UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

AMERICAN ACTION NETWORK, 

 Intervenor-Defendant. 

Civil Action No. 1:16-cv-02255-CRC 

AMERICAN ACTION NETWORK’S MOTION FOR SUMMARY JUDGMENT 

Intervenor-Defendant American Action Network moves for an Order granting its Motion 

for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure and Local Rule 

7(h) and dismissing the Plaintiffs’ Amended Complaint with prejudice. 

In support of this Motion, American Action Network files a Memorandum of Points and 

Authorities and a Proposed Order. 

Respectfully submitted, 

/s/ Claire J. Evans 

Jan Witold Baran (D.C. Bar No. 233486) 

Caleb P. Burns (D.C. Bar No. 474923) 

Claire J. Evans (D.C. Bar No. 992271) 

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

 Wiley Rein LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

August 4, 2017 Counsel for American Action Network 

Case 1:16-cv-02255-CRC Document 30 Filed 08/04/17 Page 1 of 32
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

AMERICAN ACTION NETWORK, 

 Intervenor-Defendant. 

Civil Action No. 1:16-cv-02255-CRC 

AMERICAN ACTION NETWORK’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

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i 

TABLE OF CONTENTS 

Page 

I. INTRODUCTION .............................................................................................................. 1

II. STATEMENT OF FACTS ................................................................................................. 3

A. American Action Network ...................................................................................... 3

B. CREW’s Administrative Complaint ....................................................................... 6

C. CREW’s First District Court Challenge ................................................................. 7

D. The FEC’s Dismissal On Remand .......................................................................... 9

III. ARGUMENT .................................................................................................................... 11

A. The Commission’s Dismissal Decision Is Due Chevron Deference. ................... 11

B. The Commission’s Decision Easily Survives Judicial Review. ........................... 13

1. The Commission’s Case-Specific Decision Is Not Contrary To 

Law. .......................................................................................................... 14

(a) The Commission’s Flexible And Nuanced Approach Was 

Consistent With Precedent. ........................................................... 14

(b) CREW’s Challenges To The Commission’s Legal Analysis 

Are Meritless. ................................................................................ 16

2. The Commission’s Fact-Based Decision Is Not Arbitrary Or 

Capricious. ................................................................................................ 20

(a) The Commission Supported Its Decision With An 

Extensive, Comprehensive, And Reasonable Analysis. ............... 20

(b) CREW’s Challenges To The Commission’s Factual 

Analysis Are Meritless. ................................................................. 21

C. The Commission’s Initial Conclusion That AAN Is Not A Political

Committee Was Proper And Provides An Independent Reason To Reject 

CREW’s Challenge. .............................................................................................. 26

IV. CONCLUSION ................................................................................................................. 27

 

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Buckley v. Valeo, 

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

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

467 U.S. 837 (1984) .......................................................................................................3, 11, 12 

Citizens for Responsibility and Ethics in Washington v. FEC, 

209 F. Supp. 3d 77 (D.D.C. 2016) ................................................................................... passim

Combat Veterans for Congress Political Action Committee v. FEC, 

795 F.3d 151 (D.C. Cir. 2015) ...................................................................................................8 

FEC v. Democratic Senatorial Campaign Committee, 

454 U.S. 27 (1981) ...................................................................................................................12 

FEC v. National Republican Senatorial Committee, 

966 F.2d 1471 (D.C. Cir. 1992) ...............................................................................................13 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) .................................................................................................................14 

FEC v. Wisconsin Right to Life, Inc., 

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

McConnell v. FEC, 

540 U.S. 93 (2003) .........................................................................................................5, 16, 22 

National Association of Home Builders v. Defenders of Wildlife, 

551 U.S. 644 (2007) ...........................................................................................................23, 25 

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) .....................................................................................11, 12, 20 

Real Truth About Abortion, Inc. v. FEC, 

681 F.3d 544 (4th Cir. 2012) ...................................................................................................14 

In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000) .................................................................................................13 

Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) .................................................................................................20 

Wisconsin Right to Life, Inc. v. Barland, 

751 F.3d 804 (7th Cir. 2014) ...................................................................................................26 

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TABLE OF AUTHORITIES 

(Continued) 

 Page(s) 

Statutes 

52 U.S.C. § 30104(f) ............................................................................................................5, 22, 23 

52 U.S.C. § 30109(a)(8) ...................................................................................................................7 

Ohio Rev. Code § 3517.01(A) .......................................................................................................20 

Other Authorities 

26 C.F.R. § 1.501(c)(4)-1(a)(2)(i)-(ii) ...................................................................................1, 4, 21 

72 Fed. Reg. 5,595 (Feb. 7, 2007) ...........................................................................................14, 15 

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I. INTRODUCTION 

This is the second time that this Federal Election Commission (“FEC”) enforcement 

proceeding has been before the Court. Last year, the Court reviewed the FEC’s first decision to 

dismiss the administrative complaint filed by plaintiffs, Citizens for Responsibility and Ethics in 

Washington and Melanie Sloan (collectively, “CREW”), which alleged that the American Action 

Network (“AAN”) was a “political committee” from mid-2009 to mid-2011, and thus violated 

the Federal Election Campaign Act (“FECA”) by failing to register as one. Citizens for 

Responsibility and Ethics in Washington v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) (“CREW I”). 

AAN cannot be a political committee unless it is under the control of a candidate or has 

as its “major purpose” the “nomination or election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 

79 (1976). It is undisputed that AAN is not candidate-controlled. The FEC found in its first 

review of the administrative complaint that AAN does not have as its major purpose the 

nomination or election of candidates. AR 1710. Rather, “it is an issue advocacy group that 

occasionally speaks out on federal elections.” Id. Indeed, AAN devotes the vast majority of its 

spending to its mission to “create, encourage and promote center-right policies based on the 

principles of freedom, limited government, American exceptionalism, and strong national 

security.” AR 1562. It is also registered as a tax-exempt section 501(c)(4) social welfare 

organization—a status that is incompatible with a major purpose to nominate or elect candidates. 

See 26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii). Because “AAN’s major purpose is not the nomination or 

election of a federal candidate,” the FEC dismissed the complaint. AR 1710. 

The Court reviewed this first dismissal decision and remanded with instructions for the 

FEC to do a more granular review of twenty electioneering communications that AAN sponsored 

seven years ago before the 2010 midterm elections. CREW I, 209 F. Supp. 3d at 93, 95. 

Electioneering communications, by definition, do not include express advocacy for or against the 

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nomination or election of candidates. But they do identify a candidate in the days preceding an 

election, and some are the functional equivalent of express advocacy. The Court was concerned 

that the FEC may have applied a “bright-line” rule that electioneering communications could 

never indicate a major purpose to nominate or elect candidates, and so directed the FEC to 

review AAN’s advertisements again before deciding what AAN’s major purpose was back in the 

2009 to 2011 time period. Id. at 93. But the Court was clear: it was not requiring the FEC to 

count every electioneering communication as indicative of a major purpose to nominate or elect 

candidates. Id. That would be inconsistent with the varied nature of electioneering 

communications and “the FEC’s judicially approved case-by-case approach to adjudicating 

political committee status.” Id. (citation omitted). 

