRouche’s Committee for a New Bretton Woods v. FEC,

439 F.3d 733 (D.C. Cir. 2006).................................................................................................40

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 7 of 64
TABLE OF AUTHORITIES

(Continued)

Page(s)

-vLujan v. Defenders of Wildlife,

504 U.S. 555 (1992).....................................................................................................44, 45, 46

McConnell v. FEC,

540 U.S. 93 (2003).................................................................................................29, 33, 34, 39

McCutcheon v. FEC,

134 S. Ct. 1434 (2014)...............................................................................................................7

Minnesota Citizens Concerned for Life, Inc. v. Swanson,

692 F.3d 864 (8th Cir. 2012) ...................................................................................................37

Nader v. FEC,

823 F. Supp. 2d 53 (D.D.C. 2011)...........................................................................................27

National Institute of Military Justice v. United States Department of Defense,

512 F.3d 677 (D.C. Cir. 2008).................................................................................................17

National Shooting Sports Foundation, Inc. v. Jones,

716 F.3d 200 (D.C. Cir. 2013)...........................................................................................28, 37

New Mexico Youth Organized v. Herrera,

611 F.3d 669 (10th Cir. 2010) .................................................................................................32

Orloski v. FEC,

795 F.2d 156 (D.C. Cir. 1986).....................................................................................18, 28, 32

Plunkett v. Castro,

67 F. Supp. 3d 1 (D.D.C. 2014)...............................................................................................32

Real Truth About Abortion, Inc. v. FEC,

681 F.3d 544 (4th Cir. 2012) .....................................................................................1, 7, 22, 32

*In re Sealed Case,

223 F.3d 775 (D.C. Cir. 2000)...............................................................................15, 16, 17, 18

Skidmore v. Swift & Co.,

323 U.S. 134 (1944).................................................................................................................15

Spectrum Five LLC v. FCC,

758 F.3d 254 (D.C. Cir. 2014).................................................................................................44

SpeechNow.org v. FEC,

599 F.3d 686 (D.C. Cir. 2010)...................................................................................................6

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 8 of 64
TABLE OF AUTHORITIES

(Continued)

Page(s)

-viSpencer v. Kemna,

523 U.S. 1 (1998).....................................................................................................................44

Toy v. United States,

263 F. Supp. 2d 1 (D.D.C. 2002).............................................................................................41

United States v. Banks,

115 F.3d 916 (11th Cir. 1997) ...........................................................................................48, 49

United States v. Midwest Generation, LLC,

720 F.3d 644 (7th Cir. 2013) ...................................................................................................49

United States v. Mead Corp.,

533 U.S. 218 (2001)...........................................................................................................17, 18

United States v. Williams,

553 U.S. 285 (2008).....................................................................................................25, 48, 49

United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service 

Workers International Union, AFL-CIO-CLC v. Pension Benefit Guaranty Corp.,

707 F.3d 319 (D.C. Cir. 2013).................................................................................................41

Van Hollen v. FEC,

No. 15-5016, 2016 WL 278200 (D.C. Cir. Jan. 21, 2016) ................................................28, 34

Wagner v. FEC,

793 F.3d 1 (D.C. Cir. 2015).......................................................................................................6

Webster v. Fall,

266 U.S. 507 (1925).................................................................................................................46

*Wisconsin Right to Life, Inc. v. Barland,

751 F.3d 804 (7th Cir. 2014) .............................................................................................29, 36

WorldCom, Inc. v. FCC, 

238 F.3d 449 (D.C. Cir. 2001).................................................................................................28

Statutes

2 USC § 437g.................................................................................................................................44

28 U.S.C. § 2462............................................................................................................3, 43, 46, 48

52 U.S.C. § 30101.................................................................................................................. passim

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 9 of 64
TABLE OF AUTHORITIES

(Continued)

Page(s)

-vii52 U.S.C. § 30102............................................................................................................................5

52 U.S.C. § 30103............................................................................................................................5

52 U.S.C. § 30104..............................................................................................................4, 5, 6, 36

52 U.S.C. § 30109.................................................................................................................. passim

52 U.S.C. § 30118............................................................................................................................6

52 U.S.C. § 30119............................................................................................................................6

52 U.S.C. § 30121............................................................................................................................6

Pub. L. No. 92-255, title III, § 301(d), 86 Stat. 11 (1972).............................................................21

Regulations

11 C.F.R. § 100.16...........................................................................................................................4

11 C.F.R. § 100.82...........................................................................................................................6

11 C.F.R. § 104.20...........................................................................................................................5

11 C.F.R. § 109.10...........................................................................................................................5

70 Fed. Reg. 3 (Jan. 3, 2005)...........................................................................................................5

72 Fed. Reg. 5,595 (Feb. 7, 2007) .....................................................................................14, 39, 40

72 Fed. Reg. 72,899 (Dec. 26, 2007).............................................................................................34

Administrative Materials

FEC Adv. Op. 1994-25 (Aug. 19, 1994) .......................................................................................38

FEC Adv. Op. 1995-11 (Apr. 28, 1995) ........................................................................................38

FEC Adv. Op. 1996-3 (Apr. 19, 1996) ..............................................................................22, 23, 38

FEC Adv. Op. 1996-13 (June 10, 1996)........................................................................................38

FEC Adv. Op. 2006-20 (Oct. 10, 2006) ........................................................................................40

FEC, Nonconnected Committees (May 2008) .................................................................................6

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(Continued)

Page(s)

-viiiComment of Public Citizen, Notice of Proposed Rulemaking 2004-06 (Apr. 5, 2004)..........35, 43

Conciliation Agreement, MUR 5487 (Feb. 28, 2007) ...................................................................23

Conciliation Agreement, MUR 5754 (Dec. 13, 2006)...................................................................23

Conciliation Agreement, MURs 5511 & 5525 (Dec. 13, 2006)....................................................23

Factual and Legal Analysis, MUR 5753 (Aug. 9, 2006) ..............................................................22

First General Counsel’s Report, MUR 6726 (Nov. 14, 2013).........................................................6

First General Counsel’s Report, MUR 4940 (Dec. 19, 2000) .................................................30, 31

General Counsel’s Report, X02-27 (Apr. 3, 2002)........................................................................48

General Counsel’s Report, MUR 6805 (Sept. 2, 2015).................................................................48

Recommendation to Close the File in ADR 230 (Feb. 11, 2005)..................................................48

Statement of Reasons of Commissioners Petersen and Hunter, 

MUR 5842 (June 10, 2009) .....................................................................................................22

Statement of Reasons of Commissioners Petersen, Hunter, and McGahn, 

MURs 5977 and 6005 (May 1, 2009)................................................................................38, 39

Statement of Reasons of Commissioners Mason, Smith, and Wold,

Pre-MUR 395 (Feb. 27, 2002).................................................................................................48

Litigation Materials 

FEC Brief , Akins v. FEC, 66 F.3d 348 (D.C. Cir. 1995) ..............................................................38

FEC Brief, FEC v. Akins, No. 96-1590, 1997 WL 523890 (U.S. Aug. 21, 1997)...........................7

Gov’t Brief, McConnell v. FEC, 540 U.S. 93 (2003) (02-1674).......................................33, 34, 39

Other Authorities 

Kristin E. Hickman, The Need for Mead: Rejecting Tax Exceptionalism in 

Judicial Deference, 90 Minn. L. Rev. 1537 (2006)...........................................................17, 18

Theodore J. Boutrous, Jr. & Blaine H. Evanson, The Enduring and Universal Principal of “Fair 

Notice”, 86 S. Cal. L. Rev. 193 (2013)....................................................................................25

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INTRODUCTION

As construed by the Supreme Court in 1976, the comprehensive rules and restrictions that 

govern “political committees” under the Federal Election Campaign Act of 1971, as amended 

(“FECA” or “Act”), attach only to organizations that either are under the control of a candidate 

or have as their “major purpose” the “nomination or election of a candidate.” Buckley v. Valeo, 

424 U.S. 1, 79 (1976) (per curiam). The Court imposed the major purpose standard to cure First 

Amendment overbreadth and vagueness in the Act’s definition of “political committee,” which 

literally applies to “any” group that receives contributions or makes expenditures in excess of 

$1,000 during a calendar year. See id.; 52 U.S.C. § 30101(4)(A). But Buckley “did not mandate 

a particular methodology for determining an organization’s major purpose.” Real Truth About 

Abortion, Inc. v. FEC, 681 F.3d 544, 556 (4th Cir. 2012). 

On October 13, 2010, Public Citizen complained to the Federal Election Commission 

(“FEC” or “Commission”) that Crossroads Grassroots Policy Strategies (“Crossroads GPS”) had 

become a “political committee” but had failed to make the reports and disclosures required by 

that status. Public Citizen claimed to have been injured because it desired access to information 

Crossroads GPS should have been compelled to disclose. Dissatisfied with the FEC’s dismissal 

of that complaint, Public Citizen brought suit under 52 U.S.C. § 30109(a)(8)(A), seeking the 

statutory remedy of an order declaring the dismissal contrary to law and requiring the FEC to 

conform to that declaration. It contended that such an order would dispose of the controlling 

Commissioners’ grounds for dismissal and, thus, was likely to lead to enforcement by the FEC 

that would force Crossroads GPS to make the disclosures Public Citizen seeks. See FEC v. 

Akins, 524 U.S. 11 (1998) (sustaining standing on such a theory).

In pursuit of the limited statutory remedy, Public Citizen asks this Court to untangle all 

the major-purpose test’s competing policy considerations. For reasons discussed below, this 

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roving warrant would outstrip the Court’s limited role and displace the FEC as primary decisionmaker. Public Citizen’s position rests on two errors, either of which is independently fatal to its 

case. In other words, Public Citizen can prevail only if the Court accepts both of its arguments. 

First, Public Citizen contends that FECA unambiguously bars the Commission from 

examining an entity’s overall spending to determine whether its major purpose is electoral. 

Instead, Public Citizen argues, the Commission is legally required to assess an organization’s 

spending based solely on a single-calendar-year metric. Where, as here, an organization comes 

into existence at mid-year, Public Citizen limits the analysis to the group’s few start-up months. 

Only by squinting through that “artificial and myopic lens”—the controlling FEC 

Commissioners’ words—can Public Citizen even suggest that Crossroads GPS’s major purpose 

is electoral spending. This is because the categories of spending Public Citizen attributes to 

federal elections outweighed Crossroads GPS’s other disbursements only in 2010 (more 

precisely, the last seven months of 2010). Using any other available measuring period, such as 

Crossroads GPS’s disbursements collectively during 2010 and 2011 or during its first fiscal year, 

the opposite balance is seen. Because neither FECA nor court precedent commands a narrow, 

rigid calendar-year approach to considering an organization’s major purpose, the controlling 

FEC Commissioners reasonably refused to engineer their analysis in that artificial way. 

Tellingly, Public Citizen cites no example in the Commission’s entire history in which the 

agency applied the jury-rigged standard Public Citizen advocates. And, because Crossroads 

GPS’s post-2010 spending swamps all of the spending Public Citizen seeks to count, a broader 

analytical timeframe is fatal to Public Citizen’s case.

Second, Public Citizen asserts that the Commission was required to count more types of 

spending when assessing Crossroads GPS’s major purpose. In addition to spending for express 

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advocacy and its functional equivalent, Public Citizen demands the Commission count spending 

for communications that merely “promote,” “support,” “attack,” “oppose,” “criticize,” or are 

otherwise “negative” about sitting federal officials running for reelection. But the controlling 

Commissioners reasonably limited the type of speech that is indicative of an electoral purpose to 

those communications that are necessarily electoral. The Commissioners adequately explained 

why a broader standard was unworkable and could chill political speech. There is no basis to 

second-guess this conclusion. Moreover, this approach defeats Public Citizen’s case, even if the 

Commission limited its analysis to only spending during Crossroads GPS’s first calendar year. 

In other words, Public Citizen’s theory requires minimizing the time period measured, while 

maximizing the spending that is treated as electoral.

Public Citizen also says the Commission unreasonably weighed the record evidence in 

assessing Crossroads GPS’s “central organizational purpose,” giving too much weight to 

Crossroads GPS’s self-generated documents and not enough to various (inaccurate) media 

reports. But such a weighing of evidence in the “fact-intensive inquiry” that Public Citizen calls 

for merits great deference and is hardly the type of arbitrariness the courts may condemn as 

contrary to law. AR410. 

In any event, a jurisdictional defect now requires dismissal. The jurisdictional defect 

arises because the five-year statute of limitations, 28 U.S.C. § 2462, now has run on the 

violations asserted by Public Citizen. The FEC consistently dismisses such stale complaints, and 

such a dismissal would be entirely consistent with the judicial remedy Public Citizen seeks in 

this lawsuit. Thus, Public Citizen cannot show a substantial likelihood that the judicial relief it 

seeks would redress its alleged injury, and the complaint must be dismissed.

