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’ REPLY IN SUPPORT OF 

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT 

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i 

TABLE OF CONTENTS 

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

ARGUMENT ................................................................................................................................. 3

I. If Buckley Does Not Forbid Recognizing AAN is a Political Committee, the FECA 

Commands the FEC To Do So. ........................................................................................ 3

A. The Issue in Dispute is the Controlling Commissioners’ Interpretation of 

Buckley, Not the FECA. ................................................................................................ 5

B. The Challenged Interpretation is that Buckley Excuses AAN from Disclosure 

Because AAN Made Electioneering Communications. ................................................ 8

II. The Controlling Commissioners Interpreted Buckley To Compel the FEC to 

Excuse AAN from Political Committee Reporting. That is Contrary to Law. ........ 10

A. Buckley Does Not Forbid Treating Groups as Political Committees Solely 

Because They Run Electioneering Communications. ................................................. 11

1. All Electioneering Communications Substantially Relate to Elections, 

Thus Subjecting Groups that Air Them to Disclosure Fulfills the Purposes 

of the FECA..................................................................................................... 13

2. The Controlling Commissioners’ Interpretation of Buckley is Contrary to 

McConnell....................................................................................................... 14

B. The Controlling Commissioners Again Relied on WRTL II’s Issue Advocacy/Express 

Advocacy Framework, But WRTL II is “Inapposite” to Interpreting Buckley. .......... 20

1. Despite This Court’s Admonition, the Controlling Commissioners Again 

Rely on the WRTL II Framework. .................................................................. 22

2. Courts Have Rejected the “Issue Advocacy” Line as Unworkable and 

Inapposite to the Campaign Finance Disclosure Regimes. ............................ 25

3. Neither This Court, Nor Buckley, Compel the Controlling Commissioners 

 to Draw a Line at Electioneering Communications that Discuss “Issues.” .. 30

C. The Court’s Review of the Controlling Commissioners’ Interpretation of Buckley 

is De Novo. .................................................................................................................. 32

III.The Controlling Commissioners’ Buckley Analysis is Also Arbitrary and 

Capricious. ....................................................................................................................... 35

IV.The Court May Consider Submitted Materials. .......................................................... 40

CONCLUSION ........................................................................................................................... 41

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TABLE OF AUTHORITIES 

Cases

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc) ............................................................... 33 

Barnhart v. Walton, 535 U.S. 212 (2002) ....................................................................................... 6 

Beach Commc’n, Inc. v. FCC, 959 F.2d 975 (D.C. Cir. 1992) ..................................................... 41 

Blair v. Cal. State Dep’t of Transp., 867 F. Supp. 2d 1058 (N.D. Cal. 2012) .............................. 40 

Brown v. Entm’t Merch. Ass’n, 564 U.S. 786 (2011) ................................................................... 36 

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

Chevron USA Inc. v. NRDC, Inc., 467 U.S. 837 (1984) ............................................................... 33 

*Citizens United v. FEC, 558 U.S. 310 (2010) ...................................................................... passim 

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

Defenders of Wildlife and Cntr. for Biological Diversity v. Jewell, 815 F.3d 1 

(D.C. Cir. 2016) ........................................................................................................................ 37 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ............................................................... 25 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ................................................................. 25 

FEC v. National Rifle Association of America, 254 F.3d 173 (D.C. Cir. 2001) ........................... 34 

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

769 F.3d 1127 (D.C. Cir. 2014) ................................................................................................ 35 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) .................................................................... 24 

Human Life of Washington v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) .................................... 29 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ........................................................................ 34 

Indep. Inst. v. FEC, 137 S. Ct. 1204 (2017) (Mem.) .................................................................... 26 

Indep. Inst. v. FEC, 216 F. Supp. 3d 176 (D.D.C. 2016) .............................................. 2, 26, 28, 41 

Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 305 F.R.D. 256 (D.N.M. 2015) ....... 41 

Lamont v. Postmaster General, 381 U.S. 301 (1965) ..................................................................... 7 

Case 1:16-cv-02255-CRC Document 45 Filed 01/09/18 Page 3 of 48
 

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McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ............................................ 13, 15, 18, 19 

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

Mem. Op. & Order, CREW v. FEC, 14-cv-1419 (D.D.C. Apr. 6, 2017) ...................................... 21 

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

463 U.S. 29 (1983) .............................................................................................................. 38, 40 

N. Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ........................................ 25 

N.M. Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) .............................................. 24 

N.Y. N.Y., LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002)................................................................ 5 

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 633 (2007) ................. 36, 37, 38 

Nat’l Assoc. of Gun Rights, Inc. v. Motl, CV 16-23-H-DLC, 2017 WL 3908078 

(D. Mont. Sept. 6, 2017) ........................................................................................................... 29 

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) .................................................. 29 

Nat’l Treasury Emp. Union v. Hove, 840 F. Supp. 165 (D.D.C. 1994) ........................................ 40 

Oceana, Inc. v. Locke, 674 F. Supp. 2d 39 (D.D.C. 2009) ........................................................... 40 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ...................................................................... 3, 4, 9 

Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194 (1947) .................................................... 38 

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

Sierra Club v. Salazar, 177 F. Supp. 3d 512 (D.D.C. 2016) ........................................................ 39 

SpeechNow v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ..................................................................... 29 

Taylor v. FDIC, 132 F.3d 753 (D.C. Cir. 1997) ........................................................................... 21 

The Real Truth About Abortion v. FEC, 681 F.3d 544 (4th Cir. 2012) ........................................ 24 

Thomas v. Collins, 323 U.S. 516 (1945) ....................................................................................... 16 

United States v. Mead Corp, 533 U.S. 218 (2001) ................................................................. 34, 35 

Wisconsin Right to Life, Inc. v. Barland, 751 F. 3d 804 (7th Cir. 2014) ...................................... 24 

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

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Statutes

52 U.S.C. § 30101(4) ...................................................................................................................... 5 

52 U.S.C. § 30101(20) .................................................................................................................. 37 

52 U.S.C. § 30104(a) ...................................................................................................................... 5 

52 U.S.C. § 30104(b) ................................................................................................................ 5, 10 

52 U.S.C. § 30104(c) .................................................................................................................... 12 

52 U.S.C. § 30104(f) ......................................................................................................... 10, 11, 12 

52 U.S.C. § 30106(c) .................................................................................................................... 35 

52 U.S.C. § 30108(c) .................................................................................................................... 34 

52 U.S.C. § 30116(a) .................................................................................................................... 12 

