1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant,

CROSSROADS GRASSROOTS POLICY 

STRATEGIES,

Intervenor-Defendant.

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

SUPPLEMENTAL ARGUMENT OF CROSSROADS GPS

Crossroads Grassroots Policy Strategies (“Crossroads GPS”) respectfully submits this 

supplement to its August 2, 2016 oral argument opposing Public Citizen’s motion for summary 

judgment and supporting its cross-motion for summary judgment and that of the Federal Election 

Commission (“FEC” or “Commission”). At the outset, it is useful to review what is undisputed. 

 Because Crossroads GPS is not controlled by a candidate, it is not a political committee 

unless it has the major purpose of electing or defeating candidates. Buckley v. Valeo, 424 

U.S. 1, 79 (1976); FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 252 n.6 (1986) 

(“MCFL”); Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 556 (4th Cir. 2012). 

 Such a major purpose must be so dominant that the group’s activities “can be assumed to fall 

within the core area sought to be addressed by Congress” and “are, by definition, campaign 

related.” Buckley, 424 U.S. at 79. The major-purpose test limits political committee status to 

“groups with the clearest electoral focus.” AR 419.

 Crossroads GPS’s foundational documents establish a social welfare organization operating

under § 501(c)(4) of the Internal Revenue Code. AR401-02, 410-11. Last year, after a 

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comprehensive evaluation, the Internal Revenue Service (“IRS”) recognized Crossroads 

GPS’s status as a social welfare organization, a status not available to groups with the 

primary purpose of electoral activity. 26 C.F.R. § 1.501(c)(4)–1(a). 

 Crossroads GPS’s explicit formal objective since its founding has been to research, educate, 

and explain issues of public policy, including its “7 in ’11 National Action Plan” that 

identified seven policy goals for legislative action in 2011. AR401-04.

 The FEC’s Office of General Counsel (“OGC”) and Public Citizen asserted that several

media reports indicated that Crossroads GPS had the major purpose of electing candidates. 

The controlling FEC Commissioners considered those materials and found they were not 

persuasive, “especially in light of Crossroads GPS’s explanations.” AR409-12.

 A group’s electoral spending may be “so extensive” that it overcomes a group’s contrary

statements and proves the group’s singular and dominating major purpose is to elect or defeat 

candidates. MCFL, 479 U.S. at 262. In a key rulemaking on determining political committee 

status that took place a decade ago, the FEC concluded that a group’s spending under the 

major-purpose test must be assessed on a case-by-case basis conducted in light of the 

purposes of the Federal Election Campaign Act of 1971, as amended (“FECA”). See 2007 

Supplemental Explanation & Justification, 72 Fed. Reg. 5,595 (Feb. 7, 2007) (“E&J”). The 

controlling Commissioners expressly acknowledged the Commission’s case-by-case standard

in reaching their determination. AR405.

 Crossroads GPS was organized and began spending for advertisements in June 2010. The 

record showed it continued spending on advertisements after the November 2010 election, 

past the end of its first fiscal year in May 2011 and through the end of 2011. AR402-03. 

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During the administrative proceedings, Public Citizen did not submit any spending evidence 

or arguments applicable to Crossroads GPS’s advertising expenditures after December 2010.

 OGC withdrew its First General Counsel’s Report (June 22, 2011) and submitted a second 

First General Counsel’s Report (November 21, 2012). In its second report, OGC argued for 

the first time that an entity’s spending under the major-purpose test must be assessed on a 

calendar-year basis only, specifically Crossroads GPS’s start-up months between June and 

December 2010. 

 The controlling Commissioners rejected OGC’s calendar-year argument. AR419-22. They 

gave several reasons:

o A myopic focus on a single year was not compelled by the statute, was unreasonable,

and was likely to exclude important evidence of a group’s purpose. AR419-20.

o The Commission had routinely considered a group’s spending (or lack of spending) 

beyond a given calendar year. AR421-22 & n.89.

o The Commission had given no public notice of a calendar-year standard, and 

retroactive application of a new standard would raise issues of due process. AR422. 

