UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

PUBLIC CITIZEN, et al., ) 

 ) 

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

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY MEMORANDUM 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) 

STRATEGIES, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

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

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

April 7, 2016 

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

Acting Assistant General Counsel 

echlopak@fec.gov 

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

Attorney 

gmueller@fec.gov 

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

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

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TABLE OF CONTENTS 

 Page 

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

I. THE COURT MUST APPLY CHEVRON’S EXCEEDINGLY 

DEFERENTIAL STANDARD OF REVIEW ...............................................................2 

A. Plaintiffs Fail to Distinguish Court of Appeals Precedent Requiring the 

Court to Apply Chevron Deference ...................................................................4 

B. Even If the Court Could Ignore the Court of Appeals’s Controlling 

Authority, Plaintiffs’ Arguments Against Chevron Deference Are 

Meritless ............................................................................................................ 6 

C. The Governmental Interest in Disclosure Does Not Reduce Plaintiffs’ 

Burden ..............................................................................................................12 

D. Plaintiffs Cannot Rely on Material Beyond the Administrative Record 

or Waived Arguments ......................................................................................14 

II. THE FEC’S DISMISSAL MUST BE AFFIRMED BECAUSE IT WAS NOT 

CONTRARY TO LAW ...............................................................................................15 

 

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

Controlling Commissioners’ Approach ...........................................................16 

B. The Controlling Commissioners’ Analysis of Crossroads’s Public 

Statements Was Reasonable ............................................................................18 

C. The Controlling Commissioners’ Analysis of Crossroads’s Spending 

Was Also Reasonable ..................................................................................... 20 

1. The Controlling Commissioners’ Determination of Crossroads’s 

Relevant Spending Was Reasonable ....................................................20 

2. The Controlling Commissioners’ Determination of the 

Relevant Time Period Was Reasonable ...............................................24 

D. The Controlling Statement Does Not Set a Spending Threshold ....................27 

III. THE FEC’S BROAD PROSECUTORIAL DISCRETION 

INDEPENDENTLY SUPPORTS AFFIRMANCE .....................................................28 

CONCLUSION ........................................................................................................................30

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TABLE OF AUTHORITIES 

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

*Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ..................................................................3, 6 

*Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................6, 16, 25 

Camp v. Pitts, 411 U.S. 138 (1973) .........................................................................................14

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) .....................1, 6 

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

City of Arlington, Tex. v. FCC, 133 S. Ct. 1863 (2013) ............................................................9

Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012) ................................................................15

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .........................................................11 

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

(D.C. Cir. 1987) .............................................................................................................5

Earthworks v. Dep’t of the Interior, 279 F.R.D. 180 (D.D.C. 2012) .......................................15

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ...................................................................8 

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

*FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ....................3, 4, 5, 17 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ..........................................................18

*FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) .............16 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ......................................................18, 26 

*FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ....................................................16 

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

(D.C. Cir. 1992) .......................................................................................................5, 21 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001).........................................4, 11

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) .....................................................22

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Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 

1127 (D.C. Cir. 2014) ........................................................................................9, 10, 12

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) ............................................... 7-8, 8, 9, 25 

*Heckler v. Chaney, 470 U.S. 821 (1985) ...............................................................................30

IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) ..............................................................14

*In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) .............................................4, 5, 10, 11, 12 

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ..................................................................29 

McConnell v. FEC, 540 U.S. 93 (2003) ...............................................................................8, 22 

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

*N.M. Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) .......................................23 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544 (4th Cir. 2012) .........................8, 9, 25 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ...............................................................8, 25 

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ..........................................................................4 

Stark v. FEC, 683 F. Supp. 836 (D.D.C. 1988) ...................................................................6, 29 

Tindal v. McHugh, 945 F. Supp. 2d 111 (D.D.C. 2013) ..........................................................15

United States v. Mead Corp., 533 U.S. 218 (2001) .............................................................9, 10 

Unity08 v FEC, 596 F.3d 861 (D.C. Cir. 2010) .........................................................................8 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ............................................................7, 14

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) ..................................23 

Statutes 

52 U.S.C. § 30101(4)(A)......................................................................................................6, 25 

52 U.S.C. § 30104(c)(1), (2)(A), (C) .......................................................................................13 

52 U.S.C. § 30104(f) ................................................................................................................22 

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

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52 U.S.C. § 30120 ....................................................................................................................13 

Miscellaneous 

FEC Advisory Op. 2009-23, 2009 WL 3320540 (Oct. 9, 2009) .............................................21 

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

(Feb. 7, 2007) ...................................................................................................21, 25, 26 

 

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ARGUMENT 

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

explained why the three FEC Commissioners’ decision dismissing plaintiffs’ administrative 

complaint against Crossroads Grassroots Policy Strategies (“Crossroads”), as set forth in those 

Commissioners’ controlling statement of reasons, was reasonable and not contrary to law. 

(FEC’s Mem. of P. & A. in Supp. of its Cross-Motion for Summ. J. and in Opp’n to Pls.’ Mot. 

for Summ. J. at 18-50 (Docket No. 32) (“FEC Mem.”).) The Commission explained that the 

standard of review in this case is limited and extremely deferential and that, with respect to the 

substantive “major purpose” analysis at issue, the controlling Commissioners’ approach was 

consistent with prior guidance from courts and the FEC itself in its lengthy 2007 policy 

statement regarding the agency’s case-by-case approach to the major-purpose test. 

In response to the briefs filed by the FEC and Crossroads, plaintiffs have provided no 

basis upon which the Court could rule in their favor. Although plaintiffs do not really dispute the 

limited nature of the standard of review that the Court must apply, they argue that the Court 

should not apply the deferential standard of Chevron U.S.A., Inc. v. Natural Res. Def. Council, 

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

Plaintiffs’ arguments against Chevron deference are meritless. Furthermore, their argument that 

disclosure from Crossroads is warranted because FECA’s various disclosure programs are 

constitutional does not help answer the question confronting the Court in this case. The question 

at issue is whether it was contrary to law for the Commission not to investigate Crossroads’s 

political-committee status based on the record that was before the agency when it made its 

decision (not the improper extra-record materials plaintiffs now seek to introduce). In reviewing 

that record, the controlling Commissioners found that Crossroads lacked the major purpose of 

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nominating or electing candidates. Plaintiffs’ arguments about the undisputed virtues of tailored 

disclosure requirements assume that Crossroads had the purpose of nominating or electing 

candidates. But whether disclosure from Crossroads is required by law here turns on the group’s 

political-committee status, and not on whether disclosure is beneficial or constitutional as an 

abstract matter. The controlling Commissioners appropriately took into account constitutional 

concerns regarding specific questions actually at issue here, applying the major-purpose test in a 

First Amendment-sensitive manner, as the D.C. Circuit and Supreme Court have repeatedly 

reiterated the Commission must do when interpreting FECA. 

Most critically, plaintiffs have failed to carry their burden of establishing that the 

controlling Commissioners’ analysis of Crossroads’s major purpose was contrary to law. The 

combination of the extremely deferential standard of review that applies in this case under 52 

U.S.C. § 30109(a)(8), and plaintiffs’ evident failure to identify any law contrary to the 

controlling Commissioners’ decision, is dispositive and requires the Court to sustain the FEC’s 

dismissal. Plaintiffs’ attempted showing that their preferred approach could have been affirmed 

falls short of the necessary showing that the actual approach used by the controlling 

Commissioners should not be affirmed. Because plaintiffs have failed to meet their burden, and 

because the controlling Commissioners’ analysis was reasonable, consistent with applicable law, 

and independently supported by the FEC’s broad prosecutorial discretion, the Court must grant 

summary judgment to the Commission. 