52 U.S.C. § 30120(a) .................................................................................................................... 12 

52 U.S.C. § 30121 ......................................................................................................................... 12 

Other Authorities

147 Cong. Rec. S2455 (daily ed. Mar. 19, 2001) (Sen. Snowe) ......................................... 9, 11, 13 

Rules

FED. R. EVID. 201 (cmmt) .......................................................................................................... 41 

Regulations

11 C.F.R. § 100.22 ............................................................................................................ 11, 23, 24 

11 C.F.R. § 104.20(c)(9) ............................................................................................................... 10 

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1 

INTRODUCTION 

The controlling commissioners on remand once again dismissed Plaintiffs Citizens for 

Responsibility and Ethics in Washington and Melanie Sloan’s (“Plaintiffs”) complaint against 

the American Action Network (“AAN”). As Plaintiffs detailed in their opening brief, the 

controlling commissioners reached this conclusion by interpreting Buckley v. Valeo, 424 U.S. 1, 

79 (1976), to preclude the Federal Election Commission (“FEC”) from finding a violation of the 

Federal Election Campaign Act (“FECA”) even though all parties agree that AAN violated the 

express terms of the statute by making more than $1,000 in qualifying political expenditures in a 

year, but not registering and reporting as a political committee. In their response to Plaintiffs’ 

brief, the FEC and AAN attempt to evade the fact that the sole rationale for the controlling 

commissioners’ conclusion is an interpretation of Buckley. Rather, they devote much ink to 

extolling the controlling commissioners’ factual analysis, which—this time—contained some 

discussion of AAN’s ads, in an attempt to distract from the relevant issue here: whether the 

controlling commissioners misinterpreted Buckley once again. 

The issue on review here is the controlling commissioners’ interpretation of Buckley, 

because absent Buckley, the plain language of the FECA requires that AAN register and report as 

a political committee. Thus, the only legal basis for excusing AAN from registering and 

reporting is if, under Buckley, AAN lacks as its “major purpose the nomination or election of a 

candidate.” AR 1779. If Buckley does not require AAN to be excused, then the FECA requires 

AAN to report. Here, the controlling commissioners interpreted Buckley as requiring AAN to be 

excused because the group spent money on electioneering communications, which those 

commissioners ruled are so non-political that they count in favor of finding that AAN is not a 

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political committee. In other words, under their interpretation of Buckley, the FEC was 

forbidden from applying the plain language of the FECA to recognize AAN is a political 

committee solely because AAN ran ads that, according to the Supreme Court, by their very 

nature are “specifically intended to affect [an] election.” McConnell v. FEC, 540 U.S. 93, 127 

(2003). Nothing in the FEC’s or AAN’s briefs can hide the fact that that is not only an 

impermissible interpretation of Buckley, it is a patently absurd interpretation of the Supreme 

Court’s decision that, as before, “blinks reality.” CREW v. FEC, 209 F. Supp. 3d 77, 93 (D.D.C. 

2016) (Cooper, J.). 

Under any level of review, but especially under the de novo review warranted here, the 

controlling commissioners’ interpretation of Buckley is impermissible. Providing voters 

information “about the sources of election-related spending,” Citizens United v. FEC, 558 U.S. 

310, 367 (2010) (quoting McConnell, 424 U.S. at 66), is vital to the “free functioning of our 

national institutions,” Buckley, 424 U.S. at 67. All electioneering communications are electionrelated spending. McConnell, 540 U.S. at 127, 196. Thus, no reasonable interpretation of 

Buckley excuses a group from reporting because the group in question expended millions of 

dollars on ads that are so substantially related to elections that Congress has subjected them all to 

campaign disclosure laws with the Supreme Court’s approval. Nor does a reasonable 

interpretation of Buckley result in an “unworkable” test that carves out so-called “issue 

advocacy” electioneering communications from others, Indep. Inst. v. FEC, 216 F. Supp. 3d 176, 

188 (D.D.C. 2016), based on an arbitrary and capricious cherry picking of facts to the exclusion 

of the overwhelming evidence of electoral purpose. Nor does it require the FEC to adopt that 

test in the service of an “inapposite” framework from a case that has no relevance to the scope of 

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federal campaign finance disclosure laws. CREW, 209 F. Supp. 3d at 90 (discussing Wisconsin 

Right to Life, Inc. v. FEC (WRTL II), 551 U.S. 449 (2007)). In short, Buckley did not forbid the 

FEC from applying the plain language of the FECA to an organization that meets the statutory 

$1,000 expenditure threshold simply because the group engages in even more federal 

electioneering. Because Buckley does not command AAN to be excused from reporting, the 

plain language of the FECA governs, which indisputably requires AAN to register as a political 

committee and report its contributors. 

The controlling commissioners’ continued refusal to find reason to believe that AAN 

violated the FECA based on their “impermissible interpretation” of Buckley is contrary to law. 

Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). Accordingly, the dismissal which 

“result[s]” from it is contrary to law. Id. Plaintiffs therefore respectfully request the Court to 

once again vacate their dismissal, correct their erroneous interpretations of law, and remand for 

consideration in light of the correct interpretation of Buckley.

1

ARGUMENT 

I. If Buckley Does Not Forbid Recognizing AAN is a Political Committee, the FECA 

Commands the FEC To Do So. 

As they did before, the controlling commissioners on remand found no reason to believe 

AAN violated the FECA because they interpreted the major purpose test from Buckley, 424 U.S. 

at 79, to prohibit recognizing the group is a political committee. As CREW’s opening brief 

established, that interpretation was, and still is, contrary to law. Nonetheless, the FEC and AAN 

 1 On January 5, 2018, the parties submitted a stipulation dismissing without prejudice Plaintiffs’ 

claims with respect to Americans for Job Security. See Joint Stip. of Partial Dismissal, ECF No. 

44. Accordingly, this brief does not address those claims. 

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argue that Plaintiffs have failed to show it was contrary to law for the controlling commissioners 

to excuse AAN from registering and reporting as a political committee. The FEC asserts that 

“[n]o law—not this Court’s remand decision or any other decision—compels the FEC to view an 

organization’s spending on non-express advocacy electioneering communications as 

categorically indicative of a major purpose of nominating or electing candidates.” FEC Mot. 35, 

ECF No. 28; see also FEC Reply 19, ECF No. 40 (arguing Plaintiffs do “not identify any law 

which the controlling [c]ommissioners contravened”); AAN Br. 9–10, ECF No. 38 (“[T]his case 

is not about the outer bounds of what the Commission could have done.”). Thus, they argue, 

because no law orders the controlling commissioners to subject AAN to disclosure, the 

controlling commissioners were free to simply excuse AAN from following the law and free to 

deprive Plaintiffs and the voting public of vital information. 