 OGC argued that a broad range of Crossroads GPS’s advertisements showed a purpose to 

elect candidates, including issue advocacy communications that could be deemed to promote, 

attack, support, oppose, or criticize a candidate. In assessing that argument and deciding 

what types of advertisements indicate an electoral purpose, the controlling Commissioners 

discussed the types of advocacy FECA subjects to regulation, AR417, FECA’s legislative 

history, AR413, and judicial guidance, AR413-16. 

 The controlling Commissioners readily concluded that advertisements expressly advocating 

the election or defeat of a clearly identified candidate indicate an electoral purpose. AR413.

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No party disputes that conclusion here. But the controlling Commissioners also explained 

why they rejected a broader standard that included non-express advocacy advertising, based 

on considerations like the benefit of clarity to regulated parties and relevant judicial 

precedent. AR413-19.

 Moreover, the controlling Commissioners did not rest their decision on the express-advocacy 

standard. They assumed “arguendo” that spending for the “functional equivalent of express 

advocacy”—i.e., candidate advocacy via clear implications rather than express language—

also might indicate electoral purpose. AR414. The controlling Commissioners concluded 

that even applying this broader standard would not alter their finding that Crossroads GPS 

did not have the requisite major purpose for any time frame, AR414-15, including during 

Crossroads GPS’s start-up months in calendar-year 2010, AR423-24.

 The controlling Commissioners rejected OGC’s broad spending standard. They explained 

that such an expansive view was not required by the statute, was contrary to considerable 

judicial guidance, posed issues of vagueness, and regulated speech that otherwise was 

entirely outside the Commission’s authority. AR413-19. But they did not rest their decision 

on this conclusion.

 Instead, the controlling Commissioners concluded that even adopting OGC’s broad standard

as to the types of communications to consider would not show that Crossroads GPS’s major 

purpose was electoral. To the contrary, under either a fiscal-year timeframe or when 

considering all evidence of spending in the administrative record, Crossroads GPS’s 

spending still would not show the major purpose of electing candidates. AR423-24. The 

controlling Commissioners said that the only way OGC’s broad spending standard could alter 

the outcome was if the analysis also was limited to Crossroads GPS’s spending during its 

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start-up months in 2010 alone. AR424. Public Citizen never disputes—in its oral argument 

or briefs—that, to prevail here, this Court must hold that the controlling Commissioners erred 

as to both the relevant timeframe and the relevant spending.

 Public Citizen does not dispute that (i) the FEC has a policy of dismissing stale complaints 

and (ii) in the past twenty years, the FEC has not authorized an enforcement proceeding 

where the underlying conduct occurred more than five years previously. 

ARGUMENT

I. Public Citizen Seriously Distorts The Controlling Commissioners’ Reasoning

Public Citizen’s key arguments at the August 2 oral argument were (Tr. 5:11-15) that the 

Commission’s dismissal of the administrative complaint was contrary to law because the 

controlling FEC Commissioners (i) “looked solely to . . . the organization’s official statements of 

its purpose”; (ii) “limited themselves to looking at express advocacy only” based on a mistaken

notion that they were “compelled” by the case law to so limit themselves; and (iii) considered

communications made in 2011, a non-election year, without also considering communications

made during 2012, an election year. These contentions fail at multiple levels. 

i. It is simply not true that the controlling FEC Commissioners “looked solely” to 

Crossroads GPS’s official statements of its purpose. To the contrary, the Commissioners 

undertook to evaluate all of Crossroads GPS’s statements of purpose “in a fact-intensive inquiry, 

giving due weight to the form and nature of the statements, as well as the speaker’s position.” 

AR410. Noting that courts gave greatest weight to relatively formal statements of purpose, the 

controlling Commissioners began their inquiry with those. They found that “Crossroads GPS’s 

organizational documents, mission statement, IRS tax status, and its primary political activities 

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since its inception have been focused on advancing public policy objectives,” not electing 

candidates. AR410. But the Commissioners did not stop there. 