The FEC reconsidered the entire record on remand, and detailed its careful and factspecific review of AAN’s electioneering communications. AR 1763-81. The FEC changed its 

characterization of some of AAN’s electioneering communications based on the Court’s ruling 

and counted them as indicative of a major purpose to nominate or elect candidates. AR 1779. 

But, even after recharacterizing some ads—and taking an especially conservative approach with 

another by counting the more than $1 million spent on it even though the advertisement is “better 

categorized as a grassroots lobbying communication”—AAN was still not a political committee. 

Id. At most, AAN devoted about 26 percent of its spending during the 2009 to 2011 time period 

to activities that were indicative of a major purpose to nominate or elect candidates. AR 1779-

80. This is not sufficient to show that AAN had a major purpose to nominate or elect candidates, 

see CREW I, 290 F. Supp. 3d at 95, so the FEC again dismissed the administrative complaint, 

AR 1780. 

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CREW has now returned to this Court to challenge the FEC’s dismissal on remand. But 

the vast majority of CREW’s arguments boil down to its disagreement with the Court’s decision 

that there should not be a bright-line rule that all electioneering communications categorically 

indicate a major purpose to nominate or elect candidates. See CREW I, 209 F. Supp. 3d at 93. 

CREW has, for example, challenged the Commission’s “continued refusal to consider 

electioneering communications as indicative of a group’s purpose to nominate or elect federal 

candidates.” Am. Compl. ¶ 79. And it has labeled the FEC’s factual analysis “arbitrary and 

capricious” because the Commission did not simply ask “whether the ads meet the definition of 

an electioneering communication.” See Reply Br. at 16, CREW I, No. 14-1419-CRC (D.D.C. 

Jan. 20, 2017) (Dkt. No. 68) (“CREW I Reply”). 

The Court should again reject CREW’s request for a bright-line rule and affirm the 

Commission’s careful, detailed, and comprehensive review of this case. The fact-intensive and 

case-specific conclusions that the Commission reached are due deference under Chevron, U.S.A., 

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), but they should be affirmed under 

any standard. AAN is an issue-advocacy group that does not have as its major purpose the 

nomination or election of candidates. It is time for this stale case—challenging lawful conduct 

that occurred seven to eight years ago—to finally end. Summary judgment should be granted to 

AAN. 

II. STATEMENT OF FACTS 

A. American Action Network 

AAN was founded in 2009 with the mission to “create, encourage and promote centerright policies based on the principles of freedom, limited government, American exceptionalism, 

and strong national security.” CREW I, 209 F. Supp. 3d at 83 (quoting AR 1490). AAN’s 

organizational documents and website describe it as an issue-centric “action tank” that has as its 

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“primary goal” putting “center-right ideas into action by engaging the hearts and minds of the 

American people and spurring them into active participation in our democracy.” See About 

AAN, https://americanactionnetwork.org/about-aan/. It is not under the control of any candidate, 

party, or officeholder. Id. Instead, it “welcomes supporters of its center-right values and policy 

proposals regardless of party affiliation, and looks forward to working with legislators, 

government officials, and advocates of either party who are willing to advance policies 

consistent with the Network’s principles.” Id.

AAN has been recognized by the Internal Revenue Service as a Section 501(c)(4) social 

welfare organization—meaning that it is “primarily engaged” in activities that do “not include 

direct or indirect participation or intervention in political campaigns on behalf of or in opposition 

to any candidate for public office.” See 26 C.F.R. § 1.501(c)(4)-1(a)(2)(i)-(ii).1

 It has worked to 

advance its policy goals by hosting educational activities, grassroots policy events, and 

interactive policy briefings. CREW I, 209 F. Supp. 3d at 83 (citing AR 1563). 

AAN has also sponsored television advertisements. Id. Some of AAN’s advertisements 

during the 2009 to 2011 time period at issue here were independent expenditures that expressly 

advocated the election or defeat of a candidate. Id. at 83-84 (citing AR 1638, 1709). But the 

vast majority were not. The amount spent on independent expenditures amounted to just about 

15 percent of AAN’s overall spending (about $4.1 million of about $27.1 million in spending). 

Id. AAN’s independent expenditures, as a result, do not make AAN’s major purpose the 

 

1

 AAN, the not-for-profit social welfare organization devoted to issue advocacy, is separate and 

distinct from its affiliate, the “Congressional Leadership Fund,” which does have the “major 

purpose” of nominating and electing candidates and is registered with the FEC as a political 

committee. 

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nomination or election of candidates. Id. at 95 (“A reasonable application of a 50%-plus rule 

would not appear to be arbitrary and capricious.”). 

CREW’s allegations, as a result, have focused on twenty other advertisements that AAN 

funded prior to the 2010 midterm elections, and which CREW seeks to count as indicative of a 

major purpose to nominate or elect candidates. AAN spent about $13.7 million (or about half of 

its spending) on these “electioneering communications.” Id. at 83. 

But not all electioneering communications indicate a major purpose to nominate or elect 

candidates. By definition, electioneering communications do not include express advocacy for 

or against a candidate. 52 U.S.C. § 30104(f)(3)(B)(ii). Instead, an advertisement qualifies as an 

electioneering communication so long as it includes a reference to a federal candidate shortly 

before an election and is disseminated to the candidate’s electorate. Id. § 30104(f)(3)(A)(i). 

Some advertisements that meet this standard are the functional equivalent of express advocacy. 

See McConnell v. FEC, 540 U.S. 93, 206 (2003). But others contain issue advocacy, run at a 

time when they can make use of the heightened public interest in politics—and heightened 

pressure on candidates—to educate the public and urge candidates to make commitments about 

issues of interest to the organization. See CREW I, 209 F. Supp. 3d at 93; see also FEC v. 

Wisconsin Right to Life, Inc., 551 U.S. 449, 470 (2007) (“WRTL II”). An organization’s 

sponsorship of an electioneering communication, therefore, does not automatically indicate that 

it spent money on an advertisement that is indicative of a major purpose to nominate or elect 

candidates. CREW I, 209 F. Supp. 3d at 93. Instead, this Court held, each electioneering 

communication must be carefully reviewed through “the FEC’s judicially approved case-by-case 

approach to adjudicating political committee status.” Id. (citation omitted). 