Both the FEC and AAN fundamentally misunderstand the inquiry here: because the 

FECA commands the FEC to recognize all groups that meet the FECA’s thresholds are political 

committees, the only basis the FEC could have had to ignore that command is that Buckley

forbade it from doing so. It is the FECA that “the controlling [c]ommissioners contravened.” 

Cf. FEC Reply 19. The only possible basis the controlling commissioners could have to 

contravene the FECA is that Buckley compelled them to. Thus, the inquiry here must start with 

reviewing the controlling commissioners’ interpretation of Buckley. To prevail, Plaintiffs need 

only show that Buckley does not compel the agency to excuse groups from reporting because 

they run “non-express advocacy electioneering communications,” cf. FEC Mot. 35; that is, 

Plaintiffs need only show the dismissal “result[ed]” from an impermissible interpretation of law, 

Orloski, 795 F.2d at 16. The parties do not dispute that AAN qualifies as a political committee 

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under the terms of the statute. Accordingly, unless Buckley compels the FEC to excuse AAN 

from the FECA’s reporting requirements, the dismissal was contrary to law. 

A. The Issue in Dispute is the Controlling Commissioners’ Interpretation of 

Buckley, Not the FECA. 

The FEC and AAN do their best to attempt to recast the decision below as one that 

involves no legal interpretation at all, and instead as one based solely on the FEC’s expertise and 

factual analysis. But their attempts fail. Interpretation of the statutory text, a task on which the 

agency’s expertise would come to bear,2

 was not necessary because all parties agree AAN meets 

the statutory requirements to report under the FECA. Thus, all that remained was to interpret 

Buckley’s command to carve out from the FECA’s regime those groups that engaged in activities 

so unrelated to elections that, while they would meet the statute’s thresholds, subjecting those 

groups to disclosure would not “fulfill the purposes of the act.” 424 U.S. at 79. Accordingly, it 

cannot reasonably be disputed that the controlling commissioners were engaging in legal 

interpretation. 

The FECA requires any organization which “makes expenditures aggregating in excess 

of $1,000 during a calendar year” to report its contributors. 52 U.S.C. §§ 30101(4); 30104(a), 

(b). There is no dispute that AAN spent more than $1,000 on qualifying political expenditures 

(and indeed spent much more) in a calendar year and that, therefore, AAN meets the statutory 

qualifications of a political committee. AR 1645–66, 1765. There is no dispute that, looking 

solely at the statute, the FEC must find AAN has violated the law by failing to register and report 

as a political committee. 52 U.S.C. §§ 30101(4); 30104(b). Nor is there any dispute that, by 

 2 See N.Y. N.Y., LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002); CREW, 209 F. Supp. 3d at 

87. 

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failing to do that, the FEC has deprived Plaintiffs and millions of American voters of information 

to which Congress entitled them—the identities of AAN’s contributors—information that 

Congress recognized was vital to the “free functioning of our national institutions.” Buckley, 424 

U.S. at 67. Finally, there is no dispute that the only basis the FEC could have to ignore the 

unambiguous commands of Congress is that the carve-out created by the Supreme Court in 

Buckley required it to do so. Neither the FEC nor AAN identify any other possible basis for the 

controlling commissioners’ divergence from the FECA’s plain terms, nor could they. Indeed, 

because the FECA “speaks clearly to the precise question at issue” about what groups are to be 

subject to political committee disclosure, Buckley provides the only grounds on which the 

controlling commissioners may lawfully refuse to “give effect to the unambiguously expressed 

intent of Congress.” Barnhart v. Walton, 535 U.S. 212, 217–218 (2002). The issue in dispute, 

therefore, is whether the controlling commissioners correctly interpreted Buckley’s carve-out. 

Despite the FEC’s and AAN’s attempts to reframe the decision below, the controlling 

commissioners squarely understood the only lawful basis to excuse AAN from reporting was 

because Buckley commanded it: that is why they, in fact, based their dismissal on their 

interpretation of the case. They recognized that, but for Buckley, AAN would qualify as a 

political committee under the plain terms of the FECA. AR 1645–66, 1765; see also AR 1779 

(recognizing that, while AAN qualifies as a political committee under the FECA, they would 

find a violation “only if” Buckley permitted it). Thus, they understood their task was to interpret 

Buckley, not to interpret the FECA, and set about doing so. See AR 1765 n.12 (recognizing 

Buckley is the source of the “major purpose” carve out from the FECA); AR 1767 (recognizing 

question was whether “AAN’s ‘major purpose’ is Federal campaign activity”); id. (creating test 

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to “evaluat[e] major purpose”); AR 1772 (concluding ads “are not indicative of a major purpose 

to nominate or elect federal candidates” and therefore justified excusing AAN from reporting); 

AR 1774 (same); AR 1776 (same); AR 1780 (concluding AAN lacked the requisite major 

purpose required by Buckley, and therefore must be excused from reporting). Whatever factual 

analysis the controlling commissioners conducted was grounded in their understanding of the test 

Buckley provided—only by first understanding the scope of the carve-out Buckley and 

subsequent caselaw created could they understand what facts were relevant or determinative on 

the question of whether any particular activity would excuse a group like AAN from reporting. 

The test against which AAN’s ads are judged is derived solely from their understanding of 

Buckley and subsequent case law. AR 1767–78 (providing only caselaw as source for proposed 

test). That is why their decision, notwithstanding their “ten singled-spaced pages” repeating 

AAN’s ads, FEC Reply 7, ultimately results from an interpretation of Buckley. 

Buckley is the only basis the controlling commissioners cited or could cite as a lawful 

basis for excusing AAN from political committee reporting. Accordingly, the issue on review 

here is the controlling commissioners’ interpretation of Buckley.

3

 

 3

 While the FEC and AAN make feints at arguing that the dismissal was purely discretionary, 

FEC Reply 6 n.1, AAN Reply 9–10, the statement of the controlling commissioners does not cite 

discretion as its basis for dismissal but, rather, cites their legal interpretation of Buckley. 