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STATEMENT OF THE CASE

A. Statutory and Regulatory Background.

1. FECA comprehensively governs the financing of elections for federal office. The 

Act, as relevant here, regulates people and entities that raise and spend funds in connection with 

federal elections. Broadly speaking, the regulated community falls into two camps: “political 

committees” and “[e]very person (other than a political committee).” 52 U.S.C. § 30104(a), 

(c)(1); see also id. § 30101(11) (defining “person” to include individuals, corporations, “or any 

other organization or group of persons”).

a. The default rules apply to speakers that are not political committees. All persons 

are regulated by the Act if they make either “expenditures” or “electioneering 

communications”—the two types of independent electoral speech FECA regulates. An 

“expenditure” is a payment made “for the purpose of influencing any election for Federal 

office.” Id. § 30101(9)(A)(i). As refined by the Supreme Court, the term covers only speech 

that contains explicit words of express advocacy, like “vote for,” “vote against,” “elect,” or 

“defeat.” Buckley, 424 U.S. at 44 n.52, 79-80.1 “Electioneering communications” are broadcast, 

cable or satellite communications disseminated shortly before an election, that refer to a clearly 

identified federal candidate, and target the candidate’s electorate. 52 U.S.C. § 30104(f)(3)(A)(i).

When a speaker spends a threshold sum of money on either independent expenditures or 

electioneering communications, it must file a one-time disclosure report. Each event-driven 

report is tailored to the triggering communication. For example, if an entity spends more than 

$250 on an independent expenditure, it must report the amount spent and the identity of each 

 

1 The only type of expenditure that Crossroads GPS makes is an “independent expenditure,” which is an 

expenditure for a communication “expressly advocating the election or defeat of a clearly identified 

candidate . . . that is not made in cooperation, consultation, or concert with, or at the request or suggestion of, a 

candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.” 52 

U.S.C. § 30101(17); 11 C.F.R. § 100.16(a).

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 15 of 64
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person who gave the speaker more than $200 “for the purpose of furthering the reported 

independent expenditure.” 11 C.F.R. § 109.10(e)(1)(vi); 52 U.S.C. § 30104(c)(2)(C); see also 52 

U.S.C. § 30104(f)(2); 11 C.F.R. § 104.20(c) (electioneering communications). The entity does 

not need to account for and report to the FEC all its other receipts and disbursements. This 

regime, the Supreme Court has held, fully meets “[t]he state interest in disclosure” and 

“provide[s] precisely the information necessary to monitor [a speaker’s] independent spending 

activity and its receipt of contributions.” FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 

(1986). 

b. “Political committees,” by contrast, face a comprehensive disclosure regime. 

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

$1,000 in contributions or makes over $1,000 in expenditures in a calendar year is a “political 

committee.” 52 U.S.C. § 30101(4)(A). Once so designated, a group must comprehensively 

report to the FEC all of its contributions and disbursements, itemizing all donors who contribute 

in excess of $200 in a calendar year. Id. § 30104(b). 

“And that is just the beginning . . . .” Citizens United v. FEC, 558 U.S. 310, 338 (2010). 

A political committee must also appoint a treasurer, 52 U.S.C. § 30102(a), who can be held 

personally liable even if the committee is incorporated, 70 Fed. Reg. 3 (Jan. 3, 2005). It must 

forward all contributions to the treasurer within 10 or 30 days, depending on the amount. 52 

U.S.C. § 30102(b)(2). It must preserve records of receipts and disbursements for three years. Id.

§ 30102(d). It must file an organizational statement, and promptly report to the FEC any 

changes to information on that statement. Id. § 30103(a)-(c). It must file recurring disclosure 

reports—monthly, quarterly or semi-annually, pre-election, and post-election—until it is 

permitted to terminate political-committee status. Id. § 30104(a)(4). Each disclosure report must 

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 16 of 64
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account for, among other things: the total amount of receipts, itemized by ten different 

categories; any persons making loans (along with the identity of “any endorser or guarantor of 

such loan”); any persons providing rebates, refunds, dividends, or interest, or any other offset to 

operating expenditures in an aggregate amount over $200; all disbursements, itemized by 

category (there are twelve); the identity of all persons to whom loan repayments or refunds have 

been made; the total sum of all operating expenses; etcetera. Id. § 30104(b); see also Citizens 

United, 558 U.S. at 338.

Contrary to Public Citizen’s representations, e.g., Public Citizen Mot. for Summ. J. 24 

(Dkt. No. 23); Public Citizen Reply 7 (Dkt. No. 38), FECA imposes significant fundraising 

restrictions on entities classified as political committees. Political committees cannot, for 

example, accept contributions from federal-government contractors, or from congressionally 

chartered corporations, or from foreign nationals (individuals or entities). 52 U.S.C. §§ 30118(a), 

30119, 30121. Nor can they receive funds from national banks, meaning that a political 

committee seeking a bank loan must follow a set of FEC-mandated lending regulations. 11 

C.F.R. § 100.82(a)(1)-(4).2“If a loan fails to meet any of these [regulatory] conditions, then a 

prohibited contribution from the lending institution results.” FEC, Nonconnected Committees at 

20 (May 2008), http://www.fec.gov/pdf/nongui.pdf (citing 11 C.F.R. § 100.82(a)).3 All told, 

being labeled a “political committee” has profound consequences for public speakers. 

 

2 Crossroads GPS has not accepted contributions from these sources.

3 Notwithstanding the D.C. Circuit’s decision in SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en 

banc)—which struck FECA’s base contribution limits as applied to political committees making only independent 

expenditures—the FEC appears to view some or all of the restrictions listed above as still applying to independentexpenditure-only committees. See, e.g., First General Counsel’s Report at 6 n.4, MUR 6726 (Chevron Corp. et al.) 

(“[F]ederal contractors remain prohibited from making contributions to any political committee, including 

independent expenditure-only political committees.”); see also Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) 

(upholding ban on contributions from federal contractors to candidates and parties), cert. denied, No. 15-428, 84 

U.S.L.W. 3217 (U.S. Jan. 19, 2016).

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2. As the Supreme Court recognized in Buckley, these restrictions and requirements 

would be unconstitutional if the term “political committee” were read broadly. Funding 

restrictions and reporting laws must be drawn “in proportion to the interest served, . . . [and] 

employ[] . . . a means narrowly tailored to achieve the desired objective.” McCutcheon v. FEC, 

134 S. Ct. 1434, 1456-57 (2014) (citation and internal quotation marks omitted; ellipses in 

original); see also Davis v. FEC, 554 U.S. 724, 744 (2008). But imposing “political committee” 

burdens on every group that exceeds FECA’s $1,000 contribution or expenditure threshold 

would yield a means-end mismatch that would be a serious First Amendment flaw. As the FEC 

has acknowledged, to require full disclosure and political committee status from every entity that 

makes more than $1,000 in expenditures “is unnecessary to effectuate the purposes of the Act.” 

FEC Br. at 21, FEC v. Akins, No. 96-1590, 1997 WL 523890 (U.S. Aug. 21, 1997). 

To address this constitutional infirmity, the Supreme Court “construed the words 

‘political committee’ more narrowly.” Buckley, 424 U.S. at 79. “To fulfill the purposes of the 

Act,” the Court held, the term “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. 

3. The Court in Buckley “did not mandate a particular methodology for determining 

an organization’s major purpose.” Real Truth About Abortion, Inc., 681 F.3d at 556. Buckley

emphasized, however, that the required major purpose had to be so dominant that the group’s 

activities “can be assumed to fall within the core area sought to be addressed by Congress” and 

“are, by definition, campaign related.” Buckley, 424 U.S. at 79. 

In the nearly four decades since Buckley, the Commission has applied the so-called 

major-purpose test on a case-by-case basis, developing two freestanding benchmarks for 

measuring an entity’s major purpose. First, the FEC evaluates the entity’s “central 

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organizational purpose,” by reference to available statements made by the entity. Second, the 

Commission also looks to the proportion of the entity’s federal election-related spending as 

compared to its overall spending. This spending analysis is comprehensive and highly factdependent. For example, the Commission has never settled on a rigid time period for the 

analysis, instead measuring each group’s spending in a broad-based, inclusive fashion based on 

the facts of each case. Nor has the agency settled definitively on what types of spending are 

sufficiently related to the nomination or election of a candidate to count toward an entity’s major 

purpose. The lodestar remains Buckley’s requirements that a group’s major purpose be 

sufficiently clear to avoid vagueness concerns and sufficiently dominant that the group’s 

activities can be assumed to lie at the core of FECA’s domain.

B. Public Citizen’s Administrative Complaint.

1. For the past five years, Crossroads GPS has worked primarily to advance social 

welfare, including by engaging in public-policy advocacy. The organization was founded in 

June 2010, and its “7 in ‘11” National Action Plan detailed seven policy goals for the first year 

of its existence: guaranteeing low tax rates; stopping Congress’s perceived waste of taxpayer 

money; attacking the national debt; reforming health care responsibly; ending the “bailout 

culture”; advocating border protection and law enforcement; and prioritizing American energy 

development. AR402.

As the administrative record reflects, Crossroads GPS’s spending during 2010 and 2011 

furthered these objectives. Between its founding in June 2010 and December 2011—the only 

data contained in the record—Crossroads GPS collected more than $78,800,000 in donations and 

spent more than $62,700,000. Of the total spent, more than 75%—nearly $50,000,000—went to 

a combination of research on policy matters; grants to organizations that share Crossroads GPS’s 

mission; grassroots communications addressing policymaking issues, including legislation, 

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budget priorities, regulations, public hearings, and investigations; fundraising expenses; and 

management and general expenses. AR402-403. 

During that time, less than one quarter of Crossroads GPS’s disbursements paid for 

independent expenditures. AR403. All were duly disclosed to the FEC on independentexpenditure reports. Crossroads GPS continues to engage in national policy debates. AR404. 

2. In October 2010, Public Citizen filed an administrative complaint with the FEC 

against Crossroads GPS. AR1-22. Public Citizen alleged that Crossroads GPS was a political 

committee because it had “a ‘major purpose’ to influence federal candidate elections” and had 

made more than $1,000 in expenditures in 2010. AR12. 

To support its major-purpose theory, Public Citizen claimed that Crossroads GPS’s 

“express advocacy expenditures” established “Crossroads GPS’s ‘major purpose’ as influencing 

the 2010 federal election.” AR15. At the same time, though, many of the exemplar public 

communications cited in the administrative complaint addressed legislative and policy issues—

not federal elections. AR16-19. Many did not even refer to elections, either directly or 

indirectly. The administrative complaint nonetheless claimed that all these public 

communications must have been made “for the purpose of influencing” federal campaigns and 

should count toward Crossroads GPS’s major purpose. AR15. 

Public Citizen also pointed to media accounts about Crossroads GPS. According to the 

administrative complaint, these materials gave reason to believe that Crossroads GPS’s “central 

organizational purpose” was to campaign for or against federal candidates. AR13-14. 

3. In June 2011, the FEC’s Office of General Counsel submitted its “First General 

Counsel’s Report” to the full Commission, along with a Factual and Legal Analysis. AR91.1-

91.63. This report concluded that Crossroads GPS was likely a political committee, but it did not 

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explain the relevant timeframe in which the Commission should conduct a major-purpose 

analysis. After Crossroads GPS submitted a supplemental response detailing its 2011 activities, 

the Office of General Counsel stated that the supplemental response did not alter its analysis 

contained in the First General Counsel’s Report. AR425. Several months later, however, after 

discussion during the Commission’s executive session, the Office of General Counsel requested 

permission to withdraw the First General Counsel’s report. Id. 

More than a year later, in November 2012, the FEC Office of General Counsel 

substituted a second “First General Counsel’s Report.” That report recommended finding reason 

to believe that Crossroads GPS’s major purpose was the nomination or election of federal 

candidates. To reach that result, the report analyzed the organization’s spending in an 

extraordinary way. The report first adopted a narrow, rigid calendar-year metric for the majorpurpose test. Because Crossroads GPS was incorporated in June 2010, the report concentrated 

exclusively on the organization’s spending during its first six months of existence in the second 

half of 2010. In purporting to evaluate Crossroads GPS’s “overall conduct,” the report 

intentionally omitted Crossroads GPS’s spending for the rest of its fiscal year and for the 

remainder of 2011. Thus, the report ignores more than $25,000,000 of non-electoral spending in 

the months after the 2010 general election, but which was detailed in the administrative record. 

AR92-176. 

Having circumscribed the relevant timeframe, the report then artificially inflated the 

spending that would count toward Crossroads GPS’s electoral major purpose. Even squinting 

through a calendar-year lens, independent expenditures amounted to less than 40% of Crossroads 

GPS’s spending in 2010. AR414-15. So the report added an assortment of public 

communications that did not expressly advocate for or against federal candidates but, in the 

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Commission staff’s view, “criticized” or “opposed” officeholders who were up for reelection. 

AR358. All of these public communications discussed the positions of sitting legislators on 

issues of national importance and satisfied the standard for genuine issue advocacy articulated in 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). Most predated the 2010 general 

election by months and did not even identify the named officeholders as candidates. AR39-40. 

Nor did they mention elections at all, instead addressing legislative and policy questions of the 

sort identified in Crossroads GPS’s national action plan—Medicare, the national debt, and the 

Affordable Care Act. AR358-61.

Nevertheless, the FEC Office of General Counsel decided these ads must have been 

created “for the purpose of influencing . . . election[s] for Federal office.” 52 U.S.C. 