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AAN’s electioneering communications focused on four issues central to AAN’s purpose: 

tax reform, federal spending, health care, and energy. AR 1770-78; see also Issues, 

https://www.americanactionnetwork.org/issues/. They were run prior to the 2010 midterm 

elections at a time when it was “widely anticipated that Congress would meet in a post-election 

‘lame duck’ session in November 2010 to consider several pieces of major legislation,” including 

“the expiring Bush-era tax cuts, federal spending, health care, and energy (including potential 

cap-and-trade bills).” AR 1768-69 (citations omitted). With “the possibility that party control of 

Congress could change as a result of the 2010 midterm elections, it was generally believed that 

there would be attempts to pass controversial legislation before the swearing-in of a new 

Congress in January 2011.” AR 1769 (citations omitted). It was, therefore, an ideal time for 

advertisements that focused the public on the issues that AAN cares about—and to call the 

public to put pressure on incumbents (at a time they were feeling particularly vulnerable) to 

promise action consistent with AAN’s center-right ideals. 

B. CREW’s Administrative Complaint 

In June 2012, CREW filed an administrative complaint with the FEC, alleging that AAN 

was a “political committee” during its first two years (mid-2009 through mid-2011) and violated 

FECA because it did not register with the FEC as one. AR 1480-88. “Political committee” 

status requires that an entity be under the control of a candidate or have as its “major purpose” 

“the nomination or election of a candidate.” See CREW I, 209 F. Supp. 3d at 80 (quoting 

Buckley, 424 U.S. at 79). CREW asked the FEC to find that AAN was a political committee by 

treating electioneering communications as per se indicative of a major purpose to nominate or 

elect candidates. AR 1486. As a result, CREW added all of AAN’s spending on independent 

expenditures to all of its spending on electioneering communications, and argued that the total 

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amount—about 66.8 percent of AAN’s total spending during the period—showed that AAN’s 

major purpose was the nomination or election of candidates. AR 1485-86. 

By a vote of 3-3, the Commission found that there is no “reason to believe” that AAN 

violated FECA by failing to register as a political committee. AR 1686. The three 

Commissioners who voted to dismiss (the so-called “controlling” Commissioners) supplied the 

Commission’s Statement of Reasons. CREW I, 209 F. Supp. 3d at 83-84. They concluded that 

AAN’s “public statements, organizational documents, and overall spending history objectively 

indicate that the organization’s major purpose has been issue advocacy and grassroots lobbying 

and organizing”—and not the nomination or election of candidates. AR 1690. In reaching this 

conclusion, the FEC found that AAN’s electioneering communications were issue advocacy, 

such that the money spent on them “indicate[s] that [AAN’]s purpose was something other than 

the nomination or election of a federal candidate.” AR 1709. As a result, the FEC concluded 

that “the roughly $4.1 million that AAN spent on independent expenditures between 2009 and 

2011 was the totality of its spending that was for the purpose of nominating or influencing the 

election of a federal candidate.” Id. Because this “represented approximately 15% of its total 

spending during the same period,” the Commission held that “AAN’s major purpose is not the 

nomination or election of a federal candidate.” AR 1709-10. 

C. CREW’s First District Court Challenge 

In August 2014, CREW filed suit in this Court pursuant to FECA’s judicial review 

provision, 52 U.S.C. § 30109(a)(8). CREW’s complaint challenged two FEC dismissal decisions 

as arbitrary, capricious, and contrary to law—the dismissal of CREW’s complaint against AAN 

and the dismissal of CREW’s complaint in a separate proceeding against an unrelated entity, 

Americans for Job Security (“AJS”). See CREW I, 209 F. Supp. 3d at 80. In both cases, the FEC 

had voted 3-3 that there is no reason to believe that either organization violated FECA by failing 

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to register as a political committee. Id. Under the statutory scheme, the votes of four 

Commissioners are needed to proceed in order “to assure that enforcement actions . . . will be the 

product of a mature and considered judgment,” Combat Veterans for Cong. Political Action 

Comm. v. FEC, 795 F.3d 151, 153 (D.C. Cir. 2015), and so the cases were dismissed. 

On cross-motions for summary judgment, this Court found that the Commission’s 

dismissals were “contrary to law” for two reasons.2 First, the Court concluded that the 

Commission had applied a “bright-line rule” that excluded all electioneering communications 

from consideration in the “major purpose” analysis. CREW I, 209 F. Supp. 3d at 93. The Court 

found that this bright-line rule—and specifically, “the erroneous understanding that the First 

Amendment effectively required the agency to exclude from its consideration all non-express 

advocacy in the context of disclosure”—was a “legal error” that required a remand. Id. Second, 

“at least as applied to AJS,” the Court concluded that the Commission erred by “[l]ooking only at 

relative spending over an organization’s lifetime,” without considering whether the 

organization’s purpose changed over the years. Id. at 94 (emphasis in original). 

The Court remanded each case to the Commission and ordered it to conform with the 

Court’s declaration within thirty days. Id. at 95. “[T]he Court did not compel the Commission 

to arrive at a different result—i.e., to reverse course and commence an investigation into whether 

AAN or AJS had unlawfully failed to register as political committees.” Mem. Op. and Order at 

2, CREW I, No. 14-1419-CRC (D.D.C. Apr. 6, 2017) (Dkt. No. 74) (“CREW I Mem. Op.”) 

(emphasis in original). The Court also “never ordered the FEC to reach a particular result, or to 

 

2

 The Court of Appeals has found that the Court’s prior decision is not yet final for purposes of 

appeal. See Order, Case Nos. 16-5300, 16-5343 (D.C. Cir. Apr. 4, 2017) (Dkt. 1669311). AAN 

has accepted the Court’s holdings for purposes of this motion, but respectfully reserves the right 

to challenge the Court’s prior decision in any appeal. See Section III below. 

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consider a particular ad—or any proportion of electioneering communications—election-related” 

on remand. Id. at 6. Instead, it “directed the FEC to reconsider its decision without ‘exclud[ing] 

from its [major purpose] consideration all non-express advocacy.’” Id. (quoting CREW I, 209 F. 

Supp. 3d at 93). 

D. The FEC’s Dismissal On Remand 

“The FEC did just that” on remand in the AAN proceeding—i.e., it reconsidered its 

decision without excluding all non-express advocacy from its major purpose analysis. Id. 

Within thirty days of the Court’s decision, the FEC reopened the administrative matter, 

“developed a new framework for evaluating which expenditures suggested an election-related 

purpose, and applied that new framework to AAN’s ads.” Id. at 5. The “new framework the 

FEC developed was free of the legal errors identified in the Court’s previous Opinion and 

Order.” Id. The Commission “no longer excluded as irrelevant to the major-purpose inquiry, on 

a categorical basis, all spending on electioneering communications.” Id. “Instead, it left open 

the possibility that at least some of the spending on those ads might indicate a campaign-related 

major purpose” and “identified four such ads that did indicate such a purpose.” Id. at 5-6 

(emphasis in original). The Commission also ensured that its “determination did not turn on the 

application of the ‘lifetime-only’ rule” by considering “AAN’s spending solely in a single year” 

as well as over the two years at issue in this case. Id. at 5 n.4. 