Far from refusing to look at the media reports and other items offered by OGC and Public 

Citizen, the controlling Commissioners gave them careful attention. AR410-12. They pointed 

out serious weaknesses in the materials. They also found that Crossroads GPS “adequately 

explained” those materials, showing that “many of the articles conflate it with” a different group. 

AR411. They ultimately concluded that those articles “do not undermine” Crossroads GPS’s 

official statements, “especially in light of Crossroads GPS’s explanations.” AR412. In sum, 

Public Citizen is simply wrong in its claim that the Commissioners “looked solely” at Crossroads 

GPS’s formal statements. And, not only does Public Citizen fail to refute the detailed 

explanations that Crossroads GPS placed in the record, AR228-237, it also completely ignores

the extremely deferential standard of review that applies to an agency’s weighing of record 

evidence. See, e.g., Dickinson v. Zurko, 527 U.S. 150, 162 (1999).

ii. Nor is it true that the controlling FEC Commissioners only considered spending for 

express advocacy. To be sure, the Commissioners thought they “should not consider more than 

[spending for] express advocacy,” based on judicial precedent, legislative history, the need for 

precise guidance for regulated parties, and the core concerns of FECA. AR416. But they did not 

rest on that conclusion. They also “assume[d] arguendo” they also could consider spending for 

“the functional equivalent of express advocacy”—that is, electoral advocacy based on clear 

implication rather than explicit “magic words.” AR413-14.

1

 They found that including such 

 

1 This is not a trivial expansion. Buckley defined “express advocacy” to require “magic words” of explicit 

candidate advocacy. Buckley, 424 U.S. at 44. Because it was possible for the sponsors of political advertising to 

imply a clear electoral message without using the magic words, the express advocacy standard alone historically had 

limited bite. McConnell v. FEC, 540 U.S. 93, 193-94 (2003). But extending regulation to speech that, via clear 

implication, functions as if it were express advocacy—as the controlling FEC Commissioners did here—eliminates

circumvention and encompasses the clear candidate advocacy that is the core concern of FECA. Id. at 206.

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spending still would not show that Crossroads GPS had the major purpose of electing candidates 

during any time frame covered by the administrative record. AR423-24. 

The controlling FEC Commissioners flatly rejected OGC’s broadest position: counting 

speech that merely praised or criticized a candidate. AR415-19. The Commissioners maintained 

that such an expansive approach would unduly expand the reach of the definition of “political 

committee” that the major-purpose construction was adopted to narrow, AR415, and would 

regulate speech that is not “within the core area sought to be addressed by Congress.” AR418; 

see also AR419 (“The major purpose limitation is intended [to restrict regulation] to groups with 

the clearest electoral focus.”). Additionally, the controlling Commissioners noted that such an 

expansive view “would count spending wholly outside of the Commission’s regulatory 

jurisdiction for the explicit purpose of asserting . . . regulatory jurisdiction over the 

organization.” AR415. For example, a 2011 advertisement criticizing “Obamacare” could 

subject a group to political-committee regulation even though the advertisement would contain 

neither express advocacy nor qualify as an electioneering communication (because it had no 

proximity to an election). 

Contrary to Public Citizen’s assertions at oral argument, Tr. 14:18-21, the controlling 

Commissioners did not adopt an express-advocacy standard based on a mistaken notion that 

judicial precedent compelled them to do so. Rather, the controlling Commissioners thoughtfully 

explained the numerous reasons why an express-advocacy standard was preferable to a broader 

standard. See AR412-19. That other federal courts reached the same conclusion as the 

controlling Commissioners is additional support for the rationality of their approach and 

demonstrates why this approach could not have been contrary to law.

