UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) Civ. No. 16-259 (BAH) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) 

STRATEGIES, ) REPLY IN SUPPORT OF 

 ) SUMMARY JUDGMENT 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

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

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

January 24, 2018 

Harry J. Summers 

Assistant General Counsel 

Seth Nesin 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 1 of 53
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TABLE OF CONTENTS 

 

 Page 

I. THE DISMISSAL OF THE ADMINISTRATIVE COMPLAINT WAS 

LAWFUL .......................................................................................................................2

A. The FEC’s Dismissal of the Administrative Complaint Is Entitled 

to Deference .......................................................................................................2 

B. It Was Reasonable for the Controlling Group to Find That the Facts 

CREW Alleged Did Not Create a Reason to Believe Crossroads GPS 

Violated 52 U.S.C. § 30104(c)(2)(C) or 11 C.F.R. § 109.10(e)(1)(vi) ..............5 

C. The FEC Properly Exercised Prosecutorial Discretion as to Any 

Potential Violation of 52 U.S.C. § 30104(c)(1), and in Any Event 

Plaintiffs Failed to Timely Raise Their Arguments With Respect to 

Such a Claim ......................................................................................................7 

D. Equitable Concerns and FECA’s Safe Harbor Provision Would 

Likely Have Presented Barriers to Pursuit of an Alleged Section 

30104(c)(1) Violation ......................................................................................12 

E. The Commission’s Exercise of Prosecutorial Discretion Does Not 

Automatically Confer on CREW the Authority to Sue Crossroads GPS 

in Its Own Capacity .........................................................................................15 

II. THE COMMISSION’S REGULATION AT 11 C.F.R. § 109.10(e)(1)(vi) WAS 

LAWFULLY PROMULGATED AND IT REMAINS VALID .................................18 

A. Judicial Review of the Commission’s Regulation Is Deferential ....................19 

B. Plaintiffs’ Challenge to the Sufficiency of the Regulation’s 

Explanation and Justification Is Untimely and Erroneous ...............................20 

C. The Regulation Passes Chevron Step One Because the Ambiguity 

of the Statute Provided the Commission With Authority to Promulgate 

11 C.F.R. § 109.10(e)(1)(vi) ............................................................................23 

D. The Regulation Passes Chevron Step Two Because It Reasonably 

Clarifies the Language of 52 U.S.C. § 30104(c)(2)(C) ...................................28 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 2 of 53
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1. Evidence Regarding the Extent of Disclosure Today Cannot 

Be Considered in Determining Whether the Commission Acted 

Reasonably in Passing the Regulation in 1980 ....................................29 

2. The Interpretation of the Statute in the Regulation Does 

Not Create Redundancies .....................................................................31 

3. Congress Has Not Acted on This Issue Despite CREW’s 

Argument That the Regulation Has Been in Conflict With the 

Statute for 38 Years .............................................................................32 

E. It Is Reasonable to Interpret Section 30104(c)(1) as Too Ambiguous, 

in the Overall Context of the Statute, to Treat as an Independent 

Reporting Requirement ....................................................................................33 

1. Interpreting Section 30104(c)(1) as an Independent Reporting 

Requirement Creates Tension With the Language and Structure 

of the Law ............................................................................................34 

2. The Duplicative Reporting CREW Envisions Would Be 

Dissimilar to Other Provisions of FECA .............................................36 

3. No Court Has Held That Section 30104(c)(1) Imposes an 

Independent Reporting Requirement, Nor Has the Commission 

Itself Ever Enforced the Statute in Accord With That 

Interpretation ........................................................................................39 

4. FECA Treats Persons That Are Not Political Committees 

Differently from Political Committees ................................................40 

III. REMAND TO THE COMMISSION WOULD BE THE APPROPRIATE 

REMEDY IF THE COURT DETERMINED THAT THE COMMISSION 

ERRED ........................................................................................................................42 

CONCLUSION ........................................................................................................................43 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 3 of 53
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TABLE OF AUTHORITIES 

Cases 

AFL-CIO v. Chao, 496 F. Supp. 2d 78 (D.D.C. 2007) ...................................................... 21-22 

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 

988 F.2d 146 (D.C. Cir. 1993) ...............................................................................42, 43 

Bhd. of R.R. Trainmen v. B&O R.R. Co., 331 U.S. 519 (1947) ...............................................34 

Bob Jones Univ. v. United States, 461 U.S. 574 (1983) ..........................................................33 

Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................................................40 

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

 467 U.S. 837 (1984) .................................................................. 3, 19, 22, 23, 28, 42-43 

Cnty. of San Miguel v. Kempthorne, 587 F. Supp. 2d 64 (D.C. Cir. 2008) .............................30 

Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012) ..................................................................8 

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

795 F.3d 151 (D.C. Cir. 2015) .....................................................................................17 

Common Cause v. FEC, 906 F.2d 705 (D.C. Cir. 1990) .........................................................23 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...........................................................3 

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016), appeal dismissed, 

No. 16-5300, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017)..................................3, 4, 18 

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) ..........................................................................4 

CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017) ..................................................................21 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) .....................25, 26 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) .....................16 

Democratic Senatorial Campaign Comm. v. Nat’l Republican Senatorial Comm., 

No. 1:97-cv-1493 (D.D.C. filed June 30, 1997) ..........................................................18 

Dist. Hosp. Partners, L.P. v. Sebelius, 971 F. Supp. 2d 15 (D.D.C. 2013) .............................30 

Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) .....................................................................25 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 4 of 53
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Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ..................................................22 

Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) .......................................................................30 

FEC v. Akins, 524 U.S. 11 (1998) ........................................................................................4, 16 

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

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ......................................................................39 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) .................................... 14, 26-28, 39 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) .........................3 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) .........................................................................18 

Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ...................................................42 

Fritch v. U.S. Dept. of State, 220 F. Supp. 3d 51 (D.D.C. 2016) ..............................................8 

George E. Warren Corp. v. E.P.A., 159 F.3d 616 (D.C. Cir. 1998) ........................................21 

Gill v. U.S. Dept. of Justice, 875 F.3d 677 (D.C. Cir. 2017) .....................................................8 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ........................................................................2 

Heckler v. Chaney, 470 U.S. 821 (1985) .............................................................................2, 16 

Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160 (D.D.C. 2017) ............................9, 12 

In re Fed. Election Campaign Act Litig., 474 F. Supp. 1051 (D.D.C. 1979) ..........................15 

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

JEM Broad. Co., Inc. v. FCC, 22 F.3d 320 (D.C. Cir. 1994) ..................................................21 

Koretoff v. Vilsack, 707 F.3d 394 (D.C. Cir. 2013) ...................................................................9 

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ..........................................................2, 4, 17 

Marsh v. J. Alexander's LLC, 869 F.3d 1108 (9th Cir. 2017) .................................................22 

McConnell v. FEC, 540 U.S. 93 (2003) ...................................................................................38 

N.Y. State Dep’t of Law v. FCC, 984 F.2d 1209 (D.C. Cir. 1993) ..........................................18 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 5 of 53
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Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ...................................................................23 

Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002) ..........................................10 

Nuclear Energy Inst. Inc., v. EPA, 373 F.3d 1251 (D.C. Cir. 2004) .....................................8, 9 

Omnipoint Corp. v. FCC, 78 F.3d 620 (D.C. Cir. 1996) ..........................................................8 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ...................................................................2, 16 

Pacific Ranger, LLC v. Pritzker, 211 F. Supp. 3d 196 (D.D.C. 2016) ......................................9 

Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016), 

cert. denied, No. 17-302, 2018 WL 410912 (Jan. 16, 2018) .......................................22 

Public Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) ....................................................20 

Salt Lake Cmty. Action Program v. Shalala, 11 F.3d 1084 (D.C. Cir. 1993) ............................9 

Sanders v. Kerry, 180 F. Supp. 3d 35 (D.D.C. 2016) ........................................................29, 30 

Schiller v. Tower Semiconductor Ltd., 449 F.3d 286 (2d Cir. 2006) .......................................21 

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) .........................................................................30 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ...........................................................................20 

Shays v. FEC, 508 F. Supp. 2d 10 (D.D.C. 2007) ...................................................................43 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) .............................................................42, 43 

Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) ................................................................19 

Silver State Land, LLC v. Beaudreau, 59 F. Supp. 3d 158 (D.D.C. 2014) ..............................30 

Sims v. Apfel, 530 U.S. 103 (2000) ............................................................................................9 

United States v. Hagler, 700 F.3d 1091 (7th Cir. 2012) ....................................................24, 25 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) ...............................................4 

United States v. L.A. Truck Lines, Inc., 344 U.S. 33 (1952) ......................................................8 

United States v. Mead Corp., 533 U.S. 218 (2001) ...............................................................3, 4 

United States v. Torres, 115 F.3d 1033 (D.C. Cir. 1997) ..........................................................4 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 6 of 53
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U.S. Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016) ...................................................21 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ..........................................................17, 23 

Wallaesa v. FAA., 824 F.3d 1071 (D.C. Cir.), cert. denied, 137 S. Ct. 389 (2016) ..................8 

Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) ...........................29 

WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002) .........................................................43 

Statutes and Regulations 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 (2002) §§ 201, 203, 204 ........................................38 

Federal Election Campaign Act Amendments of 1976, 

Pub. L. No. 94-283, 90 Stat. 475 (1976) ......................................................................37 

H.R. Rep. No. 94-917 (1976) ...................................................................................................17 

42 U.S.C. § 2000e-5(f)(1) ........................................................................................................17 

52 U.S.C. § 30104(a) ...............................................................................................................41 

52 U.S.C. § 30104(b) ...............................................................................................................41 

52 U.S.C. § 30104(b)(3)(A) .....................................................................................................35 

52 U.S.C. § 30104(c) ...................................................................................................12, 24, 41 

52 U.S.C. § 30104(c)(1) ................................................................................................... passim

52 U.S.C. § 30104(c)(2)(C) ............................................................................................. passim

52 U.S.C. § 30104(f)(3)(A)......................................................................................................38 

52 U.S.C. § 30104(f)(3)(B) ......................................................................................................37 

52 U.S.C. § 30107 ....................................................................................................................17 

52 U.S.C. § 30107(e) ...............................................................................................................15 

52 U.S.C. § 30109(a)(8) ...........................................................................................................10 

52 U.S.C. § 30109(a)(8)(C) .........................................................................................15, 16, 17 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 7 of 53
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52 U.S.C. § 30111(e) ...............................................................................................................12 

11 C.F.R. § 109.10(e)(1)(vi) ............................................................................................ passim

Miscellaneous 

Briefs from FEC v. Mass. Citizens for Life, Inc., No. 85-701 479 U.S. 238 (1986): 

 Brief for Appellant FEC, 1986 WL 727481 (Feb. 27, 1986) .......................................27 

 Amicus Brief for the Home Builders Association of Massachusetts, 

1986 WL 727491(Apr. 4, 1986) ..................................................................................27 

 Amicus Brief for the National Rifle Association of America, 

1986 WL 727486 (Apr. 4, 1986) .................................................................................27 

 Amicus Brief of the ACLU, et al., 1986 WL 727489 (Apr. 4, 1986) ..........................27 

 Amicus Brief of the Reporters Committee for Freedom of the Press et al., 

1986 WL 727484 (Apr. 4, 1986) .................................................................................27 

 Brief for the Appellee MCFL, 1986 WL 727495 (Apr. 4, 1986) ................................27 

 Reply Brief for the Appellant FEC, 1986 WL 727498 (Sept. 30, 1986) .....................27 

FEC Advisory Opinion 2008-10 (VoterVoter.com) (Oct. 24, 2008), 

https://www.fec.gov/files/legal/aos/73731.pdf ...................................................... 31-32 

DISCLOSE Act, H.R. 430, 114th Cong. § 324(a)(2)(F) (2015), 

https://www.congress.gov/bill/114th-congress/house-bill/430/text ............................33 

FEC Form 5, https://www.fec.gov/resources/cms-content/documents/fecfrm5.pdf. ..............13 

Fed. R. Evid. 201 (cmmt..).......................................................................................................29 

First General Counsel’s Report, MUR 6021 (Democratic National Committee, et al.), 

Dec. 1, 2009, https://www.fec.gov/files/legal/murs/current/80542.pdf .........................6 

Guidebook for Complainants and Respondents on the FEC Enforcement Process, 

https://transition.fec.gov/em/respondent_guide.pdf .....................................................10 