I. THE COURT MUST APPLY CHEVRON’S EXCEEDINGLY DEFERENTIAL 

STANDARD OF REVIEW 

The Court must apply Chevron deference in evaluating the agency’s reasons for 

dismissing plaintiffs’ administrative complaint. Such deference is due because Congress’s 

design of the agency’s relatively formal adjudication process fits in the heartland of agency 

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action that the Supreme Court has defined to be accorded Chevron deference, and because, not 

unrelatedly, the Court of Appeals has so held as a matter of Circuit law. (FEC Mem. at 21-26.) 

Although plaintiffs continue to resist the characterization of the level of deference to be 

applied in this case as “Chevron deference,” they do not dispute the standard of review. Under 

controlling Circuit precedent as stated by this Court, the Commissioners’ dismissal of plaintiffs’ 

administrative complaint must be sustained unless it was based on (1) an “‘impermissible 

interpretation’” of FECA or, (2) even “‘under a permissible interpretation of the statute, was 

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

(D.D.C. 2010) (quoting Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986)). They also do not 

dispute that the contrary-to-law standard is “‘extremely deferential’” and “‘requires affirmance if 

a rational basis for the agency’s decision is shown.’” Id. at 17 (quoting Orloski, 795 F.2d at 167) 

(emphases added). And they do not dispute that the Court’s task in this case is “not to interpret 

the statute as it [thinks] best but rather the narrower inquiry into whether the Commission’s 

construction was sufficiently reasonable to be accepted.” FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. 27, 39 (1981) (“DSCC”) (internal quotation marks omitted). 

Plaintiffs accordingly acknowledge that they must at least clear the high bar of showing that the 

agency’s actions were contrary to law because they were “arbitrary and capricious.” (E.g., Pls.’ 

Reply Mem. in Supp. of Their Mot. for Summ. J. and Mem. in Opp’n to Def.’s Cross-Mot. for 

Summ. J. at 15, 18, 24, 30 (Docket No. 39) (“Pls.’ Reply to FEC”); Pls.’ Reply Mem. in Supp. of 

Their Mot. for Summ. J. and Mem. in Opp’n to Crossroads Grassroots Policy Strategies’s Mot. 

for Summ. J. at 10, 19, 44 (Docket No. 62) (“Pls.’ Reply to Crossroads”).) Tellingly, and 

properly, they also address whether the approach of the controlling Commissioners satisfies 

“‘extremely deferential’ review.” (E.g., Pls.’ Reply to Crossroads at 25; see also id. at 20-28 

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(arguing about the Commissioners’ spending analysis “under any level of review”); Pls.’ Reply 

to FEC at 24 (making contentions about the dismissal “under . . . Chevron”).) Plaintiffs also 

conceded in their opening brief that the Court should at least accord the Commission the lesser 

deference of Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944). (See Pls.’ Mem. of P. & A. 

in Support of Pls.’ Mot. for Summ. J. at 17 (Docket No. 23).) 

A. Plaintiffs Fail to Distinguish Court of Appeals Precedent Requiring the 

Court to Apply Chevron Deference 

Given the clear permissibility of the controlling Commissioners’ interpretation of FECA, 

plaintiffs would not gain much by convincing the Court that the extremely deferential standard of 

review that the Court must use here is not “Chevron deference.” The size of that gain is 

irrelevant, in any event, because controlling precedent compels this Court to apply the “added 

boost of Chevron deference” (Pls.’ Reply to FEC at 1). In In re Sealed Case, the Court of 

Appeals explained that it was according “Chevron deference” to an FEC split-vote enforcement 

dismissal decision materially identical to the situation here. 223 F.3d 775, 780 (D.C. Cir. 2000). 

Chevron deference was and is warranted because it is consistent both with Congress’s design of 

the agency to be “statutorily balanced between the major parties” and with the Supreme Court’s 

instructions in DSCC, 454 U.S. at 37, 39, which were “more consonant with Chevron” (than 

Skidmore). Id. at 780-81. In FEC v. National Rifle Association of America, the Court of Appeals 

expressly reiterated that in In re Sealed Case, the FEC’s negative “probable cause determination 

and its underlying statutory interpretation [by controlling Commissioners in a split-vote case] 

had sufficient legal effect to warrant Chevron deference.” 254 F.3d 173, 185 (D.C. Cir. 2001). 

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

deference as “dicta” and argue that the decision “implied” the possibility that Chevron deference 

might not apply in this “direct review” context. (Pls.’ Reply to FEC at 3-5.) But their suggestion 

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

deferential approach as well as its explicit acknowledgement that “[p]rinciples governing the 

relationships of courts and agencies . . . compel us to address — and indeed, ultimately defer to

— a civil enforcement [statement] issued by the [FEC].” 223 F.3d at 776 (emphasis added). 

Furthermore, plaintiffs’ reliance on the criminal context of the case as a distinguishing feature 

(Pls.’ Reply to Crossroads at 7) is unavailing because the D.C. Circuit made clear that the 

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

its previous holding “that we owe deference to a legal interpretation supporting a negative 

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

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

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

Rifle Association that Chevron deference is the type of deference accorded to split-vote 

dismissals by the FEC follows from its earlier (and also controlling) decisions, and the Supreme 

Court’s decision in DSCC. (FEC Mem. at 21-26.) Even before In re Sealed Case, the D.C. 

Circuit applied “ordinar[y]” principles of agency deference in NRSC, which similarly involved a 

split-vote dismissal decision. 966 F.2d at 1475-76. And before NRSC, in Democratic 

Congressional Campaign Committee v. FEC, then-Judge Ruth Bader Ginsburg’s opinion for the 

Court of Appeals stated, again, that when the FEC is divided on an enforcement decision, “[i]n 

the absence of prior Commission precedent . . . judicial deference to the agency’s initial decision 

or indecision would be at its zenith.” 831 F.2d 1131, 1135 n.5 (D.C. Cir. 1987). Finally, in 

DSCC, upon which all these decisions rely, the Supreme Court explained that “the Commission 

is precisely the type of agency to which deference should presumptively be afforded.” 454 U.S. 

at 37. Lest there could be any doubt, Chevron itself relied on DSCC in articulating the standard 

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which now bears Chevron’s name. 467 U.S. at 843 n.11; accord Akins, 736 F. Supp. 2d at 18 

(citing Chevron and DSCC together); Stark v. FEC, 683 F. Supp. 836, 840-41 (D.D.C. 1988) 

(concluding that the “same deference” accorded in DSCC also “be accorded the reasoning of 

‘dissenting’ Commissioners who prevent Commission action by voting to deadlock”). 

B. Even If the Court Could Ignore the Court of Appeals’s Controlling 

Authority, Plaintiffs’ Arguments Against Chevron Deference Are Meritless 

Despite this overwhelming and settled authority, plaintiffs argue that Chevron deference 

does not apply because (1) the controlling Commissioners did not interpret FECA and (2) their 

dismissal decision lacks the requisite force of law. (Pls.’ Reply to Crossroads at 2-9; Pls. Reply 

to FEC at 1-5.) Both claims are incorrect. In light of the Supreme Court’s imposition of the 

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

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

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

Moreover, the controlling Commissioners’ dismissal decision carries the force of law despite the 

3-3 split vote of the agency’s Commissioners because that is how Congress designed FECA’s 

relatively formal adjudication procedure to operate. 

Contrary to plaintiffs’ argument (Pls.’ Reply to Crossroads at 2-6), the FEC is not seeking 

Chevron deference with respect to some general interpretation of Buckley. Rather, the Court is 

required to defer to the agency’s interpretation of the applicable provision of the Act, 52 U.S.C. 