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But the controlling FEC Commissioners also pointed out that the express-advocacy 

standard had limited effect in this case. So long as Crossroads GPS’s spending was analyzed 

based on its first fiscal year or based on all of the evidence in the administrative record, not even 

the broadest standard would affect their conclusion that Crossroads GPS did not have the major 

purpose of federal election activity. Only if the Commission were compelled to apply the 

broadest speech standard to the narrowest timeframe would the outcome be different. AR424.

iii. Public Citizen also asserted at oral argument that, if the Commission considered

Crossroads GPS’s spending after 2010, it should not have limited itself to spending in 2011; the 

Commission should also have considered spending during the 2012 election year. Public Citizen 

did not attempt to explain why it is a sensible approach to consider one election cycle plus the 

busiest portion of the previous election cycle. Nor did Public Citizen explain why the 

Commission was required to address 2012 spending when Public Citizen did not exercise its 

option to supplement the administrative record with evidence from 2012. Ultimately, the record 

makes clear that the controlling Commissioners conducted a major-purpose analysis using a 

variety of timeframes, including an analysis that took into account all evidence in the record. 

Because the Commission’s dismissal of the administrative action simply does not rest on 

the legal grounds asserted by Public Citizen, Public Citizen’s attacks on the controlling 

Commissioners’ legal positions miss the point.2 Nor, as we now show, are the controlling 

Commissioners’ actual positions vulnerable to the arguments Public Citizen deploys.

 

2

 Public Citizen also asserted late in the briefing process that the Commission should have investigated Crossroads 

GPS because it made grants to organizations that engaged in electoral activities. Public Citizen did not press this 

point at oral argument, but, in any event, Public Citizen has offered no factual basis for the assertion that funds 

received by other entities from Crossroads GPS were used for electoral activities nor any evidence that Crossroads 

GPS made the grants with the purpose of supporting other organizations’ electoral activities. Indeed, the evidence 

demonstrates that the opposite was true: Crossroads GPS made explicit agreements with recipients that grant funds 

would be used only for social welfare, not electoral, purposes. See Crossroads GPS Reply Br. at 19 (Dkt. #66).

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II. The Controlling Commissioners’ Reasons Command Deference.

The Supreme Court long ago cautioned that “where the question is one of specific 

application of a broad statutory term in a proceeding in which the agency administering the 

statute must determine it initially, the reviewing court’s function is limited.” NLRB v. Hearst 

Pubs., Inc., 322 U.S. 111, 131 (1944). Such a determination stands if it “has warrant in the 

record and a reasonable basis in law.” Id. (quotation marks omitted). This is the foundation of 

the familiar Chevron framework. Courts are required to defer to agencies’ reasonable 

interpretations of ambiguous statutory terms because courts recognize that this exercise often 

involves a mix of law and policy, and the agency is typically best situated to construe statutory 

provisions with significant policy implications in its area of expertise. See, e.g., Martin v. 

OSHRC, 499 U.S. 144, 153 (1991) (“Because historical familiarity and policymaking expertise 

account in the first instance for the presumption that Congress delegates interpretive lawmaking 

power to the agency rather than to the reviewing court, we presume here that Congress intended 

to invest interpretive power in the administrative actor in the best position to develop these 

attributes.” (citations omitted)). 

Seeking to avoid the Scylla of the arbitrary and capricious standard on the one hand, and 

the Charybdis of Chevron deference on the other, Public Citizen tries to tease out several legal 

rulings from the FEC’s dismissal of the administrative complaint and then argue that, based on 

several theories, Chevron deference does not protect those rulings. The effort is unavailing.

A. The Controlling Commissioners Speak For The Commission.

Public Citizen’s first theory is that, although Congress expressly and carefully gave 

controlling effect to the negative votes where less than a majority of FEC Commissioners vote to 

pursue an enforcement action, and this Circuit expressly requires those casting negative votes to 

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explain their votes to provide a basis for judicial review, the controlling Commissioners do not 

speak for the Commission. The theory is not intuitive, and Public Citizen’s counsel commented 

that he had difficulty maintaining that pretense. Tr. 16:3-6. In any event, Public Citizen’s theory 

is flatly rejected by In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000). There, in precisely 

analogous circumstances, the court repeatedly and explicitly treated the decision and explanation 

of the three Commissioners voting not to proceed in an enforcement action as the views of the 

FEC:

In light of the Commission’s statutory interpretation, both theories 

flunk; the collapsing of entities is unjustified, and the substantive 

element of the first theory (treating a loan repayment as a 

“contribution”) is false.