 Based on its second review of the record, the Commission again voted 3-3 that there is no 

“reason to believe” that AAN violated FECA by failing to register as a political committee. AR 

1762. The controlling Commissioners supplied the Commission’s Statement of Reasons, which 

details the Commission’s “holistic,” nuanced, and comprehensive review based on its “judicially 

approved case-by-case, fact-intensive approach” to adjudicating political committee status.” See 

AR 1767, 1780. 

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The FEC thoroughly examined “AAN’s electioneering communications to determine 

which ones are indicative of a major purpose to nominate or elect a candidate.” AR 1764. The 

Commission emphasized that it weighed and balanced various features of each advertisement, 

and “relied heavily on [its] expertise and experience regulating political activities and nonpolitical committees.” AR 1764, 1767-68, 1780. 

Governed by this Court’s decision, the FEC changed its characterization of four of 

AAN’s electioneering communications, which amounted to about $1.88 million in spending. AR 

1779; see also AR 1773-74 (“Bucket”), 1777-78 (“New Hampshire”), 1778-79 (“Order” and 

“Extreme”). The Commission concluded that a fifth advertisement (“Read This”) was “a close 

call,” and so counted the approximately $1.07 million spent on it as indicative of a purpose to 

nominate or elect candidates to see whether it changed the end result. AR 1776, 1779. It did 

not. Even counting the “Read This” advertisement, AAN’s “total outlay on ads indicating a 

purpose to nominate or elect federal candidates would still constitute only 26%—well under 

half—of its overall spending.” AR 1779. This spending percentage, combined with AAN’s 

issue-focused mode of organization and official statements, led the Commission to “conclude 

that AAN was not a political committee under the Act and Commission regulations because it 

did not have as its major purpose the nomination or election of candidates.” AR 1764, 1779. 

CREW challenged the Commission’s decision to dismiss on remand with this litigation 

and with a motion for an order to show cause in the first lawsuit. See Mot. for an Order to Show 

Cause, CREW I, No. 14-1419 (CRC) (D.D.C. Nov. 14, 2016) (Dkt. No. 57) (“CREW I Motion”). 

The Court denied CREW’s motion for an order to show cause, finding that the Commission had 

complied with the Court’s prior order, and that CREW’s new arguments about the remand 

decision should be decided in this lawsuit. See CREW I Mem. Op. at 4-6. 

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III. ARGUMENT 

The Court should enter summary judgment in AAN’s favor because CREW’s challenge 

merely repackages an argument that this Court already rejected—that the FEC needed to apply a 

“bright-line rule” that every electioneering communication indicates a major purpose to nominate 

or elect candidates. See CREW I, 209 F. Supp. 3d at 93. Just as before, CREW challenges the 

FEC’s legal analysis because “the First Amendment does not bar treating even a single 

electioneering communication as election-related,” CREW I Motion at 11, and challenges the 

FEC’s factual analysis because it does not simply ask “whether the ads meet the definition of an 

electioneering communication,” CREW I Reply at 16. 

The Court was right to deny CREW’s request for a bright-line rule last time, and it should 

deny that request again here. On remand from this Court’s decision, the Commission performed 

a careful and fact-intensive analysis of the totality of AAN’s activities, including its 

electioneering communications. The FEC’s review was consistent with precedent and “free of 

the legal errors identified in this Court’s previous Opinion and Order.” CREW I Mem. Op. at 5. 

For reasons detailed below, the Court should (A) provide the FEC’s remand decision Chevron 

deference and (B) find that it easily survives judicial review under any standard of review. 

Alternatively, the Court should (C) sustain the FEC’s dismissal based on the reasoning from the 

first Statement of Reasons, which was not itself “contrary to law.” 

A. The Commission’s Dismissal Decision Is Due Chevron Deference. 

CREW bears a particularly heavy burden in this case, which is governed by an 

“extremely deferential” “contrary to law” standard. Orloski v. FEC, 795 F.2d 156, 167 (D.C. 

Cir. 1986). Under this standard, the Court may only remand to the agency if “‘the FEC 

dismissed the complaint as a result of an impermissible interpretation of [FECA],’ or . . . ‘the 

FEC’s dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary 

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or capricious, or an abuse of discretion.’” CREW I, 209 F. Supp. 3d at 85 (quoting Orloski, 795 

F.2d at 161). This means that “it is not necessary for [the Court] to find that the agency’s 

construction was the only reasonable one or even the reading the [C]ourt would have reached” 

on its own “if the question initially had arisen in a judicial proceeding.” FEC v. Democratic 

Senatorial Campaign Comm. (“DSCC”), 454 U.S. 27, 39 (1981). Rather, this standard “requires 

affirmance if a rational basis for the agency’s decision is shown.” Orloski, 795 F.2d at 167 

(citation omitted). 

The Court’s review is especially deferential because the Commission’s decision is 

grounded in “implementation choices” about the “spending amounts relevant in applying the 

‘major purpose’ test,” so should be given Chevron deference. See CREW I, 209 F. Supp. 3d at 

88. Unlike the FEC’s previous dismissal decision, which the Court found turned on an 

interpretation of precedent, the FEC’s decision on remand reflects the Commission’s fact-bound 

examination of the record, including AAN’s electioneering communications, to determine 

whether AAN’s spending “support[s] a conclusion that AAN’s ‘major purpose’ is Federal 

campaign activity (i.e., the nomination or election of a Federal candidate).” AR 1767 (citation 

omitted); see also AR 1768-79. In other words, the Commission’s decision on remand is “less 

about what Buckley (and subsequent precedent) means and more about how Buckley (and the test 

it created) should be implemented.” CREW I, 209 F. Supp. 3d at 87 (emphases in original). The 

FEC’s decision, therefore, “warrant[s] the Court’s deference.” Id. at 88. 

Indeed, the Commission’s “implementation choices, which call on the FEC’s special 

regulatory expertise, were the types of judgments that Congress committed to the sound 

discretion of the agency.” Id. at 87; see also AR 1780 (“We relied heavily on our expertise and 

experience regulating political activities and non-political committees.”). The Court need not 

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second guess them. The FEC is “‘precisely the type of agency to which deference should 

presumptively be afforded,’ since it is vested with ‘primary and substantial responsibility for 

administering and enforcing [FECA],’ including the ‘sole discretionary power’ to initiate 

enforcement actions.” CREW I, 209 F. Supp. 3d at 87 (quoting DSCC, 454 U.S. at 37; Buckley, 

424 U.S. at 109, 112 n. 153). 

 The fact that this case was resolved by a vote of three Commissioners does not change 

the deference that is due because the “same standard of review applies to all FEC decisions, 

whether they be unanimous or determined by tie vote.” Id. at 85 (citing In re Sealed Case, 223 

F.3d 775, 779 (D.C. Cir. 2000); FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 

1476 (D.C. Cir. 1992) (“NRSC”)). “This follows because the Commissioners voting for 

dismissal ‘constitute a controlling group for purposes of the decision,’ and so ‘their rationale 

necessarily states the agency’s reasons for acting as it did.’” Id. (quoting NRSC, 966 F.2d at 

1476). This Court, as a result, “owe[s] deference” to the Commission’s decision that AAN—an 

issue advocacy group—is not a political committee because it devoted, at most, 26 percent of its 

relevant spending to activities that are indicative of a major purpose to nominate or elect 

candidates. See In re Sealed Case, 223 F.3d at 779. 