§ 30101(4)(A), through the process of case-by-case adjudication. When interpreting that 

provision, the FEC was exercising the “gap-filling authority” (Pls.’ Reply to Crossroads at 2) that 

Congress delegated to it in enforcing FECA’s core political-committee provisions. (See FEC 

Mem. at 2-3 (explaining that Congress vested the FEC “with statutory authority over the 

administration, interpretation, and civil enforcement of FECA”).) In so doing, the 

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Commissioners were permitted to take into account the “changed circumstances” resulting from 

major “[c]onstitutional decisions” of the Supreme Court. See Van Hollen v. FEC, 811 F.3d 486, 

496 (D.C. Cir. 2016) (applying deferential review to an FEC regulation implementing the 

Supreme Court’s decision in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) 

(“WRTL”) even though that decision “said absolutely nothing” about the disclosure provision the 

FEC subsequently revised), pet. for rehearing en banc filed, No. 15-5016 (D.C. Cir.). 

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

to the manner in which the FEC applied section 30101(4)(A) with Buckley’s major-purpose 

limitation. In Negusie v. Holder, the Supreme Court confirmed the subject agency’s entitlement 

to Chevron deference “as it gives ambiguous statutory terms concrete meaning through a process 

of case-by-case adjudication.” 555 U.S. 511, 517 (2009) (internal quotation marks omitted). 

The Court’s holding that the agency had not yet exercised that authority, necessitating a remand 

for it to do so, resulted from its conclusion that the agency had mistakenly imported an earlier 

Supreme Court holding interpreting a provision in one statute into the different statutory context 

at issue. Id. at 516-25. But because Buckley interpreted the same provision of FECA at issue 

here, and because the major-purpose test unquestionably applies, Negusie does not support 

plaintiffs. As in that case, the Court explained that “[w]hatever weight or relevance . . . various 

authorities may have in interpreting the statute should be considered by the agency in the first 

instance.” Id. at 520. 

Similar to Negusie, the interpretive errors by the National Labor Relations Board in the 

cases plaintiffs cite (Pls.’ Reply to Crossroads at 5-6) have no bearing here because all parties 

agree that the major purpose test is an “‘additional hurdle to establishing political committee 

status’” that Crossroads must clear in order to be regulated as a political committee. Free Speech 

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

and Regulations: Political Committee Status, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007) 

(“Supplemental E&J”)). Plaintiffs’ reliance on the D.C. Circuit’s contrary and vacated opinion 

in Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 

U.S. 11 (1998) (Pls.’ Reply to Crossroads at 5-6) is likewise misplaced because that opinion is 

nonprecedential and is inconsistent with the D.C. Circuit’s subsequent reaffirmations of the 

major-purpose test during the last twenty years. See, e.g., Unity08 v. FEC, 596 F.3d 861, 867-69 

(D.C. Cir. 2010); EMILY’s List v. FEC, 581 F.3d 1, 16 n.15 (D.C. Cir. 2009); see also 

McConnell v. FEC, 540 U.S. 93, 170 n.64 (2003) (citing Buckley’s major-purpose discussion 

with approval), overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010). 

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

of the FEC and the courts upon which Chevron deference is partially based, and upon which the 

contrary-to-law standard of section 30109(a)(8) is wholly based. Though the courts may be 

expert in matters of constitutional law, they do not possess special expertise regarding whether 

the nomination or election of a candidate is the major purpose of an organization. That 

determination is centrally within the ambit of the FEC’s expertise and regulatory authority, and 

the Supreme Court accordingly did not “mandate a particular methodology for determining an 

organization’s major purpose,” leaving the FEC “free to administer FECA political committee 

regulations either through categorical rules or through individualized adjudications.” Real Truth 

About Abortion, Inc. v. FEC, 681 F.3d. 544, 556 (4th Cir. 2012) (“RTAA”), cert. denied, 133 S. 

Ct. 841 (2013); Free Speech, 720 F.3d at 797; see also Shays v. FEC, 511 F. Supp. 2d 19, 30-31 

(D.D.C. 2007). As here, that “inherently . . . comparative task” is one to be performed by the 

agency in accordance with its approved “sensible” and “flexibl[e] . . . case-by-case” method of 

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determining an organization’s major purpose. RTAA, 681 F.3d at 556, 558; Free Speech, 720 

F.3d at 797-98. Chevron deference is owed to the Commission’s resulting determination. 

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

dismissal decision supposedly lacks the force of law. (Pls.’ Reply to Crossroads at 6-9; Pls.’ 

Reply to FEC at 1-3.) Their reliance on United States v. Mead Corp., 533 U.S. 218 (2001) is 

misplaced because the basis of deference here is adjudication, not rulemaking. In Mead, the 

Supreme Court held that generally unexplained tariff classifications made by some 46 port-ofentry Customs offices were not entitled to Chevron deference because they were too far 

“removed not only from notice-and-comment [rulemaking] process” but also other indicia that 

Congress intended deference. Id. at 231. Mead reiterated that, as here, “a very good indicator of 

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

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

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

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

Chevron deference in “adjudication cases”). As the Supreme Court later said in another case 

which plaintiffs also cite (Pls.’ Reply to FEC at 2), “[w]hat the dissent needs, and fails to 

produce, is a single case in which a general conferral of rulemaking or adjudicative authority has 

been held insufficient to support Chevron deference for an exercise of that authority within the 

agency’s substantive field.” City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1874 (2013) 

(emphasis added). Plaintiffs have likewise failed to produce such a case. 

Also meritless is plaintiffs’ specific notion that Mead and the D.C. Circuit’s decision in 

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127 (D.C. Cir. 2014) 

(“Fogo De Chao”) undercut In re Sealed Case’s conclusions regarding Chevron deference. 

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(Pls.’ Reply to Crossroads at 7-9.) Following Christensen v. Harris County, 529 U.S. 576 

(2000), Mead held that the cursory Customs classification rulings were “beyond the Chevron

pale” because they were “best treated like ‘interpretations contained in policy statements, agency 

manuals, and enforcement guidelines.’” 533 U.S. at 234 (quoting Christensen, 529 U.S. at 587). 

In Fogo De Chao, the D.C. Circuit held that the challenged “decision, and any legal 

interpretations contained within it,” were not entitled to Chevron deference because they “were 

the product of informal adjudication within the [agency], rather than a formal adjudication or 

notice-and-comment rulemaking.” 769 F.3d at 1136 (emphases added). 

In In re Sealed Case, in contrast, the D.C. Circuit expressly considered whether 

controlling statements by declining-to-go-ahead FEC Commissioners were like the 

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

FEC statements were not like such interpretations; rather than being beyond the Chevron pale, 

they fell on the “Chevron side of the line.” 223 F.3d at 780; compare Fogo De Chao, 769 F.3d 

at 1136-37 (explaining that it was “[t]he absence of those relatively formal administrative 

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

pronouncement of legal interpretation” that “weighs against the application of Chevron

deference” (internal quotation marks and citation omitted)). A decision of an agency’s 

commissioners pursuant to a congressionally specified, relatively formal adjudication procedure 

is accorded deference under In re Sealed Case. That accords squarely with Mead and Fogo De 

Chao, as the lack of agency deference in those cases related to informal determinations by 

individual agency branches throughout the country. In National Rifle Association, which was 

decided post-Mead, the D.C. Circuit itself viewed In re Sealed Case as consistent with 

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Christensen and Mead in the course of extending Chevron deference from the split-vote 

enforcement context to the agency’s advisory opinion context. 254 F.3d at 184-86. 

