UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-2255 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

AMERICAN ACTION NETWORK, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT 

The Plaintiffs, Citizens for Responsibility and Ethics in Washington (“CREW”) and 

Melanie Sloan, by their undersigned counsel, respectfully move this Court, pursuant to Federal 

Rule of Civil Procedure 56, for summary judgment declaring that the failure of the Federal 

Election Commission (“FEC”) to find “reason to believe” that American Action Network 

(“AAN”) violated the Federal Election Campaign Act (“FECA”), 52 U.S.C. § 30101 et seq., was 

contrary to law, and declaring the failure of the FEC to act on Plaintiffs’ complaint against 

Americans for Job Security (“AJS”) for violating the FECA was contrary to law. Plaintiffs 

further seek an order directing the FEC to conform with such declaration within 30 days. 

A judgment that the FEC’s dismissal of AAN is contrary to law is warranted because the 

FEC’s dismissal ignores this Court’s prior Order by relying on impermissible interpretations of 

law. The dismissal further “blinks reality” by applying an arbitrary and capricious analysis that 

pays no heed to relevant facts and is not based in any assessment by the FEC’s Office of General 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 1 of 60
2

Counsel, relying instead on AAN’s submission. 

 The FEC’s actions and inaction harm voters, 

including Ms. Sloan, by denying them information vital to our democracy and harm CREW by 

denying it information vital to its work combatting corruption. Accordingly, Plaintiffs 

respectfully request this Court grant summary judgment and find that the controlling 

commissioners’ conclusions and lethargy are contrary to law, in violation of 52 U.S.C. 

§ 30109(a)(8)(C). 

Support for this motion is set forth in the accompanying Memorandum of Points and 

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

the Federal Election Commission’s and American Action Network’s Motions for Summary 

Judgment, the accompanying Declaration of Stuart C. McPhail, and the joint appendix 

containing copies of those portions of the administrative record that are cited or otherwise relied 

upon, to be filed no later than January 15, 2018. Plaintiffs’ requested relief is set forth in the 

accompanying Proposed Order. Plaintiffs respectfully request oral argument on this motion. 

Respectfully submitted, 

September 26, 2017 /s/ Stuart McPhail 

Stuart McPhail 

smcphail@citizensforethics.org

(D.C. Bar No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

455 Massachusetts Ave., N.W. 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 2 of 60
3

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

COUNSEL FOR CITIZENS FOR 

RESPONSIBILITY AND ETHICS IN 

WASHINGTON AND MELANIE SLOAN

 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 3 of 60
 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-2255 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

AMERICAN ACTION NETWORK, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION 

TO THE FEDERAL ELECTION COMMISSION’S AND AMERICAN ACTION 

NETWORK’S MOTIONS FOR SUMMARY JUDGMENT

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 4 of 60
i 

TABLE OF CONTENTS 

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

STATEMENT OF FACTS ............................................................................................................. 2

I. Statutory and Regulatory Background ................................................................................ 2

II. Procedural History .............................................................................................................. 5

A. AAN’s and AJS’s Electoral Activities and FEC’s First Dismissal............................... 6

B. CREW I ......................................................................................................................... 8

C. FEC’s Actions on Remand............................................................................................ 9

D. The Court finds the FEC Conformed Without Deciding Whether 

Dismissal was “Contrary to Law” ............................................................................... 10

III. The Continued Growth of Dark Money ............................................................................ 13

ARGUMENT ................................................................................................................................ 14

I. Jurisdiction ........................................................................................................................ 14

II. Standard of Review ........................................................................................................... 15

A. Dismissals Contrary to Law ........................................................................................ 15

B. The Failure to Act is Unreasonable ............................................................................ 21

III. The FEC’s New Dismissal is Still Contrary to Law ......................................................... 22

A. The Controlling Commissioners Again Rely on an Impermissible 

Interpretation of Buckley ............................................................................................. 23

B. The Commissioners’ Interpretation of Buckley is Arbitrary and Capricious .............. 36

IV. ...................................................... 41

A. ....................... 42

B. ......................... 47

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

 

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TABLE OF AUTHORITIES 

Cases

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) ............................................................................... 16 

Armstrong v. Exec. Office of the President, 1 F.3d 1274 (D.C. Cir. 1993) .................................. 11 

Bluewater Network v. EPA, 370 F.3d 1 (D.C. Cir. 2004) ............................................................. 21 

Bowman Transp., Inc. v. Arkansas-Best Freight Sys. Inc., 419 U.S. 281 (1974) ......................... 21 

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

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .............................................................. 8, 16 

Citizens for Percy ’84 v. FEC, No. 84-cv-2653, 1984 WL 6601 

(D.D.C. Nov. 19, 1984)...................................................................................................... passim 

Citizens United v. FEC, 558 U.S. 310 (2010) ......................................................................... 13, 42 

Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980) ............................................... 21, 22, 42 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ........................................................ 18, 44 

CREW v. FEC (“CREW I”), 209 F. Supp. 3d 77 (D.D.C. 2016) ........................................... passim 

Dem. Senatorial Campaign Comm. v. FEC, No. 95-cv-0349 (JHG), 

1996 WL 34301203 (D.D.C. Apr. 17, 1996) .......................................................... 21, 42, 43, 48 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) .......................... 15 

FEC v. Akins, 524 U.S. 11 (1998) ........................................................................................... 14, 15 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ............................................................. 3 

FEC v. Wisconsin Right to Life, Inc. (WRTL II), 551 U.S. 449 (2007) ........................ 7, 16, 25, 46 

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

769 F.3d 1127 (D.C. Cir. 2014) ................................................................................................ 18 

Gonzales v. Oregon, 546 U.S. 243 (2006) .................................................................................... 19 

Heartland Reg’l Med. Ctr. v. Leavitt, 415 F.3d 24 (D.C. Cir. 2005) ............................................ 11 

In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538 (D.C. Cir. 1980) ........................... 20 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 6 of 60
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In re Nat’l Congressional Club, Nos. 84-5701, 84-5719, 1984 WL 148396 

(D.C. Cir. Oct. 24, 1984) ........................................................................................ 21, 22, 42, 47 

Indep. Inst. v. FEC, 137 S. Ct. 1204 (2017) (Mem.) .................................................................... 34 

Indep. Inst. v. FEC, 216 F. Supp. 3d 176 (D.D.C. 2016) .............................................................. 34 

Int’l Ladies’ Garment Workers’ Union v. Donovan, 733 F.2d 920 (D.C. Cir. 1984) ................... 11 

Mayo Found. For Med. Educ. & Research v. United States, 562 U.S. 44 (2011) ........................ 18 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ........................................................ 29, 30 

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

Mem. Op. & Order, CREW v. FEC, 14-cv-1419 (D.D.C. Apr. 6, 2017) ............................... passim 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) .................................................................................................................... 41 

N.Y. N.Y., LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002).............................................................. 16 

Nat’l Ass’n of Gun Rights, Inc. v. Motl, No. CV 16-23-H-DLC, 

2017 WL 390807 (D. Mont. Sept. 6, 2017) .............................................................................. 34 

Nat’l Ass’n of Home Builders v. Defs. Of Wildlife, 551 U.S. 644 (2007) ............................... 20, 36 

Nat’l Treasury Emps. Union v. Hove, 840 F. Supp. 165 (D.D.C. 1994) ...................................... 37 

Oceana, Inc. v. Locke, 674 F. Supp. 2d 39 (D.D.C. 2009) ........................................................... 37 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ................................................................ 15, 16, 20 

Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988) ............................................................. 16 

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

Rose v. FEC, 608 F. Supp. 1 (D.D.C. 1984) ............................................................... 21, 47, 48, 49 

Shays v. FEC, 424 F. Supp. 2d 100 (D.D.C. 2006) ...................................................................... 17 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) .................................................................. 18, 33 

Sierra Club v. Whitman, 268 F.3d 898 (9th Cir. 2001) ................................................................ 44 

Telecommunications Research & Action Center v. FCC, 

750 F.2d 70 (D.C. Cir. 1984) .................................................................................. 22, 47, 48, 49 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 7 of 60
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United States v. Mead Corp., 533 U.S. 218 (2001) ................................................................ 18, 19 

Statutes

2 U.S.C. § 437g(a)(3)(A) (1976) .................................................................................................. 21 

28 U.S.C. § 1331 ........................................................................................................................... 14 

52 U.S.C. § 30101 ......................................................................................................................... 14 

52 U.S.C. § 30101(17) .................................................................................................................... 4 

52 U.S.C. § 30101(4)(A)................................................................................................................. 2 

52 U.S.C. § 30104 ........................................................................................................................... 5 

52 U.S.C. § 30104(b)(3)(A) ............................................................................................................ 2 

52 U.S.C. § 30104(c) ...................................................................................................................... 4 

52 U.S.C. § 30104(f) ....................................................................................................................... 4 

52 U.S.C. § 30104(f)(3)(A)(i)(I) ................................................................................................... 24 

52 U.S.C. § 30106(c) .................................................................................................................... 18 

52 U.S.C. § 30107(a)(9) ...................................................................................................... 5, 21, 48 

52 U.S.C. § 30109(a)(1) .................................................................................................................. 5 

52 U.S.C. § 30109(a)(2) .................................................................................................................. 5 

52 U.S.C. § 30109(a)(3) ............................................................................................................ 5, 47 

52 U.S.C. § 30109(a)(4)(A) ............................................................................................................ 5 

52 U.S.C. § 30109(a)(6)(A). ........................................................................................................... 5 

52 U.S.C. § 30109(a)(8)(A) ............................................................................................................ 5 

52 U.S.C. § 30109(a)(8)(C) ................................................................................................ 5, 15, 44 

Federal Election Campaign Act Amendments of 1979, Pub. L. 96-187, 

93 Stat. 1339 (Jan. 8, 1980) ...................................................................................................... 21 

Other Authorities

147 Cong. Rec. S2455 (daily ed. Mar. 19, 2001) (Sen. Snowe) ..................................................... 4 

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FEC, Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) ....................................... 3, 17 

Office of Comm’r Ann M. Ravel, Dysfunction and Deadlock: 

The Enforcement Crisis at the Federal Election Commission Reveals 

the Unlikelihood of Draining the Swamp (Feb. 2017) ............................................................. 50 

Rules

FED. R. EVID. 201 notes ................................................................................................................ 37

Regulations

11 C.F.R. § 100.5 .......................................................................................................................... 32 

11 C.F.R. § 100.22 .......................................................................................................................... 4 

11 C.F.R. § 100.29 .......................................................................................................................... 4 

11 C.F.R. § 100.29(b) ..................................................................................................................... 4 

11 C.F.R. § 104.3(a)........................................................................................................................ 2 

11 C.F.R. § 109.10 .......................................................................................................................... 4 

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INTRODUCTION 

“[B]links reality.” Those are the words this Court used to describe the conclusion of 

three commissioners of the Federal Election Commission (“FEC” or “Commission”) that “many 

of the ads considered by the Commissioners in this case were not designed to influence the 

election or defeat of a particular candidate in an ongoing race.” CREW v. FEC (“CREW I”), 209 

F. Supp. 3d 77, 93 (D.D.C. 2016) (the “September 2016 Judgment”). Despite the Court’s 

admonition, those same three commissioners reached the same reality-blinking conclusion on 

remand, once again finding that most of the ads considered were not designed to influence 

elections. While this Court declined to address the legality of that conclusion in the prior case, 

see Mem. Op. & Order 5, CREW v. FEC, 14-cv-1419 (D.D.C. Apr. 6, 2017) (“OTSC Order”), 

“the Court may hear Plaintiffs’ newly developed arguments” here, id. 