B. The Commission’s Decision Easily Survives Judicial Review. 

Regardless of the standard of review that applies, but especially under the deferential 

standard required by law, the Commission’s dismissal easily survives judicial review. The 

record shows that AAN is, at its core, an issue advocacy group that does not have as its major 

purpose the nomination or election of candidates. The Commission was, therefore, right to 

dismiss CREW’s complaint because there is no reason to believe that AAN is an unregistered 

political committee. The Commission’s decision was neither (1) contrary to law nor (2) arbitrary 

and capricious, so summary judgment must be entered in AAN’s favor. 

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1. The Commission’s Case-Specific Decision Is Not Contrary To Law.

(a) The Commission’s Flexible And Nuanced Approach Was 

Consistent With Precedent. 

The Court remanded this case so the FEC could apply its “judicially approved case-bycase approach to adjudicating political committee status.” CREW I, 209 F. Supp. 3d at 93 (citing 

Political Committee Status, 72 Fed. Reg. 5,595, 5,597 (Feb. 7, 2007) (Supplemental Explanation 

and Justification (“Supplemental E & J”)). That is precisely what the Commission did. It 

conducted a “case-by-case, fact-intensive” review based on the “totality of the circumstances” in 

which it “relied heavily on [its own] expertise and experience.” AR 1764, 1767, 1780. Its 

approach was “free of the legal errors identified in this Court’s previous Opinion and Order.” 

CREW I Mem. Op. at 5. 

Although the Commission’s case-by-case approach does not lend itself to rigid rules, it 

must be guided by one fundamental principle—that a political committee must be either “under 

the control of a candidate” or have as its “major purpose . . . the nomination or election of a 

candidate.” Buckley, 424 U.S. at 79; see also CREW I, 209 F. Supp. 3d at 82. A political 

committee cannot be an organization that “occasionally engages in activities on behalf of 

political candidates” if its “central organizational purpose is issue advocacy.” FEC v. Mass. 

Citizens for Life, Inc., 479 U.S. 238, 252 n.6 (1986). 

There is no mandated “methodology for determining an organization’s major purpose,” 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 556 (4th Cir. 2012), but the Supreme 

Court has emphasized that a “major purpose” of nominating or electing candidates must be so 

dominant that the group’s activities “are, by definition, campaign related” rather than issue 

focused, Buckley, 424 U.S. at 79. The Commission, as a result, conducts its “major purpose” 

analysis so that it “avoid[s] the regulation of activity ‘encompassing both issue discussion and 

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advocacy of a political result.’” Supplemental E & J, 72 Fed. Reg. at 5,597 (quoting Buckley, 

424 U.S. at 79). 

Not every electioneering communication evidences a major purpose of nominating or 

electing candidates. “Candidates, especially incumbents, are intimately tied to public issues 

involving legislative proposals and governmental actions,” Buckley, 424 U.S. at 42, and so 

advertisements may meet the statutory standard for an electioneering communication, but 

involve “speech about public issues more generally, or ‘issue advocacy,’ that mentions a 

candidate for federal office,” WRTL II, 551 U.S. at 456 (citing McConnell, 540 U.S. 93). This 

Court, as a result, rightly rejected CREW’s request for a “bright-line rule” that every

electioneering communication is indicative of a major purpose to nominate or elect candidates. 

CREW I, 209 F. Supp. 3d at 93. Some electioneering communications indicate a different 

purpose entirely. 

On remand, the Commission conducted a careful and nuanced review, drawing on its 

own experience and expertise, in order to determine what spending should be considered 

indicative of a major purpose to nominate or elect candidates. It did not apply a bright-line rule 

about electioneering communications, its approach was “free of the legal errors identified in this 

Court’s previous Opinion and Order,” CREW I Mem. Op. at 5, and its decision respected the 

First Amendment implications of regulating speech that does not fall within the “core area” of 

candidate advocacy, Buckley, 424 U.S. at 79. Indeed, CREW concedes that there is no decision 

that requires that the Commission classify AAN as a political committee. See Reply at 21, 

CREW I, No. 14-1419-CRC (D.D.C. Apr. 22, 2016) (Dkt. No. 40). And this Court has held that 

the Commission was not compelled on remand “to consider any particular ad—or any proportion 

of electioneering communications—election related.” CREW I Mem. Op. at 6. That should be 

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the end of the matter. The Commission’s decision contains no “impermissible interpretation of 

[FECA]” and so is not “contrary to law.” See CREW I, 209 F. Supp. 3d at 85 (quoting Orloski, 

795 F.2d at 161). 

(b) CREW’s Challenges To The Commission’s Legal Analysis Are 

Meritless. 

CREW nonetheless argues that the Commission’s decision is “contrary to law” for four 

reasons, each of which is either based on a misinterpretation of what the Commission did or 

recycles an argument that was already rejected. They do not call into question the lawfulness of 

the Commission’s decision that AAN’s major purpose from 2009 to 2011 was not the 

nomination or election of candidates. 

First, CREW claims that the Commission adopted a hard-and-fast rule that any “ad which 

‘relates to the speaker’s issue agenda’ and includes a ‘call to action’ asking viewers to lobby 

their representative is not election-related.” Am. Compl. ¶ 78. This rule, CREW argues, is 

contrary to McConnell, 540 U.S. at 193 n.23, which found that advertisements could reference 

issues and include a call to action and nevertheless be “political.” Am. Compl. ¶ 78. 

CREW’s challenge fails because the Commission did not adopt the rule that CREW 

describes. Instead, the Commission’s statements and analysis demonstrated that it was applying 

a flexible approach that did not rely on bright-line rules and did not make any particular feature 

of an advertisement, or combination of features, case-determinative. See, e.g., AR 1763, 1767-

68, 1780. The Commission weighed and balanced the “totality of the circumstances” in light of 

its expertise, including any “references to candidacies, elections, voting, [or] political parties,” 

the “extent to which the ad focuses on issues important to the group,” whether the 

advertisement’s context shed light on its meaning, and whether the communication included a 

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“call to action and, if so, whether the call relates to the speaker’s issue agenda.” AR 1764, 1767-

1768. 