Ultimately, plaintiffs seem to disbelieve that Congress could “have favored a system 

under which the deference that the views of a three-member bloc of Commissioners receive 

depends on whether they favored or opposed the agency action that a deadlock forestalled,” i.e., 

that deference could be accorded to a non-majority “block[ing] action.” (Pls.’ Reply to FEC at 

2-3.) But this is precisely what Congress did. Plaintiffs overlook the distinction between the 

FEC’s authority to regulate prospectively through rulemakings or adjudications in which four or 

more Commissioners agree on a rationale, on the one hand, and the power of three 

Commissioners to compel dismissal of an administrative enforcement matter, on the other. 

While it is true that the D.C. Circuit noted in Common Cause v. FEC that “a statement of reasons 

[by declining-to-go-ahead Commissioners] would not be binding legal precedent or authority for 

future cases,” 842 F.2d 436, 449 n.32 (D.C. Cir. 1988) (emphasis added) (see also Pls.’ Reply to 

Crossroads at 3, 9 (quoting the FEC’s recitation of this settled law)), the statement of three such 

Commissioners in a case like this one is the agency’s official decision and is to be accorded 

Chevron deference in the context of judicial review of that adjudicative decision, In re Sealed 

Case, 223 F.3d at 780. 

Thus, contrary to plaintiffs’ contention that a 3-3 dismissal “is not an exercise of 

authority to make rules carrying the force of law that are entitled to deference” (Pls.’ Reply to 

Crossroads at 9 (internal quotation marks omitted)), such binding dismissals are exactly how the 

agency was designed to operate in the adjudicative realm. (FEC Mem. at 24-25.) Whether that 

design is considered a feature, as Congress understood it, or a defect, as plaintiffs do, deference 

to a dismissal resulting from an absence of a majority furthers the Congressional intent of 

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requiring that any federal campaign finance enforcement be the product of the Commissioners’ 

bipartisan expertise. In re Sealed Case, 223 F.3d at 780 (“Congress vested enforcement power in 

the FEC, carefully establishing rules that tend to preclude coercive Commission action in a 

partisan situation, where the Commission, itself statutorily balanced between the major parties, is 

evenly split.” (citation omitted)). The D.C. Circuit’s dicta in Fogo De Chao was about the nonprecedential nature of the informal decisions of a different agency, 769 F.3d at 1137, and the 

Court’s holding in In re Sealed Case is binding here: “If courts do not accord Chevron deference 

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

penalties where Congress could not have intended that result.” 223 F.3d at 780. Accordingly, in 

conducting its review under section 30109(a)(8), this Court must accord Chevron deference to 

the controlling Commissioners’ dismissal decision, just as the D.C. Circuit itself did in In re 

Sealed Case and in the cases that preceded it. 

C. The Governmental Interest in Disclosure Does Not Reduce Plaintiffs’ Burden 

Plaintiffs also continue to seek to reduce their burden by stressing the importance of the 

government’s interest in disclosure. (Pls.’ Reply to FEC at 5-14; Pls.’ Reply to Crossroads at 25 

(“[T]he controlling Commissioners’ insistence on importing an express advocacy limitation into 

the ‘major purpose’ inquiry stymies the goal of obtaining disclosure of the identities of those 

who fund advocacy for or against the election of federal candidates.”).) This argument continues 

to rely on the disputed premise that Crossroads is a political committee. (FEC Mem. at 26-27.) 

Even if plaintiffs were correct that disclosure is what is “entirely” at stake in this case 

(Pls.’ Reply to FEC at 7), their argument that Crossroads was required to make politicalcommittee disclosures assumes the answer to the antecedent question being litigated in this case, 

namely whether all FEC determinations other than finding reason to believe that Crossroads was 

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a political committee were contrary to law. Plaintiffs acknowledge that the Supreme Court’s 

narrowing construction using the major-purpose test was based on its concern in Buckley that 

otherwise the term “political committee” could sweep in groups engaged purely in issue 

discussion. (Id. at 12.) But plaintiffs assert that “[t]hat concern is plainly not relevant as to 

Crossroads [], which concedes that it spent 39 percent of its 2010 budget on express advocacy 

advertising, and is thus in no way comparable to the ‘pure’ issue group hypothesized in 

Buckley.” (Id. (citation omitted).) Plaintiffs’ argument that “[a] ‘narrow construction’ of the 

‘major purpose’ test is therefore particularly unsuited to this case” (id.) places the cart before the 

horse. Whether political-committee-type disclosure from Crossroads is warranted turns not on 

whether disclosure from Crossroads advances disclosure interests but rather on whether 

Crossroads has the major purpose of nominating or electing candidates. 

Plaintiffs’ disclosure argument also overlooks FECA’s different disclosure requirements, 

some of which already apply to Crossroads and none of which are actually in dispute in this case. 

Plaintiffs complain as though Crossroads has not disclosed any of its activity. But Crossroads 

has disclosed $15,445,049.50 it reportedly spent on express advocacy in 2010, as required by the 

statute. 52 U.S.C. § 30104(c)(1), (2)(A), (C); FEC Mem. at 13. Furthermore, it is irrelevant that 

the Supreme Court has also upheld the electioneering communications disclosure obligations 

Congress added in the Bipartisan Campaign Reform Act of 2002 (“BCRA”) despite the fact that 

these disclosure requirements capture speech that is not limited to express advocacy (Pls.’ Reply 

to FEC at 8-9; Pls.’ Reply to Crossroads at 24-25). Crossroads has also reported spending 

$1,104,783.48 on electioneering communications in 2010. (FEC Mem. at 13.) And FECA 

requires that disclaimers be placed on all of Crossroads’s independent expenditures and 

electioneering communications, 52 U.S.C. § 30120; these communications do not exemplify 

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Crossroads “‘hid[ing itself] from the scrutiny of the voting public,’” as had occurred pre-BCRA. 

(Pls’. Reply to FEC at 8 (quoting McConnell, 540 U.S. at 197).) Neither the constitutionality nor 

the efficacy (see id. at 10) of FECA’s “event-driven” disclosure programs can be disputed in this 

case. Again, the question of whether Crossroads must make disclosures beyond its express 

advocacy and electioneering communications turns on whether it is a political committee, not 

whether plaintiffs are dissatisfied with Crossroads’s current level of disclosure. 

Plaintiffs complain that event-driven reporting is inadequate (Pls.’ Reply to FEC at 10), 

but the Court of Appeals has rejected those concerns. Van Hollen, 811 F.3d 486. As that Court 

held in the context of BCRA, seeking more disclosure “does not mean Congress wasn’t also 

concerned with, say, the conflicting privacy interests that hang in the balance”; “[j]ust because 

one of [the statute’s] purposes (even chief purposes) was broader disclosure does not mean that 

anything less than maximal disclosure is subversive.” Id. at 494. 

D. Plaintiffs Cannot Rely on Material Beyond the Administrative Record or 

Waived Arguments 

As the parties have recognized, this is an “action for review on an administrative record.” 

(Joint Meet and Confer Statement at 1 (Docket No. 18) (citing LCvR 16.3(b)(1)).) 

Consequently, judicial review must be limited to the administrative record “already in existence, 

not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 

143 (1973) (per curiam). Indeed, a “widely accepted principle of administrative law [is] that the 

courts base their review . . . on the materials that were before the agency at the time its decision 

was made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997); see also FEC Mem. at 27. 