Instructions for Preparing FEC Form 5, https://www.fec.gov/resources/cmscontent/documents/fecfrm5i.pdf. .................................................................................13 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 8 of 53
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FEC Matter Under Review 3503 (Perot Petition Committee): 

 Certification, https://www.fec.gov/files/legal/murs/3503.pdf .....................................40 

 First General Counsel’s Report, 

https://www.fec.gov/files/legal/murs/3503.pdf ..................................................... 39-40 

Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269 (1944) .......................................30 

Statement of Reasons, MUR 4960 (Hillary Rodham Clinton for Senate 

Exploratory Committee), Dec. 21, 2000, 

https://www.fec.gov/files/legal/murs/current/38206.pdf) ..............................................6 

Statement of Reasons of Chairman Matthew S. Petersen and Commissioners 

Caroline C. Hunter and Donald F. McGahn, MUR 6002 

(In the Matter of Freedom’s Watch, Inc.), August 13, 2010, 

https://www.fec.gov/files/legal/murs/current/80943.pdf. ............................................26 

RFAI, http://docquery.fec.gov/pdf/481/13330028481/13330028481.pdf (Apr. 9, 2013) ......14 

RFAI, http://docquery.fec.gov/pdf/945/12330014945/12330014945.pdf (Oct. 5, 2012)........14 

RFAI, http://docquery.fec.gov/pdf/455/11330010455/11330010455.pdf (June 14, 2011) .....13 

RFAI, http://docquery.fec.gov/pdf/453/11330010453/11330010453.pdf (June 14, 2011) .....13 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 9 of 53
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The Federal Election Commission (“Commission” or “FEC”) lawfully dismissed the 

administrative complaint filed by plaintiffs Citizens for Responsibility and Ethics in Washington 

(“CREW”) and Nicholas Mezlak against Crossroads Grassroots Policy Strategies (“Crossroads 

GPS”). Three members of the Commission, representing a controlling group, found no reason to 

believe that Crossroads GPS had violated the disclosure requirements of the Federal Election 

Campaign Act (“FECA” or “Act”) or the relevant FEC regulation. The FEC’s opening brief 

explained that both the statutory provision and regulation require entities like Crossroads GPS 

only to disclose those contributions that are made “for the purpose of furthering” an independent 

expenditure. But the facts alleged did not provide evidence that any contributions here were 

made for that specific purpose. The agency also exercised its prosecutorial discretion to dismiss 

an additional potential allegation, which plaintiffs did not raise in their administrative complaint, 

that relied on a novel statutory interpretation and therefore raised equitable concerns. 

Plaintiffs’ opposition primarily argues that the Commission has misinterpreted the 

meaning of two FECA provisions since the time they were enacted in 1980, and that under 

plaintiffs’ preferred legal interpretation, Crossroads GPS should have disclosed its contributors. 

Plaintiffs ask the Court not only to reverse the decision to dismiss the administrative complaint 

but also to strike down the agency’s longstanding regulatory interpretation of FECA. They claim 

that the statute lacks any ambiguity and that the FEC is misrepresenting the facts and the law. 

But plaintiffs’ opposition itself relies on distortions and misplaced policy arguments that obscure 

the true issues before the Court. It was reasonable to dismiss plaintiffs’ administrative complaint 

and the agency’s regulatory interpretation of the statute is permissible, particularly given the 

highly deferential standard of review that applies to agency decisions like this. The Court should 

grant summary judgment to the Commission. 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 10 of 53
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I. THE DISMISSAL OF THE ADMINISTRATIVE COMPLAINT WAS LAWFUL 

 In the relatively short portion of plaintiffs’opposition brief devoted to challenging the 

actual dismissal of their administrative complaint, plaintiffs primarily argue that the conclusions 

of the controlling group of Commissioners are entitled to little or no deference and that the 

Commissioners relied on flawed legal reasoning when dismissing plaintiffs’ claims. (Pls.’ Mem. 

of P&As in Opp’n to Def. FEC’s and Intervenor Def. Crossroads GPS’s Cross-Mots. for Summ. 

J. and in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Opp.”) at 41-50 (Docket No. 33).) These 

arguments lack merit and largely ignore the factual information on which the controlling group 

of Commissioners based their decision. 

A. The FEC’s Dismissal of the Administrative Complaint Is Entitled to 

Deference 

This Court may set aside an administrative dismissal order of the Commission only if it is 

“contrary to law.” 52 U.S.C. § 30109(a)(8)(C). As the Commission explained in its opening 

brief, the contrary to law standard is highly deferential. See FEC’s Mem. of P&As in Supp. of its 

Mot. for Summ. J. and in Opp’n to Pls.’ Mot. for Summ. J. (“FEC Mem.”) at 14-16 (Docket No. 

31); Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986); Hagelin v. FEC, 411 F.3d 237, 242 

(D.C. Cir. 2005). When the Commission exercises its prosecutorial discretion to dismiss, that 

determination is subject to even greater deference from the Court. See FEC Mem. at 28; Heckler 

v. Chaney, 470 U.S. 821, 831 (1985); La Botz v. FEC, 61 F. Supp. 3d 21, 33 (D.D.C. 2014). 

Despite the abundant authority affirming the Commission’s deference, plaintiffs make 

several arguments that the agency is entitled to little or no deference in this particular case. First, 

plaintiffs claim that no deference is warranted here because the Commission’s determination was 

the result of an evenly divided vote by Commissioners. (Pls.’ Opp. at 42.) But this argument 

conflates deference in the judicial review of an administrative action with the precedential value 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 11 of 53
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of that action. Plaintiffs cite Common Cause v. FEC for the proposition that a statement of only 

three FEC Commissioners is not binding precedent. 842 F.2d 436, 449 n.32 (D.C. Cir. 1988). 

But that very case, which involved the dismissal of an administrative complaint due to a 3-3 

split, confirms that “[d]eference is particularly appropriate in the context of the FECA, which 

explicitly relies on the bipartisan Commission as its primary enforcer.” Id. at 448. Other cases 

involving evenly divided Commission votes have stated the same principle. See, e.g., In re 

Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000) (“We have . . . held that we owe deference to a 

legal interpretation [issued by the FEC] supporting a negative probable cause determination that 

prevails on a 3-3 deadlock.”); FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992) (citations omitted) (“[I]f the meaning of [FECA] is not clear, a reviewing court 

should accord deference to the Commission’s rationale . . . [even in] situations in which the 

Commission deadlocks and dismisses.”). 

 Plaintiffs wrongly argue that the ample precedent in favor of deference for split 

decisions was overturned in 2001 by United States v. Mead Corp., 533 U.S. 218, 221 (2001), 

which held that certain administrative decisions that do not carry the “force of law” are not 

entitled to deference under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 

(1984). Plaintiffs claim that because the decisions of a divided Commission are not precedential, 

they are entitled to no deference (Pls.’ Opp. at 42), but a different court in this district recently 

rejected that same argument when CREW made it. In CREW v. FEC, Judge Cooper reaffirmed 

that deference was appropriate because “the prospective, binding nature of an agency’s 

interpretation is not the sole consideration” when determining whether an agency decision should 

be afforded deference. 209 F. Supp. 3d 77, 85 n.5 (D.D.C. 2016), appeal dismissed, No. 16-

5300, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017). As that CREW opinion noted, Mead itself 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 12 of 53
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explained that “an agency’s power to engage in an adjudication” can be sufficient to show the 

delegated authority required for deference. Id. (citing United States v. Mead, 533 U.S. 218, 227 

(2001)). The CREW opinion noted that In re Sealed Case had observed that FEC enforcement 

actions, even those that result from evenly divided votes, are “analogous to a formal 

adjudication” and therefore entitled to deference. Id. (quoting In re Sealed Case, 223 F.3d at 

780). Thus, “seeing nothing in Mead that directly contradicts Sealed Case, the Court 

[determined that it would] abide its ‘obligat[ion] to follow controlling circuit precedent.’” 

CREW, 209 F. Supp. 3d at 85 n.5 (quoting United States v. Torres, 115 F.3d 1033, 1036 (D.C. 

Cir. 1997)). This Court should reach the same conclusion and afford the Commission deference. 

 With respect to the Commission’s exercise of prosecutorial discretion to not pursue a 

theory that Crossroads GPS violated 52 U.S.C. § 30104(c)(1) — an allegation not raised in the 

administrative complaint — CREW argues that that decision was based on an erroneous 

interpretation of law and is therefore not entitled to deference. But the agency plainly does 

receive deference in interpreting the very statute it administers, United States v. Kanchanalak, 

192 F.3d 1037, 1049 (D.C. Cir. 1999), and in any event, the notion of prosecutorial discretion 

itself means that the Commission can dismiss an administrative complaint even if it identifies a 

possible violation, because the “FEC is not required to pursue every potential violation of 

FECA.” La Botz, 61 F. Supp. 3d at 35. The Supreme Court has expressly recognized that the 

Commission may decline to pursue an enforcement matter even if that means some potential 

FECA violations go unpunished. FEC v. Akins, 524 U.S. 11, 25 (1998) (The Commission could 

“still have decided in the exercise of its discretion not to require” certain disclosures “even had

the FEC agreed with respondents’ view of the law” that FECA required such disclosure 

(emphasis added)); CREW v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (“No one contends that 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 13 of 53
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the Commission must bring actions in court on every administrative complaint. The Supreme 

Court in Akins recognized that the Commission, like other Executive agencies, retains 

prosecutorial discretion.”). Prosecutorial discretion means that an agency receives judicial 

deference in making decisions on whether to pursue particular enforcement matters. 

B. It Was Reasonable for the Controlling Group to Find That the Facts CREW 

Alleged Did Not Create a Reason to Believe Crossroads GPS Violated 52 

U.S.C. § 30104(c)(2)(C) or 11 C.F.R. § 109.10(e)(1)(vi) 

As the FEC explained (FEC Mem. at 17-23), it was reasonable based on the facts before 

the Commission not to find that Crossroads GPS violated the independent expenditure disclosure 

statute and regulation at issue here. Plaintiffs’ administrative complaint relied upon press reports 

about a phone call in which a contribution was allegedly promised and a fundraiser at which 

contributions were allegedly solicited, and that complaint noted that Crossroads GPS identified 

no contributors in its disclosures to the FEC. (See generally FEC Mem. at 8-12.) The complaint 

suggested there was reason to believe that this lack of disclosure violated FECA because the 

circumstances suggested that those contributions were made for the purpose of furthering 

independent expenditures. (See AR108-115.) But after considering all information before the 

FEC, including the response to the allegations provided by Crossroads GPS, the controlling 

group of Commissioners agreed with the FEC’s Office of General Counsel that there was “no 

reason to believe” Crossroads GPS had violated the regulation at 11 C.F.R. § 109.10(e)(1)(vi) or 

the statutory provision that is currently codified at 52 U.S.C. § 30104(c)(2)(C). A key basis for 

this decision was the lack of evidence that any particular contribution met the applicable legal 

standard, which requires that it be made “for the purpose of furthering” an independent 

expenditure by Crossroads GPS. (AR185-187, 187 n. 52.) The controlling group acted 

reasonably in relying on this lack of evidence. (See FEC Mem. at 17-19.) 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 14 of 53
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Plaintiffs’ opposition makes only a cursory argument that the facts available to the 

Commission required a finding of reason to believe that Crossroads GPS violated the statute or 

the regulation. Plaintiffs’ argument amounts to claims that: 1) the “reason to believe” standard is 

very low; 2) Crossroads GPS received contributions from individuals interested in electing 

certain candidates; and 3) Crossroads GPS made a lot of independent expenditures, so those 

contributors should have expected that their contributions would be used to further independent 

expenditures. (Pls.’ Opp. at 45-46.) 

These claims miss the mark. As an initial matter, the “reason to believe” standard is not a 

trivial or de minimis one. On the contrary, “[u]nwarranted legal conclusions from asserted facts . 