Because the Commission has in effect spoken to both theories, we 

start by considering whether we should defer to Commission 

interpretations in the context presented here—where the 

Department of Justice in a criminal case relies on an interpretation 

of the relevant statutes that has been rejected by the Commission in 

a 3–3 decision that, under the statutory voting mechanism, 2 

U.S.C. § 437g(a)(4)(A)(i) (requiring affirmative vote of four 

commissioners), controls Commission enforcement.

Id. at 779 (emphases added).

In short, the actions and rulings of the three controlling FEC Commissioners here are

those of the Commission. Public Citizen’s burden is to show that the FEC could not lawfully act 

as the three controlling Commissioners acted here.

B. Those Views Merit Chevron Deference

Sealed Case explicitly held that the reasons the three controlling FEC Commissioners 

gave for not proceeding with an enforcement action were entitled to Chevron deference. Id. at 

780. Public Citizen mistakenly asserts that this holding was implicitly overruled by United 

States v. Mead Corp., 533 U.S. 218 (2001) and Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of 

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Homeland Security, 769 F.3d 1127 (D.C. Cir. 2014), but Public Citizen seriously misreads those 

cases. And, even if Public Citizen’s readings were arguable—they are not—that would not be an 

adequate basis for this Court to refuse to follow squarely applicable circuit precedent. See

Brooks v. Grundmann, 748 F.3d 1273, 1279 (D.C. Cir. 2014) (“The doctrine of stare decisis

compels district courts to adhere to a decision of the Court of Appeals of their Circuit until such 

time as the Court of Appeals or the Supreme Court of the United States sees fit to overrule the 

decision.”).

Public Citizen claims that Mead and Fogo de Chao hold that Chevron deference does not

apply unless an agency’s decision binds third parties not involved in the proceeding. See Tr. 7-8. 

Not so. Those cases both state the general rule that Chevron primarily protects agency decisions 

that flow from a formal notice-and-comment or adjudicative process authorized by Congress. 

Mead, 533 U.S. at 229-30; Fogo de Chao, 769 F.3d at 1136-37. They further state that

sometimes Chevron does not require such a formal process if other special considerations justify 

deference, such as when an informal but reliable process produces a rule of law that binds third 

parties. Mead, 533 U.S. at 230-31; Fogo de Chao, 769 F.3d at 1137. However, Chevron does 

not apply where there is neither a formal process nor a general rule of law. Id.

Sealed Case follows this same analysis. It holds that the FEC’s formal statutory process 

for evaluating and dismissing complaints is adjudicative in nature, thus constituting the type of 

formal decision-making procedure to which Chevron deference typically applies. 223 F.3d at 

780. It further holds that, in the context of such formal decision-making, the protection a 

negative Commission vote provides a respondent against further enforcement is a sufficient legal 

effect to invoke Chevron. Id. That analysis fits very comfortably with Mead and Fogo de Chao.

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Certainly, neither of these cases overruled Sealed Case’s analysis. Sealed Case is controlling 

here.

C. Major Purpose Is A Statutory Concept

Public Citizen’s last-gasp argument is that Chevron does not apply because the doctrine 

only protects an agency’s construction of its statute, and the major-purpose test is a non-statutory 

creation of the Supreme Court. This contention is groundless. When the Supreme Court applies 

the canon of constitutional avoidance, it does not legislate. Instead, the Court interprets a statute 

in a way that avoids serious constitutional questions, in light of the presumption that Congress 

did not intend an alternative construction that raises serious constitutional questions. This

exercise is “a means of giving effect to congressional intent,” Clark v. Martinez, 543 U.S. 371, 

382 (2005) and requires taking into account the statute’s language, structure, purpose, and 

history.3 

The Supreme Court made explicit the statutory basis for its ruling in the very paragraph 

of Buckley that formulated the major-purpose construction. In that paragraph, the Court avoided 

First Amendment concerns by narrowly construing two statutory terms, “political committee”

and “expenditure.” Buckley, 424 U.S. at 78-79. It construed the term “expenditure” to require 

explicit words of express candidate advocacy. Id. at 79-80. When Congress later sought to 

regulate a different and broader category of speech, the Court approved. McConnell v. FEC, 540 

U.S. 93, 193–94 (2003). It explained that the express-advocacy standard was not something it 

 

3

 The D.C. Circuit affords deference to agencies’ interpretations of Supreme Court precedent bearing on statutory 

provisions over which the agencies have regulatory jurisdiction. In Public Utilities Commission of California v. 