§ 30101(9)(A)(i). Factoring in their costs, the report added another $5,400,000 in spending to 

the federal-election side of the analysis. So framed, Crossroads GPS’s “federal campaign 

activity” (an undefined term), in the seven months of its existence in 2010, was said to amount to 

53% of its total spending during that limited period. AR365-66. According to the report, that 

percentage satisfied the major-purpose test. By using the shortest time period possible, and the 

broadest possible standard for measuring “electoral” spending, the FEC Office of General 

Counsel concluded there was thus “reason to believe” Crossroads GPS was a political 

committee, with all the fundraising restrictions, reporting obligations, and liabilities that attend 

that status.

C. The Commission’s Decision.

A year after receiving the second First General Counsel’s report, the Commission voted 

to dismiss the matter. AR395. Three FEC Commissioners determined that the record provided 

inadequate grounds for proceeding; the other three Commissioners would have pursued the 

matter. In keeping with Circuit precedent, the three Commissioners who voted to dismiss—the 

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“controlling” Commissioners—supplied a statement of reasons on behalf of the Commission. 

Rejecting the Office of General Counsel’s analysis, they found that the administrative complaint 

failed both the spending-based standard and the central-organizational-purpose standard of the 

major-purpose test.4

1. In evaluating Crossroads GPS’s major purpose, the controlling Commissioners 

refused to artificially limit their review to seven months of a single calendar year. Finding no 

support in FECA for that “myopic and artificial window,” AR419, the Commissioners expressed 

concern that considering only a “very brief snapshot of time”—seven months in this case—

would “provide[] an incomplete and distorted picture of [a] group’s major purpose,” AR419-20. 

“[I]f a group continues to be active past [an] election date,” that activity is, of course, “also 

evidence of its true purpose.” AR420-21. Moreover, because the Commission has “routinely 

looked at activity beyond a single calendar year” in other enforcement matters, suddenly 

adopting a “new legal norm” for penalizing past First Amendment activity would raise grave 

due-process concerns. AR421-22.

The calendar-year metric was the lynchpin of the Office of General Counsel’s major 

purpose spending analysis, the controlling Commissioners concluded. Even if the Commission 

accepted the Office of General Counsel’s broadest view of “federal campaign activity,” this 

spending would amount to only one third of Crossroads GPS’s spending when measured against 

all the spending in the administrative record (June 2010 through December 2011). Even viewed 

through a fiscal-year lens, the total still would be less than half. AR424. Only by isolating the 

seven months’ activity in 2010—and including speech outside the express advocacy standard as 

 

4 While the Office of General Counsel report referenced Crossroads GPS’s public and non-public statements, 

AR343-45, it did not determine that Crossroads GPS’s central organizational purpose was electoral or recommend 

that the Commission find reason to believe Crossroads GPS was a political committee on this ground. AR366.

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discussed, infra—could the Office of General Counsel create any “scenario where Crossroads 

GPS’s campaign spending exceeds 50 percent of its total spending.” AR423.

For good measure, the controlling Commissioners also made clear that the Office of 

General Counsel’s (and Public Citizen’s) sweeping concept of “federal campaign activity” was 

suspect as well. Along with unambiguously campaign-related speech (i.e., express advocacy), 

the Office of General Counsel included any speech that merely “praised” or “criticized” an 

officeholder running for reelection. Drawing on Buckley’s limiting principles, the controlling 

Commissioners rejected that vague and open-ended approach, reasoning that only express 

advocacy and its functional equivalent should be treated as evidence of federal electoral activity 

in an entity’s major purpose determination. That would ensure political-committee status was 

reserved for those groups operating in “the core area sought to be addressed by Congress.” 

Buckley, 424 U.S. at 79; AR413, 418. 

By the same token, the Office of General Counsel’s more ambitious stance was visibly 

untailored to the government interests at stake. The Office of General Counsel’s approach would 

impose comprehensive political-committee restrictions and requirements based on an entity’s 

speech that does not advocate for or against federal candidates—and often does not mention 

elections at all. That, the controlling Commissioners said, was a bridge too far. Such an 

approach “would count spending wholly outside of the Commission’s regulatory jurisdiction for 

the explicit purpose of asserting that very regulatory jurisdiction over the organization.” AR415. 

That would defeat the very point of the major-purpose test, which is to “to ensure that groups 

whose major purpose is advocating issues related to public policy are not regulated as political 

committees.” AR415 (emphasis added). 

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Equally troubling, determining what non-electoral speech is covered by the Office of 

General Counsel’s standard would raise precisely the vagueness concerns that drove the Supreme 

Court in Buckley to impose a limiting construction on the term “expenditure” to begin with. 

AR416. “Candidates,” the Court stressed in Buckley, “especially incumbents, are intimately tied 

to public issues involving legislative proposals and governmental actions.” 424 U.S. at 42. “Not 

only do candidates campaign on the basis of their positions on various issues, but campaigns 

themselves generate issues of public interest.” Id. For this reason, Buckley construed 

“expenditure” to reach “precisely . . . that spending that is unambiguously related to the 

campaign of a particular federal candidate.” AR404 (quoting 424 U.S. at 80). In light of the 

similar constitutional concerns underpinning the Court’s major-purpose test, the controlling 

Commissioners reasoned, it would be indefensible to “bootstrap” political-committee status 

using a group’s discourse on public issues. AR415-16. 

2. The controlling Commissioners also considered the second part of the majorpurpose analysis—how Crossroads GPS defined its “central organizational purpose.” The 

Commissioners took account of all materials in the administrative record, including Crossroads 

GPS’s organizing documents, mission statement, and website, along with media accounts 

compiled by the Office of General Counsel. AR410-12. As part of this “fact-intensive inquiry,” 

the Commissioners “g[ave] due weight to the form and nature of the statements.” AR410 

(quoting 72 Fed. Reg. 5,595, 5,601 (Feb. 7, 2007)). They determined that Crossroads GPS’s 

“official documents” were the most relevant. AR410. The collected media accounts were less 

credible—indeed, many contained errors and mistakenly confused Crossroads GPS with another 

organization, a registered political committee named American Crossroads. AR411-412. Thus, 

“Crossroads GPS clearly did not trip the central organizational purpose prong.” AR412.

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ARGUMENT

I. The FEC Dismissal Easily Survives Review

A. Courts in this Circuit Review the Interpretations of Controlling FEC 

Commissioners Under Chevron.

5

FECA requires the vote of four Commissioners to find reason to believe a violation of the 

Act has occurred. 52 U.S.C. § 30109(a)(2); see generally FEC Cross-Mot. for Summ. J. 3-4 

(Dkt. No. 32). If three Commissioners vote against finding reason to believe, the matter is 

dismissed, and the rationale of the three controlling Commissioners “necessarily states the 

agency’s reasons for acting as it did.” FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 

1471, 1476 (D.C. Cir. 1992) (“NRSC”). Thus, as the D.C. Circuit has squarely held, “if the 

meaning of the statute is not clear, a reviewing court should accord deference” to the controlling 

Commissioners’ interpretation. Id.; see also In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 

2000) (“We have already held that we owe deference to a legal interpretation supporting a 

negative probable cause determination that prevails on a 3-3 deadlock.”); Democratic 

Congressional Campaign Comm. v. FEC, 831 F.2d 1131, 1135 n.5 (D.C. Cir. 1987) (“DCCC”).

Public Citizen asks this Court to break with circuit precedent and review the FEC’s 

reasoning in this matter under the less deferential Skidmore standard. Public Citizen Mot. for 

Summ. J. 17; Skidmore v. Swift & Co., 323 U.S. 134 (1944). It argues the D.C. Circuit has 

simply been wrong to accord Chevron deference to FEC enforcement actions dismissed by 3-3 

votes. Public Citizen Mot. for Summ. J. 16-17; Public Citizen Reply 1-3. This is incorrect but 

beside the point. Whatever Public Citizen may think the law should be, this Court “is not at 

liberty to disregard clearly established, controlling precedent.” Al-Zahrani v. Rumsfeld, 684 F. 

Supp. 2d 103, 114 (D.D.C. 2010), aff’d, 669 F.3d 315 (D.C. Cir. 2012).

 

5 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

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Public Citizen thus tries to distinguish away the entire body of Circuit law. NRSC, for 

example, involved an interpretation “of one of the Commission’s own regulations” rather than of 

FECA. Public Citizen Mot. for Summ. J. 16. But in In re Sealed Case, the court acknowledged 

that NRSC “involved interpretation of an FEC regulation rather than of FECA,” yet it still 

applied Chevron deference to statutory interpretations arising out of a Commission dismissal 

based on a 3-3 vote of FEC Commissioners. In re Sealed Case, 223 F.3d at 779-80. Likewise, 

Public Citizen claims that “most” of the controlling decisions “did not actually address Chevron 

deference.” Public Citizen Reply 3. Again, In re Sealed Case answered that precise objection. 

Applying Chevron deference to FEC dismissals of enforcement actions by 3-3 votes was 

“consistent” with precedent, the court said, even if earlier decisions had not spoken “explicitly in 

Chevron terms.” 223 F.3d at 781.

Public Citizen fails to distinguish In re Sealed Case. Public Citizen asserts that, because 

In re Sealed Case involved an appeal from a collateral criminal proceeding, its holding was 

limited to such circumstances and that a different standard might apply on direct review. Public 

Citizen Reply 3-4. Public Citizen latches onto the court’s statement that it had to determine 

whether deference was appropriate “in the context presented here.” In re Sealed Case, 223 F.3d 

at 779. But this misses the point: the court was determining whether to extend to collateral 

criminal proceedings the Chevron deference applicable on direct review under 52 U.S.C. 

§ 30109(a)(8). Satisfied that Chevron deference governed in both circumstances, the court found 

it “irrelevant that the prevailing interpretation was established in the context of agency 

enforcement, whereas this is a criminal prosecution.” Id.

Public Citizen also contends that the competing interpretation in In re Sealed Case

“would not have prevailed under any standard,” so “the court’s discussion of Chevron deference 

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appears to be merely dicta.” Public Citizen Reply 4-5. But that does not declaw the court’s 

holding that Chevron applies. Taking this theory to its logical endpoint, any standard-of-review 

reasoning would qualify as dicta where a litigant makes a “weak” showing. Public Citizen 

Reply 5. That, to state the obvious, is not the rule.

Public Citizen’s fallback argument is that In re Sealed Case and its predecessors were 

overruled by the Supreme Court’s decision in United States v. Mead Corp., 533 U.S. 218 (2001). 

Not so. Circuit precedent is binding unless “‘effectively overrule[d],’ i.e., ‘eviscerate[d]’” by 

later Supreme Court decisions. Nat’l Inst. of Military Justice v. U.S. Dep’t of Defense, 512 F.3d 

677, 682 n.7 (D.C. Cir. 2008); see also Grocery Mfrs. Ass’n v. E.P.A., 693 F.3d 169, 180 (D.C. 

Cir. 2012) (Tatel, J., concurring). Public Citizen comes nowhere close to making that showing 

here. In Mead, the Court held that not every interpretive action is entitled to Chevron’s

deferential standard; rather, deference is appropriate where “it appears that Congress delegated 

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

interpretation claiming deference was promulgated in the exercise of that authority.” 533 U.S. at 

226-27. Determining whether Chevron deference is warranted under Mead is not a boundless 

inquiry into congressional intent; rather, it is available if agencies can claim “express 

congressional authorizations to engage in the process of rulemaking or adjudication that 

produces regulations or rulings for which deference is claimed.” Id. at 229. The 

“interpretation’s legal effect” is thus the “touchstone” of the inquiry. In re Sealed Case, 223 

F.3d at 780 (citing Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)).

If anything, the D.C. Circuit’s reasoning in In re Sealed Case anticipated Mead. 

(Christensen—on which In re Sealed Case relied—is viewed as Mead’s “foreshadowing 

predecessor.” Kristin E. Hickman, The Need for Mead: Rejecting Tax Exceptionalism in Judicial 

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Deference, 90 Minn. L. Rev. 1537, 1551 (2006).) As In re Sealed Case explained, each step of 

the FEC’s enforcement process is “part of a detailed statutory framework for civil enforcement 

and is analogous to a formal adjudication, which itself falls on the Chevron side of the line.” In 

re Sealed Case, 223 F.3d at 780. This process “tend[s] to foster the fairness and deliberation that 

should underlie a pronouncement” with the force and effect of law. Mead, 533 U.S. at 230; see 

also FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001) (“[I]n making probable 

cause determinations, the Commission fulfills its statutorily granted responsibilities, giving 

ambiguous statutory language concrete meaning through case-by-case adjudication.”). Because 

the FEC’s dismissal was issued through expressly delegated adjudicatory powers carrying the 

force and effect of law, the controlling Commissioners’ interpretation is entitled to Chevron 

deference. As the Supreme Court recently remarked, there has not been “a single case in which a 

general conferral of rulemaking or adjudicative authority has been held insufficient to support 

Chevron deference for an exercise of that authority within the agency’s substantive field.” City 

of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1874 (2013). 

B. The Commission’s Dismissal of Public Citizen’s Complaint Was Reasonably 

Explained and Followed from a Permissible Interpretation of the Law.

The courts may overturn a Commission dismissal decision only if it is “contrary to law,” 

52 U.S.C. § 30109(a)(8)(C)—a term that incorporates Chevron and the arbitrary-and-capricious 

standard alike. Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). Here, the controlling 

Commissioners reasonably interpreted FECA and faithfully applied the major-purpose test both 

in evaluating Crossroads GPS’s spending and in assessing its “central organizational purpose.” 