Plaintiffs Citizens for Responsibility and Ethics in Washington (“CREW”) and Melanie 

Sloan (together “Plaintiffs”) come before this Court to ask it to once again correct the controlling 

commissioners’ erroneous understanding of the First Amendment and of judicial precedent 

starting with Buckley v. Valeo, 424 U.S. 1 (1976). The controlling commissioners relied on the 

same impermissible interpretations of law, and new arbitrary and capricious analyses, to once 

against dismiss Plaintiffs’ complaint against American Action Network (“AAN”). Accordingly, 

despite the FEC’s and AAN’s meritless arguments to the contrary, that dismissal is again 

contrary to law. 

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Accordingly, Plaintiffs respectfully request this Court deny the FEC’s and AAN’s 

motions for summary judgment and grant summary judgment to Plaintiffs, and find that the 

controlling commissioners’ conclusions and lethargy are contrary to law, in violation of the 

FECA. 

STATEMENT OF FACTS 

I. Statutory and Regulatory Background 

The FECA and implementing FEC regulations impose disclosure obligations on 

organizations that engage in sufficient politicking. These organizations, called political 

committees, must register with the FEC and file periodic reports disclosing, among other things, 

their contributors. 52 U.S.C. § 30104(b)(3)(A); 11 C.F.R. § 104.3(a). As “straightforwardly 

spelled out in the FECA,” an organization must register as a political committee if accepts 

contributions or “expend[s] more than $1,000 in a calendar year for the purposes of influencing a 

federal election.” CREW I, 209 F. Supp. 3d at 82 (discussing 52 U.S.C. § 30101(4)(A)). Any 

organization that does so is a political committee under the statute and must register and report. 

In Buckley, however, the Supreme Court carved out from FECA’s statutory reporting 

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requirement organizations that meet the statutory thresholds but lack the “major purpose” to 

“nominat[e] or elect[] . . . candidate[s],” and which were not under the control of a candidate. 

424 U.S. at 79. The Court later specified that an organization lacks the “major purpose” to 

influence elections if its electoral activity is insufficiently “extensive.” FEC v. Mass. Citizens 

for Life, Inc., 479 U.S. 238, 262 (1986). Although neither the courts nor the FEC have 

definitively decided the threshold for insufficient spending, organizations must at least devote 

more than half of their spending to non-political activities to be excused from reporting. See

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 555–57 (4th Cir. 2012) (finding political 

committee statute does not depend on whether “campaign-related speech amounts to 50% of all 

expenditures”); FEC, Political Committee Status, 72 Fed. Reg. 5595, 5605 (Feb. 7, 2007) (noting 

group devoting at least “50-75%” of spending to campaign activity qualified as political 

committee).1 In other words, after Buckley, the FEC would not only verify that a group spent or 

received sufficient sums to qualify as a political committee under the statute, but would also 

determine whether the group spent sufficiently extensive sums on non-political activities to 

justify excusing the groups from comprehensive disclosure because disclosure would not “fulfill 

the purposes of the Act.” Buckley, 424 U.S. at 79. 

The FECA does not define what activities are so non-political as to excuse reporting, but 

the statute regulates two forms of communications due to their close relation to elections and the 

public’s interest in disclosure about them. See McConnell v. FEC, 540 U.S. 93, 196 (2003) 

(noting disclosure of funding behind election-related communications “provid[es] the electorate 

 1

 In CREW I, this Court noted that it was “far from apparent that the Commissioners did apply 

any such 50%-plus spending threshold.” CREW I, 209 F. Supp. 3d at 94. Nonetheless, it found 

“[a] reasonable application of a 50%-plus rule would not appear to be arbitrary and capricious.” 

Id. at 95. 

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with information, deter[s] actual corruption and avoid[s] any appearance thereof, and gather[s] 

the data necessary to enforce more substantive electioneering restrictions”). 

First, the FECA requires those making independent expenditures to file reports with the 

FEC. 52 U.S.C. § 30104(c); 11 C.F.R. § 109.10. An independent expenditure is defined by the 

content of the communication: they are ads that contain “express advocacy” such as a call to 

“vote for” a candidate, or words that “in context can have no other reasonable meaning than to 

urge the election or defeat of one or more clearly identified candidate(s).” 11 C.F.R. § 100.22; 

see also 52 U.S.C. § 30101(17). 

Second, the FECA requires those making electioneering communications to file similar 

reports with the FEC. 52 U.S.C. § 30104(f). Electioneering communications are broadcast ads 

that air shortly before an election, clearly identify a candidate in that election, and target a large 

segment of the relevant electorate. Id.; 11 C.F.R. § 100.29. This category is narrowly focused 

on election-related communications, excluding ads distributed to less than 50,000 people, 

Internet and print communications, and “news stor[ies], commentar[ies], and editorial[s].” 11 

C.F.R. § 100.29(b), (c). Congress created this category of communications when it realized that 

individuals were “evading” the law for independent expenditures by avoiding the “magic words” 

that would trigger regulation, McConnell, 540 U.S. at 126–31, but still airing ads shortly before 

elections that “constitute[d] campaigning every bit as much as . . . any ad currently considered to 

be express advocacy and therefore subject to Federal Election laws,” 147 Cong. Rec. S2455 

(daily ed. Mar. 19, 2001) (Sen. Snowe). The Supreme Court found that “the important state 

interests that prompted the Buckley Court to uphold the FECA’s disclosure requirements” 

applicable to those engaged in independent expenditures, not excluding the political committee 

reporting provisions, “apply in full to . . . to the entire range of ‘electioneering 

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communications.’” McConnell, 540 U.S. at 196 (discussing 2 U.S.C. § 304, codified as amended 

at 52 U.S.C. § 30104, including the political committee reporting obligations). 

While the FECA places preliminary responsibility for enforcing federal campaign finance 

laws with the FEC, third parties may file a complaint with the FEC if they identify a violation of 

the statute. 52 U.S.C. § 30109(a)(1). This commences a multistep process within the FEC. 

After a response from the alleged violators and a report from the FEC’s Office of General 

Counsel (“OGC”), the six commissioners of the FEC then vote on whether they find “reason to 

believe” the FECA has been violated. Id. § 30109(a)(2). If four commissioners find reason to 

believe a violation may have occurred, the OGC must investigate “expeditiously” and make a 

recommendation whether there is probable cause. Id. §§ 30107(a)(9), 30109(a)(2), (3). If four 

commissioners find probable cause, the FEC must then seek conciliation with the respondents; if 

the FEC is unable to reach a conciliation agreement, the FEC may pursue a civil action in court. 

Id. at § 30109(a)(4)(A), (6)(A). 

If the FEC does not pursue enforcement or fails to timely act on the complaint, the FECA 

provides that the complainant may, no earlier than 120 days from the date the complaint was 

filed, seek judicial review of the FEC’s action (or inaction). 52 U.S.C. § 30109(a)(8)(A). 

Thereafter, if a court finds the dismissal or failure to act permits activity “contrary to law” and 

the FEC fails to conform with that declaration within 30 days of the judgment, the FECA 

empowers the complainant to “bring, in the name of such complainant, a civil action to remedy 

the violation involved in the original complaint.” Id. § 30109(a)(8)(C). 

II. Procedural History 

On March 8, 2012, Plaintiffs filed a complaint with the FEC alleging AJS had failed to 

register and report as a political committee in violation of the FECA, even though it had engaged 

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in extensive electioneering. AR 1–13. Shortly thereafter, Plaintiffs filed a similar complaint 

against AAN, also alleging that group had failed to register and report as political committee in 

violation of the FECA, despite its extensive electioneering. AR 1480–87. 

A. AAN’s and AJS’s Electoral Activities and FEC’s First Dismissal 

Each organization had spent millions of dollars to influence federal elections in the 2010 

election cycle. For its part, “AJS spent approximately $4.9 million on express advocacy 

advertising and an additional $4.5 million on electioneering communications, meaning that over 

three-fourths of its spending was in some way tied to elections.” CREW I, 209 F. Supp. 3d at 83; 

AR 1393–94. For example, one of the electioneering communications AJS ran supported 

Massachusetts Senate candidate Scott Brown, praising the actions he would take to “protect 

Medicare,” not “raise taxes,” and to “listen to the people, not the lobbyists”—actions he could 

only take if voters elected him to office. AR 5, 1404. AJS ran another electioneering 

communication praising Colorado Senate candidate Ken Buck for his plan to “get Colorado back 

to work” if viewers elected him. AR 1428; see also 1404–07. 

With respect to AAN, “the majority of its spending throughout the period in question—

mid-2009 through mid-2011—was on election-related advertising.” CREW I, 209 F. Supp. 3d at 

83. For example, AAN spent $1,065,000 on three versions of the following advertisement: 

[On-screen text:] Congress doesn't want you to read this. Just like [candidate]. 

[Candidate] & Nancy Pelosi rammed through government healthcare. Without 

Congress reading all the details. $500 billion in Medicare cuts. Free healthcare 

for illegal immigrants. Even Viagra for convicted sex offenders. So tell 

[candidate] to read this: In November, Fix the healthcare mess Congress made. 

Id. at 80; AR 1722. A similar ad accused two other candidates of supporting “Viagra for 

rapists.” AR 1652. Another ad accused Rep. Stephanie Herseth Sandlin of providing “health 

care for illegal immigrants.” AR 1649. Nearly all of AAN’s ads informed viewers that they 

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should register their disagreement “in November” when the identified candidates were up for 

election. AR 1649–55. Over the two years from mid-2009 to mid-2011, AAN spent 

approximately $4 million on independent expenditures and an additional $13.7 million on 

electioneering communications. AR 1638. “In other words, well over half of its spending during 

the period was election-related.” CREW I, 209 F. Supp. 3d at 83. 

After receiving Plaintiffs’ complaints against both AJS and AAN, the OGC 

recommended finding reason to believe that both organizations were political committees subject 

to the FECA and that they failed to comply with FECA’s registration and reporting requirements. 