. ., or mere speculation, . . . will not be accepted as true” and “[s]uch purely speculative charges, 

especially when accompanied by a direct refutation, do not form an adequate basis to find reason 

to believe that a violation of the FECA has occurred.” Statement of Reasons, Matter Under 

Review (“MUR”) 4960 (Hillary Rodham Clinton for U.S. Senate Exploratory Committee, et al.), 

Dec. 21, 2000, at 2-3, https://www.fec.gov/files/legal/murs/current/38206.pdf (citations 

omitted)); First General Counsel’s Report, MUR 6021 (Democratic National Committee, et al.), 

Dec. 1, 2009 at 15, https://www.fec.gov/files/legal/murs/current/80542.pdf (providing the 

reasoning for the agency’s actions accepting the staff recommendation). In this case, plaintiffs 

simply speculate that because Crossroads GPS received contributions and made independent 

expenditures, those contributions must have been made with the purpose of furthering those 

expenditures. That is not enough to show that it was unlawful for the FEC to decline to make a 

reason to believe finding here. 

Plaintiffs argue that the facts “clearly give rise to the possibility that contributors ‘may’ 

have given to Crossroads GPS to further an independent expenditure and that Crossroads GPS 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 15 of 53
7 

violated the law by not reporting them” (Pls.’ Opp. at 45-46 (emphasis added)), but this assertion 

suggests that there is reason to believe a violation occurred every time an entity makes 

independent expenditures using undisclosed contributions. A primary inquiry in determining 

whether 11 C.F.R. § 109.10(e)(1)(vi) or 52 U.S.C. § 30104(c)(2)(C) was violated involves 

learning the purpose of possibly relevant contributions. It is not enough to point to such 

contributions and expenditures generally and assert that an investigation is warranted because 

some of the contributions might meet FECA’s “purpose of furthering” independent-expenditure 

reporting standard. And while communications between the parties involved are relevant to that 

standard, it does not follow that the FEC should be required to investigate an entity simply 

because of the possibility that it has not disclosed contributor information. 

In this case, Crossroads GPS denied any knowledge of a contribution made for the 

purpose of furthering the independent expenditures at issue. While it is possible that an 

investigation would have turned up evidence that a particular contribution was made for the 

purpose of furthering an independent expenditure, under the deferential standard of review that 

mere possibility is not enough to support a judicial determination that it was unlawful for the 

agency to decline to go forward here. 

C. The FEC Properly Exercised Prosecutorial Discretion as to Any Potential 

Violation of 52 U.S.C. § 30104(c)(1), and in Any Event Plaintiffs Failed to 

Timely Raise Their Arguments With Respect to Such a Claim

As the FEC explained (FEC Mem. at 23-31), 52 U.S.C. § 30104(c)(1) is ambiguous and 

the agency properly exercised its considerable discretion not to pursue a claim based on that 

provision in this case. Moreover, plaintiffs did not even argue in their administrative complaint 

that Crossroads GPS had violated section 30104(c)(1). As the Commission pointed out in its 

opening brief, that failure means plaintiffs appear to lack standing to pursue such a claim now, a 

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8 

defect that is by itself sufficient for the Court to grant summary judgment to the Commission on 

the plaintiffs’ claim under that legal theory. (FEC Mem. at 24 n.7 (Court should “limit its 

substantive judicial review to alleged violations that were actually presented to the agency by 

plaintiffs.”) Plaintiffs claim (Pls.’ Opp. at 46-48) that they were not required to exhaust their 

administrative remedies by presenting the section 30104(c)(1) violation theory to the 

Commission and that they actually did raise the theory, but those arguments are unavailing. 

It is well-settled that theories not raised before the Commission cannot be raised in 

subsequent litigation. “Simple fairness to those who are engaged in tasks of administration, and 

to litigants, requires as a general rule that courts should not topple over administrative decisions 

unless the administrative body not only has erred but has erred against the objection made at the 

time appropriate under its practice.” United States v. L.A. Truck Lines, Inc., 344 U.S. 33, 37 

(1952), cited in Gill v. U.S. Dept. of Justice, 875 F.3d 677, 682 (D.C. Cir. 2017). Thus, it is “a 

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.” Coburn v. McHugh, 679 

F.3d 924, 929 (D.C. Cir. 2012); accord, Nuclear Energy Inst. Inc. v. EPA, 373 F.3d 1251, 1297 

(D.C. Cir. 2004); Omnipoint Corp. v. FCC, 78 F.3d 620, 635 (D.C. Cir. 1996) (“As a general 

rule, claims not presented to the agency may not be made for the first time to a reviewing 

court.”). The rule holds “special force where, as here, an appeal follows an adversarial 

administrative proceeding in which parties are expected to present issues material to their case. 

In that setting, the rationale for requiring issue exhaustion is at its greatest.” Fritch v. U.S. Dept. 

of State, 220 F. Supp. 3d 51, 62 (D.D.C. 2016); Wallaesa v. FAA., 824 F.3d 1071, 1078 (D.C. 

Cir.), cert. denied, 137 S. Ct. 389 (2016). The “principle policy underlying the waiver rule is 

that judicial review might be hindered by the failure of the litigant to allow the agency to make a 

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9 

factual record, exercise its discretion, or apply its expertise.” Pacific Ranger, LLC v. Pritzker, 

211 F. Supp. 3d 196, 224 (D.D.C. 2016) (internal quotation marks omitted), citing Salt Lake 

Cmty. Action Program v. Shalala, 11 F.3d 1084, 1087 (D.C. Cir. 1993). Moreover, courts 

“require the argument [petitioner] advances here to be raised before the agency, not merely the 

same general legal issue.” Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013) (internal 

quotation marks omitted), citing Nuclear Energy Inst., 373 F.3d at 1291. “The question is 

whether the specific argument advanced by the plaintiffs – rather than the same general legal 

issue – was raised before the agency.” Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160, 

186 (D.D.C. 2017) (internal quotations removed). 

Plaintiffs cite Sims v. Apfel, which stands for the proposition that when “an administrative 

proceeding is not adversarial, . . . the reasons for a court to require issue exhaustion are much 

weaker,” 530 U.S. 103, 110 (2000), but that case is inapposite. Sims considered an 

administrative process before the Social Security Administration which plaintiffs here argue is 

similar to the FEC enforcement process (Pls.’ Opp. at 47), but the Sims opinion reveals key 

differences justifying the decision not to apply issue exhaustion there. The Sims court noted that 

the form to submit a claim to that agency “provides only three lines for the request for review, 

and a notice accompanying the form estimates that it will take only 10 minutes to ‘read the 

instructions, gather the necessary facts and fill out the form’” and that “a large portion of Social 

Security claimants either have no representation at all or are represented by non-attorneys.” 

Sims, 530 U.S. at 111–12. Given those circumstances, the court found that it would be unfair to 

apply issue exhaustion to individuals seeking benefits. By contrast, a “complete and proper” 

administrative complaint to the Commission must “[c]learly recite the facts that describe a 

violation of a statute or regulation under the Commission’s jurisdiction,” “[c]learly identify each 

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10 

person, committee or group that is alleged to have committed a violation,” “[i]nclude any 

documentation supporting the allegations, if available[,]” and “[d]ifferentiate between statements 

based on the complainant’s personal knowledge and those based on information and belief.” 

Guidebook for Complainants and Respondents on the FEC Enforcement Process at 6, 

https://transition.fec.gov/em/respondent_guide.pdf. Plaintiffs’ administrative complaint in this 

matter was twenty-pages long with extensive legal argument and fourteen separate exhibits. 

(AR98-159.) It was responded to by attorneys. (AR73-98, AR162-163) The situation is in no 

way analogous to the three-line form at issue in Sims. Thus, because there is “a near absolute bar 

against raising new issues – factual or legal – on appeal in the administrative context,” Nat’l 

Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002), and plaintiffs here failed to raise 

arguments based on section 30104(c)(1) in the FEC’s administrative process, the Court should 

deem such arguments to have been waived.1 

Plaintiffs also claim that they actually did raise the issue of how section 30104(c)(1) 

should be interpreted during the administrative proceedings (Pls.’ Opp. at 33), but they did no 

such thing. Plaintiffs’ administrative complaint was organized in several sections: 

“Complainants” (AR98-100), “Respondents” (AR100-01), “Legal Framework” (AR101-02), 

 

1

 Although plaintiffs failed to clearly allege a subsection 30104(c)(1) violation in the 

administrative complaint, the FEC’s Office of General Counsel did briefly raise that issue in its 

First General Counsel’s Report (“FGCR”). However, the FGCR merely noted that while section 

30104(c)(1) might be read to require additional disclosure, the Commission should not pursue 

such a theory because of equitable concerns. (AR176.) The Commission was not on notice that 

the complainants might pursue the issue, and it was not presented with any argument in support 

of going forward under that theory. The controlling group of Commissioners adopted the 

General Counsel’s recommendation on the issue without further comment. The doctrine of 

administrative exhaustion serves the important policy of ensuring that administrative 

complainants raise all issues they may pursue judicially, a policy interest that remains critical 

even if an agency happens to give an issue some level of consideration for an independent 

reason, as in this case. Plaintiffs should not obtain section 30109(a)(8) review of an issue simply 

because the Commission’s attorneys engaged in a thorough review of relevant legal questions. 

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“Factual Allegations” (AR103-08), “Count[s I-V]” (AR 108-115), and “Conclusion” (AR115). 

Within the section identified as “Legal Framework,” plaintiffs quoted various provisions of 

FECA and the FEC regulations interpreting the disclosure of independent expenditures. 

(AR101-02.) For example, plaintiffs discussed what an independent expenditure is (AR101 ¶ 

13), what constitutes a “person” under the statute (AR101 ¶ 14), and when disclosure reports are 

due (AR102 ¶ 17). None of these topics was at issue in the administrative complaint; they were 

presumably included as background so that readers could understand the nature of the complaint 

and how the allegations fit into the overall legal landscape. It was in this “Legal Framework” 

section that plaintiffs made their sole reference to 30104(c)(1) and their belief that the provision 

contains an independent reporting requirement. (AR101 ¶14.) In a footnote in this background 

section, plaintiffs asserted generally that “[t]he FEC’s interpretation of the statute fails to give 

full effect to these provisions” and that “[a]t a minimum,” the regulatory language of “the

reported independent expenditure” differed from the use of “an independent expenditure” in 52 

U.S.C. § 30104(c)(2)(C). (AR102 n.1.) 

Plaintiffs now suggest that this footnote was enough to raise the claim that section 

30104(c)(1) contained an independent reporting requirement. But neither that footnote nor any 

other part of the brief suggests that Crossroads GPS violated FECA by failing to identify all of 

its contributors over $200. Instead, each Count of the administrative complaint alleges that 

Crossroads violated FECA by failing to disclose contributions made for the purpose of furthering 

independent expenditures, a reference to the requirement in 30104(c)(2)(C). (AR108 ¶ 40 

(referring to the purpose requirement in section 30104((c)(2)(C)); AR109 ¶ 44 (same); AR109 ¶ 

45 (same); AR110 ¶ 46 (same); AR110 ¶ 50 (same); AR110-11 ¶ 51 (same); AR111 ¶ 52 (same); 

AR111 ¶ 53 (same); AR112 ¶ 54 (same); AR112 ¶ 57 (same); AR113 ¶ 59 (same); AR113 ¶ 60 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 20 of 53
12 

(same); AR113 ¶ 61 (same); AR114 ¶ 62 (same); AR114 ¶ 63 (same), AR114 ¶ 64 (same), 

AR114 ¶ 66 (same).) 

In summary, the administrative complaint explicitly alleges numerous times that 

Crossroads GPS violated FECA by failing to disclose donors that gave for the purpose furthering 

independent expenditures, but none of the complaint’s counts even suggest that Crossroads GPS 

violated FECA by failing to disclose all of its over-$200 contributors. Plaintiffs failed to raise 

even the “same general legal issue” as an issue to be addressed in the administrative enforcement 

proceeding, much less the “specific argument” they now seek to advance. Hispanic Affairs 

Project, 263 F. Supp. 3d at 186. They have failed to preserve the section 30104(c)(1) issue here. 

D. Equitable Concerns and FECA’s Safe Harbor Provision Would Likely Have 

Presented Barriers to Pursuit of an Alleged Section 30104(c)(1) Violation 

 Contrary to plaintiffs’ claims (Pls.’ Opp. at 44-45), the Commission’s controlling group 

properly exercised its prosecutorial discretion regarding any 52 U.S.C. § 30104(c) claim here 

because moving forward with the claim raised equitable concerns that the Commission’s 

regulation did not give fair notice of the requisite level of disclosure if section 30104(c)(1) were 

to be interpreted as an independent disclosure provision. (AR176.) These equitable concerns are 

based on the same rationale as the “safe harbor” provision in FECA, which provides that “any 

person who relies upon any rule or regulation prescribed by the Commission in accordance with 

the provisions of this section and who acts in good faith in accordance with such rule or 

regulation shall not, as a result of such act, be subject to any sanction provided by this Act.” 52 

U.S.C. § 30111(e). Although the controlling group did not specifically cite that provision, it was 

therefore reasonable to exercise prosecutorial discretion based on these concerns. 