Moreover, discretion would not be a lawful basis for dismissal. The commissioners may not 

constitutionally pick and choose what groups must report as political committees and what 

information the public has access to based solely on their discretion. See Lamont v. Postmaster 

General, 381 U.S. 301, 306 (1965) (agency’s discretionary power over what information plaintiff 

received was unconstitutional). Thus, the only factors the FEC may constitutionally consider 

when deciding whether to require an organization to report as a political committee are the 

statutes plain terms and the commands of the judiciary. 

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B. The Challenged Interpretation is that Buckley Excuses AAN from Disclosure 

Because AAN Made Electioneering Communications. 

The controlling commissioners’ analysis below necessarily started with an interpretation 

of Buckley, and the review of that analysis here necessarily starts with determining whether the 

controlling commissioners correctly interpreted Buckley. The three controlling commissioners 

refused to apply the plain terms of the FECA to AAN because they believed Buckley forbade 

them from doing so. AR 1779. In particular, they interpreted Buckley to forbid the FEC from 

recognizing an organization is a political committee if the organization makes a sufficient 

amount of electioneering communications that the controlling commissioners deem “issue” 

advocacy. AR 1768. Under their analysis, AAN spent a sufficient sum on these ads, such that 

AAN’s spending on other ads the commissioners deemed political amounted to only 22% of the 

group’s total spending. AR 1779. 

Buckley, however, only forbids applying the FECA’s political committee obligations to 

groups that, while possessing the requisite statutory characteristics, (a) are not under the “control 

of a candidate,” or (b) do not have a “major purpose” of nominating or electing candidates. 

Buckley, 424 U.S. at 79. Buckley found applying the political committee burdens to these 

groups, notwithstanding the clear terms of the statute, would not “fulfill the purposes of the Act” 

and therefore ordered the FEC to excuse them from political committee reporting. Id. The 

controlling commissioners therefore must have found that, because AAN ran certain 

electioneering communications, requiring it to register as a political committee and disclose its 

contributors would not “fulfill the purposes of the Act.” 

The question before the Court then is whether the controlling commissioners were correct 

to interpret Buckley to forbid the FEC from applying the FECA to AAN because of the millions 

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9 

of dollars AAN spent on electioneering communications. If Buckley does not forbid recognizing 

AAN is a political committee, then the FECA requires the FEC to do so. 

As Plaintiffs demonstrated in their opening brief and further show below, the answer to 

that question is no. No permissible interpretation of Buckley would excuse an organization from 

disclosing information to voters because that group runs an electioneering communication—a 

communication bearing qualities that the Supreme Court squarely held entitle voters to 

information about its funding sources. McConnell, 540 U.S. at 196–97. Congress and the 

Supreme Court recognize that electioneering communications—without exception—“constitute 

campaigning every bit as much as . . . any ad currently considered to be express advocacy.” 147 

Cong. Rec. S2455 (daily ed. Mar. 19, 2001) (Sen. Snowe); accord McConnell, 540 U.S. at 196 

(holding government’s interest in mandating disclosure of campaign advocacy “appl[ies] in full” 

to the “entire range” of ads that meet the electioneering communication definition).4

 

Accordingly, no reasonable or permissible interpretation of Buckley would deny Plaintiffs and 

the public information solely because the reporting group engaged in conduct that Congress and 

the Supreme Court has deemed electoral. Because the controlling commissioners’ absurd 

conclusion to the contrary therefore resulted from an “impermissible” interpretation of Buckley, 

their decision is “contrary to law.” Orloski, 795 F.2d at 161. 

 4 See also Decl. of Stuart McPhail in Support of Pls. Reply (“McPhail Decl.”), Ex. 1. (Comments 

of Sen. McCain et al. at 3, Notice 2002-13 (FEC Aug. 23, 2002) (“[I]n general, reporting for 

electioneering communications should be analogous to reporting for independent 

expenditures.”)); id. Ex. 2 (Br. of Intervenor-Defs. 60 n.48, McConnell v. FEC, 540 U.S. 93 

(2003) (regulating electioneering communications “serve[d] the very purposes that underlie the 

preexisting independent expenditure provisions: bringing campaign spending of the ‘issue’ ad 

variety within the scope of [the] longstanding source and disclosure rules” that govern express 

advocacy)). 

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II. The Controlling Commissioners Interpreted Buckley To Compel the FEC to Excuse 

AAN from Political Committee Reporting. That is Contrary to Law. 

The controlling commissioners interpreted Buckley to excuse groups from reporting when 

they expend a sufficient sum on certain types of electioneering communications. AR 1779–80. 

As Plaintiffs demonstrated in the previous litigation and in their opening brief here, Buckley does 

not excuse groups from reporting merely because they run electioneering communications. 

Nonetheless, the FEC and AAN argue that the controlling commissioners were right to excuse 

AAN because it ran certain types of electioneering communications—communications which 

Congress and the Supreme Court recognize are election-related and warrant disclosure to voters. 

Controlling precedent, including from the Supreme Court, however, reject the controlling 

commissioners’ conclusion that an electioneering communication can ever justify denying 

voters’ access to information, and nothing cited by the FEC nor by AAN salvage that absurd 

conclusion.5

 

 5

 While AAN is still required to file one-time event reports, those reports do not provide nearly 

the amount of information to voters as political committee reporting does. A political committee 

must report all contributions they receive above $200. 52 U.S.C. § 30104(b)(3)(A). A one-time 

report about an electioneering communication, however, only requires the disclosure of 

contributors who gave over $1,000 in the past year, id. § 30104(f)(2), and, if the maker is a 

corporation like AAN, only those contributors who gave to “for the purpose of furthering 

electioneering communications,” 11 C.F.R. § 104.20(c)(9). That type of reporting is easily 

evaded by simply not accepting (or claiming not to accept) contributions earmarked for 

electioneering communications, but still accepting funds intended to influence elections. 

Effectively, that means groups like AAN do not report any contributions, and AAN has never 

disclosed a single contributor even on its one-time reports. See McPhail Decl. Exs. 3–6 

(example AAN Form 9s reporting electioneering communications but disclosing no 

contributions). Thus, relieving AAN of political committee reporting here effectively excuses 

AAN from all contributor disclosure. Moreover, by creating a dual reporting mechanism of onetime reports and more fulsome political committee reporting, Congress understood the one-time 

event reporting was not an adequate substitute where political committee reporting was 

warranted. 

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A. Buckley Does Not Forbid Treating Groups as Political Committees Solely 

Because They Run Electioneering Communications. 