AR 1411, 1569. In June 2014, despite the OGC’s analysis, three commissioners voted not to 

proceed against AJS and AAN, causing the commission to deadlock. While these three 

commissioners recognized that both AAN and AJS qualified as political committees under the 

FECA, they interpreted the First Amendment and Buckley’s “major purpose” carve out to excuse 

AAN and AJS from their statutory obligations. AR 1434-35, 1455, 1686, 1706. Relying on 

FEC v. Wisconsin Right to Life, Inc. (WRTL II), 551 U.S. 449 (2007), the three commissioners 

stated that the FEC was constitutionally required to treat all non-express advocacy 

communications, including electioneering communications, as unrelated to elections and thus 

indicative of a lack of the required “major purpose.” AR 1701. Accordingly, the controlling 

commissioners counted every dollar the groups spent on electioneering communications as 

evidence supporting the conclusion that the groups lacked a major purpose to influence elections. 

AR 1709. In other words, the FEC’s controlling commissioners found that these groups were 

excused from reporting as political committees because they spent significant sums on 

electioneering communications. 

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B. CREW I

Plaintiffs filed suit against the FEC on August 20, 2014. On September 19, 2016, the 

Court granted summary judgment to Plaintiffs, finding both the dismissals of the AAN and AJS 

complaints were contrary to law. CREW I, 209 F. Supp. 3d at 81. In relevant part, the Court first 

found that Plaintiffs’ “primary challenge regards the FEC’s understanding of the constitutional 

dimensions of a Supreme Court-authored test which has itself developed to avoid potential 

constitutional infirmities,” and thus, “[u]nder such circumstances,” the deference afforded under 

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), “can have no sound place in evaluating 

whether an FEC interpretation is ‘contrary to law.’” Id. at 86. 

Next, the Court found that the controlling commissioner’s reliance on WRTL II was 

erroneous because “the overwhelming weight of legal authority, beginning with the Supreme 

Court itself, has concluded that the WRTL II framework is not properly applied in the context of 

less restrictive disclosure requirements” like the FECA’s political committee rules. Id. at 89. In 

fact, “WRTL II’s constitutional division between express advocacy and issue speech is simply 

inapposite in the disclosure context.” Id. at 90. Indeed, the Court found that “many or even most

electioneering communications indicate a campaign-related purpose,” justifying disclosure 

despite the ads’ lack of express advocacy. Id. at 93. Because the controlling commissioners 

relied on inapposite authority, “the Court ha[d] little trouble” concluding that the controlling 

commissioners’ analysis was erroneous, and thus their use of it to treat all non-express advocacy 

speech as non-political was contrary to law. Id. at 92. Finding that the issue resolved this 

matter, the Court did not address the further issue of whether a group’s dissemination of an 

electioneering communication would ever justify denying voters of information about the 

group’s contributors to which the FECA legally entitles them. Id. at 93. In addition, the Court 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 17 of 60
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ruled that the appropriate period for comparison was the group’s expenditures within the 

“calendar year.” Id. at 94. Accordingly, the Court reversed the dismissals and remanded back to 

the FEC, directing it to “conform with [the] declaration within 30 days.” Id. at 95. 

C. FEC’s Actions on Remand 

On October 19, 2016, thirty days after the Court’s order, the FEC notified Plaintiffs that it 

had once against dismissed Plaintiffs’ complaint against AAN. AR 1783. The commissioners 

had not received—and thus did not rely on—any analysis from the OGC on how to apply 

Buckley’s major purpose test in light of the Court’s September 2016 Judgment. Rather, they 

relied solely on an analysis from AAN. AR 1734–59. AAN suggested that the commissioners 

look to newspaper articles not in the record to determine that its advertisements addressed 

“prominent public policy debates when they were aired in the fall of 2010.” AR 1742–43. AAN 

argued that its ads’ request to viewers to “contact their representatives about [those] issues” 

rendered the ads non-electoral. AR 1745, 1748; see also AR 1751. 

Based on AAN’s selective analysis, the same three commissioners who voted to excuse 

AAN from following the law the first time once again voted to excuse AAN from reporting. 

Despite this Court’s admonition that it would blink reality to conclude that many of the ads the 

groups ran were not intended to influence elections, the controlling commissioners once again 

determined that nearly all of AAN’s electioneering communications—representing over 80% of 

the funds AAN spent on such ads—were not election focused. AR 1779. Among the ads 

deemed non-political was AAN’s “Read This” ad that the Court quoted in full in its September 

2016 Judgment. CREW I, 209 F. Supp. 3d at 80. They also deemed non-political AAN’s 

“Skype” ad, which like AAN’s “Read This” ad accused candidates who were sitting members of 

Congress of voting to support “Viagra for rapists.” AR 1776. Similarly deemed non-political 

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was AAN’s ad revealingly titled “Quit Critz,” with then-sitting Rep. Mark Critz (D-PA) the 

target of the ad. AR 1770–71. Accordingly, they treated these ads as reasons to exclude AAN 

from the political committee reporting obligations under FECA. AR 1779. 

While complying with the bare minimum required by the September 2016 Judgment by 

treating at least a small handful of AAN’s ads as electorally motivated, the controlling 

commissioners concocted a new test that still allowed them to reach their predetermined decision 

to excuse AAN from the law. The new test looked at the ad’s “specific language” to see if it 

contained express advocacy, examined whether the ad “focuse[d] on issues important to the 

group or merely on the candidate referenced in the ad,” considered a limited subset of context “to 

provide a better understanding of the message,” and ascertained whether the ad included a “call 

to action . . . relat[ing] to the speaker’s agenda or, rather, to the election or defeat of federal 

candidates.” AR 1767–68. The test essentially echoed AAN’s submission by looking to facts 

AAN identified as relevant to showing its ads were non-political. The sole authority cited for 

this test was a portion of McConnell in which the Court found an ad discussing candidate Bill 

Yellowtail was electoral. AR 1768. The controlling commissioners omitted, however, the 

portions of the Yellowtail ad that discussed policy and contained a call to action related to the 

speaker’s issue agenda. Id. 

 

D. The Court finds the FEC Conformed Without Deciding Whether Dismissal 

was “Contrary to Law” 

On November 14, 2016, on the same day Plaintiffs filed the instant suit, Plaintiffs filed a 

motion for the Court to issue a show cause order to the FEC. Plaintiffs asked the Court to 

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11 

require the FEC to show cause why it should not be found to have failed to conform with the 

Court’s September 2016 Judgment. Pls.’ Mot. for an Order to Def. FEC to Show Cause, CREW 

v. FEC, No. 14-cv-1419 (CRC) (D.D.C. Nov. 14, 2016). 

 

On April 6, 2017, the Court denied Plaintiffs’ request for an order to show cause. OTSC 

Order 6. The Court found that the issue presented in a post-judgment enforcement action was a 

narrow one: only whether the “administrative agency plainly neglect[ed] the terms of a 

mandate” and not whether it was otherwise lawful. Id. at 4 (citing Heartland Reg’l Med. Ctr. v. 

Leavitt, 415 F.3d 24, 30 (D.C. Cir. 2005) (finding enforcement action “not the proper means” to 

challenge legality of agency action on remand); Int’l Ladies’ Garment Workers’ Union v. 

Donovan, 733 F.2d 920, 922 (D.C. Cir. 1984)); see also Armstrong v. Exec. Office of the 

President, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (agency must violate “clear and unambiguous” 

directive of court order for post-judgment relief; insufficient to commit legal error identified in 

prior judgment). The Court found that, irrespective of its various legal findings, the sole 

directive contained in the September 2016 Judgment was for the FEC to reopen the matters and 

to cease excluding all non-express advocacy “on a categorical basis.” OTSC Order 5. The Court 

accordingly found that the FEC had conformed with the Court’s judgment. Id. at 6. With 

respect to Plaintiffs’ arguments about other legal errors, the Court found that “they are properly 

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III. The Continued Growth of Dark Money 

As discussed in the briefing in the earlier case, AAN and AJS are not unique entities in 

the campaign finance world. They represent but two examples of a type of organization that has 

become ubiquitous—dark money nonprofits. These groups are designed to hide the identities of 

contributors, while laundering money through a web of faceless and interchangeable groups to 

ensure voters are denied knowledge about who is funding elections and who will be calling for 

favors from their elected officials. 

These groups, which evade federal laws and undermine the vital need for voters to know 

“who is speaking about a candidate shortly before an election,” CREW I, 209 F. Supp. 3d at 90 

(quoting Citizens United v. FEC, 558 U.S. 310, 369 (2010)), continue to gain influence in our 

political system. For example, in the 2010 election cycle, the year at issue in this case, dark 

money organizations spent approximately $138 million to influence elections. Outside Spending 

by Nondisclosing Groups, Cycle Totals, Excluding Party Committees, OPENSECRETS.ORG, 

http://bit.ly/2gNn9aT. By the 2012 cycle, the first presidential election after Citizens United, that 

number ballooned to $311 million. Id. In the 2014 cycle, which did not include a presidential 

election, dark money spending still amounted to $177 million. Id. And in the 2016 cycle, which 

involved a number of electoral anomalies, dark money still accounted for about $183 million. Id. 

While dark money spending did not reach 2012 levels, nearly all of the drop off can be attributed 

to the presidential race being less attractive to big-money donors. Compare Political Nonprofits: 

Race, 2016, OPENSECRETS.ORG http://bit.ly/2xOBDLL (showing about $43 million in dark 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 22 of 60
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money spending in 2016 presidential election) with Political Nonprofits: Race, 2012, 

OPENSECRETS.ORG, http://bit.ly/2f3TOWh (dark money spending in 2012 presidential race 

amounted to about $141 million); see also Stuart McPhail, Publius Inc.: Corporate Abuse of 

Privacy Protections for Electoral Speech, 121 Penn. St. L. Rev. 1049, 1053 & n.17 (2017). In 

contrast to the presidential race, competitive Senate races experienced an approximate 20% 

increase in dark money spending. See McPhail, Publius Inc., 121 Penn. St. L. Rev. at 1053 & 

n.18 (based on FEC data and races identified as competitive in contemporary reporting by the 

New York Times). 

Nor is there any indication that these trajectories will change. Only months into the 2018 

election cycle, already more than $9 million has been spent by dark money organizations without 

disclosure of their contributors. Outside Spending, OPENSECRETS.ORG. That is more than four 

times the amount spent by dark money groups at this point in the 2014 election cycle. Id.; see 

also Robert Maguire, Dark money, super PAC spending surges ahead of 2018 midterms, 

OPENSECRETS.ORG (Aug. 25, 2017), http://bit.ly/2eKHddG. 

Needless to say, dark money organizations like AAN and AJS are an increasing presence 

in our elections and their ability to prevent voters from learning who is speaking presents an 

increasing threat to our democracy. 