Plaintiffs argue that the safe harbor provision would not be an obstacle to pursuing a 

claim that Crossroads GPS violated 52 U.S.C. § 30104(c)(1) because “there are significant 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 21 of 53
13 

reasons to believe Crossroads GPS’s reliance is not in good faith.” (Pls.’ Opp. at 37.) But 

plaintiffs present no affirmative evidence that Crossroads GPS failed to act in good faith. 

Rather, plaintiffs rely on theories that assume Crossroads GPS shared plaintiffs’ flawed view of 

the relevant reporting requirements. First, plaintiffs argue that Crossroads GPS had notice that 

section 30104(c)(1) imposed a stand-alone reporting requirement due to a Request for Additional 

Information that the FEC sent the group stating that it had failed to include contributor 

information in its disclosures. (Id. (citing AR42).) But such a letter is merely an “opportunity to 

correct or explain report information for the public record.” Request for Additional Information 

(“RFAI”), https://www.fec.gov/help-candidates-and-committees/request-additional-information/ 

(emphasis added). The instructions for the independent expenditure reporting form state that 

reporting entities must disclose “each contribution over $200 that was made for the purpose of 

furthering the independent expenditures” (Instructions for Preparing FEC Form 5, 

https://www.fec.gov/resources/cms-content/documents/fecfrm5i.pdf), but the form itself does not 

provide an opportunity for a reporting entity to clarify whether contributors are undisclosed due 

to an oversight or due to the fact that none contributed for the purpose of furthering an 

independent expenditure. See FEC Form 5, https://www.fec.gov/resources/cmscontent/documents/fecfrm5.pdf. FEC Campaign Finance Analysts routinely send out RFAIs to 

filers without contributor information so that such filers can either provide the information or 

explain the reason why information was not provided. Crossroads GPS received several such 

letters.2

 But none provided notice that the organization “was failing to comply with its reporting 

obligations,” as plaintiffs claim. (Pls.’ Opp. at 37.) 

 

2

 RFAI, http://docquery.fec.gov/pdf/455/11330010455/11330010455.pdf (June 14, 

2011); RFAI, http://docquery.fec.gov/pdf/453/11330010453/11330010453.pdf (June 14, 2011); 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 22 of 53
14 

Plaintiffs’ other arguments are no stronger. They next point to FEC v. Massachusetts 

Citizens for Life, Inc. (“MCFL”), 479 U.S. 238 (1986), a case that plaintiffs believe makes clear 

that 52 U.S.C. § 30104(c)(1) is an independent reporting requirement, as evidence that 

Crossroads GPS had notice. (Pls.’ Opp. at 37.) But as discussed infra pp. 26-28, MCFL is not 

controlling authority on this issue, and language from a 32-year-old case that has not been 

followed or definitively explained in the intervening time can hardly be considered such clear 

notice as to make the Commission’s determination unreasonable. Plaintiffs also point to a 

petition for rulemaking filed by then-Congressman (now Senator) Christopher Van Hollen in 

2011, which requested that the FEC amend its regulation to reflect the interpretation that section 

30104(c)(1) is an independent reporting requirement. (Opp. at 37.) But Van Hollen’s petition 

for rulemaking cannot be considered much notice to Crossroads about the state of the law 

because the Commission did not ultimately decide to open a rulemaking in response to Van 

Hollen’s request. Lastly, plaintiffs assert that if only a lawyer for Crossroads GPS had read the 

statute, that would have provided notice. (Id.) But given the ambiguity of the relevant provision 

and regulatory framework (see infra pp. 33-41), simply reading the statute would not have 

provided adequate notice in this case. 

Indeed, the FEC has never interpreted 52 U.S.C. § 30104(c)(1) as a stand-alone reporting 

requirement in the 38 years of the provision’s existence. See infra pp. 38-40. Plaintiffs’ claim 

that Crossroads failed to act in good faith is thus completely unsupported. The controlling group 

reasonably exercised its prosecutorial discretion to not pursue such a theory for the first time in 

this enforcement matter. 

 

RFAI, http://docquery.fec.gov/pdf/945/12330014945/12330014945.pdf (Oct. 5, 2012); RFAI, 

http://docquery.fec.gov/pdf/481/13330028481/13330028481.pdf (Apr. 9, 2013). 

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15 

E. The Commission’s Exercise of Prosecutorial Discretion Does Not 

Automatically Confer on CREW the Authority to Sue Crossroads GPS in Its 

Own Capacity 

As explained earlier, the Commission has considerable discretion in determining whether 

to pursue an investigation against a party accused of wrongdoing. (FEC Mem. at 14-16.) 

Plaintiffs concede that the Commission has prosecutorial discretion, but they argue that 

exercising that discretion in a case in which there is reason to believe a violation occurred is 

“contrary to law.” (Pls.’ Opp. at 43-44 & n.27.) According to plaintiffs, FECA’s provision 

stating that the FEC “shall make an investigation” of any complaint as to which it finds reason to 

believe a violation occurred means that the FEC acts contrary to law every time it exercises its 

discretion not to pursue a claim, and that CREW is therefore entitled to bring a private action 

pursuant to FECA’s citizen-suit provision, 52 U.S.C. § 30109(a)(8)(C). (Pls.’ Opp. at 43, 44 n. 

27.) But in the forty-year history of the citizen-suit provision — which includes many 

challenges to discretionary FEC dismissals — no court has adopted CREW’s view of the law. 

FECA’s text squarely contradicts CREW’s argument. Three statutory conditions must be 

met before a private litigant may bring its own civil action to redress alleged FECA violations. 

First, the litigant must file an administrative complaint with the Commission, which may either 

act on the complaint or choose not to do so. See 52 U.S.C. § 30107(e); In re Fed. Election 

Campaign Act Litig., 474 F. Supp. 1051, 1053 (D.D.C. 1979). Second, if the FEC elects to 

dismiss the administrative complaint, the private litigant must obtain a declaration from the 

district court that the dismissal was contrary to law. 52 U.S.C. § 30109(a)(8)(C). Third, the FEC 

must fail “to conform with such declaration within 30 days.” Id. Then, and only then, may a 

private litigant bring a lawsuit in her own name to redress an alleged FECA violation. Id.

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16 

Recognizing the FEC’s prosecutorial discretion does not invalidate any portion of this 

statutory scheme. That is because Commission decisions not to prosecute, unlike those of most 

agencies, remain subject to judicial review. Akins, 524 U.S. at 26; see Heckler, 470 U.S. at 832. 

When the Commission dismisses an administrative complaint, even as an exercise of 

prosecutorial discretion, it must explain its rationale for doing so. See Democratic Cong. 

Campaign Comm. v. FEC, 831 F.2d 1131, 1135 (D.C. Cir. 1987). On judicial review of that 

decision, courts evaluate the Commission’s exercise of discretion to determine whether it 

depends on any errors of law or is otherwise unreasonable. Orloski, 795 F.2d at 161; see also 

CREW, 475 F.3d at 340 (“At this stage, judicial review of the Commission’s refusal to act on 

complaints is limited to correcting errors of law.”). 

If the Commission supplies reasonable grounds for invoking its discretion not to pursue 

an enforcement matter, its decision is not contrary to law and the condition precedent for a 

private right of action is never triggered. See 52 U.S.C. § 30109(a)(8)(C). In the event the 

Commission’s rationale for not pursuing a case is unreasonable — or if the Commission makes 

errors of law in its analysis — that exercise of discretion would be rejected on judicial review 

and the matter would be remanded to the agency. Id. If the Commission failed to conform to 

such a court declaration, a complainant could bring a civil action in its own name. Id. Each 

potential court determination and resulting circumstance is fully consistent with the plain 

statutory text. In contrast, CREW’s argument is inconsistent with FECA’s text because it would 

permit a private right of action even when the Commission acted reasonably in exercising its 

discretion to dismiss and its analysis did not depend on any impermissible legal judgments. 

The fact that Commission dismissals based on prosecutorial discretion remain subject to 

reasonableness review is sufficient to respond to plaintiffs’ contention here. If the Commission 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 25 of 53
17 

relied on an arbitrary or otherwise impermissible rationale for invoking its discretion, that 

dismissal would be declared contrary to law on judicial review. See La Botz v. FEC, 61 F. Supp. 

3d at 33 n.5 (rejecting hypothetical argument that the Commission could use its prosecutorial 

discretion in a way that was racially discriminatory because the “hypothetical would likely not 

survive an arbitrary and capricious challenge”). 

The extremely limited circumstances that trigger a private action under FECA make 

clear that Congress intended such suits to be rare. See 52 U.S.C. § 30109(a)(8)(C). The 

Commission has the sensitive task of regulating political activities of the nation’s elected 

officials and other political actors. See FEC v. Democratic Senatorial Campaign Comm., 454 

U.S. 27, 37 (1981) (noting that the Commission must decide “issues charged with the dynamics 

of party politics”); Van Hollen v. FEC, 811 F.3d 486, 499 (D.C. Cir. 2016) (describing the 

unique role of the FEC in having the sole purpose of regulating “core constitutionally protected 

activity”). The Commission’s authority is “considerable” and its power “potentially enormous,” 

including the authority to “conduct investigations, authorize subpoenas, . . . and initiate civil 

actions.” Combat Veterans for Cong. Political Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. 

Cir. 2015) (citing 52 U.S.C. § 30107). Congress provided for an independent commission and 

procedural safeguards to ensure that enforcement actions in this area would not be used as a 

partisan or political weapon. See id.; H.R. Rep. No. 94-917, at 3 (1976) (“It is . . . essential in 

this sensitive area that the system of administration and enforcement enacted into law does not 

provide room for partisan misuse . . . .”). Had Congress intended to provide for citizen suits 

upon the mere discretionary decision of the FEC not to pursue a matter, it could easily have done 

so, as it has in other contexts. See, e.g., 42 U.S.C. § 2000e-5(f)(1) (explicitly permitting 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 26 of 53
18 

“persons aggrieved” to file employment discrimination lawsuits if the Equal Employment 

Opportunity Commission dismisses or fails to act on a charge within a specified time).3 

Plaintiffs provide no citation to any principle of law that an agency is required to 

resolve the merits of every case presented to it. See, e.g., FEC v. Rose, 806 F.2d 1081, 1091 

(D.C. Cir. 1986); cf. N.Y. State Dep’t of Law v. FCC, 984 F.2d 1209, 1214 (D.C. Cir. 1993) 

(upholding agency’s decision to settle “an enforcement action without resolving any of the legal 

issues raised in the Order to Show Cause initiating that action”). And the FEC is aware of no 

such authority. 

The Court should grant summary judgment to the Commission on plaintiffs’ claims that 

the agency acted unlawfully by dismissing plaintiffs’ administrative complaint. 

II. THE COMMISSION’S REGULATION AT 11 C.F.R. § 109.10(e)(1)(vi) WAS 

LAWFULLY PROMULGATED AND IT REMAINS VALID 

The FEC regulation that plaintiffs challenge, 11 C.F.R. § 109.10(e)(1)(vi), was 

reasonable when promulgated in 1980 and continues to be reasonable today. (See FEC Mem. at 

31-50.) Plaintiffs make a procedural argument that the regulation should be struck down due to a 

purportedly inadequate explanation, but that argument is untimely and should not be considered 

by the Court. In any case, under the deferential standards of review, the Commission’s 

explanation was sufficient, the agency had authority to promulgate the regulation, and the 

regulation itself is a reasonable interpretation of the ambiguous requirement for disclosure of 

 

3

 The long history of judicial review of the Commission’s handling of enforcement cases 

indicates that Congress’s statutory scheme is operating as intended. Although judicial review of 

Commission dismissals is appropriately deferential, courts have on occasion declared such 

dismissals contrary to law. See, e.g., CREW v. FEC, 209 F. Supp. 3d 77, 95 (D.D.C. 2016). 