The controlling commissioners found that AAN devoted only 22% of its spending to 

qualifying political expenditures. AR 1779. They did so despite the fact that AAN spent over 

$13 million on electioneering communications: a sum that, when considered along with their 

independent expenditures, exceeded 50% of AAN’s spending in a two-year period (never mind 

in the single relevant calendar year). The only reason the controlling commissioners refused to 

recognize AAN as a political committee—the only reason the controlling commissioners 

deprived Plaintiffs and voters of knowledge of the sources of election-related spending—is 

because they treated most of the money AAN spent on electioneering communications as 

entirely unrelated to the election or defeat of candidates. 

For example, among the $13 million worth of electioneering communications AAN ran 

in 2010 was one called “Read This,” which told voters: 

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. 

CREW, 209 F. Supp. 3d at 80; AR 1722. The ad was (1) broadcast (2) to 50,000 or more voters 

(3) in the clearly identified candidate’s electorate (4) shortly before the candidate’s election “[i]n 

November.” AR 1722; 52 U.S.C. § 30104(f); McPhail Decl. Ex. 3 (AAN Form 9 (Oct. 15, 2010) 

(filing for one version of “Read This” ad)). Congress has found these characteristics cause the 

ad to “constitute campaigning every bit as much as . . . any ad” that expressly tells the voter to 

“vote against” the named candidate, 147 Cong. Rec. S2455; 11 C.F.R. § 100.22, and thus 

regulate them as an “electioneering communication,” 52 U.S.C. § 30104(f). The Supreme Court 

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12 

has said that those characteristics alone are sufficient to justify imposing campaign disclosure on 

their maker, irrespective of anything else about the ad. McConnell, 540 U.S. at 196 (holding 

voters have justified interest in disclosure of the “entire range” of ads meeting electioneering 

communication definition). That is because those characteristics make the ad so “substantial[y] 

relat[ed]” to elections that disclosure “‘provid[es] the electorate with information’ about the 

sources of election-related spending.” Citizens United, 558 U.S. at 367 (quoting McConnell, 424 

U.S. at 66).6

 

Nevertheless, it was because AAN ran that and other similar electioneering 

communications that the controlling commissioners excused AAN from political committee 

reporting. In other words, the controlling commissioners interpreted Buckley to hold that AAN’s 

reporting would not fulfill the purposes of the FECA to provide voters with information about 

election-related spending because AAN engaged in election-related spending. That 

interpretation of Buckley blinks reality.7

 

 6

 That is why the FECA treats both types of ads in very similar ways. Compare 52 U.S.C. 

§ 30104(c) (making express advocacy ad triggers disclosure) with id. § 30104(f) (making 

electioneering communication triggers disclosure); and id. § 30116(a)(7)(B) (coordinated 

express advocacy ads count as contributions) with id. § 30116 (a)(7)(C) (coordinated 

electioneering communications count as contributions); see also id. § 30120(a) (both types of ads 

must carry disclaimers); id. § 30121 (neither ad may be funded by foreign money). 

7

 AAN misrepresents the record and states that the controlling commissioners found the “Read 

This” ad quoted above was sufficiently election related that it would not excuse AAN from 

political committee reporting. AAN Reply 16. The record shows, however, that the controlling 

commissioners found that this ad lacked any relation to elections and therefore weighed the ad 

on the side of excusing AAN from its political committee obligations. AR 1779. It was only in 

an alternative analysis, meant to show that switching their view of that ad would not alter the 

outcome, that they entertained the idea that the ad might have an electoral purpose. Id. Thus, 

AAN is incorrect to represent that the controlling commissioners treated at least one of AAN’s 

ads with a legislative critique and a call to action as political. Cf. AAN Reply 16. 

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13 

1. All Electioneering Communications Substantially Relate to Elections, Thus 

Subjecting Groups that Air Them to Disclosure Fulfills the Purposes of the 

FECA.

No reasonably interpretation of Buckley would forbid the application of congressionally 

commanded reporting to an organization because the organization makes electioneering 

communications. In crafting the electioneering communication category, Congress carefully and 

narrowly tailored the category to capture communications that “constitute campaigning every bit 

as much as . . . any ad currently considered to be express advocacy.” 147 Cong. Rec. S2455. 

The Supreme Court, rejecting the decision of a lower court finding that voters’ interest in 

disclosure could only apply to a subset of electioneering communications based on their content 

and that voters did not have an interest in knowing information about the sources of every 

electioneering communication, see McConnell v. FEC, 251 F. Supp. 2d 176, 794 (D.D.C. 2003) 

(Leon J., concurring in part and dissenting in part), held that the voters’ interest in electionspending disclosure applied “to the entire range of electioneering communications,” McConnell, 

540 U.S. at 196 (emphasis added). In other words, the very characteristics that make an ad an 

“electioneering communication” demonstrate its purpose to influence elections, id., and 

therefore, disclosure of the ads’ financial backing “fulfill[s] the purpose[] of the [FECA],” 

Buckley, 424 U.S. at 79. Buckley, however, only excused organizations from reporting when 

they engaged in a sufficient amount of activities for which disclosure does not “fulfill the 

purposes of the Act” because they are unrelated to the “nomination or election of a candidate.” 

Id. Because every electioneering communication is substantially related to elections—because 

every electioneering communication, by reason of its being an electioneering communication, is 

“specifically intended to affect election results,” McConnell, 540 U.S. at 127—Buckley cannot be 

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14 

permissibly interpreted to excuse an organization from disclosure because it makes one. 

The controlling commissioners nevertheless unlawfully and impermissibly interpreted 

Buckley to exclude groups from political committee reporting if they spend a sufficient sum on 

electioneering communications, so long as the particular electioneering communication at issue 

does not fall into an exceedingly narrow and ill-defined category that the controlling 

commissioners deem political. At first blush, this is at least an improvement on their first 

interpretation of Buckley which excluded organizations from political committee reporting if 

they spent a sufficient sum on any electioneering communication. AR 1690–17.8

 The Court 

rightfully found that that interpretation of Buckley was impermissible and thus the controlling 

commissioners’ previous decision to excuse AAN from reporting was contrary to law. CREW, 

209 F. Supp. 3d at 92. Nevertheless, the controlling commissioners’ new interpretation is not 

meaningfully different and once again impermissibly interprets Buckley to exclude groups from 

reporting because they run ads that are election-related. 

2. The Controlling Commissioners’ Interpretation of Buckley is Contrary to 

McConnell. 