There was nothing unbending about the Commission’s review of these features. For 

example, some advertisements that did not contain express references to candidacies or the 

election were nonetheless found indicative of a major purpose to nominate or elect candidates. 

The “New Hampshire” advertisement was one—it did not mention candidacies or the election, 

but it did name the two candidates running for a Senate seat and contrasted their positions. AR 

1777-78 (“New Hampshire”). This, along with other features of the ad, led the Commission to 

count the advertisement as indicative of a major purpose to nominate or elect candidates. AR 

1778. 

The FEC applied the same flexible approach when considering whether an advertisement 

had a “call to action” on an issue relevant to AAN. Rather than apply some automatic rule as 

CREW contends, the FEC considered these features as relevant, but not determinative, data 

points in its analysis. For example, the “Read This” advertisement includes a call to action about 

one of AAN’s core issues: it urges the public to “tell [Charlie Wilson/Jim Himes/Chris Murphy] 

to read this: In November, fix the healthcare mess Congress made.” AR 1775. But the 

Commission did not mechanically find that the advertisement did not indicate a major purpose to 

nominate or elect candidates. Instead, it considered the advertisement to be a “close call”—and 

such a “close call” that it counted the nearly $1.07 million spent on it as indicative of a major 

purpose to nominate or elect candidates to strengthen its conclusion that—even including this 

ad—AAN’s major purpose is not candidate advocacy. See AR 1776, 1779. Had the 

Commission adopted the bright-line rule that CREW imagines, this exercise would have been 

entirely unnecessary. The Commission’s approach was the flexible approach called for by 

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precedent. CREW cannot make it “contrary to law” by creating a “rule” that the Commission 

did not adopt or apply. 

Second, CREW argues that the Commission acted “contrary to law” because it 

“erroneously interpreted” the Court’s prior order “to prohibit the conclusion that all of AAN’s 

electioneering communications were political.” Am. Compl. ¶ 79. The Court rejected this 

argument already, finding that CREW’s “contention is off the mark.” CREW I Mem. Op. at 5; 

see also, e.g., CREW I Motion at 21 (making same argument). And the Court was right. In its 

ad-by-ad review, the Commission never excluded the possibility that, on the facts of this or any 

other case, every electioneering communication may be indicative of a major purpose to 

nominate or elect candidates. See, e.g., AR 1768-79. But this was not that case. That does not 

mean that the Commission was unwilling to change its prior characterization of all the 

advertisements had that been warranted. In fact, it did change its characterization of four 

advertisements, amounting to nearly $1.9 million in spending. See AR 1779. CREW’s 

argument, therefore, remains “off the mark” and should again be rejected. See CREW I Mem. 

Op. at 5. 

Third, CREW claims that the Commission acted “contrary to law” because this Court 

required it to eliminate all consideration of the WRTL II decision from its analysis on remand. 

Am. Compl. ¶ 80. The Court already rejected this argument too. CREW I Mem. Op. at 5; see 

also, e.g., CREW I Reply at 6-7 (making same argument). And again, the Court was right. This 

Court did not declare WRTL II irrelevant to the determination of whether an advertisement is, or 

is not, indicative of issue advocacy. Nor did it attempt to overrule Buckley’s requirement that a 

political committee must have as its major purpose the nomination or election of candidates—

and not some other purpose, such as issue advocacy, 424 U.S. at 79. Instead, the Court held that 

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the Commission should not read WRTL II to require it to find that all electioneering 

communications are not indicative of a major purpose to nominate or elect candidates. See 

CREW I, 209 F. Supp. 3d at 89, 93. The Commission fully complied with this directive and “no 

longer excluded as irrelevant to the major-purpose inquiry, on a categorical basis, all spending on 

electioneering communications.” CREW I Mem. Op. at 5. It did not need to go further—as 

CREW contends—and ignore relevant text in WRTL II describing features that are often 

associated with issue advertisements. 

Finally, CREW falls back on its argument that there should be a bright-line rule that all 

electioneering communications are indicative of a major purpose to nominate or elect candidates. 

See Am. Compl. ¶ 79 (asserting that the “continued refusal to consider electioneering 

communications as indicative of a group’s purpose to nominate or elect federal candidates is 

based on an impermissible interpretation of Buckley”). The Court already rejected this “brightline rule,” CREW I, 209 F. Supp. 3d at 93, and it should do so again. CREW never argues that 

the Commission violated the First Amendment—as it would have to show to meet its burden 

under the “contrary to law” standard of review. Instead, CREW argues solely that “the First 

Amendment does not bar treating even a single electioneering communications as electionrelated.” See CREW I Motion at 11 (emphasis added). In other words, CREW thinks that the 

Commission could have gone further and been okay. 

But that is not a basis for providing relief on review from an enforcement proceeding. 

CREW admits that there is no case that required the Commission to adopt its preferred approach. 

See, e.g., Reply at 21, CREW I, No. 14-1419-CRC (D.C.C. Apr. 22, 2016) (Dkt. No. 40) 

(conceding the “absence of a decision directly commanding the FEC to treat AAN . . . as [a] 

political committee[]”). But there are cases that support the Commission’s decision to 

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“safeguard the First Amendment when implementing its congressional directives.” Van Hollen, 

Jr. v. FEC, 811 F.3d 486, 501 (D.C. Cir. 2016). Indeed, there are even State statutory schemes 

that have adopted the approach the Commission initially took—and have excluded all 

electioneering communications from the determination of political committee status. See, e.g., 

Ohio Rev. Code § 3517.01(A)(4) and (A)(8)(a). Nothing required the FEC to instead adopt a 

standard that tests the limits of the First Amendment. By definition, it was not contrary to law 

for the Commission to try to protect First Amendment rights in this enforcement proceeding. 

The Court should reject CREW’s challenge to the Commission’s legal analysis, which was 

entirely consistent with precedent, including this Court’s prior decision. 

2. The Commission’s Fact-Based Decision Is Not Arbitrary Or 

Capricious. 

(a) The Commission Supported Its Decision With An Extensive, 

Comprehensive, And Reasonable Analysis. 

This is a case in which the Commission immediately and conscientiously reconsidered 

the entire record with a willingness to change its mind based on the Court’s order to conform to 

its decision within thirty days. See, e.g., CREW I Mem. Op. at 2-3. The Commission 

“review[ed] the record anew,” “scrutinize[ed] the ads in light of the court’s decision,” 

“reconsidered the matter in full,” held another vote, and issued a nineteen-page Statement of 

Reasons—all within thirty days of the Court’s order. See AR 1767. The Commission made sure 

that it eschewed bright-line rules and adhered to its judicially approved, “case-by-case, factintensive standard for determining political committee status.” See AR 1765. And it set forth a 

lengthy explanation for its conclusion that AAN is not a political committee because its “major 

purpose” is not the nomination or election of candidates. 