When they have done so, the Commission has almost always fulfilled its duty to conform to 

those decisions in the first instance. And although the conferral of a private right of action under 

FECA is accordingly rare, it has happened. See Democratic Senatorial Campaign Comm. v. 

Nat’l Republican Senatorial Comm., No. 1:97-cv-1493 (D.D.C. filed June 30, 1997). 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 27 of 53
19 

contributor information in 52 U.S.C. § 30104(c)(2)(C). Furthermore, it is reasonable for the 

Commission’s independent expenditure regulation not to encompass plaintiffs’ reading of 52 

U.S.C. § 30104(c)(1) as a separate reporting requirement. The Court should thus reject 

plaintiffs’ efforts to strike down this longstanding regulation. 

A. Judicial Review of the Commission’s Regulation Is Deferential 

The Commission’s earlier brief explained that the Court’s review of plaintiffs’ challenge 

to the regulation under the Administrative Procedure Act (“APA”) and under Chevron is “highly 

deferential” and based solely on the administrative record before the Commission when 

promulgating the regulation. (FEC Mem. at 31-34 (quoting Sierra Club v. EPA, 353 F.3d 976, 

978 (D.C. Cir. 2004).) Plaintiffs now argue that this routine deference is unwarranted because 

the explanation the FEC gave for the regulation when it was promulgated was purportedly 

inadequate. (Pls.’ Opp. at 4.) Plaintiffs’ argument is flawed, both because it is foreclosed by the 

statute of limitations and because the Commission’s explanation was sufficient to explain the 

modest clarification made to the statutory language by the regulation. See infra pp. 20-23. 

Plaintiffs argue that deferential review predicated on the FEC’s expertise is also undeserved, but 

there is little doubt that, as the agency responsible for receiving and analyzing campaign finance 

reports of various types, the agency is the entity in the best position to identify ambiguities that 

could be problematic in implementing FECA. Nothing about this case would justify depriving 

the FEC of the ample deference routinely accorded to federal agency rulemaking.4

 

 

4

 Plaintiffs also claim that the FEC argued it could adopt rules “contravening the statute” 

(Pls.’ Opp. at 4 n.1), but of course the agency argued no such thing (see FEC Mem. at 32). 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 28 of 53
20 

B. Plaintiffs’ Challenge to the Sufficiency of the Regulation’s Explanation and 

Justification Is Untimely and Erroneous

The regulation at issue in this case, passed as a result of the 1979 FECA amendments, 

contains language almost identical to the statutory language in 52 U.S.C. § 30104(c)(2)(C). The 

statute requires entities other than political committees who make independent expenditures to 

report “each person who made a contribution in excess of $200 to the person filing such 

statement which was made for the purpose of furthering an independent expenditure.” 52 U.S.C. 

§ 30104(c)(2)(C) (emphasis added.) The regulation simply requires such filers to report “each 

person who made a contribution in excess of $200 to the person filing the report, which 

contribution was made for the purpose of furthering the reported independent expenditure.” 11 

C.F.R. § 109.10(e)(1)(vi) (emphasis added). At the time the regulation was promulgated in 

1980, the Commission explained that “[t]his section has been amended to incorporate the 

changes set forth at 2 USC 434(c)(1) and (2) [now 52 U.S.C. § 30104(c)(1) and (c)(2)] regarding 

reporting requirements for persons, other than a political committee, who make independent 

expenditures.” (AR1503.) 

Plaintiffs argue that this explanation was insufficient and so the regulation is invalid on 

that basis alone. (Pls.’ Opp. at 6 (citing Public Citizen, Inc. v. FAA, 988 F.2d at 186, 197 (D.C. 

Cir. 1993) and Shays v. FEC, 414 F.3d 76, 100 (D.C. Cir. 2005)).) But as an initial matter, the 

relevant statute of limitations precludes bringing procedural challenges like this more than six 

years after the regulation’s promulgation. And in any case the Commission’s explanation, while 

concise, is adequate given that the language of the statute and regulation are virtually identical. 

This Court previously held that there is jurisdiction for plaintiffs to challenge 11 C.F.R. 

§ 109.10(e)(1)(vi) here because “when an agency applies a regulation to dismiss an 

administrative complaint, the party whose complaint was dismissed may challenge the regulation 

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21 

after the statute of limitations has expired on the ground that the regulation conflicts with the 

statute from which it derives.” CREW v. FEC, 243 F. Supp. 3d 91, 101 (D.D.C. 2017) (emphasis 

added). The Court’s description of permissible challenges as those involving conflicts between a 

regulation and statute is consistent with a line of cases distinguishing between substantive 

challenges brought to regulations after the statutory period (which are permitted) and procedural 

challenges (which are not permitted). “[C]hallenges to the procedural lineage of agency 

regulations, whether raised by direct appeal, by petition for amendment or rescission of the 

regulation or as a defense to an agency enforcement proceeding, will not be entertained outside 

the [time] period provided by statute.” JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 325 (D.C. 

Cir. 1994); Schiller v. Tower Semiconductor Ltd., 449 F.3d 286, 293 (2d Cir. 2006). The very 

purpose of the statutory limitations period is to promote the agency’s interest in prompt review 

and to provide “finality in administrative processes.” JEM Broad. Co., Inc., 22 F.3d at 325.

“While an agency’s ultra vires or unconstitutional act might outweigh these policy concerns and 

therefore justify reaching an otherwise time-barred challenge to agency action, a mere procedural 

defect does not.” Schiller, 449 F.3d at 293. 

Plaintiffs do not challenge the caselaw distinguishing between jurisdiction for procedural 

challenges and substantive challenges. However, they argue that a challenge to an agency’s 

explanation and justification for a regulation is substantive, not procedural, and therefore their 

challenge to the regulation on that basis is not barred by the statute of limitations. (Pls.’ Opp. at 

35-36.) Plaintiffs cite several cases that describe an explanation for a rule as “substantive.” (Id. 

(citing U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 701 (D.C. Cir. 2016); George E. Warren Corp. 

v. E.P.A., 159 F.3d 616, 620 (D.C. Cir. 1998); and AFL-CIO v. Chao, 496 F. Supp. 2d 76, 78 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 30 of 53
22 

(D.D.C. 2007).) But none of those cases is about a statute of limitations, nor does any use the 

term “substantive” to distinguish between justiciable and non-justiciable regulatory challenges. 

By contrast, in Perez-Guzman v. Lynch, the Ninth Circuit actually examined the question 

of whether an allegedly inadequate explanation for a federal regulation was procedural or 

substantive for the purpose of applying the statute of limitations. 835 F.3d 1066, 1077–78 (9th 

Cir. 2016), cert. denied, No. 17-302, 2018 WL 410912 (Jan. 16, 2018). The appellant in PerezGuzman argued that the Attorney General had based an immigration regulation on a flawed 

interpretation of law. Id. at 1077. The appellant also argued that the regulation was not entitled 

to Chevron deference because “the agency allegedly failed to explain its interpretation of [the 

law] when it originally promulgated the regulation.” Id. The court found that the argument that 

the Attorney General had unreasonably interpreted the law was timely, but that the argument that 

the government had failed to explain the interpretation could not be considered because it was a 

“procedural error[]” and had to be brought within the six-year statute of limitations. Id. at 1077-

78; see also Marsh v. J. Alexander's LLC, 869 F.3d 1108, 1118 n.11 (9th Cir. 2017) (declining to 

reach challenge to regulation based in part on fact that it was promulgated “without reasoned 

explanation or forewarning” because “this objection comes well after the statute of limitations 

period for procedural challenges to agency actions”). In support of its holding, Perez-Guzman 

cited the Supreme Court’s opinion in Encino Motorcars, LLC v. Navarro, which stated that 

“[o]ne of the basic procedural requirements of administrative rulemaking is that an agency must 

give adequate reasons for its decisions.” 136 S. Ct. 2117, 2125 (2016) (emphasis added). This 

Court therefore should not consider plaintiffs’ arguments about the sufficiency of the FEC’s 

explanation and justification. 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 31 of 53
23 

Even if the Court did consider the explanation, however, it should reject plaintiffs’ 

challenge because the Commission’s explanation was adequate given the circumstances. While 

“an agency is required to adequately explain its decision,” it need not do so with perfect 

precision. Van Hollen, 811 F.3d at 496-97. “It is enough that a reviewing court can reasonably 

discern the agency’s analytical path,” id. at 497, even if the decision is “of ‘less than ideal 

clarity,’” Nader v. FEC, 823 F. Supp. 2d 53, 58 (D.D.C. 2011) (quoting Common Cause v. FEC, 

906 F.2d 705, 706 (D.C. Cir. 1990)). As discussed infra pp. 23-25, the indefinite article “an” 

created ambiguity in the statute, and the Commission’s regulation was a reasonable clarification 

of that ambiguity. The reason for this modest change to the statutory language is not 

“[i]nexplicable” (Pls.’ Opp. at 5); rather, it is readily apparent if one compares the language of 

the statute to that of the regulation. Finally, as discussed in the Commission’s prior brief, even if 

the Court were to find this issue justiciable and agree with plaintiffs that the Commission’s 

explanation was inadequate, the appropriate remedy would be to remand to the Commission to 

obtain additional explanation. (FEC Mem. at 50 n.10.) 

C. The Regulation Passes Chevron Step One Because the Ambiguity of the 

Statute Provided the Commission With Authority to Promulgate 11 C.F.R. § 

109.10(e)(1)(vi)

The first step of Chevron analysis considers whether the statute unambiguously expresses 

Congressional intent, and if so, the court must give effect to that statutory intent. Chevron, 

467 U.S. at 842; see FEC Mem. at 31-34. Plaintiffs argue that 52 U.S.C. § 30104(c)(2)(C) is 

unambiguous, that the Commision’s regulation differs from the statutory text, and that therefore 

the Commission’s regulation should be invalidated. But as the Commission has explained, the 

requirement in the statute that a specific report filed with the FEC identify contributions “made 

for the purpose of furthering an independent expenditure” is inherently ambiguous because the 

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24 

scope of independent expenditures contemplated by the word “an” is undefined. 52 U.S.C. 

§ 30104(c)(2)(C); see FEC Mem. at 34-41. 

As an analogy, imagine that you have a parent or friend who is worried about what you 

are eating in the morning. This breakfast monitor asks you to do the following: (1) If you eat 

more than five omelets in a year, you should send a letter that; (2) contains the following 

information — (A) what ingredients were in the omelet, (B) whether anyone helped you make 

such omelet, and (C) the number and brand of eggs that you got for the purpose of making an

omelet. The articles italicized above are identical to the articles used in 52 U.S.C. § 30104(c), 

and the ambiguity in part (C) is evident. In each letter your breakfast monitor has asked you to 

send, are you to identify the number and brand of eggs that you obtained for the purpose of 

making the omelet (or omelets) that are being described in the rest of the letter? Or should you, 

in each letter, list the number and brand of every egg that you have ever obtained for the purpose 

of making any omelet? And even determining the precise meaning of “an” would not resolve the 

ambiguity, because “an” merely refers to an unspecified omelet within a group, but the size of 

the group is undefined. It would be entirely reasonable to interpret your monitor’s instructions to 

mean that the group envisioned by “an” in subsection (C) is limited to the omelets that are being 

reported in subsections (A) and (B). That is precisely what the Commission’s regulation does. 

In addressing this issue, plaintiffs’ opposition tries to distinguish United States v. Hagler, 

a case cited by Crossroads GPS. (Pls.’ Opp. at 10 n.3 (citing Hagler, 700 F.3d 1091 (7th Cir. 

2012)).) In that case, the defendant argued that the use of “an identified person” in one part of a 

criminal statute involving DNA evidence should be interpreted broadly to mean any identified 

person. Id. at 1097. But the Seventh Circuit rejected that argument, because “the rest of the 

statute is written using definite articles” and “[t]aken together, these words all suggest that the 

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25 

DNA evidence in question must be much more specific.” Id. (“statutory interpretation also 

‘depends upon reading the whole statutory text . . .’” (quoting Dolan v. U.S. Postal Serv., 546 

U.S. 481, 486 (2006))). 