As Plaintiffs argued in their opening brief, McConnell squarely forecloses the controlling 

commissioners’ interpretation of Buckley. In reply, the FEC and AAN take a portion of 

McConnell out of context and try to portray it in an absurd light at odds with the rest of the 

decision, focus on inapposite authority and distinctions, and grasp at entirely irrelevant aspects of 

ads McConnell found were political in a vain attempt to distinguish the materially identical ads 

 8

 Further, as shown below, this first blush gives a false impression. The FEC briefing here and a 

subsequent administrative decision reveal that the controlling commissioners continue to apply 

an “express advocacy or its functional equivalent only” test. See infra Part II.B.1.

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15 

AAN ran. Those attempts fail because, as McConnell squarely recognized, all electioneering 

communications are sufficiently election-related to subject their makers to disclosure, including 

political committee disclosure. 

The FEC first attempts to argue that McConnell supports the controlling commissioners’ 

interpretation of Buckley to require them to distinguish between some electioneering 

communications and others, and to excuse organizations from reporting if the electioneering 

communications they make are deemed to lack an electioneering purpose. They argue that 

McConnell, despite finding that voters’ interest in disclosure applied to the “entire range” of 

electioneering communications, recognized that some electioneering communications “had no 

electioneering purpose.” FEC Reply 27. The FEC contends that the commissioners must 

therefore review the electioneering communications to see which ones lack an electioneering 

purpose. Id. This is incorrect. As Plaintiffs explained in their opening brief, the FEC unmoors 

that language in McConnell from its context. In the quoted language, McConnell was merely 

recounting a matter of “dispute between the parties and among the judges on the District Court.” 

540 U.S. at 206; compare McConnell, 251 F. Supp. 2d at 588 (Kollar-Kotelly, J.) (holding “the 

record demonstrates that as an objective matter advertisements sharing [electioneering 

communication] characteristics influence the outcome of federal elections”) with id. at 794 (Leon 

J., concurring in part and dissenting in part) (arguing characteristics that make ad an 

electioneering communication are insufficient to subject it to disclosure laws, and that the 

content of the ads must be reviewed to confirm that they indicate the purpose of nominating or 

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electing a candidate).9

 Far from adopting the position that some ads lacked an electoral purpose, 

cf. FEC Reply 27, the Supreme Court found that federal disclosure laws could apply to each and 

every electioneering communication because the qualities that made the ad an electioneering 

communication were sufficient to conclude the ads was substantially related to elections. 

McConnell, 540 U.S. at 196.10 

Indeed, the Supreme Court held that, at least for corporate and union funded 

electioneering communications, every electioneering communication must issue from a 

“segregated fund,” which is a type of political committee. 540 U.S. at 206. Under the FEC’s 

interpretation, however, the very fact these segregated funds paid for all types of electioneering 

communications would mean that, under Buckley, these segregated funds might not be 

recognized as political committees at all because their airing those ads would eventually require 

the FEC to excuse them from reporting. That is ludicrous. McConnell recognized there was 

nothing improper or unlawful about requiring an organization spending significant sums on 

electioneering communications to report as a political committee.11 

 9

 AAN cites extensively to Judge Leon’s position in the lower court as if it is authority showing 

some electioneering communications lack an electoral purpose, see AAN Reply 26, but neglects 

to inform the Court that this opinion and, in particular, the very cited passages, were rejected and 

overruled by the Supreme Court, see id. 10 Furthermore, the subjective intent of the maker of an electioneering communication is 

irrelevant and may not be constitutionally considered in deciding whether an ad has an 

electioneering purpose or merely intends to advance some policy goal. See Buckley, 424 U.S. at 

43 (citing Thomas v. Collins, 323 U.S. 516 (1945)). The question is thus not whether a particular 

individual might make an electioneering communication yet lack an intent to influence elections; 

rather, the question is whether an electioneering communication bears sufficient objective 

markers such that voters have a legitimate interest in their disclosure, and that subjecting the 

maker to disclosure would “fulfill the purposes of the act.” Id. at 79. McConnell held they all 

do. 

11 As also noted in Plaintiff’s opening brief, this section of the McConnell opinion related to the 

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17 

The FEC next attempts to distinguish the various ads McConnell found were election 

related communications, but its attempts fail. As Plaintiffs demonstrated in their opening brief, 

the Supreme Court recognized the “Yellowtail”, Republicans for Clean Air, and Citizens for 

Better Medicare ads were intended to influence elections, CREW Br. 28–31, ECF No. 32, but the 

test put forth by the controlling commissioners would have found these ads lacked that purpose. 

The FEC responds to this argument by identifying small and non-substantive distinctions 

between the ads AAN ran and the ads discussed in McConnell. These are distinctions without a 

difference, and the FEC’s attempts to reconcile the conflict with McConnell fails. FEC Reply 

23–26. For example, the FEC notes that the “Yellowtail” ad accused the candidate of the 

negative “personal conduct” of “hitting his wife” while AAN’s ads merely accused candidates of 

aiding rapists. See FEC Reply 23; AR 1768. As another example, the FEC says that because 

Citizens for Better Medicare praised the named candidate, its ad was electoral, while AAN’s ads 

 

ban on corporate and union funded electioneering communications, a rule which required a 

tighter fit between the purpose of the ads and voters’ interests than does a rule merely requiring 

disclosure. Compare Citizens United, 558 U.S. at 340 (bans are subject to strict scrutiny 

requiring “narrow[] tailor[ing]”) with id., at 367 (disclosure rules subject to “exacting scrutiny” 

requiring only a “substantial relation”). Accordingly, even if McConnell thought some 

electioneering communications lacked a sufficient electioneering purpose to justify banning 

them, it could (and did) find that those same communications had enough of an electioneering 

purpose to justify subjecting their maker to disclosure. The fact that the ban was later struck 

down, on which the FEC and AAN mysteriously rely, FEC Reply 27 n.7; AAN Reply 18, is 

entirely irrelevant. The disclosure laws, including political committee disclosure, continue. 

Indeed, far from showing electioneering communications lack an electoral purpose, the fact that 

the same ban on express advocacy ads—ads that indisputably have an electioneering purpose—

was also struck, Citizens United, 558 U.S. at 365, shows the striking of the ban has no bearing on 

the communications having or lacking an electoral purpose. McConnell understood Buckley did 

not prohibit the application of political committee status to a group that runs a sufficient amount 

of electioneering communications, and nothing in overturning the ban affects that. 