ARGUMENT 

I. Jurisdiction 

The action arises under the FECA, 52 U.S.C. § 30101 et seq. This Court has jurisdiction 

pursuant to 28 U.S.C. § 1331 and venue is appropriate under 28 U.S.C. § 1391(c). Plaintiffs 

have standing pursuant to FEC v. Akins, 524 U.S. 11 (1998), because they have not received 

information to which they are legally entitled under the FECA, id. at 21. 

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II. Standard of Review 

A court reviews an FEC dismissal or a failure to act to determine whether it is “contrary 

to law.” 52 U.S.C. § 30109(a)(8)(C). While the ultimate question posed is the same, slightly 

different standards of review apply to the two situations. 

A. Dismissals Contrary to Law 

The FEC’s dismissal of a case is contrary to law “if (1) the FEC dismissed the complaint 

as a result of an impermissible interpretation of [law], or (2) if the FEC’s dismissal of the 

complaint, under a permissible interpretation of the [law], was arbitrary or capricious, or an 

abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986) (internal citations 

omitted). Where the dismissal results from an FEC deadlock, the statement of reasons of the 

three commissioners voting against proceeding is the subject of judicial review, even though that 

statement does not represent that authoritative position of the agency, because it nonetheless 

explains the failure to enforce. Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 

1133 (D.C. Cir. 1987). 

1. De Novo Review of Impermissible Interpretations of Law 

Under the first prong of the analysis, the court looks to see if the FEC’s justification for 

dismissal is “a result of an impermissible interpretation of [law].” Orloski, 795 F.2d at 161. 

Plaintiffs need not identify law compelling an opposite result from that reached by the 

commissioners; rather, plaintiffs need only identify a legal error in the controlling 

commissioners’ analysis. See Akins, 524 U.S. at 25 (finding plaintiffs may bring action to 

complain that FEC “based its decision upon an improper legal ground”); CREW I, 209 F. Supp. 

3d at 93 (finding dismissal contrary to law where FEC “based its decision upon an improper 

legal ground”). 

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In determining whether the FEC’s proffered interpretation is “impermissible,” a court 

may provide deference where appropriate under the doctrine in Chevron, 467 U.S. 837. 

However, in this case, Chevron deference is unavailable for two reasons. First, Chevron 

deference does not apply to cases, such as this, where the commissioners’ interpretation concerns 

matters over which they do not have special authority or expertise. Second, controlling authority 

concludes that courts do not extend Chevron deference where the commissioners do not 

represent a majority of the commission, as such decisions lack the force of law. 

Unlike cases where the commissioners interpret the FECA or FEC regulations, Chevron 

deference does not extend to interpretations of matters over which the commissioners have no 

authority, such as the Constitution or judicial precedent. N.Y. N.Y., LLC v. NLRB, 313 F.3d 585, 

590 (D.C. Cir. 2002) (“We are not obligated to defer to an agency’s interpretation of Supreme 

Court precedent under Chevron or any other principle.” (internal quotation marks omitted)); 

Public Citizen v. Burke, 843 F.2d 1473, 1478 (D.C. Cir. 1988) (“The federal Judiciary does not, 

however, owe deference to the Executive Branch’s interpretation of the Constitution.”); CREW I, 

209 F. Supp. 3d at 86–87 (“[T]he Court will not afford deference to the FEC's interpretation of 

judicial precedent defining the protections of the First Amendment and the related contours of 

Buckley’s major purpose test.” (citing Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc)); 

cf. Orloski, 795 F.2d at 161–62 (applying Chevron deference to FEC’s interpretation of FECA). 

Here, Chevron deference is unavailable because the issue on review is same as in 

CREW I: the FEC’s interpretation of Buckley’s “major purpose” test and that case’s progeny. 

See FEC Br. 38–40 (citing WRTL II, 551 U.S. at 470 (interpreting First Amendment to bar 

restraints on corporate and union electioneering communications); McConnell, 540 U.S. at 206 

(recounting dispute among parties about whether an electioneering communication could lack an 

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electioneering purpose)); CREW I, 209 F. Supp. 3d at 87.3 Just as before, “major purpose” is not 

a statutory or regulatory test, but a judicial one. All parties agree that the statutory and 

regulatory tests for political committee status are satisfied, AR 1401, 1645–66; this case does not 

require their interpretation. Thus, the only basis for the FEC to exclude AAN from political 

committee reporting was Buckley. The administrative record confirms that the controlling 

commissioners understood this and once again interpreted the decision based on the Constitution 

and case law. See AR 1765 (attributing major purpose test to Buckley; noting that “[i]n 

analyzing AAN’s spending, we used First Amendment jurisprudence and judicial decisions 

distinguishing campaign speech from issue advocacy ad a guide” and citing WRTL II as 

example); AR 1767–68 (proscribing test as exercise of “evaluating major purpose” under 

Buckley); AR 1772 (finding ads do not “indicat[e] . . . a major purpose to nominate or elect 

federal candidates”); AR 1774 (same); AR 1776 (same); AR 1779 (noting that “[t]he Supreme 

Court,” not the FECA nor FEC regulations, “has held that the Commission may regulate entities 

as ‘political committees’ within the meaning of the Act only if they have as their major purpose 

the nomination or election of a candidate” and citing Buckley, 424 U.S. at 79). Just as before, 

they found their own idiosyncratic understanding of case law and the Constitution requires 

understanding Buckley’s “major purpose” in a way that not only treats vast swaths of 

electioneering communications to not indicate a purpose to nominate or elect candidates, but 

 3 The FEC asserts that the test is based on the controlling commissioners’ “expertise and 

experience regulating political activities,” FEC Br. 33, but cannot cite to a single example of the 

commissioners discussing that expertise or drawing on any cited experience to explain their 

proffered test. Of course, that is because the controlling commissioners did not do so. See AR 

1767–68. The FEC further points to authority discussing the FEC’s “adjudicative, case-by-case 

approach.” FEC Br. 32 (citing Shays v. FEC, 424 F. Supp. 2d 100 (D.D.C. 2006); Political 

Committee Status, 72 Fed. Reg. at 5,601. But that merely describes the type of investigation 

FEC may undertake; it does not justify the FEC’s interpretation of Buckley’s major purpose test. 

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rather treats those ads as evidence against finding a group has such purpose. Because the 

question on review here is “what Buckley (and subsequent precedent) means,” Chevron 

deference is unavailable. CREW I, 209 F. Supp. 3d at 87.4 

Second, where the controlling commissioners do not constitute a majority of the 

Commission, courts do not owe their statements Chevron deference. “[A] statement of reasons 

[of three commissioners] would not be binding legal precedent or authority for future cases.” 

Common Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 1988); see also 52 U.S.C. § 30106(c) 

(four commissioners needed to exercise agency powers). Only agency statements with “force of 

law” warrant Chevron deference. United States v. Mead Corp., 533 U.S. 218, 221–23, 233–34 

(2001) (finding agency decision has force of law when it binds third parties); see also Mayo 

Found. For Med. Educ. & Research v. United States, 562 U.S. 44, 57 (2011) (Chevron deference 

only justified where agency issue’s decision has “force of law” with “binding” effect); Fogo De 

Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1137 (D.C. Cir. 2014) 

(“[T]he expressly non-precedential nature of the Appeals Office’s decision conclusively 

confirms that the Department was not exercising through the Appeals Office any authority it had 

 4 In CREW I, the Court found that Chevron deference may be appropriate where the agency 

action involves “how Buckley (and the test it created) should be implemented” rather than “what 

Buckley (and subsequent precedent) means.” Id. The Court found that the “FEC’s choice of 

relevant timespan for assessing an organization’s spending activity, and on the agency’s 

purported 50%-plus spending threshold for finding major purpose based on expenditures” fell 

into the former category, and thus could receive Chevron deference. Id. at 87–88 (citing Shays v. 

FEC, 511 F. Supp. 2d 19, 31 (D.D.C. 2007) (finding FEC retained discretion to choose whether 

to implement Buckley’s major purpose test through adjudication or rule making)). Here, the FEC 

was not engaged in gap-filling necessitated by a judicial decision, nor was it choosing among 

methods to implement it. Rather, they interpreted what Buckley meant by a qualifying “major 

purpose” and thus what activities would or would not evidence that purpose. It was precisely 

that type of judgment that the Court previously found did not warrant Chevron deference. 

CREW I, 209 F. Supp. 3d at 87. 

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to make rules carrying the force of law. That is because the decision’s ‘binding character as a 

ruling stops short of third parties’ and is ‘conclusive only as between [the agency] itself and the 

[petitioner] to whom it was issued.’” (citation omitted)). 

In CREW I, this Court found that a statement of reasons of three commissioners warrants 

Chevron deference despite the fact that such a statement does not have force of law because the 

FEC’s power to engage in adjudication provided an “indication of comparable congressional 

intent” to warrant Chevron deference. See CREW I, 209 F. Supp. 3d at 86 n.5. Plaintiffs 

respectfully submit that the Court’s judgment on that point was in error, however, because 

controlling authority requires the agency interpretation to be “promulgated in the exercise of” the 

agency’s authority to “make rules carrying the force of law” in order to warrant Chevron 

deference. Gonzales v. Oregon, 546 U.S. 243, 255–56 (2006). In this case, a decision of only 

three commissioners lacks the required “force of law.” 

For example, in Mead, the agency in question unquestionably had the authority from 

Congress to issue regulations bearing the force of law, regulations which would have received 

Chevron deference. Mead, 533 U.S. at 226–27, 230, 234 (recognizing agency must engage in 

notice-and-comment rulemaking for certain rules; noting notice-and-comment rulemaking shows 

“Congress delegated authority to the agency generally to make rules carrying the force of law”). 

Nonetheless, because the agency interpretations in question did not carry force of law—even if 

they would have carried it if issued in another way—the Court found deference to them was 

inappropriate. Id. at 234. It wasn’t enough that the agency had delegated authority to make 

rulings bearing force of law. The presence of notice-and-comment rulemaking or adjudication 

authority are merely evidentiary points that might lead a court to conclude that a particular 

agency action has binding effect on third parties and thus has force of law. Where the agency 

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decision does not bind third parties, however, the agency’s power to engage in adjudication or 

notice-and-comment rulemaking will not imbue the agency interpretation with force of law, and 

therefore will not afford it Chevron deference. 

Similarly, here, while the FEC may issue an interpretation of the FECA or FEC 

regulations bearing force of law, it can only do so by an affirmative vote of four members. A 

vote of three commissioners is insufficient to endow a decision with force of law, however, and 

therefore their interpretation never warrants Chevron deference. To the extent the Court finds 

the controlling commissioners interpreted a matter over which the FEC has authority, Plaintiffs 

respectfully request the Court reconsider its prior decision with respect to Chevron deference to 

three-commissioner statement of reasons.5

 

2. Arbitrary and Capricious, or an Abuse of Discretion 

Even if the controlling commissioners’ statement contains no legal errors, a court may 

nonetheless find a dismissal contrary to law if the dismissal was “arbitrary or capricious, or an 

abuse of discretion.” Orloski, 795 F.2d at 161. In conducting this analysis, courts employ the 

same standard as under the APA. In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538, 

550–51, 551 n.6 (D.C. Cir. 1980) (Wald, J., concurring); see also CREW I, 209 F. Supp. 3d at 88. 