The statute at issue in this case, just like the statute at issue in Hagler, contains both 

definite articles and indefinite articles. It is therefore reasonable to interpret “an independent 

expenditure” in subsection 30104(c)(2)(C) to be constrained by “the independent expenditure” in 

30104(c)(2)(A) and “such independent expenditure” in 30104(c)(2)(B).5

 As the Commission 

noted previously, because the other parts of the provision make clear that independent 

expenditure reports describe one or more specific independent expenditures, “the word ‘an’ can 

be read to refer to any of the independent expenditures that are described in the actual report.” 

(FEC Mem. at 39.) 

Plaintiffs also fail to distinguish Ctr. for Individual Freedom v. Van Hollen, a case 

involving a similar reporting provision of FECA. (Pls.’ Opp. at 13-14 (discussing Van Hollen, 

694 F.3d 108 (D.C. Cir. 2012).) In Van Hollen, the D.C. Circuit held that the statutory language 

requiring “the names and addresses of all contributors who contributed” to the person making an 

electioneering communication was sufficiently ambiguous that it was reasonable for the 

Commission to draft an implementing regulation requiring reporting of contributions “made for 

the purpose of furthering electioneering communications.” Van Hollen, 694 F.3d at 108, 109 

(citing 52 U.S.C. § 30104(f)(2)(F) and 11 C.F.R. § 104.20(c)(9)). The Van Hollen court held 

that Congress had not expressed a clear intention as to what had to reported, explaining that the 

context of a statute can make seemingly plain text ambiguous. 

 

5

 Plaintiffs repeatedly, but wrongly, claim that the FEC contends plaintiffs’ interpretation 

of the statute is “absurd.” (Pls.’ Opp. at 6, 11, 12, 25, 29, 30.) The Commission’s position is 

merely that the statutory language is ambiguous, and that it was reasonable for the Commission 

to have interpreted it as the agency does in the regulation. That is the relevant inquiry here. 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 34 of 53
26 

Plaintiffs attempt to distinguish Van Hollen by arguing that the regulation there was 

interpreting a statute “[w]ithout a scope of reporting specified” but that the statute at issue in this 

case has “no unspecified scope.” (Pls.’ Opp. at 13-14.) Plaintiffs’ position seems to be that it is 

acceptable for the FEC to clarify that “contributors who contributed” means contributions “made 

for the purpose of furthering electioneering communications,” but not that “made for the purpose 

of furthering an independent expenditure” means “made for the purpose of furthering the 

reported independent expenditure.” That argument is unpersuasive. If the Commission has the 

authority to make a significant clarifying alteration to resolve ambiguity in the electioneering 

communication provision, it has the authority to make the modest clarification at issue here.6

Lastly, plaintiffs assert that the independent expenditure reporting statute was definitively 

interpreted more than 30 years ago in MCFL, 479 U.S. 238 (1986), to require broader disclosure 

than the FEC’s regulation does and therefore this Court is bound by that Supreme Court 

precedent. (Pls.’ Opp. at 14-15). But that is a gross mischaracterization of the MCFL decision. 

(See FEC Mem. at 27.) 

MCFL was not about disclosure. The case examined whether FECA’s prohibition on 

corporations using general treasury funds for independent expenditures was constitutional as 

 

6

 Plaintiffs also argue that the Commission’s regulation at issue in Van Hollen is 

inconsistent with the agency’s position that 52 U.S.C. § 30104(c)(2)(C) is ambiguous, claiming 

that the Commission would not have drafted a regulation using the phrase “for the purpose of 

furthering electioneering communications” if it believed that “for the purpose of furthering an 

independent expenditure” was unclear. (Pls.’ Opp. at 14.) However, there are meaningful 

differences in the language and surrounding context of those two phrases, including the word 

“an” as discussed above. Some Commissioners have taken the view that the electioneering 

communications regulation should be interpreted in the same manner as the independent 

expenditure regulation — including only contributions made for the purpose of furthering “the 

communication that is the subject of the report.” Statement of Reasons of Chairman Matthew S. 

Petersen and Commissioners Caroline C. Hunter and Donald F. McGahn at 5, MUR 6002 (In the 

Matter of Freedom’s Watch, Inc.), August 13, 2010, 

https://www.fec.gov/files/legal/murs/current/80943.pdf. 

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27 

applied to a non-profit corporation with certain distinct characteristics, including that it was not a 

political committee and that it received no funding from corporations or labor unions. MCFL, 

479 U.S. at 264. The Court held that the law as applied to such organizations violated the First 

Amendment because it infringed on protected speech without a compelling justification. Id. at 

263. Because the law had previously prohibited entities like MCFL from making such 

independent expenditures at all, neither the parties nor the Court paid much attention to what 

MCFL’s disclosure requirements would look like if it were permitted to make such expenditures. 

Neither the FEC’s initial brief in that case nor any of the four amicus briefs even mentioned the 

provision at issue in this case. See Brief for Appellant FEC, MCFL, No. 85-701, 1986 WL 

727481 (Feb. 27, 1986); Amicus Brief of the Reporters Committee for Freedom of the Press et 

al., MCFL, No. 85-701, 1986 WL 727484 (Apr. 4, 1986); Amicus Brief for the National Rifle 

Association of America, MCFL, No. 85-701, 1986 WL 727486 (Apr. 4, 1986); Amicus Brief for 

the Home Builders Association of Massachusetts, MCFL, 1986 WL 727491 (Apr. 4, 1986); 

Amicus Brief of the ACLU, et al., MCFL, No. 85-701, 1986 WL 727489 (Apr. 4, 1986). The 

two remaining Supreme Court briefs touched briefly on disclosure but made no specific 

arguments about how the provision at issue here should be interpreted. See Brief ofor the 

Appellee MCFL at 36, 45, MCFL, No. 85-701, 1986 WL 727495 (Apr. 4, 1986); Reply Brief for 

Appellant FEC at 31, MCFL, No. 85-701, 1986 WL 727498 (Sept. 30, 1986). 

Unsurprisingly, the MCFL Court’s opinion likewise did not focus on the independent 

expenditure reporting provision.7

 The Court determined first that the law’s prohibition on 

 

7

 The Commission’s previous brief mistakenly argued that the reference to the 

independent expenditure reporting provision in MCFL “was in a portion of the opinion only 

signed by four justices.” (FEC Mem. at 27.) As plaintiffs have pointed out (Pls.’ Opp. at 15), 

five Justices did sign that portion of the opinion. Nonetheless, for the additional reasons stated in 

this brief and the FEC’s prior brief, MCFL is not controlling on the issues in dispute here. 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 36 of 53
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independent expenditures applied to MCFL (MCFL, 479 U.S at 245-51), then that this 

prohibition infringed on the First Amendment (id. at 251-56), and then that the government 

lacked a compelling interest for infringing on that right (id. at 256-63). In that last part of its 

opinion, the Court examined several possible government interests for the law and found them 

lacking. In particular, the Court was unpersuaded that entities such as MCFL could be used as a 

conduit by other corporations and unions wishing to engage in political activities because MCFL 

would have disclosure requirements under FECA. Id. at 262. Without stating that any particular 

disclosure requirement was sufficient to alleviate the concern about MCFL-type organizations 

being used as conduits, the Court briefly described what it believed to be those disclosure 

requirements. Plaintiffs now rely on those few sentences to argue that subsection 30104(c)(2)(C) 

is unambiguous (and that subsection (c)(1) is a standalone reporting requirement, see infra p. 

38). But in fact those issues were peripheral to the decision in MCFL, were not contested by the 

parties there, and do not appear to have made a significant difference in the case’s outcome.8

 

D. The Regulation Passes Chevron Step Two Because It Reasonably Clarifies 

the Language of 52 U.S.C. § 30104(c)(2)(C) 

The regulation at 11 C.F.R. § 109.10(e)(1)(vi) is a reasonable interpretation of ambiguous 

statutory language. Plaintiffs argue that the regulation fails even the deferential standards of 

Chevron Step Two review primarily because it “frustrates the purposes of the FECA and creates 

redundancies with other provisions of the law.” (Pls.’ Opp. at 16.) These arguments lack merit. 

 

8

 Plaintiffs incorrectly claim that the FEC “concedes” that 11 C.F.R. § 109.10(e)(1)(vi) 

“requires less disclosure than” 52 U.S.C. § 30104(c)(2)(C). (Pls.’ Opp. at 16 (citing FEC Mem. 

at 37).) In fact, the FEC’s consistent position has been that the statute is ambiguous and the 

regulation is a reasonable interpretation of the statute. (FEC Mem. at 43 (“[T]he regulation was 

a useful clarification, consistent with the intent of Congress . . .”).) 

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1. Evidence Regarding the Extent of Disclosure Today Cannot Be 

Considered in Determining Whether the Commission Acted 

Reasonably in Passing the Regulation in 1980

As the Commission explained in its opening brief, judicial review of agency action is 

based upon the administrative record before the agency when it acted. (FEC Mem. at 47-49.) 

Any other standard would “require[] administrators to be prescient.” Walter O. Boswell Mem’l 

Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984). Despite this well-established rule of 

judicial review, plaintiffs continue to argue that this Court should take the extraordinary step of 

considering information about the amount of disclosure regarding contributions to those making 

independent expenditures in recent election cycles. (Pls.’ Opp. at 18-19.) Plaintiffs make no 

attempt to respond to the numerous cases cited by the Commission and Crossroads GPS in their 

prior briefs about this bedrock principle of administrative law. Plaintiffs do rely on a comment 

from the Federal Rules of Evidence and a case that discusses judicial notice, but that reliance is 

misplaced. (See Pls.’ Opp. at 18 (citing Fed. R. Evid. 201 (cmmt..) and Sanders v. Kerry, 180 F. 

Supp. 3d 35, 41 (D.D.C. 2016)).) The principle of judicial notice concerns the reliability of 

evidence. While under most circumstances a court will only consider evidence that is properly 

introduced and authenticated by the parties to a lawsuit, there are certain circumstances in which 

facts in the public domain can be considered to be so beyond doubt that a court can rely upon 

them even though they have not been introduced or authenticated by the parties. However, the 

reason for excluding information unavailable to the Commission when it promulgated the rule 

involves fairness to administrators about the reasonableness of their determination based on the 

information available to them at the time and is not limited to concerns regarding reliability.9

 

9

 In any case, neither the rule comment nor the case plaintiffs cite are relevant here. The 

quoted language from the commentary to Rule 201 originally comes from a 1944 Harvard Law 

Review article that merely recites the unremarkable proposition that if a judge is unfamiliar with 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 38 of 53
30 

This Court considered and rejected the same judicial notice argument plaintiffs now make 

in Silver State Land, LLC v. Beaudreau, 59 F. Supp. 3d 158 (D.D.C. 2014) (Howell, J.). In that 

case, the plaintiff asked the Court to take judicial notice of a state court order that was not part of 

the administrative record in the case. But the Court explained: 

Judicial notice is “typically an inadequate mechanism” for a court to consider 

extra-record evidence in reviewing an agency action. Dist. Hosp. Partners, L.P. 

v. Sebelius, 971 F. Supp. 2d 15, 32 n. 14 (D.D.C. 2013). “Instead, a court may 

only consider an adjudicative fact subject to judicial notice that is not part of the 

administrative record if it qualifies for supplementation as extra-record evidence 

under [Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989)].” Id. (citing Cnty. of San 

Miguel v. Kempthorne, 587 F. Supp. 2d [64,] 78–79 [(D.D.C. 2008)]) (emphasis 

in original). As the Nevada Order does not qualify for supplementation of the 

administrative record or extra-record review, for the reasons set forth above, the 

plaintiff's request for judicial notice of the Nevada Order is also denied. 

Silver State Land, LLC, 59 F. Supp. 3d at 172. 

Plaintiffs’ final argument is that the Court should consider evidence about independent 

expenditure disclosure that post-dates the Commission’s 1980 rulemaking because such 

information “shows how the regulation is frustrating the purpose of the statute” and shows that 

the FEC did not consider all factors in its rulemaking. (Pls.’ Opp. at 18 n.7.) Plaintiffs rely on 

Shays v. FEC, but that case does not support the proposition that a court can look at data from 

thirty years after a regulation was passed to determine if it is reasonable, because Shays merely 

considered information about the foreseeable consequences of a regulation that had recently been 

promulgated, not information about what actually happened long afterwards. 528 F.3d 914, 925 

(D.C. Cir. 2008). The notion that evidence post-dating the FEC’s rulemaking should be 

 

an area of the law or how it should be applied to the facts of a case, she can use information not 

presented by the parties to inform herself. See Edmund M. Morgan, Judicial Notice, 57 Harv. L. 