Plaintiffs nevertheless attempt to rely on certain material — mostly concerning 

Crossroads’s grants to other organizations — that is cited in its latest briefs. (E.g., Pls.’ Reply to 

Crossroads at 19 n.6, 26-28 & nn.9-14.) It is undisputed that this extra-record material was not 

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before the agency when it made its decision (e.g., AR 365 n.47 (explaining that the Commission 

“does not have sufficient information to determine whether some of the other categories of 2010 

spending, such as the grants Crossroads [] issues, would also qualify as federal campaign 

activity”)); indeed, some of it did not become available until after the dismissal in December 

2013 (Pls.’ Reply to Crossroads at 27 & n.14 (citing report from February 2016 concerning the 

IRS’s recent grant of Crossroads’s application for tax-exempt status as a social welfare 

organization)). Such extra-record material is improper in this section 30109(a)(8) case and 

cannot inform this Court’s review of the controlling rationale for the challenged dismissal. See 

Earthworks v. Dep’t of the Interior, 279 F.R.D. 180, 184 (D.D.C. 2012) (“[T]o ensure fair review 

of an agency decision, a reviewing court ‘should have before it neither more nor less information 

than did the agency when it made its decision.’” (citations omitted) (collecting cases)). 

Additionally, by not making an argument based on Crossroads’s grants when the matter 

was before the agency (AR 1-22), or even in plaintiffs’ opening brief (Pls.’ Mem. in Support of 

Pls.’ Mot. for Summ. J. at 27 n.6 (Docket No. 23)), that argument has been waived. Tindal v. 

McHugh, 945 F. Supp. 2d 111, 129-31 (D.D.C. 2013) (complaining party waived issue it failed 

to raise with agency); Coburn v. McHugh, 679 F.3d 924, 929 (D.C. Cir. 2012) (explaining that 

courts are “bound to adhere to the hard and fast rule of administrative law, rooted in simple 

fairness, that issues not raised before an agency are waived and will not be considered by a court 

on review” (internal quotation marks omitted)). Accordingly, such extra-record materials and 

new arguments must be refused. 

II. THE FEC’S DISMISSAL MUST BE AFFIRMED BECAUSE IT WAS NOT 

CONTRARY TO LAW 

In their statement explaining the dismissal of plaintiffs’ administrative complaint, the 

controlling Commissioners’ analysis of whether Crossroads had the major purpose of nominating 

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or electing a federal candidate was reasonable. Their analysis is consistent with case law and 

Commission policy and precedents. Critically, plaintiffs’ complaints about the manner in which 

these Commissioners’ evaluated Crossroads’s public statements and spending fail to establish 

that any element of their analysis was contrary to law under the prevailing standard. The simple 

answer to plaintiffs’ case is that the controlling Commissioners’ dismissal decision must be 

sustained because there is no law to which their decision is contrary. In addition to clearing that 

low bar, the controlling Commissioners’ dismissal should be sustained because they reasonably 

analyzed Crossroads’s central organizational purpose and comparative spending in light of the 

law, Commission precedents, and the undisputed factual record that was before the agency. 

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

Controlling Commissioners’ Approach 

As demonstrated in the FEC’s opening brief, the leading cases from the Supreme Court 

and D.C. Circuit, Buckley, FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”), 

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

(“Machinists”), and even plaintiff Public Citizen’s own comments, are consistent with the 

controlling Commissioners’ approach in dismissing plaintiffs’ administrative complaint. (FEC 

Mem. at 29-31.) That approach was also consistent with the more recent lower court decisions 

concerning the major-purpose test and the Commission’s Supplemental E&J. (Id. at 31-34.) 

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

way that the controlling Commissioners ignored or contradicted. Instead, they attempt to rewrite 

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

reasonable to whether plaintiffs’ preferred approach would have been reasonable. (Pls.’ Reply to 

FEC at 11 (arguing that “neither the controlling Commissioners nor the FEC in its papers here 

suggest that [plaintiffs’ preferred] broader inquiry has been ruled in any way impermissible”); 

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Pls.’ Reply to Crossroads at 23-25 (contending that “the great weight of current case law holding 

that political committee status is not restricted by the express advocacy standard”).) Whatever 

the merits of these arguments, plaintiffs fail to make arguments consistent with their burden. It is 

one thing to show that an approach is permissible; it is quite another to show that it is required. 

Thus, regardless of whether it would be constitutional for the FEC to include non-express 

advocacy communications in a group’s relevant spending when performing the comparative 

spending analysis portion of the major-purpose inquiry, as plaintiffs contend, such a showing 

falls short of demonstrating that it would be unreasonable for Commissioners to use other, 

alternative approaches. It is insufficient to argue that plaintiffs’ proposed analysis would be 

better than the analysis they are challenging. The Court’s obligation is “not to interpret the 

statute as it [thinks] best but rather the narrower inquiry into whether the Commission’s 

construction was sufficiently reasonable to be accepted,” and “it is not necessary for [the Court] 

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

would have reached” on its own “if the question initially had arisen in a judicial proceeding.” 

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

Plaintiffs are also incorrect in arguing that the controlling group’s approach 

“contradict[ed] prior Commission interpretations of the laws governing political committee 

status” (Pls.’ Reply to FEC at 5), or “deviate[d]” (id. at 6, 14) or “depart[ed]” (id. at 12, 18) from 

“the Commission’s expressed standards” (id. at 20; Pls.’ Reply to Crossroads at 10, 13, 20, 21, 

35 (similarly contending that the controlling Commissioners departed or deviated from the 

agency’s “longstanding approach to major-purpose determinations”)). Plaintiffs’ vague charges 

that the controlling statement departed from precedent are supported only by unspecific citations 

to, e.g., “various Commission actions relied on by the Commission’s Office of General Counsel 

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. . . in its First General Counsel’s Report and . . . the 2007 Supplemental [E&J]” (Pls.’ Reply to 

FEC at 5 (citation omitted)) or unidentified “prior Commission actions” (Pls.’ Reply to 

Crossroads at 18; id. at 20-21 (citing a “break” from “the Commission’s past policy”)). But 

statements in the First General Counsel’s Report are neither law nor binding on the agency’s 

Commissioners. (FEC Mem. at 42 n.12.) And the “various Commission actions” cited in the 

First General Counsel’s Report (Pls.’ Reply to FEC at 5) predated the intervening federal 

appellate court decisions upon which the controlling group relied (FEC Mem. at 42) and do not 

themselves compel the conclusion that Crossroads was a political committee (see AR 416 n.75). 

B. The Controlling Commissioners’ Analysis of Crossroads’s Public Statements 

Was Reasonable 

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

Commissioners’ analysis of Crossroads’s central organizational purpose was also reasonable. As 

the Commission has already explained, the controlling group’s analysis of Crossroads’s 

statements was consistent with the Supplemental E&J and with FEC v. Malenick, 310 F. Supp. 

2d 230, 235 (D.D.C. 2004) and FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 1996), and 

the controlling group’s assessment of Crossroads’s organizational documents reasonably found 

that those documents do not indicate that Crossroads’s primary purpose is the election or 

nomination of candidates. (FEC Mem. at 35-37.) Plaintiffs do not dispute these points, but 

instead complain about the controlling group’s supposedly “near-exclusive” reliance on 

Crossroads’s “self-serving” and “self-generated” public statements. (Pls.’ Reply to FEC at 15-

17.) But all statements by a group are “self-generated” and intended to serve the group’s 

interests. That is why the agency reviews them — to see what the group is saying about itself. 