An agency decision will be arbitrary, capricious, or an abuse of discretion where the agency 

“entirely failed to consider an important aspect of the [relevant] problem” or has “offered an 

explanation for its decision that runs counter to the evidence before [it].” CREW I, 209 F. Supp. 

3d at 88 (quoting Nat’l Ass’n of Home Builders v. Defs. Of Wildlife, 551 U.S. 644, 658 (2007)). 

 5

 It is Plaintiffs’ position that the only legal interpretations at issue here are the controlling 

commissioners’ interpretations of the Constitution and of judicial precedent on remand. 

Accordingly, irrespective of the Court’s decision on the deference that may be afforded to a nonmajority panel of FEC commissioners, no Chevron deference is available here. 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 29 of 60
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“At the very least, ‘[t]he agency must articulate a rational connection between the facts found 

and the choice made.’” Id. (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys. Inc., 

419 U.S. 281, 285–86 (1974)). “While a court ought to uphold a decision of less than ideal 

clarity if an agency’s path may reasonably be discerned, the court should also insist on a 

‘reasonable explanation of the specific analysis and evidence upon which the agency relied.’” 

Id. (quoting Bluewater Network v. EPA, 370 F.3d 1, 21 (D.C. Cir. 2004)). 

B. The Failure to Act is Unreasonable 

The FEC’s failure to act on a complaint is evaluated under a slightly different standard. 

“Where the issue before the Court is whether the agency’s failure to act is contrary to law, the 

Court must determine whether the Commission has acted ‘expeditiously,’” Common Cause v. 

FEC, 489 F. Supp. 738, 744 (D.D.C. 1980), applying “standards generally applicable to review 

of agency action,” In re Nat’l Congressional Club, Nos. 84-5701, 84-5719, 1984 WL 148396, *1 

(D.C. Cir. Oct. 24, 1984) (per curiam); accord Dem. Senatorial Campaign Comm. v. FEC, No. 

95-cv-0349 (JHG), 1996 WL 34301203, *3 (D.D.C. Apr. 17, 1996) (“DSCC”) (examining 

whether FEC delay was “arbitrary and capricious”).6

“Factors the Court may consider in making its determination include the credibility of the 

 6

 The court in Common Cause cited 2 U.S.C. § 437g(a)(3)(A) for this standard. Id. Section 

437g(a)(3)(A) at the time provided that “[a]ny investigation under paragraph (2)” relating to 

investigations following a complaint, “shall be conducted expeditiously.” See 2 U.S.C. 

§ 437g(a)(3)(A) (1976). That specific provision was removed in 1980. See Federal Election 

Campaign Act Amendments of 1979, Pub. L. 96-187 § 108, 93 Stat. 1339 (Jan. 8, 1980). 

Nevertheless, the FECA still provides the FEC must “conduct investigations and hearings 

expeditiously.” 52 U.S.C. § 30107(a)(9); see also DSCC, 1996 WL 34301203, at *4 (“The Act 

grants the FEC the power to conduct investigations ‘expeditiously,’ and this provision has been 

construed as imposing an obligation to investigate complaints expeditiously.” (internal citations 

omitted)); Rose v. FEC, 608 F. Supp. 1, 11 (D.D.C. 1984) (“[T]he Court cannot conclude that the 

absence of such language in this separate provision of the Act relieves the Commission of the 

obligation to act expeditiously, or gives the Commission discretion to act non-expeditiously.”). 

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allegation, the nature of the threat posed, the resources available to the agency, and the 

information available to it, as well as the novelty of the issues involved.” Common Cause, 489 

F. Supp. at 744; see also In re Nat’l Congressional Club, 1984 WL 148396, at *1. In addition, 

the Court reviews the FEC’s inaction under the factors set forth in Telecommunications Research 

& Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”) (listing factors as (1) a 

“rule of reason,” (2) congressionally approved “timetable,” (3) significance of threat posed by 

unremedied violation, (4) “effect of expediting delayed action” on other agency activities, and 

(5) “the interest prejudiced by the delay”); see In re Nat’l Congressional Club, 1984 WL 

148396, *1. While there is no presumption that an action taking longer than 120 days is 

unreasonable, Common Cause, 489 F. Supp. at 742, “some cases can be dealt with in the 120 day 

period” and delay beyond that time may be unreasonable, Citizens for Percy ’84 v. FEC, No. 84-

cv-2653, 1984 WL 6601, *4 (D.D.C. Nov. 19, 1984) (“If not, we fail to understand why 

Congress created jurisdiction in this court upon the passage of 120 days from filing of the 

administrative complaint.”). 

III. The FEC’s New Dismissal is Still Contrary to Law 

Remanded to reconsider their interpretation of Buckley’s major purpose test that treated 

all electioneering communications as non-political, the controlling commissioners fabricated a 

multipart test that lets them treat nearly all electioneering communications as non-political. 

Their new interpretation of Buckley, however, is unsupported by relevant authority and is based 

on the same inapposite authority that this Court previously found rendered the dismissal contrary 

to law. CREW I, 209 F. Supp. 3d at 89 (finding controlling commissioners’ reliance on WRTL II 

in disclosure context was legal error). In addition to doubling down on their prior legal errors, 

the controlling commissioners’ interpretation contains new errors. Any one of these flaws would 

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23 

render the test contrary to law. Combined they certainly do. 

A. The Controlling Commissioners Again Rely on an Impermissible 

Interpretation of Buckley 

On remand, the controlling commissioners were required to come up with a new 

interpretation of Buckley that eschewed their legally erroneous conclusion that all electioneering 

communications were non-political, and therefore provided grounds to excuse groups from 

political committee reporting. The new test, arrived at without legal advice from the OGC, was: 

In evaluating major purpose, our starting point is the language of the 

communication itself. In other words, we look at the ad’s specific language for 

references to candidacies, elections, voting, political parties, or other indicia that 

the costs of the ad should be counted towards a determination that the 

organization’s major purpose is to nominate or elect candidates. We also examine 

the extent to which the ad focuses on issues important to the group or merely on 

the candidates referenced in the ad. Additionally, we consider information 

beyond the content of the ad only to the extent necessary to provide context to 

understand better the message being conveyed. Finally, we ascertain whether the 

communication contains a call to action and, if so, whether the call relates to the 

speaker's issue agenda or, rather, to the election or defeat of federal candidates. 

AR 1767–68. Notably, the controlling commissioners further declared, ipse dixit, that, “[w]hile 

[they] [were] also mindful of the fact that electioneering communications, by definition, must 

refer to a clearly identified federal candidate; such references, by themselves, do not make the 

communication electoral.” AR 1768. Utilizing that test, they found that nearly all of AAN’s 

electioneering communications were not political, largely because they asked viewers to “call” 

their representatives to express displeasure about some particular piece of legislation or area of 

policy, rather than containing an express request to vote against the identified politician. AR 

1772, 1773, 1776–78. While the controlling commissioners did the bare minimum to back off 

from the categorical exclusion that was the basis of the prior remand and to “feign[] compliance 

with the Court’s” judgment, AR 1785 (Statement of Reasons of Comm’rs Ann M. Ravel and 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 32 of 60
24 

Ellen L. Weintraub), their new interpretation remains contrary to law. 

1. The Controlling Commissioners’ Impermissibly Relied on the “Inapposite” 

WRTL II

In its September 2016 Judgment, the Court informed the controlling commissioners that 

“the WRTL II framework” that “drew a bold line between express advocacy (and its functional 

equivalent), which it deemed more regulable, and issue advocacy, which it deemed less so,” 

developed “in the context of an outright ban on speech” and thus “is not properly applied in the 

context of less restrictive disclosure requirements.” CREW I, 209 F. Supp. 3d at 89. The Court 

told the controlling commissioners that WRTL II was simply “inapposite in the disclosure 

context,” and therefore it was legal error for the controlling commissioners to apply WRTL II to 

interpret Buckley’s application to political committee reporting. Id. at 90, 92. 

Despite this admonition from the Court, it is clear that the controlling commissioners 

based their new test on WRTL II. On remand, these commissioners concocted a new multi-part 

test to supposedly tease out whether an ad exhibited electoral purposes. AR 1767–68. They cite 

no learned experience or prior judgments for this test. Rather, they cited only one authority for 

that test: a truncated discussion from McConnell about an ad targeting candidate Bill Yellowtail. 

AR 1768 (see McConnell, 540 U.S. at 193 n.78).7

 That authority, however, does not support 

their newly crafted test interpreting Buckley. As the FEC made clear in its motion papers and in 

its response to the order to show cause, the absence of any cited supportive authority is not a 

 7

 The statement of reasons also cites the 2007 Supplemental E&J, but only for the point that the 

FEC’s analysis may be “fact intensive” and to state groups may glean guidance on the FEC’s 

application by consulting FEC files. AR 1767. They also cited 52 U.S.C. § 30104(f)(4)(A)(i)(I), 

though Plaintiffs presume that is a typo as that provision does not exist. Id. Rather, the FEC 

likely meant to cite 52 U.S.C. § 30104(f)(3)(A)(i)(I), but that section only states one quality of an 

electioneering communication: that it clearly identify a federal candidate. None of this authority 

supports or is purported to support the test the controlling commissioners outlined. 

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25 

mistake. The controlling commissioners cited no authority because the Court has already 

declared WRTL II, the sole authority for their test, to be inapposite to the task of interpreting 

Buckley. See FEC Br. 38–40, 42 (relying on WRTL II’s “functional equivalent” test to dismiss); 

FEC Opp. To Pls.’ Mot. for An Order to Def. FEC to Show Cause 25–27; CREW v. FEC, No. 

14-cv-1419-CRC (D.D.C. Dec. 12, 2016) (attached as Exhibit 2) (same); accord AAN Br. 5. 

The controlling commissioners drafted the test to once again distinguish between the 

“functional equivalent of express advocacy” and “issue ads,” the latter a category which they 

assume, following WRTL II, may not be regulated, regardless of those ads’ connections to 

elections and the fact that the regulation at issue here is simply disclosure. FEC Br. 38, 42 

(“Some electioneering communications may constitute genuine issue advocacy.” (citing WRTL 

II, 551 U.S. at 470)). The controlling commissioners test parrots the distinctions drawn in WRTL 

II: whether (1) “[t]he ads focus on a legislative issue, take a position on the issue, exhort the 

public to adopt that position, and urge the public to contact public officials with respect to the 

matter,” (2) “their content lacks indicia of express advocacy: The ads do not mention an 

election, candidacy, political party, or challenger;” and (3) “they do not take a position on the 

candidate’s character, qualifications, or fitness for office.” Compare WRTL II, 551 U.S. at 470 

with AR 1767–68. 