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attacked the named candidate and therefore were not election-related. FEC Reply 26.12 These 

distinctions are clearly nonsensical and have no bearing on the relevant question: whether the 

ads are “substantial[y] relat[ed]” to elections such that disclosure “‘provid[es] the electorate with 

information’ about the sources of election-related spending.” Citizens United, 558 U.S. at 367. 

Nor are the distinctions grounded in the controlling commissioners’ proffered test. Rather, FEC 

counsel attempts, post-hoc, to distinguish problematic authority. Moreover, neither the FEC nor 

AAN even discuss McConnell’s hypothetical ad that the Court gave as the paradigmatic example 

of an election-related electioneering communication: one that “condemned [Jane] Doe’s record 

on a particular issue before exhorting viewers to ‘call Jane Doe and tell her what you think.’” 

McConnell, 540 U.S. at 127 (noting there “[l]ittle difference” between that ad and one that 

“urged viewers to ‘vote against Jane Doe’”). The FEC does not discuss it because that ad clearly 

describes every single one of AAN’s electioneering communications.13 

Most importantly, the reason McConnell found each and every one of these ads had an 

electoral purpose was not because the ad mentioned two current officeholders rather than one, cf.

FEC Reply 25,14 or because the ad praised a candidate versus urging him to change his voting 

 12 This distinction also fails to take into account the full scope of Citizens for Better Medicare’s 

ads considered by the Court which, while praising Rep. Fletcher, also attacked other candidates. 

See McConnell, 251 F. Supp. 2d at 546 (Kollar-Kotelly, J.) (noting the group ran ads “supporting 

[Republicans] and attacking Democratic candidates” (emphasis added)); see also McPhail Decl. 

Ex. 7 (The Campaign Finance Institute, Issue Ad Disclosure, Recommendations for a New 

Approach App. A8 (Feb. 2001), http://bit.ly/2gIkVWK (noting group’s ads “criticiz[ed] Reps. 

Bill Luther (D-MN), Mark Udall (D-CO), Leonard Boswell (D-IA) and Darlene Hooley (DOR)”). 

13 See also McPhail Decl. Ex. 1 at 8–9 (statement of BCRA sponsors describing as political ad 

referring to Rep. Greg Ganske’s record on legislative votes and asking viewers to call him; 

rejecting any distinction between ads that mention an incumbent vs. others). 

14 For an indiscernible reason, the FEC notes that it did not find this particular ad by Republicans 

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19 

position, cf. FEC Reply 25, or because the ad used domestic violence versus rape as its hook, cf. 

FEC Reply 23. The reason McConnell said these ads clearly had an electoral purpose is because 

they were electioneering communications. See McConnell, 540 U.S. at 127 (“[T]he conclusion 

that such ads were specifically intended to affect election results was confirmed by the fact that 

almost all of them aired in the 60 days immediately preceding a federal election.); see also 

McConnell, 251 F. Supp. 2d at 546 (Kollar-Kotelly, J.) (noting fact ads identifying candidates 

ran “in the 60 days prior to the 2000 federal election demonstrates that these advertisements were 

designed to influence the federal election”). That alone was enough to find the ads were aimed 

at influencing elections and subject their makers to disclosure. 

The FEC nonetheless argues that McConnell was solely concerned with preventing 

groups from airing these ads while hiding behind “anodyne-sounding names,” a problem that it 

contends was solved by requiring groups like AAN to file one-time reports and to claim 

authorship of the ads. FEC Reply 24. But even if this was the thrust of McConnell, it would 

mean McConnell’s concern remains unresolved. Here, millionaires and billionaires are assuredly 

hiding behind the anodyne-sounding name “American Action Network,” and voters have no idea 

who AAN’s “sponsors” and “donors” are. This is all because the controlling commissioners 

refuse to recognize AAN is a political committee. See McConnell, 540 U.S. at 128–29. Indeed, 

rather than concerning itself with the mere identification of authorship—particularly the mere 

identification of an author with no identity other than as creator of these and similar ads—

 

for Clean Air contained express advocacy. FEC Reply 25. That of course is the point—it is not 

express advocacy but it was still intended to influence elections, and therefore cannot justify 

excusing its author from disclosure. 

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McConnell’s primary focus was the fact that, “[w]hile the public may not have been fully 

informed about the sponsorship of so-called issue ads” by groups like AAN, “that candidates and 

officeholders often were.” Id. History gives us no reason to doubt the candidates benefited by 

AAN’s ads are similarly aware. It is the identity of those sponsors and donors—not just the 

name of the dark money author—that voters are entitled to know so that they can ensure their 

elected representatives are not “‘in the pocket’ of so-called moneyed interests.” Id. at 259. Yet 

AAN does not report them, either as a political committee or on its one-time event reports, and it 

will never report them if the controlling commissioners’ proposed reading of Buckley prevails. 

See McPhail Decl. Exs. 3–6. 

As shown in Plaintiffs’ opening brief, and in contrast to the FEC’s and AAN’s attempts 

to argue otherwise, McConnell squarely held that all electioneering communications are 

sufficiently election related to justify disclosure simply because they meet the definition of an 

electioneering communication. It is therefore impermissible to interpret Buckley to exclude a 

group from political committee reporting—a regime designed to ensure voters are fully informed 

about election related spending—because the group runs an electioneering communication. 

Disclosure from such group would unquestionably “fulfill the purposes of the Act,” see Buckley, 

424 U.S. at 79, so Buckley does not forbid the application of the FECA’s political committee 

rules to an organization like AAN. 

B. The Controlling Commissioners Again Relied on WRTL II’s Issue 

Advocacy/Express Advocacy Framework, But WRTL II is “Inapposite” to 

Interpreting Buckley. 

The controlling commissioners previously dismissed Plaintiffs’ complaint against AAN 

because they applied the framework in FEC v. Wisconsin Right to Life, Inc. (WRTL II), 551 U.S. 