Rev. 269, 272 (1944) (a judge “must take judicial notice of what everyone knows and uses in the 

ordinary process of reasoning about everyday affairs.”). And the case plaintiffs cite simply notes 

that a court can consult certain information “without converting a motion to dismiss into a 

motion for summary judgment because such records are public document[s] of which a court 

may take judicial notice.” Sanders, 180 F. Supp. at 41 (internal quotation marks omitted). 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 39 of 53
31 

considered because it shows the agency failed to examine all relevant factors is illogical and 

would swallow the rule against consideration of facts outside the administrative record. The 

Court therefore cannot consider the evidence that plaintiffs have put forward about disclosure 

after the regulation was issued.10

2. The Interpretation of the Statute in the Regulation Does Not Create 

Redundancies 

The language of 11 C.F.R. § 109.10(e)(1)(vi) requires a filer of an independent 

expenditure report to include “[t]he identification of each person who made a contribution in 

excess of $200 to the person filing such report, which contribution was made for the purpose of 

furthering the reported independent expenditure.” 11 C.F.R. § 109.10(e)(1)(vi) (emphasis 

added). Plaintiffs have argued that interpreting subsection 30104(c)(2)(C) of the statute in this 

manner makes the provision redundant with requirements that makers of independent 

expenditures file their own reports, but the FEC pointed out multiple scenarios in which a 

contributor would be disclosed under the regulation but not be considered the maker of an 

independent expenditure required to file his own statement. (FEC Mem. at 46-47.) 

Plaintiffs now assert (Pls.’ Opp. at 20-21) that a 2008 Advisory Opinion by the 

Commission supports their position. It does not. In that Advisory Opinion, the Commission 

considered VoterVoter.com, a for-profit non-partisan internet service that allowed individuals to 

pay to have existing advertisements on the website aired on television. AO 2008-10 

(VoterVoter.com) (Oct. 24, 2008), https://www.fec.gov/files/legal/aos/73731.pdf. The 

Commission’s Advisory Opinion stated that the person paying for the advertisement would be 

the person responsible for reporting that independent expenditure. Id. at 7. The Commission 

 

10 In addition, as discussed in the FEC’s prior brief, it is by no means clear that the FEC’s 

regulation, rather than the statute itself, is responsible for any lack of disclosure of contributions 

to those engaged in independent expenditures. (FEC Mem. at 43-44.) 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 40 of 53
32 

stated its determination was based on the facts that VoterVoter.com “will be acting as a 

commercial vendor engaging in the proposed activity for genuinely commercial purposes and not 

for the purpose of influencing any Federal election” and that it would “accept and post ads on a 

non-partisan basis.” Id. That is a very particular commercial context far afield from the activity 

at issue in this case. 

The overwhelming majority of groups engaged in independent expenditures are partisan 

ideological entities doing so for the purpose of influencing federal elections. Under neither the 

regulation nor the statute does an individual become the maker of an independent expenditure 

merely because she gave a contribution to a group for the purpose of that group running an 

independent expenditure. There is no merit to plaintiffs’ claim that the regulation makes the 

statute redundant. 

3. Congress Has Not Acted on This Issue Despite CREW’s Argument 

That the Regulation Has Been in Conflict With the Statute for 38 

Years

Although plaintiffs argue that the FEC’s regulation has been misinterpreting FECA’s 

disclosure requirements since 1980, Congress has taken no action to correct this purported 

misinterpretation, despite the fact that there are few areas of the law more familiar to Members 

of Congress than campaign finance law. And Congress has had ample opportunity to overturn 

11 C.F.R. § 109.10(e)(1)(vi) since its promulgation in 1980. Indeed, some members of Congress 

have tried and failed several times to enact legislation to change the disclosure requirements for 

independent expenditures. For example, starting in 2010 and continuing in subsequent 

Congressional sessions, a bill known as the “DISCLOSE Act,” would have required persons that 

meet certain thresholds of independent expenditure activity using their general funds to disclose

all of their contributors, without regard to whether those contributions were made for the purpose 

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33 

of furthering independent expenditures. See, e.g., H.R. 430, 114th Cong. § 324(a)(2)(F) (2015), 

https://www.congress.gov/bill/114th-congress/house-bill/430/text. The DISCLOSE Act, 

however, has not been enacted despite being reintroduced multiple times. While this inaction is 

of course not dispositive regarding whether Congress believes the FEC’s regulation is consistent 

with the statute in the circumstances of this case, it is appropriate to consider this inaction as an 

indication of tacit approval by Congress. See Bob Jones Univ. v. United States, 461 U.S. 574, 

600-01 (1983) (upholding regulation in part due to Congressional acquiescence both because the 

subject matter was one with which Congress was intimately familiar and because Congress made 

several unsuccessful attempts to override the regulation). 

E. It Is Reasonable to Interpret Section 30104(c)(1) as Too Ambiguous, in the 

Overall Context of the Statute, to Treat as an Independent Reporting 

Requirement

The Commission’s opening brief showed why 52 U.S.C. § 30104(c)(1) is an ambiguous 

statutory provision that can be read in multiple ways. (FEC Mem. at 23-28.) The FEC explained 

that each plausible interpretation of the provision has some flaws, and so it is reasonable for the 

Commission to interpret section 30104(c)(1) as a description of who should file independent 

expenditure statements rather than an independent requirement about the content of those 

statements. 

Plaintiffs argue repeatedly, however, that 52 U.S.C. § 30104(c)(1) can only be interpreted 

as a stand-alone requirement that filers identify all persons who made contributions of more than 

$200 generally, even those that were not made to further an independent expenditure. (Pls.’ 

Opp. at 24-30; see, e.g., id. at 24 (“the clear language of the statute”), id. at 25 (“there is no 

ambiguity about what subsection (c)(1) requires”), id. at 26 (“subsection (c)(1) unambiguously 

requires reporting all those who contribute more than $200 annually”).) According to plaintiffs, 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 42 of 53
34 

“no honest attempt can be made to reconcile the regulation with what is required by Congress 

under subsection (c)(1).” (Id. at 30.) Yet despite such rhetoric, nowhere do plaintiffs resolve the 

fundamental ambiguities in the statute; indeed, their efforts to explain away those ambiguities 

would seem to make the meaning of the statutory provision even murkier.11

1. Interpreting Section 30104(c)(1) as an Independent Reporting 

Requirement Creates Tension With the Language and Structure of 

the Law 

Plaintiffs’ arguments for their preferred interpretation of subsection 30104(c)(1) simply 

underscore the statute’s ambiguity. For example, the Commission noted that the list of three 

subparts in the title of the subsection (“filing; contents; indices of expenditures”) fits with an 

interpretation that (c)(1) is about filing statements, (c)(2) is about the content of those statements, 

and (c)(3) is about indices. (FEC Mem. at 25.) In response, plaintiffs cite cases for the 

proposition that “the title of a statute and the heading of a section cannot limit the plain meaning 

of the text.” (Pls.’ Opp. at 26 (quoting Bhd. of R.R. Trainmen v. B&O R.R.. Co., 331 U.S. 519, 

528-29 (1947)).) But plaintiffs’ argument simply assumes without justification that the text 

actually has a plain meaning. And the same case plaintiffs cite explains that titles and headings 

are not useless for statutory interpretation, as they can “shed light on some ambiguous word or 

phrase” and can be “tools available for the resolution of a doubt.” Bhd. of R.R. Trainmen, 331 

U.S. at 529. For all of the reasons the FEC has explained, there are significant doubts about the 

meaning of the provision and so the title can be a useful interpretative tool. Plaintiffs suggest 

 

11 Plaintiffs suggest that the Commission is evasive on the issue of whether 11 C.F.R. § 

109.10(e)(1)(vi) incorporates 52 U.S.C. § 30104(c)(1). (Pls.’ Opp. at 30 (“no honest attempt can 

be made to reconcile the regulation with what is required by Congress under subsection (c)(1). 

This is why the FEC does not even attempt to do so here, instead merely arguing that the 

subsection (c)(1) is ambiguous without arguing 11 C.F.R. § 109.10(e)(1)(vi) reasonably 

interprets it.”).) But that is a red herring: The Commission’s regulation interprets an ambiguous, 

multi-provision statutory reporting structure of which subsection (c)(1) is an interdependent part. 

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35 

that the heading does not perfectly encompass the meaning of each subpart (Pls.’ Opp. at 27 & 

n.13), but they make no attempt to explain how the title fits with their favored interpretation. 

Similarly, the Commission pointed out the confusion stemming from the cross-reference 

in 52 U.S.C. § 30104(c)(1) to subsection (b)(3)(a), which includes terms that are solely 

applicable to political committees, despite the fact that subsection 30104(c)(1) only applies to 

persons that are not political committees. (FEC Mem. at 26.) Plaintiffs respond by simply 

observing that subsection (b)(3)(a) is contained in a section relating to political committee 

reporting, so of course it would contain language applicable to political committees. (Pls.’ Opp. 

at 28.) But this is unresponsive to the actual issue here. If Congress’s intent was to make 

subsection (c)(1) a reporting requirement to identify all persons who made over $200 in 

contributions, it is not clear why it would do so by cross-referencing a provision that contains 

inapplicable language instead of by simply describing the requirements directly. Plaintiffs make 

no attempt to provide a reason. 

The Commission also noted that 52 U.S.C. § 30104(c)(1) states that “a” statement should 

be filed, but that reading (c)(1) and (c)(2) in the manner suggested by plaintiffs would result in 

multiple statements being filed, containing different but overlapping information. (FEC Mem. at 

26-27.) Furthermore, if the requirement to file a statement in (c)(1) was intended to apply to a 

statement with the content described in subsection (b)(3)(a), as plaintiffs argue, then there is no 

provision in the law that requires the filing of a statement with the contents described in 

subsection (c)(2). (FEC Mem. at 26-27.) Plaintiffs argue that it is possible to resolve these 

issues by reading “a statement” to refer to multiple statements and by reading the filing 

requirement in (c)(1) to apply to statements with the content described in both (b)(3)(a) and 

(c)(2). (Pls.’ Opp. at 27.) But once again this ignores the question of why Congress would draft 

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36 

the provision in this manner when there are simpler ways to accomplish what plaintiffs claim 

was the Congressional intent.12 

2. The Duplicative Reporting CREW Envisions Would Be Dissimilar to 

Other Provisions of FECA

Plaintiffs’ position is that subsections 30104(c)(1) and (c)(2)(C) contain separate 

reporting requirements involving some distinct and some duplicative information. The 

Commission has noted, however, that interpreting these provisions to include dual reporting 

requirements would be redundant and inconsistent with comparable other provisions in FECA, 

and therefore it is reasonable not to read subsection (c)(1) in that manner. (FEC Mem. at 27-28.) 

Plaintiffs argue that the provisions are not redundant and that they are similar to the “paired 

reporting mechanism” for independent expenditures and electioneering communications. (Pls.’ 

Opp. at 29.) Both arguments are incorrect. 

Plaintiffs argue first that their interpretation of subsections 30104(c)(1) and (c)(2) is not 

duplicative because the two provisions “target two complimentary [sic] sets of contributors, one 

based on the purpose of the contribution (52 U.S.C. § 30104(c)(2)([C])) and one based on when 

the contribution was made ([52 U.S.C.] § 30104(c)(1)).” (Pls.’ Opp. at 29.) But the two 

provisions clearly are duplicative, because every contribution that is reported under section 

30104(c)(2)(C) would also need to be reported pursuant to plaintiffs’ interpretation of section 

 

12 Plaintiffs also assert that interpreting subsection (c)(1) to require disclosure of all those 

who contribute over a certain threshold makes sense because it is similar to the disclosure 

requirement prior to the 1979 FECA Amendments and Congress did not intend that the 

amendments would make significant changes. (Pls.’ Opp. at 28-29.) But this reflects an 

insufficiently broad perspective. The law prior to the 1979 amendments had no equivalent to 52 

U.S.C. § 30104(c)(2)(C). As a result, reading the whole law as plaintiffs suggest means that 

Congress made a very significant change — one reporting requirement was replaced with two 

reporting requirements of different and overlapping information. By contrast, if (c)(1) is not read 

as a separate reporting requirement, then the overall change to reporting is far less significant, 

because in that event it merely clarified the type of contributions that persons other than political 

committees need to report. 