Their decision was also the product of reasoned decisionmaking, satisfying arbitrary-andcapricious review. For these reasons, Public Citizen’s complaint should be dismissed.

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1. The Commission acted reasonably in identifying Crossroads GPS’s 

electoral and non-electoral spending.

In analyzing Crossroads GPS’s spending, the controlling Commissioners rejected Public 

Citizen’s complaint for two independent reasons. Accordingly, to invalidate the dismissal Public 

Citizen must negate both of those reasons. First, it must show the Commission was legally 

bound to artificially and rigidly segment its major-purpose analysis into discrete calendar-yearby-calendar-year boxes. Second, it must show the Commission was legally bound to add certain 

non-express advocacy discourse—disseminated many months before Election Day—to the 

federal-election side of the scale. Only by showing that the Commission was legally required to 

limit its review to a calendar-year metric and classify speech falling outside the express advocacy 

standard as evidence of federal electoral activity in the major-purpose determination can Public 

Citizen prevail. “Without one of these approaches,” the controlling Commissioners explained, 

“the other standing alone would be inadequate to show that Crossroads GPS’s spending was 

sufficiently extensive.” AR423. Public Citizen cannot make either of these showings, much less 

both.

a. The Commission reasonably measured Crossroads GPS’s “major 

purpose” based on the organization’s broader pattern of 

spending rather than based solely on a calendar-year metric.

In calculating what fraction of a group’s spending is undeniably federal and electoral in 

nature—and therefore counts towards the major-purpose test—the Commission must bookend its 

analysis with a start date and an end date. That much everyone agrees on. See Public Citizen 

Mot. for Summ. J. 28; FEC Cross-Mot. for Summ. J. 42-43; AR505-09 (dissenting 

Commissioners’ statement of reasons). The issue is what that time frame should look like. In 

keeping with the agency’s case-by-case approach to major purpose determinations, the 

controlling Commissioners decided that “the facts in [each] case . . . will determine the 

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appropriate time frame for analysis.” AR423 n.101. Here, the administrative record contained 

data on Crossroads GPS’s spending from June 1, 2010 (its founding date), through December 31, 

2011. AR414-15. The controlling Commissioners took all that information into account. Based 

on that comprehensive analysis, they found that federal electoral spending was not sufficient to 

satisfy the major-purpose test—even if Public Citizen’s extreme view of the spending that should 

count as federal election-related is used. AR424.

Public Citizen says it was contrary to law for the Commissioners to use anything other 

than a rigid, myopic calendar-year-by-calendar-year metric even when that method requires the 

Commissioners to ignore available information in the administrative record. In other words, the 

Commissioners were required to zoom in on Crossroads GPS’s activity solely between June 1, 

2010, and December 31, 2010. No 2011 spending could be considered.

That is not the law. Congress did not unambiguously dictate Public Citizen’s wooden 

calendar-year formula (or any other rigid timeframe for that matter). Nor was it arbitrary or 

capricious for the controlling Commissioners to decline to employ that one-size-fits-all standard. 

i. As a statutory matter, Public Citizen’s calendar-year metric does not follow from 

congressional command. Public Citizen Mot. for Summ. J. 29. If Congress “has directly spoken 

to the precise question at issue,” the court and the agency “must give effect to the unambiguously 

expressed intent.” Agape Church, Inc. v. FCC, 738 F.3d 397, 406 (D.C. Cir. 2013) (quoting 

Chevron, 467 U.S. at 842-43). But contrary to Public Citizen’s view, nothing in FECA “makes 

clear” that the Commission must balance an entity’s electoral and non-electoral spending on a 

fixed calendar-year basis. Public Citizen Mot. for Summ. J. 29. In fact, text, structure, and 

history display no legislative intent—unambiguous or otherwise—on the question. 

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This is hardly surprising, since the major-purpose test is a product of later Supreme Court 

interpretation, not congressional drafting. See Buckley, 424 U.S. at 79. Thus, “it is doubtful that, 

in enacting [FECA], Congress even anticipated” that the Commission would need to assess an 

entity’s overall purpose as a precondition to labeling it a political committee. Ctr. for Individual 

Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012) (per curiam) (rejecting Chevronstep-one challenge in similar circumstances); cf. Am. Tunaboat Ass’n v. Brown, 67 F.3d 1404, 

1408 (9th Cir. 1995) (“Congress, in all likelihood, did not anticipate this situation. Nor, quite 

evidently, did Congress speak to this issue.”). “[E]mploying traditional tools of statutory 

construction,” there is thus no basis to find that “Congress had an intention on the precise 

question at issue.” Chevron, 467 U.S. at 843 n.9. Nor, in the 40 years since the Supreme Court 

announced the major-purpose test, has Congress once amended the definition of “political 

committee” to limit the Commission’s discretion in this area. Compare Pub. L. No. 92-225, title 

III, § 301(d), 86 Stat. 11 (1972), with 52 U.S.C. § 30101(4)(A).

Public Citizen’s only response is that a different, statutory prerequisite to politicalcommittee status references calendar years. (As noted above, the FECA defines “political 

committee” to mean any group that receives contributions or makes expenditures totaling more 

than $1,000 “during a calendar year.” 52 U.S.C. § 30101(4)(A).) From this, Public Citizen 

infers that Congress “unambiguously” intended a calendar-year metric for the major-purpose test 

as well. Public Citizen Mot. for Summ. J. 30. But that does not follow. Congress’s enactment 

of calendar-year language for a bright-line statutory threshold does not unambiguously limit 

what evidence is relevant under a standard later made controlling by the courts. This is not a 

close question. Congress did not “directly resolv[e]” the contours of the major-purpose test five 

years before that test was established. Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697 

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(D.C. Cir. 2014) (citation omitted). Because neither Congress nor the courts “mandate[d] a 

particular methodology for determining an organization’s major purpose,” Real Truth About 

Abortion, Inc., 681 F.3d at 556, the controlling Commissioners were not required to use Public 

Citizen’s rigid calendar-year formula.6

ii. Nor was it otherwise unreasonable for the controlling Commissioners to refuse 

Public Citizen’s metric. Contrary to Public Citizen’s view, looking beyond a single calendar 

year’s spending was not “a change in FEC policy.” Public Citizen Reply 27. Rather, as the 

Commissioners made clear, “the Commission routinely look[s] at activity beyond a single 

calendar year.” AR421. In MUR 5751, for example, the Office of General Counsel examined 

“receipts and disbursements from 2002-2006.” Id. So too in MUR 5753, where Commission 

staff based their major-purpose analysis on the respondents’ activity “during the entire 2004 

cycle.” AR422; Factual and Legal Analysis, at 11, 18, MUR 5753 (Aug. 9, 2006) (League of 

Conservation Voters, et al.); see also Statement of Reasons of Commissioners Petersen and 

Hunter, at 24-25, MUR 5842 (June 10, 2009) (Economic Freedom Fund, et al.) (looking at 2006 

election cycle for major-purpose inquiry); FEC v. Malenick, 310 F. Supp. 2d 230, 235 n.6 

(D.D.C. 2004) (looking to contributions “in 1995 and 1996”), rev’d in part on reconsideration, 

No. 02-cv-1237, 2005 WL 588222 (D.D.C. Mar. 7, 2005); FEC v. GOPAC, Inc., 917 F. Supp. 

851, 865 (D.D.C. 1996) (examining 1989 and 1990 activities).

The examples go on. In 1996, for instance, the Commission issued an advisory opinion 

analyzing a foundation’s “pattern of . . . contributions” over a “six-year period (1990 to 1995).” 

FEC Adv. Op. 1996-3, at 3 (Apr. 19, 1996). Strikingly, the Commission in that matter remarked 

that “in 1990 political contributions formed 48% of all [foundation] outlays.” Id. at 3 n.5. But 

 

6

Public Citizen does not claim that the Commissioners’ interpretation is statutorily impermissible under 

Chevron step two. Public Citizen Mot for Summ. J. 31-33 (arguing, in the alternative, only that there were flaws in 

the Commission’s decision-making).

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the Commission gave that spending little weight because “it occurred in the initial year of the 

Foundation’s establishment when outlays were, in absolute terms, small compared with 

subsequent years and the Foundation’s disbursement programs were not yet fully developed.” 

Id. (emphasis added). The parallels between that analysis and the Commissioners’ reasoning in 

this case are hard to miss.

Even the cases referenced (obliquely) by Public Citizen disprove its calendar-year thesis. 

See Public Citizen Mot. for Summ. J. 29 (citing AR364). In MUR 5487, for example, the 

Commission looked at the spending “[d]uring the entire 2004 election cycle,” and also made note 

of the respondents’ spending through April 2006. Conciliation Agreement ¶¶ 18, 36, MUR 5487

(Feb. 28, 2007) (Progress for America Voter Fund). The same is true of MUR 5754. There, the 

Commission again looked to spending during the “entire 2004 election cycle,” without 

distinguishing activities attributable to 2003 versus 2004. Conciliation Agreement ¶ 13, MUR 

5754 (Dec. 13, 2006) (MoveOn.org Voter Fund) (the respondent was formed in 2003 and 

continued activity in 2004). As the controlling Commissioners did here, the Commission also 

evaluated that respondent’s post-election spending; the agency noted that the organization 

“effectively ceased active operations” after the election and “has limited its disbursements 

primarily to legal and administrative costs.” Id. ¶ 16; see also Conciliation Agreement ¶ 36, 

MURs 5511 & 5525 (Swift Boat Veterans and POWs for Truth) (“Since the 2004 election, 

SwiftVets has effectively ceased active operations . . . and has limited its disbursements 

primarily to legal and administrative costs, as well as charitable contributions to veteran-related 

charities.”). In short, there has never been a Commission “policy” of cabining the major-purpose 

analysis to a single calendar year. Instead, Public Citizen is trying to impose a novel new policy 

that the FEC never adopted and the controlling Commissioners reasonably rejected.

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Rejecting Public Citizen’s strict calendar-year metric also does not frustrate FECA’s 

purposes. Public Citizen Reply Mem. 27. Indeed, Public Citizen does not contend otherwise, 

tilting instead at a standard the controlling Commissioners deliberately chose not to adopt. 

Public Citizen insists that using a strict “fiscal year analysis” to evaluate major purpose 

would “unduly compromise[] the Act’s purposes.” Public Citizen Mot. for Summ. J. 32; Public 

Citizen Reply 27. For reasons discussed by the FEC, however, a 12-month fiscal-year metric is 

no more susceptible to abuse than a 12-month calendar-year metric. E.g., FEC Cross-Mot. for 

Summ. J. 44-45; AR420. Ultimately, the merits of a fiscal-year versus calendar-year approach 

are mostly academic here, since the controlling Commissioners disclaimed both standards: “We 

do not believe that fiscal year is the required time frame in all analyses any more than we believe 

calendar year is.” AR423 n.101. Rather, the facts of each specific case “will determine the 

appropriate time frame for analysis.” Id.

Based on the full administrative record, the controlling Commissioners analyzed 

Crossroads GPS’s activity through a range of lenses, including a comprehensive view of all the 

organization’s spending contained in the administrative record. There is nothing about that 

inclusive, fact-specific analysis that frustrates FECA’s purpose, and Public Citizen does not 

dispute the point. In fact, avoiding formalistic fiscal- and calendar-year metrics ensures that 

parties cannot easily escape regulation through sharp accounting practices. 

iii. There is a due-process dimension as well. As the controlling Commissioners 

explained, the calendar-year metric first surfaced in 2013, mid-way through this enforcement 

proceeding. Using it to penalize Crossroads GPS’s 2010 activity would thus “raise serious due 

process concerns.” AR425; see also AR422 (“[D]ue process would preclude the Commission 

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from seeking to enact a new legal norm now, without prior notice, behind closed doors in a 

confidential enforcement action and apply it retroactively.”).

The controlling FEC Commissioners were right to perceive this problem. “The 

constitutional requirement that defendants be given fair notice of conduct that can subject them 

to punishment is deeply rooted in our legal system and applies to any defendant—criminal or 

civil—faced with punishment at the hands of the state, an agency, or a jury.” Theodore J. 

Boutrous, Jr. & Blaine H. Evanson, The Enduring and Universal Principal of “Fair Notice”, 86 

S. Cal. L. Rev. 193, 204 (2013). In simplest terms, “regulated parties should know what is 

required of them so they may act accordingly.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 

2307, 2317 (2012). “It is one thing to expect regulated parties to conform their conduct to an 

agency’s interpretations once the agency announces them; it is quite another to require regulated 

parties to divine the agency’s interpretations in advance or else be held liable when the agency 

announces its interpretations for the first time in an enforcement proceeding and demands 

deference.” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168 (2012).

These principles apply with full force here. If adopted, the volte-face urged by the Office 

of General Counsel would have violated principles of “fair notice” at a foundational level. 

United States v. Williams, 553 U.S. 285, 304 (2008). In 2010, no speaker could guess that the 

Commission would begin evaluating political-committee status strictly on a rigid calendar-year 

basis. Quite the opposite; the “regulatory history” discussed above “makes it apparent that the 

Commission policy in place at th[at] time” involved just the sort of comprehensive analysis the 

controlling Commissioners applied here. Fox Television Stations, Inc., 132 S. Ct. at 2318; see 

supra 22-23. In fact—and as the controlling FEC Commissioners protested—the calendar-year 

metric was not even conceived of until 2012. The standard “sprung into existence in the Second 

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First General Counsel’s Report issued . . . in this matter,” which staff circulated to the 

Commission more than two years after Public Citizen filed its administrative complaint. AR422.