As this Court previously found, WRTL II is “inapposite” in disclosure contexts such as 

this. CREW I, 209 F. Supp. 3d at 90.8

 Accordingly, just as it was legal error for the controlling 

 8

 Neither the FEC nor AAN make any serious attempt to argue that the Court was wrong in its 

conclusion. That is because any such argument would lack merit. WRTL II considered only a 

ban on speech, subject to strict scrutiny, and drew the issue speech/electioneering speech 

distinction only to distinguish prior precedent upholding a ban on the latter. WRTL II, 551 U.S. 

at 455–57, 476–77. WRTL II did not, and could not, consider whether any electioneering 

communication would or could be so unrelated to influencing an election that it should excuse a 

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commissioners to rely on WRTL II in the previous case to find none of AAN’s electioneering 

communications could indicate an electoral purpose, it was legal error for the controlling 

commissioners to again rely on WRTL II on remand. 

The FEC and AAN argue, however, that this Court did not mean what it said with respect 

to WRTL II and that it was only legal error for the FEC to “exclude[e] all non-express advocacy 

speech from consideration.” FEC Br. 40; see also AAN Br. 18–19 (“Instead, the Court held 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.”). They also emphasize 

the Court’s refusal to adopt a bright-line test in the prior judgment. FEC Br. 36; AAN Br. 16. 

They further assert that the Court’s denial of the motion for an order to show cause means that 

the dismissal cannot be contrary to law. FEC Br. 40; AAN Br. 11. 

The FEC and AAN misinterpret the Court’s analysis, however, and attribute to the Court 

conclusions on questions that the Court expressly stated were not before it in the show cause 

order. First, while the FEC and AAN attempt to cabin this Court’s declaration that WRTL II was 

“inapposite in the disclosure context,” CREW I, 209 F. Supp. 3d at 90, their assertion is 

nonsensical. To be sure, the result of that legal judgment was to vacate the particular decision of 

the controlling commissioners on review: their decision to treat electioneering communications 

as categorically non-political. Id. at 92. Yet neither the FEC nor AAN can explain how a 

judicial decision that is totally inapposite to disclosure would suddenly become relevant simply 

because the FEC now applies that authority in the same context to reach a slightly different 

 

group from reporting under the FECA’s political committee rules. That is why, as the Court 

noted, Citizens United “flatly rejected” the argument that WRTL II had any application to the 

FECA’s disclosure requirements. CREW I, 209 F. Supp.3d at 89. 

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result. Then, as now, the context is disclosure and WRTL II is inapposite. 

Second, while the Court did not take up Plaintiffs’ suggestion that it declare that all 

electioneering communications are electoral under Buckley—and thereby bar the FEC from 

excusing an organization from political committee reporting simply because it ran an 

electioneering communication—it also did not conclude that any particular electioneering 

communication would or could lack an electoral purpose. See CREW I, 209 F. Supp. 3d at 93 

(stating the “Court will not go further” and “will refrain from replacing the Commissioners’ 

bright-line rule with one of its own”). Nothing in the Court’s order prohibited the controlling 

commissioners from interpreting Buckley to treat all electioneering communications as 

evidencing an electoral purpose or from finding all of AAN’s electioneering communications 

evidenced that purpose. Nor does anything in the Court’s order provide any support for the 

controlling commissioner’s refusal to do either. The Court simply refrained from addressing 

issues beyond those necessary for it to resolve the question before it. CREW I provides no 

support for the controlling commissioners reliance on WRTL II on remand. 

Nor did the Court’s order on the motion to show cause address whether the controlling 

commissioner’s reliance on WRTL II was permissible. As the Court recognized in its order, a 

request for post-judgment relief presents a different question than posed by the FECA: the postjudgment motion required Plaintiffs to show that the FEC violated the clear and unambiguous 

directive of the Court. OTSC Order 4. Regardless of the holdings in the September 2016 

Judgment, the directive was only for the FEC to reopen the case and to no longer treat all 

electioneering communications as non-electoral. Id. at 5. Because the FEC did that, the Court 

found that the FEC conformed with the earlier judgment. Id. The Court did not address the 

question of whether the dismissal on remand was contrary to law, including because it 

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impermissibly relied on WRTL II. Id. The Court found such questions must be addressed in a 

new action, like the one here. Id. 

In sum, while the controlling commissioners attempted to hide their reliance on WRTL II, 

the FEC recognizes that the only possible defense for their concocted test must rely on that 

authority. WRTL II, however, was and remains “inapposite” in the disclosure context relevant to 

this case. Accordingly, the dismissals rested on impermissible interpretations of law and were 

contrary to law. CREW I, 209 F. Supp. 3d at 90. 

2. The Controlling Commissioners’ Interpretation Conflicts with Established Case 

Law 

The controlling commissioners’ analysis not only relies on inapposite authority, but it 

conflicts with relevant authority, including the only authority the controlling commissioners cited 

to support their test: McConnell. In an attempt to reconcile their test with that authority, 

however, they omit relevant portions of that referenced “Yellowtail” ad, and completely ignore 

other ads the Court previously found to have the purpose of influencing elections. 

a. The Controlling Commissioners’ Analysis Cannot By Reconciled 

With McConnell

According to the controlling commissioners, the McConnell “Yellowtail” ad supports 

their conclusion because the ad, which McConnell recognized evidenced an electoral purpose, 

“accused Bill Yellowtail of hitting his wife, skipping child support payments, and being a 

convicted felon.” AR 1768; see McConnell, 540 U.S. at 193 n.78 (finding that “the notion that 

this advertisement was designed purely to discuss the issue of family values strains credulity”). 

They controlling commissioners juxtaposed that electoral ad with AAN’s ads, which they 

asserted omitted such “sharp critique[s] of . . . the candidate’s personal behavior” but rather 

contained “sharp critique[s] of a candidate’s position on legislation or public policy.” AR 1768. 

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Yet, in an attempt to manufacture a distinction between the “Yellowtail” ad and AAN’s 

ads, the controlling commissioners omitted significant portions of the “Yellowtail” ad. In 

addition to criticizing the candidate’s behavior, the Yellowtail ad critiqued the candidate’s 

“vote[] against child support enforcement,” and asked viewers to “[c]all Bill Yellowtail” and to 

“[t]ell him to support family values.” McConnell, 540 U.S. at 193 n.78. Thus, the ad that the 

Supreme Court found to be political in McConnell also contains the same type of legislative 

critique and the call to action that the controlling commissioners assert render AAN’s ads nonelectoral. See AR 1767, 1770–78. 

The other ads analyzed by the Court in McConnell further demonstrate the errors in the 

controlling commissioners’ McConnell analysis. For example, the Court characterized as 

quintessentially campaign-related an ad that, while lacking express advocacy, “condemned 

[candidate] Jane Doe’s record on a particular issue before exhorting viewers to ‘call Jane Doe 

and tell her what you think.’” 540 U.S. at 127. Notably, the hypothetical ad, which the 

McConnell Court indicated would be categorized as electoral, omitted any ad-hominem attacks 

on the candidate’s character, id., thus undermining the FEC’s claim that such content is a 

distinguishing feature, see FEC Br. 37–38 (noting “Yellowtail” ad, unlike AAN ads, accused 

candidate of taking “a swing at his wife”). 

The Court also pointed to real-life examples of ads run by Republicans for Clean Air and 

Citizen for Better Medicare. McConnell, 540 U.S. at 128. The Republicans for Clean Air ad 

contrasted then-candidates for the Republican presidential nomination Senator John McCain and 

Governor George Bush on their environmental positions. Statement of Reasons of 

Commissioners Scott E. Thomas and Danny Lee McDonald 2, MUR 4982 (Apr. 24, 2002), 

http://bit.ly/2gLglXL (cited by McConnell v. FEC, 251 F. Supp. 2d 176, 232 (D.D.C. 2003) 

Case 1:16-cv-02255-CRC Document 32 Filed 09/26/17 Page 38 of 60
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(cited by McConnell, 540 U.S. at 128 n.23)). The ad contained no express advocacy, id. at 4, and 

reflected the speaker’s purported agenda to “advocat[e] national environmental matters, 

including pending and proposed federal legislation on clean air issues.” First General Counsel’s 

Report 15, MUR 4982 (Dec. 20, 2001), http://bit.ly/2xQtsh4. Thus, under the controlling 

commissioners’ proposed test the ad would be an “issue” ad and thus lack an election-related 

purpose. The Supreme Court, however, recognized this “so-called issue ad[]” was sufficiently 

election-related to justify regulation under the FECA. McConnell, 540 U.S. at 128, 196. 

Similarly, the Court found ads by Citizens for Better Medicare were electoral despite the 

fact that they would be classified as non-political under the controlling commissioners’ proposed 

interpretation of Buckley. Citizens for Better Medicare’s stated mission was to “represent[] the 

interests of patients, seniors, disabled Americans, small businesses, pharmaceutical research 

companies and many others concerned with Medicare reform,” though in truth it was financed by 

the pharmaceutical industry. McConnell, 251 F. Supp. 2d at 546, 608–09 (Kollar-Kotelly, J., 

concurring). Between September 2000 and the election, the group ran ads that “urg[ed] people 

to call [the named representatives] and support” proposed policies related to a prescription drug 

benefit bill. Dep. of Alex Castellanos 65:1–3, McConnell v. FEC, No. 02-cv-0582 (D.D.C. Sept. 

27, 2002), http://bit.ly/2xagRbO (“Castellanos Dep.”) (noting ads “vari[ed] in the different 

areas” in which they ran) (cited by McConnell, 251 F. Supp. 2d at 546). For example, one ad 

referred to Rep. Ernie Fletcher (R-KY), stated Rep. Fletcher “voted to strengthen and improve 

healthcare for seniors,” then went on to ask viewers to “[c]all Congressman Fletcher and see 

what you can do to support his prescription drug plan for seniors.” See The Campaign Finance 

Institute, Issue Ad Disclosure, Recommendations for a New Approach App. A9 (Feb. 2001), 

http://bit.ly/2gIkVWK; see also Castellanos Dep. at 65:19–22 (referencing “Ardell Miracles” 

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ad). Even though the ads referenced an “issue” consistent with the speaker’s purported agenda 

and included a call to action to contact the representative and express support—facts that would 

cause the controlling commissioners to deem these ads non-political “issue” ads—the Court 

understood the ads were election-related. McConnell, 540 U.S. at 128, 196. 

There is no way to reconcile the controlling commissioners’ interpretation of Buckley test 

with the Court’s conclusions about the ads in McConnell, and the FEC does not even try to do so. 

Rather, it focuses on language in the McConnell decision stating that some electioneering 

communications may have “no electioneering purpose.” FEC Br. 38 (quoting McConnell, 540 

U.S. at 206). The FEC lifts the quote from its context, thereby misconstruing the Court’s point. 