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30104(c)(1). Thus, the two reporting provisions would not be complementary at all, under 

plaintiffs’ interpretation, but instead one reporting provision would be simply a subset of the 

other reporting provision. Plaintiffs fail to explain why Congress would create a scheme in 

which the same contributions to those making independent expenditures are being reported 

multiple times, and if Congress did create such a scheme, why it would have drafted a single 

statutory provision stating clearly that all contributions should be reported and those made for the 

purpose of furthering an independent expenditure should be separately designated. 

Next, plaintiffs suggest that the dual reporting mechanism they describe is not unique 

because FECA also has a “paired reporting mechanism” for independent expenditures and 

electioneering communications. (Pls.’ Opp. at 29.) But there are key differences between these 

two sets of reporting requirements. Most importantly, while plaintiffs’ statutory interpretation 

would cause duplicative reporting, the “paired reporting” of independent expenditures and 

electioneering communications does not, because the statute makes the two types of 

communication mutually exclusive. See 52 U.S.C. § 30104(f)(3)(B) (“The term ‘electioneering 

communication’ does not include . . . (ii) a communication which constitutes an expenditure or 

an independent expenditure under this Act”). While the same entity may need to separately 

report its independent expenditures and its electioneering communications, there is no overlap 

between those two reports—no communication is, or should be reported as, both an independent 

expenditure and an electioneering communication. 

Furthermore, Congress designed the dual reporting scheme for independent expenditures 

and electioneering communications to address a specific problem. While the term “independent 

expenditures” dates back to the era of FECA’s original passage, Federal Election Campaign Act 

Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 (1976), there was no such thing as 

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“electioneering communications” until 2002. Prior to that time, independent groups had begun 

to spend millions of dollars on so-called “issue ads” — ads that avoided express advocacy but, 

under the guise of advocating for or against an issue, actually supported or opposed the election 

of federal candidates. See McConnell v. FEC, 540 U.S. 93, 126-128 (2003). Congress 

determined that because the express advocacy standard was easy to evade, entities were funding 

broadcast ads designed to influence federal elections “while concealing their identities from the 

public.” Id. at 196-97. To address this and other developments in federal campaign finance, 

Congress enacted the Bipartisan Campaign Reform Act of 2002 (“BCRA”), 

Pub. L. No. 107-155, 116 Stat. 81 (2002). In particular, in response to what Congress identified 

as “sham issue ads,” Congress imposed new disclosure requirements on those making 

“electioneering communications.” BCRA §§ 201, 203, 204. See McConnell, 540 U.S. at 126. 

Under BCRA, an “electioneering communication” is any broadcast, cable, or satellite 

communication that refers to a clearly identified federal candidate, is publicly distributed within 

60 days before a general election or 30 days before a primary election, and is targeted to the 

relevant electorate. See 52 U.S.C. § 30104(f)(3)(A). Congress therefore never set out to create a 

dual reporting mechanism for electioneering communications and independent expenditures; 

rather, it created “electioneering communications” in response to a legislative concern and set up 

a disclosure regime for those types of communications. That situation bears no resemblance to 

what plaintiffs claim happened here — that in 1979 Congress developed a dual reporting 

mechanism for independent expenditures made by persons that are not political committees. 

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3. No Court Has Held That Section 30104(c)(1) Imposes an Independent 

Reporting Requirement, Nor Has the Commission Itself Ever 

Enforced the Statute in Accord With That Interpretation 

As discussed at supra pp. 26-28, the Supreme Court’s decision in MCFL does not control 

on the issue of the proper interpretation of subsection 30104(c)(1). In its prior brief, the 

Commission pointed out that courts had not considered MCFL binding on this issue, citing FEC 

v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987), a case that came out a year after MCFL and 

interpreted the provision differently. Plaintiffs argue that Furgatch does not bind this Court, and 

of course the opinion is merely persuasive authority rather than binding, but the citation to 

Furgatch does show that MCFL is not dispositive authority on the relevant issues. To the 

Commission’s knowledge, no court has spoken definitively about the meaning of subsection 

30104(c)(1).13

Beyond this lack of guidance from the courts, the Commission itself has never taken the 

position that subsection 30104(c)(1) is a stand-alone reporting requirement. Plaintiffs claim that 

“[t]he agency has previously enforced subsection (c)(1) as a standalone reporting obligation,” 

pointing to a single enforcement action from 1992. (Pls.’ Opp at 26.) But plaintiffs’ claim is 

baseless, and the enforcement matter they cite actually indicates that the FEC has been consistent 

in its treatment of the law. The enforcement action plaintiffs identify involved an individual 

named Carmack Watkins, who took out a political advertisement in his local newspaper but “had 

no previous political experience and was not aware of applicable election law requiring him to 

disclose who paid for the ads.” MUR 3503 (Perot Petition Committee), First General Counsel’s 

 

13 Plaintiffs also state that interpreting the law in a manner they disagree with is 

“unconstitutional” because it infringes upon the rights of CREW and others to receive 

information about contributions. (Pls.’ Opp. at 8, 32.) But there is no constitutional claim in this 

case, nor could there be, because CREW has no constitutional right to have the FEC take action 

against Crossroads GPS or any other third parties. 

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Report at 3, https://www.fec.gov/files/legal/murs/3503.pdf.14 Acting on the recommendation of 

the FEC’s Office of General Counsel, the Commission found that Mr. Watkins had violated 52 

U.S.C. § 30104(c)(1) and another FECA provision, but took no further action. See Certification, 

https://www.fec.gov/files/legal/murs/3503.pdf. Plaintiffs suggest that this is evidence that the 

Commission deemed (c)(1) a standalone reporting requirement, but to the contrary, the citation 

to that provision makes sense under any statutory interpretation because Mr. Watkins failed to 

file any independent expenditure statement at all. (See 52 U.S.C. § 30104(c)(1) (stating that 

persons that make independent expenditures “shall file a statement.”) The letter the Commission 

sent to Mr. Watkins after the MUR was closed stated that “the failure to file a statement of 

independent expenditures made on behalf of presidential candidate Ross Perot appears to be in 

violation of 2 U.S.C. § 434(c)(1) [now codified at 52 U.S.C. § 30104(c)(1)].” While it is true 

that the First General Counsel’s Report paraphrased the statutory language of subsection (c)(1) 

when describing the relevant legal provisions, there was no discussion anywhere in the MUR 

about the relevant issue in this case – whether (c)(1) and (c)(2)(C) each require the disclosure of 

different sets of contributors. Indeed, because Mr. Watkins acknowledged using his own money, 

there were no contributors to report at all. 

Neither judicial nor FEC precedent provides support for plaintiffs’ argument that 

subsection 30104(c)(1) unambiguously creates a stand-alone reporting requirement. To the 

contrary, the absence of such support suggests that there is no unambiguous requirement. 

4. FECA Treats Persons That Are Not Political Committees Differently 

from Political Committees

Political committees are entities that have the major purpose of electing federal 

candidates, Buckley v. Valeo, 424 U.S. 1, 79 (1976), and FECA treats them differently from other 

 

14 Plaintiffs misnumbered the MUR as “5303” in their brief. (Pls.’ Opp. at 26.) 

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groups that engage in independent expenditures. Overall, political committee reporting 

requirements are far more extensive. Compare 52 U.S.C. § 30104(a)-(b) (reporting requirements 

of political committees) with 52 U.S.C. § 30104(c) (reporting requirements for other groups 

engaged in independent expenditures). As the FEC noted, one problem with plaintiffs’ preferred 

interpretation of 52 U.S.C. § 30104(c)(1) is that it would cause political committees to have 

fewer disclosure requirements than persons that are not political committees. (FEC Mem. 27-

28.) Plaintiffs’ interpretation would require such persons to file statements disclosing all 

contributors, just like political committees, but also to file statements about which contributions 

were for the purpose of an independent expenditure, which political committees are not required 

to do. 

Plaintiffs’ response to the FEC’s argument was simply that political committees are 

required to report all contributions (Pls.’ Opp. at 29 n.16), but that does not address the issue. 

Plaintiffs make several other claims that also fail to reconcile their interpretation of FECA with 

the unique requirements that Congress imposed on political committees but not other groups. 

(See, e.g., Pls.’ Opp. at 6-7 (“just as Congress wanted voters to know the identities of all 

contributors to a political committee . . . Congress similarly wanted viewers of independent 

expenditures to understand the full scope of the ad’s financial support.”); id. at 7 (“the confusion 

defendants fear is also present with political committees, which must report all of their 

contributors, even if those contributors did not intend to impact the specific election in which a 

voter might interact with the political committee.”); id. at 12 (arguing that there is no problem if 

a particular contributor is improperly linked with an independent ad he did not support because 

“[t]he exact same situation could happen when someone donates to a political committee, yet 

there is no dispute that that person must be reported.”); id. at 21 (stating that non-earmarked 

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42 

contributions to Crossroads GPS must also be reported because “there is no dispute that political 

committee contributions need not be earmarked to their final use in order to be reported.”).) But 

to suggest that the provision at issue in this case must be read a particular way because political 

committees are also treated that way ignores FECA’s special treatment of political committees. 

Because political committees are primarily concerned with influencing federal elections, 

Congress provided distinct, comprehensive regulatory requirements for them. The fact that 

political committees are treated a certain way under the law is not evidence that other groups 

should be treated the same way. 

III. REMAND TO THE COMMISSION WOULD BE THE APPROPRIATE REMEDY 

IF THE COURT DETERMINED THAT THE COMMISSION ERRED 

If the Court determined that the FEC had acted unlawfully in either dismissing plaintiffs’ 

administrative complaint or in promulgating the regulation, the proper remedy would be to 

remand the case to the FEC to give the agency the opportunity to correct its mistake. (FEC 

Mem. at 49-50 (citing Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 

150-51 (D.C. Cir. 1993).) Plaintiffs argue that the Court should instead vacate the regulation 

because it purportedly conflicts with the statute, it cannot be explained, and there is no serious 

risk of disruption from vacating the law. (Pls.’ Opp. at 39-40.) But the unusual and potentially 

disruptive remedy of vacatur is inappropriate here under the standards identified in Allied-Signal, 

as discussed in the Commission’s prior brief. The general rule when courts review agency 

decision-making is, “except in rare circumstances,” to give the agency an opportunity to fix any 

problems on its own. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). 

 Plaintiffs’ argument that vacatur is appropriate because the regulation conflicts with the 

statute is true of every regulation that fails at Chevron step one, yet vacatur is not the normal 

remedy in such cases. See, e.g., Shays v. FEC, 337 F. Supp. 2d 28, 128 (D.D.C. 2004) (Chevron

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43 

step one loss with no vacatur). Moreover, if the Court were to rule against the Commission at 

Chevron step two, vacatur would be inappropriate because there is a “non-trivial likelihood” that 

the Commission could justify the regulation on remand. WorldCom, Inc. v. FCC, 288 F.3d 429, 

434 (D.C. Cir. 2002). Plaintiffs’ argument that there is little risk of disruption misunderstands 

the “disruption” prong of the Allied-Signal test — the 2018 federal elections are quickly 

approaching, and persons making independent expenditures as well as those making 

contributions to such groups are acting in reliance on the current regulation. While CREW may 

wish to obtain additional information on contributors, plaintiffs have not met the standards 

required to vacate a 38-year-old regulation. 

 Lastly, plaintiffs ask that if this case is remanded, the Court should take the 

extraordinary step of setting an explicit and draconian timetable of as little as two weeks to 

provide a new explanation and justification for the regulation. (Pls.’ Opp. at 40-41.) But 

plaintiffs have presented no evidence that the Commission will act in an untimely way to 

respond to whatever order the Court may issue. Indeed, district courts that oversaw cases 

involving multiple recently promulgated FEC regulations saw no need for such a remedy or short 

timetable. See, e.g., Shays v. FEC, 337 F. Supp. 2d at130 (“Accordingly, it is up to the agency to 

determine how to proceed next — not for the Court to decide or monitor.”); Shays v. FEC, 508 F. 

Supp. 2d 10, 70-71 (D.D.C. 2007) (denying plaintiffs’ request for an injunction, expedited 

rulemaking, and retention of jurisdiction). 

CONCLUSION 

For the reasons stated in this brief and the FEC’s initial brief, the Court should grant 

summary judgment to the Commission. 

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Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

January 24, 2018 

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