FERC, 900 F.2d 269 (D.C. Cir. 1990), for example, the D.C. Circuit explained that deference is owed to FERC’s 

conclusion that the pipelines at issue were “high-pressure” within the meaning articulated by the Supreme Court in 

Federal Power Commission v. East Ohio Gas Co., 338 U.S. 464 (1950). 900 F.2d at 275-76 & n.5. The court also 

described this decision as “a mixed question of fact and law.” Id. at 275 n.5.

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had invented but, instead, represented an “endpoint of statutory interpretation” that Congress 

could alter like any other statute. Id. at 190.

Likewise, the major-purpose standard results from a statutory construction of FECA’s 

definition of “political committee.” Of course, the Commission must construe the statute to 

embody the major-purpose standard.

4

 But, to the extent the statute remains ambiguous, it 

remains the FEC’s primary duty to give it content. Indeed, at one point the courts held the FEC 

was legally bound to flesh out the major-purpose concept. Shays v. FEC, 424 F. Supp. 2d 100 

(D.D.C. 2006). And the courts ultimately approved the Commission’s decision not to provide a 

clarifying rule only because the FEC said it would flesh out the concept in case-by-case 

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

Application of the major-purpose test clearly depends upon the FEC’s familiarity with 

FECA and the campaign finance universe it regulates. Indeed, the Supreme Court made clear 

that the necessary major purpose is one that implicates the “core area [of electoral advocacy] 

sought to be addressed by Congress.” Buckley, 424 U.S. at 79. This exercise is well within the 

Commission’s area of expertise and its authority to administer FECA. In exercising this 

authority, the FEC’s legal rulings command full Chevron deference, and its factual findings 

prevail so long as they are not arbitrary and capricious in light of the record.

 

4

 Public Citizen asserts that, in Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996), vacated by FEC v. Akins, 524 U.S. 11 

(1998), the D.C. Circuit “declined to give Chevron deference to the Commission’s view of the contours of the 

major-purpose test.” Tr. 10:20-21. But the court in Akins made clear that its decision reached only the question of 

“whether the Court established a major purpose test,” and not “how such a test is to be implemented.” See Akins, 

101 F.3d at 740-41 (emphases in original). This case, by contrast, involves how the major-purpose test is to be 

implemented. This question directly implicates the FEC’s authority to “formulate general policy with respect to the 

administration of” the FECA, authority for which deference is “presumptively . . . afforded.” FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981). Indeed, the D.D.C. ratified the FEC’s decision to use caseby-case adjudication to apply the major-purpose test precisely because the inquiry is so “complex” and 

“multifaceted.” Shays v. FEC, 511 F. Supp. 2d 19, 30–31 (D.D.C. 2007). Unlike the question of whether the majorpurpose test applies in the first place, which was disputed in Akins, the question of how to apply the major-purpose 

test to a particular entity is a second-level question with significant, policy-based dimensions that demand the 

agency bring its expertise to bear. Chevron deference is warranted for such a question.

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CONCLUSION

Because the controlling FEC Commissioners’ reasoning is not contrary to law under any 

standard of review, this Court should uphold the Commission’s dismissal of Public Citizen’s 

complaint.

 Respectfully submitted,

Thomas J. Josefiak

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

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY 

PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel.: 540.341.8808

Fax: 540.341.8809

September 6, 2016

/s/ Thomas W. Kirby

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

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

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

WILEY REIN LLP

1776 K Street NW

Washington, DC 20006

Tel.: 202.719.7000

Fax: 202.719.7049

Counsel for Crossroads Grassroots Policy 

Strategies

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