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Even if plaintiffs were right that the FEC’s approach “explicitly demands consideration 

of a broad range of [a] group’s public statements and conduct” (id. at 15),1

 their factual claim 

that the controlling Commissioners “did not comprehensively analyze the record” (Pls.’ Reply to 

Crossroads at 33) is incorrect. The controlling Commissioners did consider the record. What 

they found when they did so was that neither the research done by the agency’s staff of publicly 

available information “nor the few articles included in the [Administrative] Complaint provide 

sufficient evidence to undermine Crossroads[’s] official statements of purpose.” (AR 411.) 

Specifically, they found that “many of the articles” conflated Crossroads with “American 

Crossroads.” (Id.) And they agreed with Crossroads that there were “numerous instances where 

a newspaper article misrepresents the position of or a statement by a representative of 

Crossroads,” using an example from a Wall Street Journal article to illustrate the point. (AR 

412.) Although plaintiffs cast the error the controlling group supposedly made in considering 

Crossroads’s public statements as one of process, plaintiffs’ real disagreement is with the 

conclusions the Commissioners drew from the record. To the extent plaintiffs’ arguments are 

anything other than simple, legally insufficient disagreement about whether the materials are 

credible, they are exclusively based on information that is not part of the administrative record 

(see Pls.’ Reply to Crossroads at 34-35 (relying on Crossroads’s “use” of an article regarding 

coordination)). This extra-record evidence cannot be the basis for a finding that the 

Commissioners’ evaluation of Crossroads’s statements was contrary to law. Supra pp. 14-15. 

Plaintiffs also incorrectly suggest that the FEC’s Office of General Counsel 

recommended finding reason to believe that a violation had occurred because of Crossroads’s 

 

1

 The portion of the Supplemental E&J plaintiffs’ rely on for this contention actually 

explains that such analysis “‘may’” be instructive and that the FEC’s investigation “‘may’” reach 

beyond publicly available ads. (See Pls.’ Reply to FEC at 16 (quoting Supplemental E&J).) 

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public statements, positing that the staff analysis “look[ed] beyond unreliable ‘official’ 

statements of its intent to consider the group’s ‘overall conduct.’” (Pls.’ Reply to FEC at 15.) 

The Office of General Counsel did no such thing. On the contrary, it explicitly expressed its 

recommendation solely on its analysis of Crossroads’s spending. (AR 355-56 (“In this case, 

Crossroads[’s] proportion of spending related to federal campaign activity is alone sufficient to 

establish that its major purpose in 2010 was the nomination or election of federal candidates.” 

(emphasis added)).) As the controlling group explained, their conclusion based on the whole 

record was that the “various articles discussing American Crossroads and Crossroads [] do not 

undermine” Crossroads’s organizational documents, “especially in light of Crossroads[’s] 

explanations” — and the Office of General Counsel “d[id] not contend otherwise.” (AR 412.) 

C. The Controlling Commissioners’ Analysis of Crossroads’s Spending Was 

Also Reasonable 

Plaintiffs’ claims that the controlling group of Commissioners’ analysis of Crossroads’s 

spending was (1) improperly constrained as to the relevant universe of spending and (2) 

improperly expansive as to the relevant time period similarly fail to show that the 

Commissioners’ approach was contrary to law. Their approach was reasonable in both respects. 

1. The Controlling Commissioners’ Determination of Crossroads’s 

Relevant Spending Was Reasonable 

As explained in the FEC’s opening brief, the controlling group’s identification of the 

relevant universe of spending as Crossroads’s independent expenditures was reasonable and not 

contrary to law. (FEC Mem. at 37-42.) Plaintiffs nevertheless contend that the evaluation of 

Crossroads’s spending in the controlling statement “depart[ed] from [the agency’s] own policy” 

and “has no basis in law and finds no support in relevant Supreme Court precedent.” (Pls.’ 

Reply to FEC at 18-19; Pls.’ Reply to Crossroads at 24-25.) These charges are meritless. 

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Initially, the controlling statement does not purport to change the FEC’s way of 

evaluating political-committee status. (FEC Mem. at 33 & n.10.) Nor does it show a departing 

application of the agency’s policy. Plaintiffs cite nothing in the Supplemental E&J requiring 

Commissioners to include an organization’s non-express advocacy communications when 

comparing a group’s “campaign activities” to its “activities unrelated to campaigns.” 72 Fed. 

Reg. at 5601-02. That is because the Supplemental E&J contains no such requirement. Instead, 

plaintiffs focus on the Supplemental E&J’s use of the phrase “Federal campaign activity,” which 

they argue has not been defined to mean “express advocacy” and then suggest should be equated 

with a similar phrase, “federal election activity,” added to FECA by BCRA to include certain 

communications that promote, support, attack, or oppose a federal candidate. (Pls.’ Reply to 

FEC at 19-21 (citing 52 U.S.C. § 30101(20)(A)(iii)), 23; Pls.’ Reply to Crossroads at 29-31.) 

But the FEC already defined “Federal campaign activity” in the Supplemental E&J. The phrase 

simply means “the nomination or election of a Federal candidate.” 72 Fed. Reg. at 5597 (using 

“i.e.” to define “Federal campaign activity” this way); FEC Advisory Op. 2009-23, 2009 WL 

3320540, at *2 (Oct. 9, 2009) (same) (citing Buckley, 424 U.S. at 79; MCFL, 479 U.S. at 262; 

Supplemental E&J, 72 Fed. Reg. at 5595, 5597, 5601). Because “the nomination or election of a 

Federal candidate” is the “major purpose” element a group must have in order to be a political 

committee, the phrase “Federal campaign activity” in no way requires that certain non-express 

advocacy spending be included in the major purpose analysis. There is no “clearly establish[ed]” 

determination regarding precisely what spending constitutes “Federal campaign activity” and the 

controlling group’s expertise is accordingly entitled to deference. NRSC, 966 F.2d at 1476-77. 

Plaintiffs also take the Supreme Court’s decision in McConnell out of context when they 

state here that the Court “made clear that the express advocacy test was ‘functionally 

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meaningless’ in distinguishing election-related speech from issue advocacy.” (Pls.’ Reply to 

Crossroads at 24-25; Pls.’ Reply to FEC at 8-10.) The Supreme Court in McConnell did uphold 

BCRA’s electioneering communications definition, but that holding included the determination 

that the components of the “electioneering communication” definition were “both easily 

understood and objectively determinable,” and thus raised “none of the vagueness concerns that 

drove our analysis in Buckley.” 540 U.S. at 189-94. Plaintiffs’ oblique references to their view 

of the proper definition of “Federal campaign activity” contradict their suggestion that no

vagueness concerns are at issue here. (See, e.g., Pls’. Reply to FEC at 21 n.6 (contending that 

there was “good reason” to view a campaign “targeted to battleground states” and defining an 

officeholder’s record as “electorally motivated”).) McConnell also did not hold that the 

equivalency of certain electioneering communications and express advocacy means that all 

electioneering communications and all express advocacy communications are the same for 

political-committee status purposes. On the contrary, the Court recognized that some 

electioneering communications may be genuine issue ads. McConnell, 540 U.S. at 206; see also

WRTL, 551 U.S. at 470 (discussing genuine issue ads). Thus, the Supreme Court’s upholding of 

disclosure for electioneering communications does not support plaintiffs’ contention that 

Congress and the Supreme Court somehow made the additional determination that electioneering 

communications are the equivalent of express advocacy for purposes of evaluating politicalcommittee status. Congress’s creation of an entirely separate disclosure regime for 

electioneering communications in BCRA belies that contention. 52 U.S.C. § 30104(f). 