The Commission provided far more than a “rational basis” for its decision, and so its 

decision must be affirmed. See Orloski, 795 F.2d at 167 (citation omitted). For example, it 

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explained that it considered AAN’s “mode of organization” as a Section 501(c)(4) organization, 

AR 1764, a status that is incompatible with a major purpose to nominate or elect candidates, see 

26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii). It also looked again at AAN’s “official statements,” which 

evidence its focus on issue advocacy and grassroots lobbying. AR 1764. AAN’s mission, for 

example, is to “create, encourage, and promote center-right policies based on the principles of 

freedom, limited government, American exceptionalism, and strong national policy.” Id.

(citation omitted). And the Commission devoted more than ten single-spaced pages to its careful 

analysis of AAN’s electioneering communications. AR 1768-79. The FEC’s analysis “relied 

heavily” on its expertise and identified similarities and differences among the various 

advertisements to support its fact-specific conclusions about each advertisement. See, e.g., AR 

1780. The Commission’s decision—particularly because “[r]eview under the arbitrary and 

capricious standard is deferential”—must be affirmed. See CREW I, 209 F. Supp. 3d at 95 

(quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007)). 

(b) CREW’s Challenges To The Commission’s Factual Analysis 

Are Meritless. 

CREW criticizes the Commission’s careful approach, arguing that it was “arbitrary and 

capricious” for seven reasons that, in large part, boil down to CREW’s continued (and already 

rejected) assertion that all electioneering communications should be considered indicative of a 

major purpose to nominate or elect candidates. They should be rejected again and summary 

judgment entered in favor of AAN. 

First, CREW argues that the Commission should have found that advertisements indicate 

a major purpose to nominate or elect candidates if they qualify as electioneering communications 

under the statutory standard. According to CREW, the fact that “AAN’s ads . . . clearly 

identified federal candidates, were aired to large audiences shortly before their election, and were 

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targeted to those candidates’ electorates. . . . demonstrate the electoral purpose of all the ads.” 

CREW I Reply at 14-15. But that just made them electioneering communications. By statute, 

“electioneering communications” are defined as any “‘broadcast, cable, or satellite’ 

communications” that refer to “‘a clearly identified [federal] candidate,’” that are aired “‘less 

than 60 days before a general [election or] 30 days before a primary,’” and “are ‘targeted to the 

relevant electorate.’” CREW I, 209 F. Supp. 3d at 81-82 (quoting 52 U.S.C. § 30104(f)(1)-(3)). 

This Court already rejected a bright-line rule that categorically treats all electioneering 

communications as per se indicative of a major purpose to nominate or elect candidates. The 

Commission was, therefore, neither “arbitrary” nor “capricious” when it rejected the same rule 

expressed in different words. 

Second, CREW argues that the Commission should not have relied “solely on dry 

transcripts,” but should have considered whether the tone and images of the advertisements 

conveyed a subjectively “ominous” feeling. CREW I Motion at 13. But reviewing transcripts is 

consistent with this Court’s review of the advertisements, see, e.g., CREW I, 209 F. Supp. 3d at 

80, and with the Supreme Court’s review of other advertisements, see, e.g., McConnell, 540 U.S. 

at 193 n.78, and so cannot be “arbitrary and capricious.” Looking at transcripts is also justified 

by the “essential need for objectivity, clarity, and consistency in administering and enforcing the 

Act,” AR 1768, as it protects against inconsistent results based solely on subjective impressions. 

And, in any event, the Commission “reconsidered the matter in full by reviewing the record 

anew,” AR 1767, so may very well have reviewed the actual advertisements that were cited in 

CREW’s complaint, AR 1483-84. 

Third, CREW faults the Commission for ignoring the fact that some advertisements 

criticized the candidate’s prior position on the issue being discussed—something CREW feels 

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was unnecessary if the goal was simply to “convince viewers to favor AAN’s preferred policies 

and to communicate that view to their representative.” CREW I Motion at 13-14. But the 

Commission did not ignore criticism in the advertisements. It instead weighed the criticism in its 

holistic analysis. For example, the Commission decided that the criticism in “Bucket,” paired 

with other aspects of the advertisement, created an advertisement that indicated a major purpose 

to nominate or elect candidates. See AR 1774. In contrast, the “Wallpaper” advertisement 

included “critici[sm of] past legislative positions taken by the named officeholders,” but had 

other features—such as an identification of “the specific bill (H.R. 4746) that AAN wanted the 

named officeholders to support”—that led the Commission to conclude that the advertisement 

was designed “to marshal public sentiment to persuade the officeholders to alter their voting 

stances.” AR 1772. The Commission’s careful consideration of criticism deserves deference; 

the Commission certainly did not “entirely fail[] to consider an important aspect of the problem,” 

see Defs. of Wildlife, 551 U.S. at 658. 

Fourth, CREW argues that the Commission should have focused on additional context 

for the advertisements, arguing that the electioneering communications were only run in races 

that CREW characterizes as “closely-contested” and that the record does not include similar 

electioneering communications that post-date the election or involve incumbents that were not up 

for re-election. CREW I Motion at 14-16. Of course, an advertisement is not an electioneering 

communication if it is run after an election or does not reference a candidate, see 52 U.S.C. 

§ 30104(f)(1)-(3).3

 But, in any event, it was not arbitrary or capricious for the Commission to 

 

3

 And, although the record may not “show any ad by AAN advocating its preferred policy 

positions after the election,” see CREW I Motion at 16 (emphasis in original), AAN’s website 

confirms that its issue advocacy efforts have continued. See, e.g., AAN Releases $250,000 

Digital Ad Campaign to Advance Tax Reform (May 31, 2017), 

http://www.americanactionnetwork.org/press/american-action-network-releases-250000-digitalCase 1:16-cv-02255-CRC Document 30 Filed 08/04/17 Page 28 of 32
24 

conclude that an advertisement may still be an issue advertisement if only run in “closelycontested” races. As the Commission explained, the Supreme Court has found that 

“‘[c]andidates, especially incumbents, [that] are intimately tied to public issues involving 

legislative proposals and governmental actions. Not only do candidates campaign on the basis of 

their positions on various [public] issues, but campaigns themselves generate issues of public 

interest.’” AR 1701 (quoting Buckley, 424 U.S. at 42). An issue advocacy group, therefore, 

“can certainly choose to run an issue ad to coincide with public interest rather than a floor vote.” 

WRTL II, 551 U.S. at 473. 

Fifth, CREW faults the Commission for not sharing CREW’s pessimism about the 

likelihood of legislative success on issues of concern to AAN during the 2010 lame duck session. 

CREW I Motion at 17-20. According to CREW, voters would have known that “there was no 

chance of repeal of Obamacare in the lame duck session,” so would have understood the 

advertisements as requests “to vote out the referenced representative.” Id. at 19. But the 

Commission was not required to share CREW’s unjustified beliefs about the lame duck session. 