First, the Court did not decide whether an electioneering communication could ever lack an 

electioneering purpose: the quoted language comes from the Court’s description of “a matter of 

dispute between the parties and among the judges on the District Court.” McConnell, 540 U.S. at 

206. The Court did not resolve that question, instead recognizing that, at the very least, “the vast 

majority of [electioneering communication] ads clearly had such a purpose.” Id. 

Second, the quoted discussion was within the context of the FECA’s then ban on 

corporate-and-union funded electioneering communications. Id. at 203 (“BCRA § 203’s 

Prohibition on Corporate and Labor Disbursements for Electioneering Communications”). There 

was some dispute about whether the ban failed strict scrutiny because an electioneering 

communication might not be “the functional equivalent of express advocacy,” and thus the ban 

would not be narrowly tailored to compelling interests. Id. at 206 (holding ban survived strict 

scrutiny). With respect to disclosure, however, which is not subject to strict scrutiny, the Court 

found that all electioneering communications were sufficiently electoral as to warrant disclosure. 

Id. at 206. The Court recognized that, in the context of corporate and union funded 

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electioneering communications, that it was appropriate for all such ads to be funded only from a 

“segregated fund”—then the only means by which a corporation or union could lawfully fund an 

electioneering communication. Id. A “segregated fund” is a type of political committee. See 11 

C.F.R. § 100.5. Thus, according to McConnell, all corporate and union funded electioneering 

communications—even those that might be said to be “genuine issue ads”—would originate 

from a political committee. 540 U.S. at 206. In no way then does McConnell suggest excluding 

a group from political committee reporting by reason of its creating any kind of electioneering 

communication, as the controlling commissioners proposed below.9

AAN attempts to side step this issue by arguing that the controlling commissioners in fact 

adopted no test, but merely engaged in a “‘holistic,’ nuanced, and comprehensive review based 

on its ‘judicially approved case-by-case, fact-intensive approach’ to adjudicating political 

committee status.” AAN Br. 9 (quoting AR 1767, 1780). This “know it when they see it” 

characterization of the controlling commissioners’ test similarly fails to permissibly interpret 

Buckley’s major purpose test. First, this Court already stated that it “blinks reality to conclude 

that many of the ads considered by the commissioners in this case were not designed to influence 

the election or defeat of a particular candidate in an ongoing race.” CREW I, 209 F. Supp. 3d at 

93. Secondly, by characterizing the controlling commissioners’ test as “case by case,” AAN’s 

free-wheeling and unpredictable test discards the “objectivity, clarity, and consistency” that the 

controlling commissioners were attempting and thus AAN fails to fairly describe the analysis 

 9

 The Court also recognized that someone who wished to communicate an “issue ad[] during 

[the] timeframes” of an electioneering communication, but who lacked an electoral purpose, 

would simply “avoid[] any specific reference to federal candidates.” Id. According to the Court 

then, someone who ran a qualifying ad in that window and identified a candidate would only do 

so because they intended to influence the election. Id.

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below. AR 1768.10 Third, by regulating electioneering communications, Congress has already 

declared, and the Courts have agreed, that all ads meeting those qualifications are sufficiently 

intended to influence elections to warrant disclosure. See, e.g., McConnell, 540 U.S. at 196. 

There is simply no set of facts which would allow the Commission to reject Congress’s and the 

courts’ judgment. Finally, as is apparent from the FEC’s brief and the total overlap between the 

controlling commissioners’ test and WRTL II, the controlling commissioners continue to 

misinterpret the relevant standard for Buckley’s “major purpose” test as one that treats only ads 

that are the “equivalent of express advocacy” as evidence of the purpose to nominate or elect 

candidates. FEC Br. 42; accord AAN Br. 5; see also supra Part III.A.1. Thus, even if one 

interprets their analysis as purely fact driven, the controlling commissioners continue to aim at 

the wrong target, rendering it contrary to law. CREW I, 209 F. Supp. 3d at 93 (analysis “based” 

on “an improper legal ground” was contrary to law).11 

b. Distinguishing Between “Genuine Issue” Ads and Those “Focused on 

Pending Legislation” is Unworkable. 

The distinction that the controlling commissioners’ attempt to draw is not only against 

 10 Of course, the test lacks any objectivity, clarity, or consistency. If an ad asking viewers to call 

their representative to express their views on a policy matter may be deemed election-related, see 

McConnell, 540 U.S at 127–28, 193 n.73, 196, but an ad telling viewers that their member of 

Congress supports Viagra for rapists and asks the viewers to do something about that “in 

November” when they are up for reelection is not election-related, AR 1775, no one could 

predict when their ad may excuse them from political committee reporting and when it will not. 11 While Shays recognized the determination of a group’s “major purpose” may “require[e] a 

very close examination of various activities and statements” through “case-by-case analysis,” it 

did so in context of recognizing the analysis may require the agency’s consideration of materials 

like “public statements,” “internal statements of the organization,” and “the organization’s 

fundraising appeals”—all communications which may or may not indicate an electoral purpose, 

depending on their particular facts. 511 F. Supp. 2d at 29. In no way, however, does Shays

imply that the FEC may appeal to its “case-by-case” analysis to interpret Buckley to exclude an 

organization from political committee reporting because the group runs ads both Congress and 

the courts understand to be election-related. 

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binding case law, it is both unworkable and contrary to common sense. 

Courts have recognized the inherent “unworkab[ility]” of the controlling commissioners’ 

exercise. Indep. Inst. v. FEC, 216 F. Supp. 3d 176, 188 (D.D.C. 2016), aff’d 137 S. Ct. 1204 

(2017) (Mem.). A three-judge panel rejected an identical proposed test to distinguish between 

“genuine issue” electioneering communications “focused on pending legislation” and other ads 

that could still trigger disclosure. Id. at 185, 187. The panel declared any such distinction would 

be “entirely unworkable” because it would “blink reality to try to divorce speech about 

legislative candidates from speech about the legislative issues for which they were responsible.” 

Id. at 188. The panel noted either type of electioneering communication “triggers th[e] same 

informational interests” of “providing the electorate with information, deterring actual corruption 

and avoiding any appearance thereof, and gathering the data necessary to enforce more 

substantive electioneering restrictions” held to justify disclosure. Id. at 190. Notably, the panel 

said that any ad “link[ing] an electoral candidate to a political issue,” like “pending federal 

legislation” and “solicit[ing] voters to press the legislative candidate for his position on the 

legislation in the run up to an election” warrants disclosure because it has the purpose of 

influencing that election. Id. “Providing the electorate with information about the source of the 

advertisement,” the panel found, including information about the ad’s financial backers, “will 

allow voters to evaluate the message more critically and to more fairly determine the weight it 

should carry in their electoral judgments.” Id. at 191. The Supreme Court affirmed the panel 

without dissent. Indep. Inst., 137 S. Ct. 1204; see also Nat’l Ass’n of Gun Rights, Inc. v. Motl, 

No. CV 16-23-H-DLC, 2017 WL 3908078, at *5–*6 (D. Mont. Sept. 6, 2017) (holding 

electioneering communications, defined similarly to federal law, may constitutionally subject 

creator to political committee reporting under state law, even if ads were “issue advocacy”). 

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Both the panel and the Supreme Court were right to reject this nonsensical distinction. 

The controlling commissioners assert without justification or explanation that the qualities that 

make an ad an electioneering communication cannot be sufficient to conclude an ad has the 

purpose of influencing an election because such an ad might mention an “issue.” See AR 1768. 

Yet it would be absurd to say that an ad loses its electoral purpose when it discusses an “issue” 

that gives an actual reason for the voters to vote in a particular way. It is not surprising that an 

ad that seeks to persuade a voter to vote for or against a candidate would point to the legislative 

or policy effects of that vote as the reason to do so. Indeed, even express advocacy ads which 

are indisputably for the purpose of influencing elections make similar appeals. See, e.g., AR 

1483 (discussing AAN’s express advocacy ads, which, like their electioneering communications, 

identified legislative issues important to AAN and the targeted the candidate’s record on them as 

the reason to vote for or against a candidate); American Action Network Misleads on Health 

Care and Taxes in Attack on Keating, POLITICAL CORRECTION (Oct. 19, 2010), 

http://bit.ly/2f4pvP5 (providing transcript of AAN express advocacy ad targeting Democratic 

candidate Bill Keating for “want[ing] to raise taxes on small businesses,” “support[ing] the 

trillion dollar health care overhaul, raising taxes on families by 525 billion, and cutting Medicare 

for seniors by half a trillion dollars”); AAN misleads Again, This time About Taxes in 

Pennsylvania, POLITICAL CORRECTION (Oct. 20, 2010), http://bit.ly/2w8hChc (providing 

transcript of AAN express advocacy ad targeting Democratic candidate Bryan Lentz for 

“rais[ing] taxes in Pennsylvania”); American Action Network’s Stale Attack on Causey, 

POLITICAL CORRECTION (Oct. 20, 2010), http://bit.ly/2xbCqJN (providing transcript of AAN 

express advocacy ad targeting Democratic candidate Chad Causey for supporting “wasteful 

stimulus [and] the trillion-dollar health care takeover that raised taxes”). 

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In the end, the controlling commissioners rely on inapposite authority to interpret Buckley

as implementing a test that conflicts with binding precedent and proves entirely unworkable. 

The Court should once again reject their interpretation as impermissible. On remand, the Court 

should clarify to the agency that the permissible interpretation of Buckley’s “major purpose” test

treats a group’s electioneering communications in the same way it treats express advocacy, just 

as Congress intended and the Court upheld, McConnell, 540 U.S. at 126–27, 196, and that it 

“fulfill[s] the purposes of the Act” to require comprehensive disclosure of organizations that 

meet the statutory qualifications of a political committee, Buckley, 424 U.S. at 79, 

notwithstanding the organization’s extensive spending on electioneering communications. 

B. The Commissioners’ Interpretation of Buckley is Arbitrary and Capricious 

In addition to the various legal errors involved in the controlling commissioners’ 

interpretation of Buckley, their interpretation and the application of that interpretation are also 

arbitrary and capricious. This is because the controlling commissioners look only to context 

identified by AAN (which, uncoincidentally, all pointed in favor of a non-electoral purpose) 

while ignoring equally, if not more, relevant facts that would tend to show the ads were electoral 

in purpose. The agency’s “fail[ure] to consider an important aspect of the [relevant] problem” 

renders the decision arbitrary and capricious. Nat’l Ass’n of Home Builders, 551 U.S. at 658. 