The due-process implications are obvious: “Because OGC’s legal test was evolving 

behind closed doors while this enforcement matter was under review, the Respondent and other 

similarly situated organizations did not have clear prior notice that their respective major 

purposes would be analyzed by OGC under a single calendar-year rule.” AR515. The added 

fact that the FEC’s enforcement action, if it had proceeded, would have invaded “‘sensitive areas 

of basic First Amendment freedoms’” only compounds the gravity. Fox Television Stations, 

Inc., 132 S. Ct. at 2318 (citation omitted). For this reason also, the controlling Commissioners 

reasonably declined to apply such a constitutionally suspect interpretation in this case. Cf. Agape 

Church, Inc., 738 F.3d at 413 (Kavanaugh, J. concurring) (approving agency’s “invok[ing] the 

principle of constitutional avoidance” in light of “serious” constitutional problems).

b. In determining whether Crossroads GPS’s major purpose is 

electoral, the Commission reasonably declined to factor in speech 

that Congress has not regulated as electoral advocacy.

i. Public Citizen also argues that the Commission should have included more of 

Crossroads GPS’s spending on the federal-election side of the major-purpose scale. In Public 

Citizen’s view, it was not enough that the Commission factored in Crossroads GPS’s 

undisputedly campaign-related speech, its express advocacy. Public Citizen argues the agency 

also should have included any communications that “promote,” “support,” “attack,” “oppose,” 

“criticize,” or are otherwise “negative” about federal officeholders who are up for reelection.

For reasons discussed below, the controlling Commissioners reasonably disagreed. As an 

initial matter, however, it bears emphasis that the issue need not be resolved in this case. Even 

accepting Public Citizen’s broad vision of “federal campaign activity,” the Commissioners made 

clear dismissal would still be proper when that activity was compared to Crossroads GPS’s 

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overall spending (i.e., its 2010 and 2011 activity combined). AR423-24. For that period, “the 

$20.8 million that [Public Citizen] proposes to be generalized federal campaign activity” would 

amount to less than one third of Crossroads GPS’s total spending. AR424. Even through a 

fiscal-year lens, the percentage would comprise less than half of the organization’s spending. 

Only by circumscribing the time period to a calendar year and requiring consideration of speech 

beyond express advocacy can Public Citizen “conjure a scenario where Crossroads GPS’s 

campaign spending exceeds 50 percent of its total spending.” AR423. Because the controlling 

Commissioners reasonably declined to bind themselves to the calendar-year metric, see supra

19-26, the parties’ competing views about electoral spending have no bearing on the outcome of 

the enforcement proceeding. See, e.g., Nader v. FEC, 823 F. Supp. 2d 53, 67, 68 (D.D.C. 2011) 

(dismissing case when FEC’s alleged error would not have led to “a different decision”).

ii. Even assuming the Commissioners were required to limit their timeframe to a 

calendar year, the controlling Commissioners’ analysis of Crossroads GPS’s federal election 

spending was entirely reasonable. Unlike its calendar-year complaint, Public Citizen does not 

claim that the Commissioners’ application of the major purpose test was statutorily 

impermissible under Chevron. Nor does Public Citizen dispute the basic premise of the 

Commissioners’ decision: that a line must be drawn—somewhere—between election-related 

spending and non-election-related spending. See Public Citizen Mot. for Summ. J. 26. Public 

Citizen’s complaint is simply that the controlling Commissioners chose the wrong place to draw 

that line. Id.

A straightforward application of administrative-law doctrine should yield judgment for 

the Commission. FECA’s arbitrary-and-capricious standard “is an extremely deferential 

standard which requires affirmance if a rational basis for the agency’s decision is shown.” 

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Orloski, 795 F.2d at 167. And this is doubly true when it comes to the sort of line-drawing at 

issue here. “An agency has ‘wide discretion’ in making line-drawing decisions.” Nat’l Shooting 

Sports Found., Inc. v. Jones, 716 F.3d 200, 214 (D.C. Cir. 2013). “It is only required to identify 

the standard and explain its relationship to the underlying regulatory concerns.” Id. (quoting 

WorldCom, Inc. v. FCC, 238 F.3d 449, 462 (D.C. Cir. 2001)); see also Cassell v. FCC, 154 F.3d 

478, 485 (D.C. Cir. 1998) (Declining “to review line-drawing . . . unless a petitioner can 

demonstrate that lines drawn . . . are patently unreasonable, having no relationship to the 

underlying regulatory problem.” (internal quotation marks and citations omitted)).

Here, the controlling Commissioners provided a reasoned explanation for keying the 

major-purpose test to express advocacy and the functional equivalent of express advocacy, and 

they likewise demonstrated that line’s relationship to the underlying regulatory problem. In the 

Commissioners’ judgment, their interpretation provided for a close fit between the 

comprehensive laws that govern political committees and the governmental interests to be 

served. AR415-19. As the Supreme Court has made clear, the major-purpose test serves to 

ensure that political-committee status attaches only to groups that engage overwhelmingly in 

activities “within the core area sought to be addressed by Congress.” Buckley, 424 U.S. at 79; 

see also AR418. By homing in on express advocacy—the only class of speech that is 

necessarily electoral—and its functional equivalent, the Commissioners thus reasonably 

accommodated the FECA’s “purpose in disclosure while also minding carefully the 

constitutional interests in privacy also at stake.” Van Hollen v. FEC, No. 15-5016, 2016 WL 

278200, at *12 (D.C. Cir. Jan. 21, 2016). “By tailoring the disclosure requirements to satisfy 

constitutional interests in privacy, the FEC fulfilled its unique mandate [in regulating core 

constitutionally protected activity].” Id.; cf. Akins v. FEC, 736 F. Supp. 2d 9, 19 (D.D.C. 2010) 

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(“While the dividing line between lobbying and electioneering may be, at times, hard to 

draw, . . . nothing in the Act indicates that the Commission acted contrary to law by refusing to 

equate lobbying in general . . . with efforts to influence federal elections.”).

Moreover, Public Citizen’s open-ended “promote-attack-support-oppose” standard raises 

obvious vagueness problems, which the controlling Commissioners were right to recognize.7 As 

the Supreme Court remarked in creating the express-advocacy test in the first place, terms like 

“relative to” and “‘advocating the election or defeat of’ a candidate” fail to provide “fair 

warning” to speakers. Buckley, 424 U.S. at 41-42 & n.48. Public Citizen’s standard is even less 

clear. In fact, Public Citizen itself cannot explain what speech would be covered. It defines 

“federal campaign activity” variously as speech that “support[s],” “oppose[s],” “criticize[s],” 

“attacks,” “promotes,” is “highly negative” about, and even “contained views”—contained

views—about officeholders up for reelection. Public Citizen Mot. for Summ. J. 7, 8, 26 & n.5.

This standardless standard poses precisely the vagueness problems Buckley sought to 

avoid. “Candidates, especially incumbents, are intimately tied to public issues involving 

legislative proposals and governmental actions.” Buckley, 424 U.S. at 42. Yet in Public 

Citizen’s approach, any communication, at any time, that “contain[s] views” about incumbents 

may expose the communication’s sponsor to comprehensive reporting laws, funding restrictions, 

 

7 Although the Supreme Court rejected a vagueness challenge to the “promote-attack-support-oppose” 

standard in McConnell v. FEC, 540 U.S. 93 (2003), the Court considered this challenge in the context of requiring 

political parties to pay for certain public communications with federal funds. “[S]ince actions taken by political 

parties are presumed to be in connection with election campaigns,” “[t]he words ‘promote,’ ‘oppose,’ ‘attack,’ and 

‘support’ clearly set forth the confines within which potential party speakers must act in order to avoid triggering 

the provision.” Id. at 170 n.64 (emphasis added). “The context . . . is very different” when this standard is applied 

to other speakers, the Seventh Circuit has explained, because “[t]he First Amendment vagueness and overbreadth 

calculus must be calibrated to the kind and degree of the burdens imposed on those who must comply with the 

regulatory scheme.” Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 837 (7th Cir. 2014). “[T]he greater the 

burden on the regulated class, the more acute the need for clarity and precision.” Id. The “promote-attack-supportoppose” standard may not be vague in the context of requiring political parties—whose activities are “presumed” to 

be campaign-related—to pay for certain public communications with federal funds, but it raises serious vagueness 

concerns when used to determine whether the spending of other types of speakers can subject these speakers to 

regulation as “political committees.” “Nothing in McConnell authorizes this.” Id. at 838.

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government subpoenas, and civil and criminal liability. The controlling Commissioners were 

right to question this boundless know-it-when-you-see-it standard.

In fact, the Crossroads GPS enforcement matter illustrates just how elastic Public 

Citizen’s standard can be. Compare two public communications, one from Crossroads GPS’s 

case and one from an enforcement matter involving “Campaign for America.” Crossroads GPS 

ran the following advertisement, “Hurting,” in August 2010:

We’re hurting. But what are they doing in Washington? Congressman Joe Sestak 

voted for Obama’s big government health care scheme, billions in job-killing 

taxes, and higher insurance premiums for hard-hit families. Even worse, Sestak 

voted to gut Medicare—a $500 billion cut. Reduced benefits for 850,000 

Pennsylvania seniors. Higher taxes and premiums. Fewer jobs. Medicare cuts. 

The Sestak/Obama plan costs us too much. Tell Congressman Sestak: stop the 

Medicare cuts.

AR360. According to the Office of General Counsel (and Public Citizen), this advertisement 

“provide[s] evidence that Crossroads GPS had as its major purpose the nomination or election of 

federal candidates.” AR358. It “features a clearly identified federal candidate,” it “criticizes or 

opposes [that] candidate,” and it was disseminated “shortly before the 2010 elections.” AR361. 

That means the advertisement counts toward Crossroads GPS’s electoral major purpose.

By comparison, consider the advertisement that “Campaign for America” ran in The New 

York Times in the end of July 1998. As described by the Office of General Counsel:

It contains a caricature of then-Speaker Newt Gingrich sweeping a piece of paper 

entitled “Shays-Meehan Bill” under a rug. At the top of the ad is the question: 

“Can’t This Guy Ever Keep His Word?” Under the cartoon is the following text:

On June 11, 1995 at a New Hampshire town hall meeting, House Speaker 

Newt Gingrich shook President Clinton’s hand and agreed to create a 

bipartisan blue-ribbon commission on campaign reform.

On November 13, 1997, Speaker Gingrich said, “We are committed to 

having a vote by sometime in March [1998].” 

It is now July 1998 and all Speaker Gingrich has done on campaign 

finance reform is manipulate House rules to obstruct a real vote. 

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America deserves a clean vote on Shays-Meehan before the August recess. 

Speaker Gingrich, stop sweeping campaign finance reform under the rug.

First General Counsel’s Report of Lois G. Lerner, Associate General Counsel, at 25, MUR 4940

(Dec. 19, 2000) (Campaign for America et al.). 

Like Congressman Sestak in 2010, Speaker Gingrich was up for reelection in 1998. Yet 

the Office of General Counsel determined that Campaign for America’s advertisement “d[id] not

constitute campaign activity.” Id. (emphasis added). Using reasoning that would apply with 

equal force to Crossroads GPS, the Office of General Counsel concluded that the Gingrich 

advertisement did not “call[] on the public to support or oppose the election of any federal 

candidate.” Id. Rather, its “thrust [wa]s to urge federal officeholders to support campaign 

finance reform.” Id. And, whereas the Office of General Counsel in Crossroads GPS’s matter 

dubbed August 2010 “shortly before the 2010 elections,” in Campaign for America’s 

enforcement action, it found late July 1998 to be “well before the general election.” Id.; see also

AR365 (suggesting that 2011 spending—more than one year before the next general election—

could be “federal campaign activity”).8 

That the standard Public Citizen advocates can both inculpate and exonerate similarly 

situated speakers is, to say the least, a problem. One of the main purposes of the vagueness 

doctrine is to ensure “precision and guidance . . . so that those enforcing the law do not act in an 

arbitrary or discriminatory way.” Fox Television Stations, Inc., 132 S. Ct. at 2317. Particularly 

“[r]igorous adherence” to these principles is required “[w]hen speech is involved.” Id.; see also 

 

8 The lack of clarity as to when an advertisement is close enough to an election to constitute campaign 

activity underscores another vagueness problem with Public Citizen’s preferred standard. Under current law,

advertisements that “support” or “oppose” candidates may be presumed to constitute electoral activity at any time 

when distributed by groups that are undoubtedly electoral—i.e., political parties and PACs whose stated purpose is 

electoral activity. The same presumption does not apply to issue advocacy groups. Such groups will be in the 

position of having to predict when a communication is near enough in time to an election to constitute electoral 

activity. Public Citizen’s open-ended and vague standard will have the effect of chilling issue-oriented speech 

disseminated months before an election.