Plaintiffs’ charge that the controlling Commissioners’ approach has no basis in law or in 

relevant Supreme Court precedent (Pls.’ Reply to FEC at 11-14, 19-24) is equally wrong. In its 

opening brief, the FEC showed that the controlling Commissioners’ approach is consistent with 

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

Machinists, and even with Public Citizen’s own previous comments on the question. (See FEC 

Mem. at 29-31, 38.) The Commissioners’ analysis is also consistent with the Tenth Circuit’s 

decision in N.M. Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) and the decisions of 

other judges of this Court in GOPAC, Inc. and Malenick. (Id. at 39-40.) It is also consistent with 

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

2014), although the Commissioners did not rely on that decision as it postdated the issuance of 

the controlling statement. (Id.) By contrast, as explained above, see supra pp. 16-17, it is 

plaintiffs who have failed to show that the Commissioners’ comparative spending analysis is in 

conflict with any judicial decision. The Court should reject plaintiffs’ attempt to swap burdens 

with the FEC. Even if courts have upheld state disclosure regimes counting non-express 

advocacy (Pls.’ Reply to Crossroads at 23-24), and even if the FEC “stops short” of arguing that 

GOPAC, Inc. and Malenick “restricted the ‘major purpose’ inquiry to express advocacy 

spending” (Pls.’ Reply to FEC at 12-13), the question at issue is not whether the controlling 

Commissioners’ approach has been expressly approved but whether it has been disapproved. 

In responding to Crossroads’s opening brief, plaintiffs make two new arguments 

regarding Crossroads’s spending. For the first time, plaintiffs argue that the controlling 

Commissioners “failed to assess whether any of Crossroads’ advertisements were the ‘functional 

equivalent’ of express advocacy.” (Pls.’ Reply to Crossroads at 25.) This argument is 

contradicted by the record. The controlling Commissioners expressly recognized in their 

statement that the FEC’s Office of General Counsel did “not argue, nor could it, that these 

additional communications [the $5.4 million of non-express advocacy plaintiffs believe should 

have been included] were the functional equivalent of express advocacy.” (AR 415 & n.69; see 

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also AR 361 (explaining the Office of General Counsel’s view that the ads do not contain the 

functional equivalent of express advocacy).) 

Plaintiffs’ other argument resorts to extra-record evidence concerning Crossroads’s 

grants and thus must also be rejected. See supra pp. 14-15. Even if recipients of grants from 

Crossroads used some of the money they received on independent expenditures or electioneering 

communications (Pls.’ Reply to FEC at 21; Pls.’ Reply to Crossroads at 25-28), plaintiffs do not 

explain why the spending of the grantees they identify should be imputed to Crossroads, which, 

after all, conditioned its provision of grant funds on their use “only for exempt purposes” and 

“not for political expenditures.” (AR 279, 326 (“Crossroads [] 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. Grants are 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 tax-exempt mission.”).) 

2. The Controlling Commissioners’ Determination of the Relevant Time 

Period Was Reasonable 

Plaintiffs’ arguments that the controlling Commissioners used the wrong time period in 

evaluating Crossroads’s spending are also wide of the mark. Plaintiffs contend that the 

controlling group of Commissioners based its analysis exclusively on Crossroads’s fiscal year 

(Pls.’ Reply to FEC at 24-27; Pls.’ Reply to Crossroads at 11-19), but the Commissioners 

actually considered spending over each of several potential time periods: (a) the 2010 calendar 

year (as plaintiffs prefer), (b) Crossroads’s first fiscal year running from June 2010 to May 2011, 

and (c) all of the 2010-2011 period that was in the record before the Commission. (AR 423-24; 

FEC Mem. at 43.) That flexible analysis was squarely in line with precedents and the 

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Supplemental E&J. “Because Buckley and MCFL make clear that the major purpose doctrine 

requires a fact-intensive analysis of a group’s campaign activities compared to its activities 

unrelated to campaigns, any rule must permit the Commission the flexibility to apply the 

doctrine to a particular organization’s conduct.” 72 Fed. Reg. at 5601-02. The Commissioners’ 

evaluation of Crossroads’s spending over multiple alternative time periods was thus consistent 

with the Commission’s earlier guidance. Id. at 5602 (“[A]ny list of factors developed by the 

Commission would not likely be exhaustive . . . , as evidenced by the multitude of fact patterns at 

issue in the Commission’s enforcement matters considering the political committee status of 

various entities.”); RTAA, 681 F.3d at 556, 558; Free Speech, 720 F.3d at 797-98; see also Shays, 

511 F. Supp. 2d at 29-31. Plaintiffs’ failure to find fault with the analysis the Commissioners 

actually used demonstrates that their flexible analysis was not contrary to law. 

In any event, plaintiffs are also incorrect that the controlling statement’s application of a 

window of time other than the second half of 2010 was “contrary to law because it was based on 

an impermissible misinterpretation of 52 U.S.C. § 30101(4)(A).” (Pls.’ Reply to FEC at 26; Pls.’ 

Reply to Crossroads at 11-13.) FECA’s political committee definition does use a “calendar 

year” for determining whether an organization has received contributions or made expenditures 

exceeding $1,000, 52 U.S.C. § 30101(4)(A), but the major-purpose test is an “‘additional hurdle 

to establishing political committee status’” that the Supreme Court established in Buckley. Free 

Speech, 720 F.3d at 797 (quoting Supplemental E&J, 72 Fed. Reg. at 5601). Thus, as plaintiffs 

themselves argue (Pls.’ Reply to Crossroads at 12), Congress has not expressed an intent 

regarding the relevant scope of time for determining an organization’s major purpose. Nor did 

the Buckley Court specify that consideration of an organization’s major purpose must parallel the 

statutory calendar-year test. 424 U.S. at 79. Rather, the Court referred to an organization’s 

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major purpose without further elaboration, and plaintiffs point to no judicial decisions that have 

limited the relevant time period for determining a group’s major purpose. Other than their 

arguments about the text of section 30101(4)(A), plaintiffs rely on “‘two matters cited by the [] 

Supplemental E&J — and in one concluded shortly thereafter’” in which the FEC “‘focused on 

the group’s activity during the 2004 calendar year . . . to determine major purpose.’” (Pls.’ 

Reply to FEC at 27.) Yet in cases such as GOPAC, Inc., and Malenick, and in other enforcement 

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

purpose. (AR 421-23 & nn.96, 97, 101.)2 Plaintiffs’ claim that the calendar year analysis was an 

established rule from which the controlling Commissioners departed is therefore incorrect. 

Importantly, as the FEC summed up in its Supplemental E&J, “[p]ursuant to FECA and 

Supreme Court precedent, the Commission will continue to determine political committee status 

based on whether an organization (1) [r]eceived contributions or made expenditures in excess of 

$1,000 during a calendar year, and (2) whether that organization’s major purpose was campaign 

activity.” 72 Fed. Reg. at 5606. If the Supplemental E&J provides any guidance regarding a 

time period for the major purpose analysis, it thus indicates only that the objective $1,000 

contribution or expenditure test is based upon a calendar year approach, and the time period for 

making the more flexible “major-purpose” determination is undefined. This follows from the 

fact that the crossing of a $1,000 threshold occurs at an objectively ascertainable moment in 

time, while an organization’s primary goal being the nomination or election of candidates does 

not necessarily do so. The controlling Commissioners’ choice not to use a calendar-year 

 

2

 Plaintiffs’ observation (Pls.’ Reply to Crossroads at 17) that the court in Malenick failed 

to find the organization to be a political committee in 1995, as opposed to 1996, confirms the 

FEC’s view that the statutory threshold requirement is independent of the major-purpose 

analysis. In Malenick, the organization was not a political committee in 1995, not because it 

failed the major purpose element but because it failed the $1,000 contribution element. 