First, the controlling commissioners ignore the fact that AAN’s purported policy ads 

were precisely targeted to the electorate of at-risk Democrats soon to be up for election, while 

ignoring any officials not up for election or Republicans. Its three electioneering 

communications referencing Senate candidates ran in a toss-up state (Washington) and two states 

that either initially or in the end only leaned Republican (Wisconsin, New Hampshire). See

Election 2010: Senate Balance of Power, RASMUSSEN REPORTS (Nov. 1, 2010), 

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http://bit.ly/2fcd0k0. AAN’s ads referencing House candidates similarly were communicated 

only to voters in tightly contested districts. See Battle for the House, REAL CLEAR POLITICS, 

http://bit.ly/2xQdODq (listing as “Toss Up” or “Leans” Republican or Democratic races for PA12 (Critz), OH-6 (Wilson), OR-5 (Schrader), WI-8 (Kagen), IN-2 (Donnelly), CO-7 (Perlmutter), 

NM-1 (Heinrich), VA-11 (Connolly), VA-5 (Perriello), SD-AL (Herseth Sandlin), CT-5 

(Murphy), CT-4 (Himes), MI-7 (Schauer), NV-3 (Titus), VA-9 (Boucher), WV-1 (Oliverio), 

NH-2 (Kuster), and MN-1 (Walz)).12 Nor does the record show any ad by AAN advocating its 

preferred policy positions after the election and during the lame duck session, even though a 

voter’s call would have been particularly timely then. AAN’s selective targeting is simply 

incompatible with its claim, and the FEC’s conclusion, that the ads’ purposes were solely to 

inform citizens or ask voters to lobby their representatives. 

The ads AAN ran in Virginia are instructive. While AAN ran ads against three Virginia 

Democratic congressmen up for re-election, AR 1773, 1777 (discussing “Back Pack” ad run 

against Reps. Gerry Connolly and Tom Perriello and “Read This (Boucher)” ad run against Rep. 

Rick Boucher), the record shows no AAN ad asking Virginians to contact their senators, neither 

of whom were up for election that year but who would nevertheless be voting on any legislation 

arising in November. Nor does the record show AAN asked Virginians to contact any of the 

state’s other House members, all of whom would be voting in the lame duck session, including 

 12 The Court may consider this material, even where outside the record, because this material is 

relevant to the proper legal interpretation of Buckley, FED. R. EVID. 201 notes (“In determining 

the content or applicability of a rule of domestic law, the judge is unrestricted in his investigation 

and conclusion.”), and the material shows “whether the agency considered all the relevant factors 

or fully explicated its course of conduct or grounds of decision,” Nat’l Treasury Emps. Union v. 

Hove, 840 F. Supp. 165, 168 (D.D.C. 1994), aff’d, 53 F.3d 1289 (D.C. Cir. 1995); accord 

Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 45 (D.D.C. 2009) (court may take notice of extrarecord evidence to see if agency “failed to examine all relevant factors”). 

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Republican Reps. Rob Wittman, Randy Forbes, Bob Goodlatte, Eric Cantor, and Frank Wolf, 

and Democratic Reps. Robert Scott and Jim Moran. Notably, the two Democratic congressmen 

ignored by AAN handily won their reelections, while the three targeted by AAN were in close 

races. See FEC, Official Election Results for the House of Representatives: 2010 U.S. House 

Campaigns 142–43, http://bit.ly/2w8471a; Battle for the House, REAL CLEAR POLITICS, 

http://bit.ly/2vNmxc0. This context indicates AAN chose its targets not for their openness to 

persuasion but for their risk of electoral defeat, and viewers of AAN’s ads surely would have 

noticed which of their representatives AAN chose to highlight.13

AAN for its part has no explanation for this unambiguous electoral targeting. Rather, it 

meekly points out that an ad targeting an individual not up for election would not qualify as an 

electioneering communication. AAN Br. 23. Of course, if AAN ran an ad identifying a 

Republican officeholder before the election or a Democratic officeholder in an uncompetitive 

race, and asked viewers to contact them, that ad would qualify as an electioneering 

communication. But the record indicates no such ads by AAN. The record is also devoid of any

ad, whether or not it constituted an electioneering communication, discussing AAN’s purported 

policy proposals after the election, or asking viewers to contact representatives not up for 

 13 The context of AAN’s other ads is similar. In Connecticut, for example, AAN ran ads 

targeting two Democratic congressmen—Reps. Chris Murphy and Rep. Jim Himes, AR 1775—

but the record shows no ad asking Connecticut voters to contact their other representatives, even 

though they would vote in any lame duck session and were covered by the same broadcast 

markets. FCC, Coverage Map WTIC-TV (attached as Exhibit 3) (showing coverage of WTICTV, station on which AAN ran its ads); Mark Pazniokas, Fox Affiliate bans ad attacking 

Murphy, CT MIRROR (Oct. 26, 2010), http://bit.ly/2jFkfGb (discussing AAN’s ad against Rep. 

Murphy running on WTIC). Notably, the three other incumbent House members, all Democrats, 

were in safe seats, see Official Election Results 59 (showing election results of 61.25%, 59.86%, 

and 65.06%), and the sitting Senator, Chris Dodd, was retiring, see Chris Cillizza, Connecticut 

Sen. Christopher Dodd won’t seek reelection, will retire at end of term, WASH. POST (Jan. 6, 

2010), http://wapo.st/2xbH6iQ.

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election. AAN’s apparent lack of interest in lobbying individuals not up for reelection—a lack 

of interest that would be clear to viewers who would notice the choice of officeholders AAN 

identified—demonstrably proves the purpose behind the ads was electoral. Yet the controlling 

commissioners’ test fails to even consider these facts or treat them as relevant. 

Also given a cursory treatment by the controlling commissioners were the unnecessary 

attacks on the candidates’ records, which are inexplicable if the ads were actually focused on 

legislative issues. AAN’s ads not only (purportedly) asked viewers to lobby their representative 

to push for some vote, but those same ads also informed viewers that the representative, a 

candidate running for reelection, opposed that position, previously took highly criticized actions 

in opposition to that position, and wanted to further harm the voters by acting contrary to that 

position in the future. See, e.g., AR 1771, 1773 (discussing AAN’s ads accusing candidates of 

“spen[ding] nearly eight hundred billion on the wasteful stimulus,” “load[ing] our kids up with 

nearly eight hundred billion in wasteful stimulus spending,” and “spen[ding] the shirt of our 

backs”; and further informing the voters that the candidate “wants to raise taxes,” “wants to pile 

on more spending,” and “wants to strip [his constituents] bare with more spending”). A viewer 

confronted with such a characterization of their elected official would reasonably conclude that 

they were not open to changing their minds, and that the only way to effect the change sought 

was to vote the official out of office “in November.” The controlling commissioners assert such 

personal and vitriolic attacks on a candidate’s qualities are unrelated to elections, but provide no 

justification for that conclusion. Cf. McConnell, 540 U.S. at 170, n.64 (finding ads which 

“promote,” “attack,” “support” or “oppose” a candidate are electoral). 

Nor do the controlling commissioners adequately explain the ads’ constant reference to 

“in November”—the month of the upcoming election. As Commissioners Ravel and Weintraub 

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recognized, even with the terse references to legislative call to actions in AAN’s ads, “[n]ot one 

voter in a thousand would have been aware that Congress might possibly be going into a lameduck session in November after the election. Not one in a million would have thought the use of 

‘November’ in that context would be best understood to refer to a lame-duck congressional 

session instead of Election Day.” AR 1788. Yet the controlling commissioners still concluded 

the ads’ reference to “November”—but never any other month—do not communicate an 

electoral purpose. They do so despite the fact the various identified legislative issues were not 

confined to November. Compare AR 1776 (finding ads related to repeal of Obamacare) with AR 

1774 (citing news article discussing repeal efforts occurring in the summer of 2010). Moreover, 

they do so even though some of the issues did not even arise in November. For example, the 

sole source for their conclusion that the health care repeal efforts were targeted at the November 

lame-duck session is a news article discussing repeal efforts in the summer. AR 1769 (citing 

Paul Jenks, Health Overhaul Celebrations Continue, CQ HealthBeat (Sept. 22, 2010) (attached as 

Exhibit 4) (discussing bills from March)). Indeed, the referenced legislation, H.R. 4903, AR 

1775, was dead by April and was never considered in November. See H.R. 4903, LIBRARY OF 

CONGRESS, http://bit.ly/2yl9xIj. In sum, the controlling commissioners simply do not explain 

why a viewer would ever interpret the ads as an appeal to lobby for a highly unlikely outcome—

Democrats voting to repeal their signature legislative achievement, Obamacare—rather than a 

clear message to do the obvious: to vote against the named candidate. 

Lastly, in looking at the “language of the communication,” AR 1767, the controlling 

commissioners ignored other relevant portions of a television communication: the auditory and 

visual aspects of that ad. AAN’s videos often included grainy images of the referenced 

candidate and ominous music, and messages were conveyed in disapproving tones. See

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http://bit.ly/2wBCTAg. Any viewer would understand those cues indicated that the official in 

question was unworthy of office, yet the controlling commissioners ignored them without 

explanation or justification. 

These facts all demonstrate that the controlling commissioners simply cherry picked 

information, supplied by AAN, that they felt might let them reach their predetermined goal: 

excusing AAN from political committee reporting. Indeed, their analysis was so rushed that it is 

rife with basic errors, casting doubt on the integrity of their inquiry. They again looked to the 

lifetime expenditures of the group. AR 1779. They completely missed one of AAN’s ads, 

despite it being explicitly identified in Plaintiffs’ administrative complaint. AR 1484 (discussing 

Perlmutter “Secret” ad costing $725,000). They also ignored $1.1 million that AAN reported to 

the IRS as political spending above-and-beyond their spending on express advocacy. Compare 

AR 1598 with AR 1779. AAN asserts that the controlling commissioners did not need to 

consider it because the IRS defines political activity differently than does the FEC, and because 

the controlling commissioners belatedly considered $1.8 million in AAN’s electioneering 

communications to be political. AAN Br. 25. Yet AAN does not actually assert that the 

additional $1.1 million it reported to the IRS as political spending is part of that $1.8 million. 

The controlling commissioners have no idea if that $1.1 million is relevant to AAN’s electoral 

spending because they never bothered to ask. Their “entir[e] fail[ure] to consider an important 

aspect of the problem” renders their conclusion arbitrary and capricious. Motor Vehicle Mfrs. 

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 

IV.

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A.

 

 

 

 

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B.

 

 

 

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CONCLUSION 

For the reasons stated above, Plaintiffs respectfully request this Court deny the FEC’s and 

AAN’s motions for summary judgment, once again find the FEC’s dismissal of Plaintiffs’ 

complaint against AAN was contrary to law, and to find that the FEC’s failure to act on 

Plaintiffs’ complaint against AJS was contrary to law. 

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Dated: September 26, 2017. 

/s/ Stuart McPhail 

Stuart McPhail 

smcphail@citizensforethics.org 

(D.C. Bar No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org 

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

455 Massachusetts Ave., N.W. 

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

COUNSEL FOR CITIZENS FOR RESPONSIBILITY 

AND ETHICS IN WASHINGTON AND 

MELANIE SLOAN 

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