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Plunkett v. Castro, 67 F. Supp. 3d 1, 22 (D.D.C. 2014) (“Government is at its most arbitrary 

when it treats similarly situated people differently.” (citation omitted)). Given their mandate to 

“avoid unnecessarily burdening . . . First Amendment rights,” AFL-CIO v. FEC, 333 F.3d 168, 

178 (D.C. Cir. 2003), the controlling Commissioners reasonably declined to follow Public 

Citizen’s preferred approach here.

iii. Public Citizen’s contrary arguments lack merit. First, Public Citizen exhaustively 

attempts to distinguish the precedent cited in the Commissioners’ statement of reasons. Public 

Citizen Mot. for Summ. J. 33-36. The controlling Commissioners, however, did not state that 

the cited decisions “compel[led]” their reasoning, Public Citizen Mot. for Summ. J. 34 n.8; all 

parties agree that the courts have not “mandate[d] a particular methodology for determining an 

organization’s major purpose.” Real Truth About Abortion, Inc., 681 F.3d at 556. Rather, the 

Commissioners pointed to those decisions as examples of courts’ adopting a First Amendmentsensitive approach similar to their own. In New Mexico Youth Organized v. Herrera, 611 F.3d 

669 (10th Cir. 2010), for instance, the court analyzed an organization’s “overall spending” to 

determine whether it “spends a preponderance of its expenditures on express advocacy or 

contributions to candidates,” id. at 678 (emphasis added). Public Citizen dismisses this 

particular example as hailing from a “different Circuit[]” and involving “state law.” Public 

Citizen Mot. for Summ. J . 35; Public Citizen Reply 13. Again, though, the question is not 

whether the controlling Commissioners’ reasoning is dictated by judicial stare decisis, but 

whether their decision had a “rational basis.” Orloski, 795 F.2d at 122. The fact that federal 

courts in similar contexts have taken a nearly identical view only confirms the reasonableness of 

the Commissioners’ judgment. 

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Second, Public Citizen makes much of the fact that FECA elsewhere defines different 

categories of regulated speech. For example, Public Citizen notes that the Act defines a broader 

category of “federal election activity” that has specific application in the context of state political 

parties, whose federal accounts are appropriately classified as political committees under the Act. 

Public Citizen Mot. for Summ. J. 26 n.5, 37. For state political parties, “federal election 

activity” is defined to include speech that “promotes,” “supports,” “attacks,” or “opposes” a 

federal candidate, “regardless of whether the communication expressly advocates a vote for or 

against a candidate.” 52 U.S.C. § 30101(20)(A)(iii). At base, that is the standard Public Citizen 

wants to impose on all speakers, even those that are not political committees, by importing this 

state political party provision into Buckley’s major purpose test. 

The controlling Commissioners were well within their discretion to avoid imputing that 

political-party-specific standard—that applies to entities that are political committees under 

FECA—to all private speakers across the board. In fact, the Supreme Court upheld Section 

30101(20)(A)(iii) precisely because political parties are different from private groups. As 

explained by the government in McConnell v. FEC, “[u]nlike some interest groups . . . parties 

are primarily and continuously concerned with acquiring power through electoral victory.” 

Gov’t Br. at 48, McConnell v. FEC, 540 U.S. 93 (2003) (No. 02-1674) (internal quotation marks 

and citation omitted; emphasis added). “Parties never engage in public communication without 

regard to its electoral consequences,” so “[t]here is consequently no need to distinguish between 

political party disbursements that are directed at candidate elections and those that are not.” Id.

(citation omitted).9

 

9 The government’s brief in McConnell does not appear to be available on public legal databases, though a 

copy can be found at http://www.democracy21.org/uploads/%7B513D19FA-62B9-4412-9563-

C1B1D023E33C%7D.PDF. Relevant pages in the brief are included in an addendum to this memorandum.

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The Supreme Court agreed. “[A]ctions taken by political parties are presumed to be in 

connection with election campaigns,” the Court remarked. 540 U.S. at 170 n.64, overruled in 

part, Citizens United, 558 U.S. 310. For political parties, the only question is which election a 

particular communication is designed to influence—federal, state, or local. “[T]he relevant 

distinction,” as the government explained in McConnell, “is between disbursements that are 

directed, in whole or in part, at federal elections, and those that are directed at state and/or local 

elections only.” Gov’t Br. at 48, McConnell, 540 U.S. 93. For political parties, therefore, “[t]he 

words ‘promote,’ ‘oppose,’ ‘attack,’ and ‘support’ clearly set forth the confines within which 

potential party speakers must act in order to avoid triggering the provision.” McConnell, 540 

U.S. at 170 n.64 (emphasis added); see also Ctr. for Individual Freedom v. Madigan, 697 F.3d 

464, 503 (7th Cir. 2012) (Posner, J., concurring in part and dissenting in part) (“[T]he federal law 

involved speech referring to particular candidates and made by state political parties the actions 

of which are presumed to be coordinated with candidates.”).

The same cannot be said for every speaker. While political party committees exist solely 

to nominate and elect candidates, private speakers like Crossroads GPS might direct their speech 

toward elections or quite literally anything else.10 Even Public Citizen acknowledged this 

distinction—for a time. As Public Citizen explained in 2004, “The Congress that enacted 

BCRA’s carefully considered extension to [‘federal election activity’] by parties could not have 

intended to revolutionize the world of non-profits by subjecting them to regulation whenever 

their issue discussions involve ‘attacks’ on or ‘promotion’ of persons who are candidates for 

 

10 The D.C. Circuit recently discussed the reasonableness of limiting the disclosure requirements for private 

speakers like Crossroads GPS. In Van Hollen v. FEC, the court held that it was reasonable for the FEC to require 

entities to disclose the source of only those donations “made for the purpose of furthering electioneering 

communications.” 2016 WL 278200, at *3 (quoting 72 Fed. Reg. 72,899, 72,911 (Dec. 26, 2007)). The rule was 

well-tailored to provide the necessary information to the public but exclude donors who “generally support the entity 

but not its electioneering communications.” Id. at *10. Broader disclosure requirements, like those applicable to 

political committees, would “mislead voters as to who really supports the communications.” Id. at *9.

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office.” Comment of Public Citizen at 7, Notice of Proposed Rulemaking 2004-06 (Apr. 5, 

2004). “It is one thing,” Public Citizen reasoned, “to say that political parties or political 

committees whose business is electioneering may be subject to regulation aimed at 

electioneering. It is another thing altogether to sweep in organizations that engage in criticism of 

elected officials as a necessary part of commenting on public issues . . . .” Id. Just so. That 

Public Citizen has disavowed its earlier position in this litigation does not make it irrational for 

the controlling Commissioners to hold that line.

Likewise, the fact that Congress defines a reporting regime for “electioneering 

communications” does not make the controlling Commissioners’ tailored approach unreasonable. 

As an initial matter, Public Citizen does not appear to argue that the controlling Commissioners 

should have counted all electioneering communications toward Crossroads GPS’s major 

purpose. Public Citizen argues instead that the existence of the electioneering-communication 

provisions means that the Commissioners needed to count all “promote-support-attack-oppose” 

speech. See Public Citizen Mot. for Summ. J. 37 (only reference to “electioneering 

communications” in argument).11

For reasons already discussed, this is not correct. Granted, Congress has required eventdriven reporting for certain narrowly defined activities, such as the dissemination of 

electioneering communications. See supra 4. But that does not mean the only reasonable 

interpretation of the major-purpose test is one that includes Public Citizen’s “promote-attacksupport-oppose” speech. Again, express advocacy is the speech closest to “the core area sought 

 

11 Presumably, Public Citizen would not be satisfied with counting only express advocacy, its functional 

equivalent, and electioneering communications because even that combined spending in 2010 would not top 50% of 

Crossroads GPS’s activity. The controlling Commissioners made clear that “even if one were to consider all 

electioneering communication spending as indicative of one’s major purpose, while also limiting the scope of 

review to calendar year spending, Crossroads GPS still would not be considered a political committee. . . . That is 

still only 42 percent of total spending—hardly ‘so extensive.’” AR424 (citation omitted).

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to be addressed by Congress” in regulating political committees. Buckley, 424 U.S. at 79. And 

Public Citizen does not explain how the narrowly tailored, event-driven reporting regime for 

electioneering communications somehow compels its preferred vision of the major-purpose test.

Indeed, there is no reason to think Congress intended even electioneering 

communications to count toward a group’s major purpose. (The statutory definition of “political 

committee” still references only “expenditures,” 52 U.S.C. § 30101(4), and electioneering 

communications do not constitute expenditures as a matter of law, id. § 30104(f)(3)(B)(ii).) 

Unlike express advocacy, electioneering communications do not, by definition, advocate for or 

against the identified candidate—meaning that they are further removed from the “core area” 

that FECA’s comprehensive political-committee laws target. See id. (excluding from the term 

“electioneering communication” “a communication which constitutes an expenditure or an 

independent expenditure under this Act”). To be sure, the Supreme Court has said that Congress 

can require “one-time, event-driven” disclosure reports for electioneering communications. Wis. 

Right to Life, Inc. v. Barland, 751 F.3d 804, 824 (7th Cir. 2014) (discussing Citizens United, 558 

U.S. at 336). But, as a number of courts have remarked, that narrowly tailored requirement is far 

removed from “the comprehensive registration and reporting system imposed on political 

committees.” Id.; see also Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d 576, 597-98 (8th 

Cir. 2013) (distinguishing “perpetual, ongoing reports” from “a one-time report”), cert. denied, 

134 S. Ct. 1787 (2014); Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 876-

77 (8th Cir. 2012) (similar). In hewing to the most clearly electoral spending, the controlling 

group of FEC Commissioners reasonably explained their standard’s “relationship to the 

underlying regulatory concerns,” Nat’l Shooting Sports Found., Inc., 716 F.3d at 214, and Public 

Citizen’s competing policy views do not trump that analysis.

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Third, Public Citizen charges the controlling Commissioners with violating a “wellestablished policy” of counting “spending and other activity that does not entail express 

advocacy” as federal electoral activity for purposes of the major-purpose determination. Public 

Citizen Mot. for Summ. J. 37. This is wrong. As an initial matter, even if past adjudications had 

given rise to a “policy”—they did not, see infra 43—Public Citizen does not argue that the 

Commissioners were bound by stare decisis to follow those adjudications. Instead, Public 

Citizen argues simply that the Commissioners failed to “acknowledge” its competing position 

and “provide reasons” for their preferred approach. Public Citizen Mot. for Summ. J. 33; Public 

Citizen Reply 18. In truth, however, the Commissioners openly acknowledged that some 

“Commission MURS from 2004 and 2007” may have “relied on non-express advocacy to find 

political committee status.” AR416. They nonetheless determined that their express-advocacy 

approach better reflected subsequent judicial precedent and accounted for the First Amendment 

interests at stake. AR415-16.

That explanation more than sufficed. Under arbitrary-and-capricious review, an agency 

must simply “display awareness that it is changing position.” FCC v. Fox Television Stations, 

Inc., 556 U.S. 502, 515 (2009) (emphasis omitted). Having done so, “it suffices that the new 

policy is permissible under the statute, that there are good reasons for it, and that the agency 

believes it to be better, which the conscious change of course adequately indicates.” Id. The 

Commissioners’ explanation met these benchmarks. To claim they needed to “acknowledge” 

earlier adjudications more fully and “provide reasons” for their competing interpretation is to 

ignore both the Commissioners’ statement of reasons and FECA’s deferential standard of review.

This is doubly true because the FEC’s history of adjudication decisions displays nothing 

even approaching a “policy” on the question whether express advocacy or some other category 

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of spending should count toward an organization’s major purpose. As detailed in the General 

Counsel’s Report, the Commission has sometimes considered advertisements that do not contain 

“magic words” of express advocacy. AR356. But it also has a history of determining major 

purpose by reference to contributions and expenditures alone. In the Akins litigation, for 

example, the Commission argued that a major-purpose finding was unwarranted because the 

respondent’s “campaign-related expenditures, while likely to have exceeded $1,000 in some 

years, were not its major purpose . . . .” FEC Br. at 3, Akins v. FEC, 66 F.3d 348 (D.C. Cir. 

1995) (emphasis added), rehearing en banc granted and opinion vacated by 74 F.3d 287 (D.C. 

Cir. 1996), vacated on other grounds by 524 U.S. 11 (1998). Likewise, the Commission has 

advised that “[w]hen determining whether an entity should be treated as a political committee, 

the standard that has been used is whether a major purpose of the organization is to make

expenditures or solicit contributions for the nomination or election of candidates.” FEC Adv. 

Op. 1994-25, at 2 (Aug. 19, 1994); see also FEC Adv. Op. 1996-13, at 4 (June 10, 1996) (“The 

[Supreme] Court stated that if MCFL’s independent expenditures ‘become so extensive that the 

organization’s major purpose may be regarded as campaign activity, the corporation would be 

classified as a political committee.’”); FEC Adv. Op. 1996-3, at 2 (Apr. 19, 1996) (same); FEC

Adv. Op. 1995-11, at 3 (Apr. 28, 1995) (same); Statement of Reasons of Commissioners 

Petersen, Hunter, and McGahn, at 10-11, MURs 5977 & 6005 (May 1, 2009) (American 

Leadership Project et al.) (explaining organization’s major purpose was not electoral in part 

because its communications did not contain express advocacy); accord GOPAC, Inc., 917 F. 

Supp. at 859 (“The organization’s purpose may be evidenced by its public statements of its 

purpose or by . . . its expenditures . . . to or for the benefit of a particular candidate or 

candidates.”).