Malenick, 310 F. Supp. 2d at 236 & n.8. 

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approach in evaluating Crossroads’s political-committee status — to the extent that they actually 

did fail to do so — was accordingly not in conflict with the statute or arbitrary and capricious. 

As the FEC explained in its opening brief, the controlling group’s use of a fiscal year is practical 

(an organization’s fiscal year establishes when it will file its tax returns, which as this case 

shows, are a principal source of evidence about the group’s spending), not susceptible to 

manipulation, and no more arbitrary than using a calendar year. (FEC Mem. at 44-46.) The 

Commissioners’ time period analysis was not contrary to law. 

D. The Controlling Statement Does Not Set a Spending Threshold 

Plaintiffs’ claims that the controlling Commissioners established “a 50 percent threshold 

of express advocacy expenditures” (Pls.’ Reply to FEC at 22; Pls.’ Reply to Crossroads at 36) are 

also incorrect. While portions of the controlling statement discuss Crossroads’s comparative 

spending in terms of a percentage, it does not define any threshold spending percentage for 

triggering political-committee status. (Compare AR 407 (reciting the Tenth Circuit’s evaluation 

“‘whether the preponderance of expenditures is for express advocacy or contributions to 

candidates’” (quoting Herrera, 611 F.3d at 678) (emphasis added)), with AR 423 (explaining 

that only with a “narrow view of total spending and an expansive view of campaign spending” 

could Crossroads’s spending could be thought to exceed “50 percent of its total spending”), and

AR 424 (explaining that, under one of the alternative analyses of the controlling Commissioners, 

“even 49 percent of total spending is significantly lower than the percentages found in” the prior 

matters summarized in the Supplemental E&J in which “the Commission determined that 

political committee status existed”).) 

Instead of defining a particular percentage point at which Crossroads’s spending would 

have signified its major purpose of nominating or electing a federal candidate, the controlling 

Commissioners analyzed Crossroads’s spending using a variety of approaches, including 

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approaches of which plaintiffs approve. (E.g., AR 424 (analyzing Crossroads’s spending 

including the non-express advocacy that plaintiffs believe should be included against 

Crossroads’s fiscal year).) Plaintiffs wholly fail to grapple with the controlling Commissioners’ 

alternative analyses. What the Commissioners concluded based on the totality of these 

alternative approaches was that the only way to make Crossroads’s spending appear to satisfy 

major purpose element was by both including spending that they did not believe should be 

included (non-express advocacy that is not the functional equivalent of express advocacy) and by 

limiting the time period under review to a period the Commissioners believed would be unduly 

constrained (the first six months of Crossroads’s existence). Accordingly, the controlling 

Commissioners voted not to find reason to believe not only because Crossroads did not appear to 

have a major purpose under the analysis they thought most appropriate, but also because, even 

using more sweeping analyses, it still would not appear to have that major purpose. (AR 424-

25.) Their actual and nuanced analysis underscores the reasonableness of their decision. 

III. THE FEC’S BROAD PROSECUTORIAL DISCRETION INDEPENDENTLY 

SUPPORTS AFFIRMANCE 

Finally, the dismissal of plaintiffs’ administrative complaint is separately justified by the 

Commission’s broad prosecutorial discretion. (AR 427 n.117; FEC Mem. at 49-50.) Plaintiffs 

acknowledge the cases explaining the “FEC’s discretion” in general terms and admit that courts 

have “sustain[ed Commission] decisions not to take enforcement action on the basis of 

enforcement discretion.” (Pls.’ Reply to FEC at 29; see also FEC Mem. at 49 (collecting cases).) 

Nevertheless, they contend that enforcement discretion cannot be a basis for affirmance here 

because the controlling Commissioners’ reference to that basis was only “glancing” or “passing” 

(Pls.’ Reply to FEC at 28, 29) and because “the FEC does not possess the almost unreviewable 

enforcement discretion posited in Heckler [v. Chaney, 470 U.S. 821 (1985)]” (id. at 29). 

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These arguments are unavailing. The controlling statement expressly noted the 

Commissioners’ views that the political-committee analysis favored by plaintiffs would “expand 

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

evaluating an organization’s spending for that analysis.” (AR 427 n.117.) In the 

Commissioners’ view, such an approach had not been “properly noticed” to individuals and 

groups that may be affected by the application of that analysis. (Id.) For that reason, the 

Commissioners observed that the FEC’s considerable discretion not to prosecute “could properly 

be applied here.” (Id.) While plaintiffs correctly state that the notice point in the controlling 

statement’s final footnote is made succinctly, that does not mean that it is underdeveloped or was 

not actually relied upon in the Commissioners’ decision. On the contrary, that footnote reiterates 

the several notice, due process, and retroactivity points made more fully earlier in the statement. 

(See AR 421 n.92; AR 422 (“[T]he Commission has made no public statement . . . that would put 

Crossroads [] on notice that it would be judged based solely upon its activities in calendar year 

2010. . . . [E]ven assuming arguendo that a single calendar-year approach is the proper one to 

apply, due process would preclude the Commission from seeking to enact a new legal norm now, 

without prior notice . . . and apply it retroactively.”); id. nn.98-99.) Accordingly, the footnote is 

not the “afterthought” plaintiffs claim (Pls.’ Reply to FEC at 28), but a distinct reason the 

controlling statement provides for the dismissal, that cross-references earlier points that are also 

“properly . . . applied” (AR 427 n.117) to the prosecutorial discretion context. 

Plaintiffs seek to distinguish La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) and Stark,

683 F. Supp. 836, on the basis that those prosecutorial decisions were more “thoroughly” 

explained. (Pls.’ Reply to FEC at 29.) But they make no effort to explain why notice concerns 

the Commissioners identified are less appropriate than the limited-resources and evidentiary 

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issues that they mention with approval. One of the Heckler factors is “whether the agency is 

likely to succeed if it acts.” 470 U.S. at 831. After concluding that the FEC had provided 

insufficient notice regarding potential consideration of communications beyond express 

advocacy or a calendar-year approach, it was reasonable to determine that a civil enforcement 

action would face uncertain prospects. (AR 427 n.117.) La Botz and Stark and the many other 

decisions the FEC cited in its opening memorandum clearly establish that the agency maintains 

broad prosecutorial discretion to decide what enforcement matters to pursue. 

FEC v. Akins, 524 U.S. 11 (1998) also provides no assistance. There, the Supreme Court 

confirmed the existence of the FEC’s prosecutorial discretion, id. at 25, and held that plaintiffs 

had standing to bring a challenge to an FEC dismissal using section 30109(a)(8), id. at 13-14. 

Here, the FEC is not challenging plaintiffs’ standing, and the Supreme Court’s comment that it 

could not know whether the FEC “‘would have exercised its prosecutorial discretion’” in the 

suggested manner (Pls.’ Reply to FEC at 28 (quoting Akins, 524 U.S. at 25)) is thus inapt. The 

Supreme Court’s point was that a hypothetical exercise of prosecutorial discretion to repeat what 

the agency had previously done did not destroy Article III causation for standing purposes. 

Akins, 524 U.S. at 25. There is nothing similarly hypothetical about the present situation, where 

the controlling Commissioners did exercise that discretion. As a result, the FEC’s broad 

prosecutorial discretion is an independent basis for affirmance here. 

CONCLUSION 

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

the Court should grant summary judgment to the Commission. 

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 Respectfully submitted, 

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

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

April 7, 2016 

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

Acting Assistant General Counsel 

echlopak@fec.gov 

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

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

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

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

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