The FEC researched the types of legislation expected during the lame duck session, AR 1768-69, 

noted that nine advertisements identified specific bills by number, see, e.g., AR 1770 (“Quit 

Critz”), 1771 (“Ridiculous,” “Wallpaper”), 1773 (“Naked”), 1774-75 (“Leadership”), 1775 

(“Mess,” “Repeal,” “Secret”), 1776 (“Skype”), and found that “Congress did, in fact, meet in 

lame-duck session in November and December of 2010,” with “[a]t least one publication 

 

ad-campaign-advance-tax-reform/; AAN Kicks Off $2 Million Nationwide TV Ad Campaign on 

AHCA (May 23, 2017), http://www.americanactionnetwork.org/press/american-action-networkkicks-off-2-million-nationwide-tv-ad-campaign-ahca/; AAN Launches $900k Campaign 

Supporting Trade Promotion Authority (June 4, 2015), 

https://www.americanactionnetwork.org/press/aan-launches-900k-campaign-supporting-tradepromotion-authority/. 

Case 1:16-cv-02255-CRC Document 30 Filed 08/04/17 Page 29 of 32
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deem[ing] the session ‘the most productive of the lame duck Congressional sessions ever,” AR 

1769-70 (citation omitted). At most, CREW has identified “a difference in view,” which does 

not warrant relief. See Defs. of Wildlife, 551 U.S. at 658 (citation omitted). 

Sixth, CREW claims that the Commission “may have erroneously excluded another $1.1 

million in unidentified political spending” from its analysis of AAN’s major purpose from 2009 

to 2011. CREW I Motion at 12 n.6 (emphasis added). CREW is concerned with the difference 

between the approximately $5.2 million that AAN reported to the IRS as spent on “political 

campaign activities” and the approximately $4.1 million that AAN disclosed as spent on express 

advocacy independent expenditures. Id. But there is no cause for concern. AAN twice pointed 

to IRS publications explaining that the IRS standard for “political campaign activities” is “much 

broader” than the FEC’s express advocacy standard. See AR 1566, 1597-98. The General 

Counsel’s Office also recognized the difference in its First General Counsel’s Office Report. AR 

1638. The Commission has now applied an even broader standard to find that nearly $6 million 

of AAN’s spending (or about $7 million if the “Read This” advertisement is included) was 

indicative of a major purpose to nominate or elect candidates. AR 1779. And, in any event, 

even if another $1.1 million were added to the higher of these amounts, it would still not change 

AAN’s major purpose, as it would mean that only about 30 percent of AAN’s spending was 

indicative of a major purpose to nominate or elect candidates. See CREW I, 209 F. Supp. 3d at 

95 (“A reasonable application of a 50%-plus rule would not appear to be arbitrary and 

capricious.”). 

Finally, CREW argues that the Commission “arbitrarily and capriciously failed to 

consider one of AAN’s electioneering communications run against Rep. Perlmutter.” Am. 

Compl. ¶ 81. But the Commission did consider the advertisement—it just did so in the form that 

Case 1:16-cv-02255-CRC Document 30 Filed 08/04/17 Page 30 of 32
26 

referenced Representative Shauer. Compare AR 1484 at ¶ 15 with AR 1775. The Commission’s 

decision to do so was consistent with the First General Counsel’s Report, AR 1654, and the prior 

Statement of Reasons, AR 1722. And, because the Commission found that the advertisement 

does not indicate a major purpose to nominate or elect candidates, AR 1776, the additional 

consideration that CREW seeks would only further undermine its claim. The Commission 

reasonably found, based on the totality of the evidence, that AAN is not a political committee. 

Its conclusion demands deference—and summary judgment in AAN’s favor. 

C. The Commission’s Initial Conclusion That AAN Is Not A Political

Committee Was Proper And Provides An Independent Reason To Reject 

CREW’s Challenge. 

Summary judgment could also be granted to AAN because the Commission’s initial 

dismissal decision was not contrary to law. This Court has found otherwise for reasons detailed 

in its September 2016 opinion. See CREW I, 209 F. Supp. 3d 77. But, the Court acknowledged 

that the FEC’s first decision followed directly from a decision of the U.S. Court of Appeals for 

the Seventh Circuit. CREW I, 209 F. Supp. 3d at 90-91 (discussing Wisconsin Right to Life, Inc. 

v. Barland, 751 F.3d 804 (7th Cir. 2014)). For this reason, and others detailed in AAN’s 

pleadings in the prior litigation, it remains AAN’s position that the Commission’s first dismissal 

was not “contrary to law.” It was, instead, fully consistent with precedent, including the Seventh 

Circuit decision. 

The U.S. Court of Appeals for the D.C. Circuit has held that the Court’s September 2016 

decision is not yet final for purposes of appeal. See Order, Case Nos. 16-5300, 16-5343 (D.C. 

Cir. Apr. 4, 2017) (Dkt. 1669311). AAN, therefore, urges the Court to reconsider its prior 

decision—and hold that the Commission’s first dismissal was not “contrary to law” because the 

Commission reasonably found that AAN’s spending on express advocacy was the only spending 

Case 1:16-cv-02255-CRC Document 30 Filed 08/04/17 Page 31 of 32
27 

indicative of a major purpose to nominate or elect candidates. There was, therefore, no need for 

the decision currently under review because there was no need for a remand. 

In the interest of efficiency, and because the Commission’s dismissal on remand is 

entirely consistent with the Court’s earlier decision, AAN has accepted the Court’s September 

2016 ruling for purposes of this motion and has not repeated arguments that were fully briefed 

and ruled upon by the Court then. AAN, however, respectfully reserves the right to challenge 

the Court’s September 2016 decision should there be an appeal from a decision in this case, see 

Answer ¶ 1 (Dkt. No. 9), and so incorporates its prior pleadings by reference, see AAN’s Mot. 

for Summ. J., CREW I, No. 14-1419-CRC (D.D.C. Mar. 1, 2016) (Dkt. No. 38); AAN’s Reply, 

CREW I, No. 14-1419-CRC (D.D.C. May 23, 2016) (Dkt. No. 43). At all stages in this case, the 

Commission has properly and reasonably concluded—in full compliance with the law—that 

AAN is not a political committee. Summary judgment should be granted to AAN. 

IV. CONCLUSION 

For the foregoing reasons, this Court should grant summary judgment in AAN’s favor. 

 Respectfully submitted, 

/s/ Claire J. Evans 

Jan Witold Baran (D.C. Bar No. 233486) 

Caleb P. Burns (D.C. Bar No. 474923) 

Claire J. Evans (D.C. Bar No. 992271) 

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

 Wiley Rein LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

August 4, 2017 Counsel for American Action Network 

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