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Even when the Commission has looked beyond express advocacy, moreover, it comes 

nowhere close to the blanket “promote-attack-support-oppose” standard that Public Citizen 

demands. Consider the enforcement matters discussed in the Commission’s 2007 Supplemental 

Explanation & Justification—a document on which Public Citizen puts near-dispositive weight. 

72 Fed. Reg. 5,595, 5,605 (Feb. 7, 2007). In none of those enforcement matters did the 

Commission parse what types of spending should count toward major purpose, and with good 

reason: None of the respondents raised the issue. The lion’s share were self-declared “527 

organizations,” which, like political parties, “never engage in public communication without 

regard to its electoral consequences.” See Gov’t Br. at 48, McConnell v. FEC, 540 U.S. 93; see 

also McConnell, 540 U.S. at 174 n.67 (“Section 527 ‘political organizations’ are, unlike § 501(c) 

groups, organized for the express purpose of engaging in partisan political activity.”). All of 

these organizations had documented federal electoral activity as their “central organizational 

purpose,” spending nothing on any state or local elections.12

All told, Public Citizen can point to no “settled course of adjudication” giving rise to “a 

general policy” of the sort it prefers. Graff v. FBI, 822 F. Supp. 2d 23, 34 (D.D.C. 2011). As the 

court of appeals has made clear, the courts of this Circuit “should be loath to intervene” when an 

FEC “deadlock reflects genuine uncertainty about the law.” DCCC, 831 F.2d at 1135 n.5. The 

Court should be particularly hesitant to address what types of communications are included in 

the federal election spending calculus, as the question need only be reached if the Court 

determines the Commission was required to adopt a calendar-year metric for purposes of the 

major-purpose test. 

 

12 In the single matter involving a 501(c)(4) organization cited in the 2007 Supplemental Explanation & 

Justification, the respondent “conceded that its major purpose was campaign activity.” 72 Fed. Reg. 5,595, 5,605 

(Feb. 7, 2007).

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2. The Commission reasonably weighed the evidence in finding no 

reason to believe that Crossroads GPS’s “central organizational 

purpose” was electoral.

Turning to the second major-purpose benchmark, Public Citizen also argues that the FEC 

should have found reason to believe that Crossroads GPS’s “central organizational purpose” was 

nominating and electing federal candidates. That is not correct. As Public Citizen 

acknowledges, the Commission’s decision is subject to arbitrary-and-capricious review, which is 

“highly deferential” and “presumes the validity of agency action.” LaRouche’s Comm. for a 

New Bretton Woods v. FEC, 439 F.3d 733, 737 (D.C. Cir. 2006) (citation omitted). The 

controlling Commissioners easily met that standard here.

Evaluating a group’s central organizational purpose is a “fact-intensive” inquiry that 

typically involves consideration of the group’s public statements as well as non-public materials. 

AR410; 2007 Supp. E&J, 72 Fed. Reg. at 5601 (citing FEC v. Malenick, 310 F. Supp. 2d 230, 

234-36 (D.D.C. 2004); GOPAC, 917 F. Supp. at 859; FEC Adv. Op. 2006–20 (Unity 08)). 

Consistent with judicial and agency precedent, the controlling Commissioners explained that 

“official statements” as well as “other materials put forth under the group’s name” are the 

“primary documents” to consider when making this inquiry. AR410. The Commissioners also 

had before them media reports collected by Public Citizen and the FEC Office of General 

Counsel, which allegedly undermined Crossroads GPS’s claim that its central organizational 

purpose was not electoral. 

Public Citizen does not dispute that the controlling Commissioners reviewed all the 

available evidence when assessing Crossroads GPS’s central organizational purpose. Its 

assertions that Commissioners “refus[ed] to consider” documents, Public Citizen Reply 16, boils 

down to objections about the relative weight given to items of evidence. Public Citizen asserts 

that the Commissioners gave too much credence to Crossroads GPS’s “self-generated” 

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documents, characterizing them as “self-serving” and “unreliable.” Public Citizen Mot. for 

Summ. J. 38-39; Public Citizen Reply 15. But it “is not the court’s function” to reweigh the 

record evidence before the agency. United Steel, Paper & Forestry, Rubber, Mfg., Energy, 

Allied Indus. & Serv. Workers Int'l Union, AFL-CIO-CLC v. Pension Ben. Guar. Corp., 707 F.3d 

319, 325 (D.C. Cir. 2013). Rather, courts must affirm an agency decision if a “‘reasonable mind 

might accept’ a particular evidentiary record as ‘adequate to support a conclusion.’” Dickinson 

v. Zurko, 527 U.S. 150, 162 (1999) (citation omitted). The court does “not ask whether record 

evidence could support the petitioner’s view of the issue, but whether it supports the [agency’s] 

ultimate decision.” Florida Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010). 

The record evidence easily supports the Commissioners’ conclusion here. This is not a 

case where the agency “limited” its review of the record. Public Citizen Reply 16. Rather, 

consistent with judicial and agency practice, the Commissioners considered all available 

materials in the record to determine Crossroads GPS’s central organizational purpose. AR410-

12. The Commissioners explained why giving more weight to Crossroads GPS’s self-generated 

documents was consistent with agency precedent. AR410; Toy v. United States, 263 F. Supp. 2d 

1, 8 (D.D.C. 2002) (“[T]he [agency] acted within its power when explaining its precedent and 

concluding that in light of that precedent, the weight of the evidence does not support the 

plaintiff’s allegations.”). They also explained why the media reports were inaccurate and thus 

entitled to less weight. AR411-12. In short, the Commissioners assessed all evidence in the 

record and reached a reasonable conclusion. That should be the end of the matter. 

3. Public Citizen’s residual arguments lack merit.

Public Citizen’s remaining arguments are both meritless and untimely. (None even 

appear in Public Citizen’s opening motion.) Public Citizen first contends that the interorganizational grants Crossroads GPS made to other nonprofit groups “may have been used for 

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federal campaign activity.” Public Citizen Reply 21. But this shot in the dark is not “reason to 

believe.” In fact, the only relevant material in the administrative record undercuts Public 

Citizen’s assertions. Crossroads GPS’s IRS Form 990s for both 2010 and 2011 make clear that 

each grant was “accompanied by a letter of transmittal stating that the funds are to be used only 

for exempt purposes, and not for political expenditures, consistent with the organization’s taxexempt mission.” AR279, 326, 347 (emphasis added); see also AR279, 326 (“Crossroads GPS 

carefully evaluates the missions and activities of recipient organizations prior to making any 

grants to ensure that funds are used only for exempt purposes of recognized tax-exempt section 

501(c)(4) and 501(c)(6) organizations.”). The controlling Commissioners appropriately declined 

to find reason to believe that these grants were electoral.

Second, Public Citizen summarily faults the controlling Commissioners for concluding 

that a group whose electoral spending was less than 50% of total spending did not have the major 

purpose of influencing federal elections. Public Citizen Reply 22. But there was nothing 

contrary to law in the Commissioners’ decision. Having analyzed Crossroads GPS’s activity, the 

Commissioners determined that electoral spending amounted to less than half of the 

organization’s total spending, and thus electoral spending could not be “the major purpose” of 

the organization. Based on this conclusion, the Commissioners found no reason to believe 

Crossroads GPS’s major purpose was electoral. This outcome was not foreclosed by Congress 

or by the courts, and the Commissioners rationally explained their line-drawing decision. 

AR414-15, 423-24. Once again, Public Citizen would apparently have backed this approach to 

the hilt ten years ago. As Public Citizen argued in 2004, finding major purpose if a group spends 

“more than 50% of [its] budget” on “activities that promote, support, oppose, or attack federal 

candidates” would be “far too sweeping and could unjustly capture legitimate advocacy 

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organizations.” Comment of Public Citizen at 12, Notice of Proposed Rulemaking 2004-06 

(Apr. 5, 2004). Public Citizen does not explain why it was contrary to law for the 

Commissioners to base their decision on these same concerns. 

II. Because the Statute of Limitations Has Expired on the Charges Against Crossroads 

GPS, Public Citizen Cannot Show Its Claimed Injury is Substantially Likely to be 

Redressed by the Relief It Seeks, So this Case Must be Dismissed For Lack of 

Standing.

A jurisdictional defect now bars Public Citizen’s claim. Under Article III of the 

Constitution, Public Citizen has a continuing obligation to show a substantial likelihood that, if it 

prevails in this action, its alleged injury will be redressed. Redress need not be certain, or even 

more likely than not, but a mere possibility is not enough. Here, expiration of the 5-year statute 

of limitations, 28 U.S.C. § 2462, makes it highly unlikely that the judicial relief Public Citizen 

seeks will lead to redress of Public Citizen’s injury. Thus, Public Citizen lacks standing to 

maintain this action. 

Public Citizen is suing to redress its claimed informational injury—namely, the lack of 

the disclosures Crossroads GPS supposedly should have made if it were a regulated political 

committee in 2010. Public Citizen asks this Court to declare that the FEC’s reasons for 

dismissing Public Citizen’s administrative complaint were unlawful and order the FEC promptly 

to conform to the declaration. That is the only remedy provided by “Section (a)(8),” the statute 

under which Public Citizen has sued. See 52 U.S.C. § 30109(a)(8).13 Public Citizen must show 

that remedy is likely to redress its claimed informational injury.

In a typical Section (a)(8) case, the controlling commissioners are likely to have stated 

the important reasons for not pursuing a complaint. If all those reasons are declared contrary to 

law, there is no basis to predict the FEC will not pursue the case. Thus, Section (a)(8) plaintiffs 

 

13 Until the recent recodification, that provision appeared at 2 USC § 437g(a)(8). In FEC practice, a suit 

under that provision continues to be referred to as an “(a)(8)” suit.

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often may have a substantial likelihood of redress. Akins, 524 U.S. 11. That likelihood of 

redress evaporates, however, if the statute of limitations runs on the administrative complaint, as 

has occurred here. The FEC’s practice is to dismiss such complaints, and, under these 

circumstances, Public Citizen no longer can show that success here is likely to redress its 

claimed injury. Accordingly, this case must be dismissed for lack of Article III jurisdiction.

A. Plaintiff Public Citizen bears the continuing burden of showing that success 

in this action is significantly likely to redress its claimed injury.

As the “party invoking federal jurisdiction, [Public Citizen] bears the burden” of showing 

a case or controversy exists during all “successive stages of the litigation.” Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992). This means Public Citizen must show it is “likely, as 

opposed to merely speculative, that [its] injury will be redressed by a favorable decision.” Id. at 

561 (internal quotation marks deleted.) It must “demonstrate a significant likelihood that a 

decision of [the] Court would redress its alleged injury.” Spectrum Five LLC v. FCC, 758 F.3d 

254, 256 (D.C. Cir. 2014) (emphasis added). Otherwise, this case must be dismissed. Spencer v. 

Kemna, 523 U.S. 1, 7 (1998) (“[T]hroughout the litigation, the plaintiff [must show injury] likely 

to be redressed by a favorable judicial decision.”). Thus, Article III requires Public Citizen to 

show that the relief the Court can grant—a declaration that the present dismissal was unlawful 

and an order of remand—will cause the FEC to pursue the complaint. 

In Lujan, for example, environmental plaintiffs challenged a program established by the 

Secretary of the Interior. 504 U.S. at 559. The Court noted, however, that, even if the Court 

struck down the Secretary’s program, the plaintiffs’ environmental injuries would continue 

unless other agencies and private parties voluntarily altered their positions. Id. at 568. Because 

plaintiffs could not show a substantial likelihood that an order against the Secretary would cause 

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other decisions to be made in a way that would relieve plaintiffs’ injuries, redressability was

speculative, and Article III jurisdiction failed. Id.

In contrast to Lujan, a sufficient likelihood of redress was established in Akins, and 

Public Citizen’s judicial complaint seeks to follow the path Akins marked out. In many respects, 

the facts of this case and Akins are parallel. In both cases:

 The FEC dismissed an administrative complaint that alleged a respondent had 

unlawfully failed to acknowledge it was a “political committee” and file the 

public disclosures required of political committees. 524 U.S. at 16. 

 Complainants brought a Section (a)(8) suit against the FEC, asking the courts to 

declare that the dismissal was contrary to law and order the FEC to conform to 

the declaration. Id. at 18. 

 Complainants asserted they were injured because the FEC dismissal deprived 

them of information the law intended for them to receive. Id. at 21. 

The Akins majority held the alleged informational injury was sufficiently redressable to 

give plaintiff the standing required by Article III. Id. at 25. Akins recognized the Section (a)(8) 

judicial remedy [i.e., dismissal] would permit the FEC in “its lawful discretion [to] reach the 

same result for a different reason.” Id. So redress was not certain. But no one pointed to 

evidence that redress was improbable. Explaining that “we cannot know” what the FEC would 

do if the courts declared the original dismissal unlawful, Akins held there was a sufficient 

likelihood of redress for standing. Id. 

Under Akins, Public Citizen may have adequately pleaded its initial standing. Because 

the controlling Commissioners’ statement of reasons laid out their reasons for dismissal, there 

was no reason to doubt that, if those reasons were held unlawful, the FEC would pursue the case. 

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But the facts are different now. By this motion, Crossroads GPS has shown that the statute of 

limitations has run, and the FEC has a practice of dismissing stale complaints. Thus, this Court 

now does have a way to know the FEC is unlikely to pursue the complaint.14 Because Public 

Citizen cannot establish the continuing substantial likelihood of redress that Article III requires, 

this case must be dismissed for lack of standing. See Lujan, 504 U.S. at 560-61. 

B. The statute of limitations on Public Citizen’s FEC complaint has expired.

FEC enforcement actions are subject to the general federal statute of limitations, 28 

U.S.C. § 2462, which provides that a “proceeding for the enforcement of any civil fine, penalty, 

or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five 

years from the date when the claim first accrued.” The FEC’s administrative processing of a 

complaint is preliminary and investigatory and is not a “proceeding for . . . enforcement” that 

meets the statute of limitations. FEC v. National Republican Senatorial Committee, 877 F.

Supp. 15, 19-21 (D.D.C. 1995).15 To satisfy the statute of limitations, a timely judicial 

enforcement action is required. Id.; FEC v. Nat’l Right To Work Comm., Inc., 916 F. Supp. 10, 

13-14 (D.D.C. 1996).

 

14 Although the alleged violation in Akins occurred more than five years before the Supreme Court’s decision, 

the statute of limitations issue was not raised, perhaps because it was not yet clear whether initiating FEC 

administrative procedures satisfied the statute of limitations or because the FEC’s practice of dismissing stale 

administrative complaints was not yet clearly established. Whatever the reason, “[q]uestions which merely lurk in 

the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so 

decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511 (1925); Bismullah v. Gates, 551 F.3d 1068, 

1071 (D.C. Cir. 2009). In particular, jurisdictional issues are not decided sub silentio but must be plainly identified 

and addressed to establish binding precedent. Indep. Petroleum Ass’n v. Babbitt, 235 F.3d 588, 597 (D.C. Cir. 2001) 

(collecting authority). Interestingly, the FEC ultimately dismissed residual claims in Akins because, due to “the 

expiration of the applicable statute of limitations” further action “would not be an appropriate use of the FEC’s 

limited resources.” Akins v. FEC, 736 F. Supp. 2d 9, 16 (D.D.C. 2010).

15 “In contrast to certain other agencies and regulatory regimes, the FEC is given no power to adjudicate 

liability or to impose civil penalties . . . Instead, the FEC’s role is to investigate, to conciliate, and to determine 

whether or not to bring a civil enforcement action.” 877 F. Supp. at 18 (statutory citations omitted).

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The leading case is FEC v. Williams, 104 F.3d 237 (9th Cir. 1996). There, an 

administrative complaint was filed with the FEC in 1988 based on events that occurred “between 

the autumn of 1987 and the end of January 1988.” Id. at 239. In 1989 the FEC found reason to 

believe a violation had occurred. Id. But the administrative proceeding moved slowly and it was 

not until late 1993 that the FEC brought suit “seeking the imposition of civil penalties as well as 

declaratory and injunctive relief.” Id. Because five years had elapsed before suit was filed, the 

statute of limitations had expired and the entire action had to be dismissed. Id. at 241.16 

The second First General Counsel’s Report in this case notes on its cover page 

“EXPIRATION OF SOL: 9/1/2014.” AR340. Indeed, more than five years have elapsed since 

Public Citizen filed its October 13, 2010 administrative complaint. At this point, therefore, the 

statutory limitations period unquestionably has run.17

C. There is no substantial likelihood the relief Public Citizen seeks here would 

cause the FEC to pursue this case.

The FEC regularly dismisses timely filed administrative complaints when five years have 

elapsed before a judicial enforcement action is commenced.18 Indeed, the FEC has gone further, 

 

16 If a complainant believes the FEC is arbitrarily and unreasonably delaying a matter, Section (a)(8) provides 

a remedy. Beginning 120 days after an administrative complaint is filed, a complainant may bring suit to challenge 

such FEC delay. Democratic Senatorial Campaign Committee v. FEC, No. 95-0349 1996 WL 34301203, *7-8 

(D.D.C. Apr. 17, 1996) (600-day delay held unlawful, noting “approaching statute of limitations”); Citizens for 

Percy v. FEC, No. 84-2653, 1984 WL 6601 (D.D.C. Nov. 19, 1984) (124-day delay unlawful). Here, the Office of 

the General Counsel spent more than a year revising its First General Counsel’s Report and solicited additional 

responses from Crossroads GPS, AR177, but Public Citizen sat by passively throughout the years-long 

administrative process and risked that the statute of limitations would expire.

17 Crossroads GPS signed a tolling agreement on November 9, 2010 that resulted in a tolling of the statute of 

limitations for twelve days from December 11, 2010 to December 22, 2010. AR31.

18 The practice is discussed by the controlling Statement of Reasons of Commissioners Mason, Smith, and 

Wold in Pre-MUR 395 (Feb. 27, 2002) (College Republican National Committee). In that case, the limitations 

period had not yet expired but seemed likely to do so before the FEC could complete its processing. The controlling 

Commissioners stated that “any investigation would have had to be conducted in a hasty and less than thorough 

fashion in order to beat the statute of limitations.” Id. at 3. Also interesting is the February 11, 2005, 

Recommendation to Close the File in ADR 230. There, the Director of the FEC’s ADR Office declined to accept 

referral of a matter, explaining, “Due to the fact that the alleged activities noted in the complaint took place more 

than five years ago, this matter should be dismissed in accordance with the five year statute of limitations period.” 

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establishing a procedure for systematic dismissal of claims that have become “stale,” even before 

the statute of limitations has run.19

Because the language of Section 2462 speaks only of actions to enforce penalties of a 

monetary nature, OGC has argued in other cases that government enforcement actions seeking 

only equitable relief may remain theoretically possible forever. Williams rejected OGC’s theory. 

It held that, although the statute of limitations spoke only of legal remedies, “equity will 

withhold its relief . . . where the applicable statute of limitations would bar the concurrent legal 

remedy.” 104 F.3d at 240 (quoting Cope v. Anderson, 331 U.S. 461, 464 (1947)). 

In cases involving other agencies, circuits are split on whether Williams’ concurrent 

equitable remedies doctrine applies to government actions for equitable relief. Compare United 

States v. Banks, 115 F.3d 916, 919 n. 60 (11th Cir. 1997) (recognizing an exception for 

government enforcement efforts) with United States v. Midwest Generation, LLC, 720 F.3d 644, 

647-48 (7th Cir. 2013) (barring the government’s entire claim—including its claim for equitable 

relief—noting that Gabelli v. SEC, 133 S. Ct. 1216 (2013), favors “effective time constraints”). 

District courts in this circuit are divided with respect to the FEC. Compare Nat’l Right To Work 

 

The General Counsel’s Report in MUR 6805 (September 2, 2015) is a very current example of the FEC practice of 

dismissing complaints that become stale after being filed. So far as Crossroads GPS can determine, since Williams

was decided, the FEC has not authorized a judicial enforcement action where five years have elapsed since the 

challenged conduct occurred.

19 One General Counsel’s Report, recommending closing several cases under the FEC’s Enforcement Priority 

System, says dismissal of stale cases is warranted because “[f]ocusing investigative efforts on more recent and more 

significant activity ... has a more positive effect on the electoral process and the regulated community.” General 

Counsel’s Report, Agenda Document No. X02-27 (April 3, 2002). The controlling Commissioners explained that 

cases may be dismissed as stale even if they are not “low priority.” Statement of Reasons of Commissioners Mason, 

Smith, and Wold in Pre-MUR 395, at 2. They favored dismissal of four-year-old violations because “the 

Commission should focus resources on important cases of more recent vintage, with fresher evidence and more 

important to current campaigns.” Id.

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Comm., 916 F. Supp. at 14 (FEC claims for equitable remedies also are barred) with FEC v. 

Christian Coalition, 965 F. Supp. 66 (D.D.C. 1997) (FEC equitable claims are not barred).20

For present purposes, however, that dispute is immaterial. Whether or not the FEC 

theoretically can seek equitable remedies after the statute of limitations has run, the FEC does 

not do so. Since Williams was decided, the FEC has not sought equitable remedies where actions 

for civil penalties have become time-barred. Any suggestion that the Commission would deviate 

from its settled practice in this case is mere speculation at best. That is doubly so since the 

controlling Commissioners already identified a series of other reasons the FEC’s “broad 

discretion to dismiss matters . . . could properly be applied here.” AR427 n.117 (citing Heckler 

v. Chaney, 470 U.S. 821, 831 (1985)). Since the FEC already is inclined to a discretionary 

dismissal for other reasons, the expiration of the statute of limitations—itself a sufficient basis 

for dismissal—is the death knell of this case.

Accordingly, Public Citizen no longer can establish a significant likelihood that its 

informational injury will be redressed.21 Therefore, any Article III case or controversy has 

evaporated and, with it, so has this Court’s jurisdiction. 

 

20 Based on 3M Co. v. Browner, 17 F.3d 1453, 1461 (D.C. Cir. 1994), the Ninth Circuit rejected the FEC’s 

argument that the statute of limitations does not start running until the offense is discovered. 104 F.3d at 240-41.

21 If the FEC does not on remand promptly comply with a judicial declaration, the private plaintiff may step 

in and bring suit. 52 U.S.C. § 30109(a)(8)(C). However, an FEC dismissal on remand because the statute of 

limitations had run would be consistent with any declaration this case might produce. See Akins, 524 U.S. at 25 (the 

FEC may dismiss on grounds not foreclosed by the order). Thus, Public Citizen could not bring an (a)(8) suit. 

Moreover, as a private litigant, Public Citizen has no exception to the concurrent remedies rule.

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 60 of 64
-50-

CONCLUSION

For the reasons discussed above, the Court should grant Crossroads GPS’s cross-motion 

for summary judgment, deny Public Citizen’s motion for summary judgment, and dismiss Public 

Citizen’s complaint.

 Respectfully submitted,

Thomas J. Josefiak

J. Michael Bayes (D.C. Bar No. 501845)

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel.: 540.341.8808

Fax: 540.341.8809

February 8, 2016

/s/ Thomas W. Kirby

Michael E. Toner (D.C. Bar No: 439707)

Thomas W. Kirby (D.C. Bar No. 915231)

Stephen J. Kenny (D.C. Bar No. 1027711)

WILEY REIN LLP

1776 K Street NW

Washington, DC 20006

Tel.: 202.719.7000

Fax: 202.719.7049

Counsel for Crossroads Grassroots Policy 

Strategies

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 61 of 64
ADDENDUM 

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 62 of 64
Nos. 02-1674, et al. 

3Jn toe ~upreme (!Court of toe Wniteb ~tate5 

MITCH MCCONNELL, UNITED STATES SENATOR, 

ET AL., APPELLANTS/CROSS-APPELLEES 

V. 

FEDERAL ELECTION COMMISSION, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

BRIEF FOR THE FEDERAL ELECTION 

COMMISSION, ET AL. 

LAWRENCE H. NORTON 

General Counsel 

RICHARD B. BADER 

Associate General Counsel 

STEPHEN E. HERSHKOWITZ 

DA VID KOLKER 

Assistant General Counsels 

Federal Election Commission 

Washington, D.C. 20463 

THEODORE B. OLSON 

Solicitor' General 

Counsel of Record 

PETER D. KEISLER 

Assistant Attorney General. 

PAUL D. CLEMENT 

Deputy Solicitor' General 

MALCOLM L. STEWART 

GREGORY G. GARRE 

Assistants to the Solicitor 

General 

DOUGLAS N. LETTER 

JAMES J. GILLIGAN 

MICHAEL S. RAAB 

DANA J. MARTIN 

TERRY M. HENRY 

RUPA BHATTACHARYYA 

ANDREA GACKI 

Aitorneus 

Department of Justice 

Washington, D.C. 20530-0001 

(202) 514-2217 

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 63 of 64
48 

should be required to be financed with hard money. Based 

on its Members' extensive experience under the Commission's former allocation rules, Congress determined that 

greater constraints on state parties' use of soft money were 

needed to preserve the integrity of federal elections and 

federal office-holders. The Constitution does not prevent 

Congress from acting upon that judgment. 

The RNC plaintiffs appear to argue that the FEC's prior 

allocation rules were invalid, and that a party committee has 

a First Amendment right to receive unlimited contributions 

for any political activity that does not expressly advocate the 

election or defeat of a federal candidate. See RNC Br. 54-55, 

88 n.50.1D The Court in Buckley declined, however, to impose 

an "express advocacy" test for organizations "the major purpose of which is the nomination or election of a candidate," 

because the expenditures of such organizations "are, by 

definition, campaign related." 424 U.S. at 79; see id. at 79-80. 

Unlike some interest groups, which may have as their 

primary function issue advocacy rather than the election of 

candidates, "parties are primarily and continuously concerned with acquiring power through electoral victory. 

Parties never engage in public communication without 

regard to its electoral consequences." D. Green Expert Report 17 n.19. There is consequently no need to distinguish 

between political party disbursements that are directed at 

candidate elections and those that are not. Rather, the 

relevant distinction is between disbursements that are 

directed, in whole or in part, at federal elections, and those 

that are directed at state and/or local elections only (and 

even that line addresses only who should regulate; it does 

19 The McConnell plaintiffs state (Br. 13) that the FEC's prior allocation rules "reflected an assiduous regard for our federal system." Like the 

RNC plaintiffs, however, they contend (id. at 26 n.5) that Congress lacks 

power to "regulate expenditures for speech that does not constitute 

express advocacy." 

Case 1:14-cv-00148-RJL Document 60 Filed 02/08/16 Page 64 of 64