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449 (2007), to their interpretation of what activities would show a group lacked the requisite 

major purpose required by Buckley. Despite an express order not to rely on that framework, it is 

clear the controlling commissioners relied on the same dichotomy of activities provided under 

the WRTL II framework to again dismiss below, as Plaintiffs’ opening brief demonstrated. In 

response, the FEC essentially concedes that point but argues that the Court’s previous decision 

only prevented the controlling commissioners from citing WRTL II, but did not stop them from 

applying the same framework in an attempt to segregate electioneering communications into 

election-related ads and so-called issue advocacy. FEC Reply 21. The FEC would reduce the 

Court’s previous holding to a citation rule—rubber stamping their dismissal so long as the 

controlling commissioners did not cite WRTL II. The Court’s decision is not so easily 

diminished, however—it was based on the overwhelming weight of authority, only since 

bolstered, showing that WRTL II’s dichotomy has no place when evaluating the FECA’s 

disclosure provisions or the scope of Buckley’s exclusion of groups from those disclosure rules.15

 15 The FEC cites the Court’s decision on Plaintiffs’ Motion for an Order to Show Cause in the 

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

as if that decision addressed the propriety of its reliance on WRTL II on remand, see FEC Reply 

20–21. Befitting the procedural posture of that decision, however, the Court did not opine on the 

permissibility of the controlling commissioners’ interpretation of Buckley on remand. Rather, 

the Court found that the commission’s analysis on remand did not commit the exact same error 

the Court identified in its previous judgment: the use of WRTL II to categorically treat all 

electioneering communications as lacking any electoral purpose and the exclusion from political 

committee reporting of groups that ran any type of electioneering communication. Mem. Op. & 

Order at 5. Rather, it is the Court’s September judgment that is the relevant authority, and that 

judgment found that the FEC’s reliance on WRTL II “in the disclosure context” was always 

inappropriate. CREW, 209 F. Supp. 3d at 89. The FEC’s erroneous portrayal of the Court’s 

show cause order puts it in serious tension with the Court’s September judgment, raising the 

possibility the subsequent order runs afoul of the law of the case doctrine by placing it in conflict 

with an earlier decision in the case. Taylor v. FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997). 

Nevertheless, there is no reason to read the show cause order as the FEC portrays it. 

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1. Despite This Court’s Admonition, the Controlling Commissioners Again Rely 

on the WRTL II Framework. 

The primary reason the Court reversed the controlling commissioners’ previous unlawful 

interpretation of Buckley is because the controlling commissioners’ interpretation relied on 

WRTL II, 551 U.S. 449. Relying on that case, the controlling commissioners erroneously 

concluded 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” defined what groups Buckley excused from political committee reporting. CREW, 209 

F. Supp. 3d at 89. This Court found that WRTL II, which developed “in the context of an 

outright ban on speech,” is “not properly applied in the context of less restrictive disclosure

requirements” like that in the federal political committee reporting regime. Id. The Court 

therefore “ha[d] little trouble concluding that” the controlling commissioners’ dismissal was 

contrary to law.” Id. at 92. Nevertheless, despite being ordered not to rely on WRTL II or to 

apply its framework on remand, the controlling commissioners did so. They plainly relied on 

WRTL II on remand and “feigned compliance” with the Court’s ruling by not specifically citing 

to the case, AR 1785, as the FEC’s briefing has now made abundantly plain. 

As Plaintiffs demonstrated in their opening brief, the test adopted by the controlling 

commissioners parrots the test drawn by WRTL II to distinguish between corporate and union 

funded speech that the Court (then) believed could be banned and speech which it concluded 

could not. CREW Br. 25. In response, the FEC concedes this, but nonetheless asserts there is no 

error because the controlling commissioners’ test just happens to be “consistent” with WRTL II

without relying on it. FEC Reply 21. But that minimizes the Court’s decision to a mere citation 

rule. The Court held WRTL II’s “framework” was inapposite, CREW, 209 F. Supp. 3d at 89 

Case 1:16-cv-02255-CRC Document 45 Filed 01/09/18 Page 27 of 48
 

23 

(emphasis added), and therefore that it was impermissible to interpret Buckley to apply that same 

framework in deciding what groups lacked the requisite major purpose and thus could be 

excused from reporting. By applying that same framework below, even without citing WRTL II, 

the controlling commissioners relied on the same impermissible interpretation as before. 

Moreover, the FEC’s admissions confirm that the controlling commissioners’ “major 

purpose” test created following remand is the same “express advocacy (or its functional 

equivalent)” test that the Court ordered the FEC to abandon prior to remand. See CREW, 209 F. 

Supp. 3d at 89. In an attempt to identify some basis other than WRTL II for the controlling 

commissioners’ test, the FEC points to its regulations defining the functional equivalent of 

express advocacy. FEC Reply 22–23 (citing 11 C.F.R. § 100.22). Of course, relying on the 

agency’s express advocacy regulations shows that, far from abandoning the bright-line test the 

Court rejected prior to remand, the controlling commissioners continue to enforce an express 

advocacy only test. They have simply replaced the phrase “independent expenditure” with a 

description of the characteristics that make an ad an independent expenditure under their 

regulations. The only distinction between their previous analysis and the one below is that, 

rather than taking at face value AAN’s own characterization of the ads, the controlling 

commissioners reviewed AAN’s electioneering communications and found that four of the ads 

were the functional equivalent of express advocacy. AR 1770–79. That means that the 

controlling commissioners are still treating every ad that lacks express advocacy or its functional 

equivalent as a reason to find that group lacks the requisite major purpose under Buckley.

16 

 16 The FEC incorrectly claims that its express advocacy test in 11 C.F.R. § 100.22 has never been 

challenged as “underinclusive.” FEC Br. 23. As the FEC well knows, Congress enacted BCRA 

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24 

Courts have noted, moreover, that 11 C.F.R. § 100.22(b) “closely correlates” with WRTL 

II’s functional equivalency test. The sole difference is that the regulation is “likely narrower . . . 

since it requires a communication to have an ‘electoral portion’ that is ‘unmistakable’ and 

‘unambiguous.’” Free Speech v. FEC, 720 F.3d 788, 795 (10th Cir. 2013); accord The Real 

Truth About Abortion v. FEC, 681 F.3d 544, 551 (4th Cir. 2012).17 In other words, the 

controlling commissioners reliance on the 11 C.F.R. § 100.22 framework is the same as its 

reliance on WRTL II.

Furthermore, subsequent statements in other administrative matters by two of the three 

controlling commissioners confirm that they continue to interpret Buckley in a manner 

completely at odds with this Court’s judgment. In a statement of reasons issued on December 

20, 2017, those two controlling commissioners once again interpreted Buckley by looking to 

WRTL II, as well as to other authority this Court declared as “out of step with legal consensus” 

and “flaw[ed],” CREW, 209 F. Supp. 3d at 92 (discussing Wisconsin Right to Life, Inc. v. 

Barland, 751 F. 3d 804 (7th Cir. 2014)), and other cases the Court recognized predated Citizens 

United and are thus irrelevant, see id. at 90 n.8 (discussing N.M. Youth Organized v. Herrera, 

611 F.3d 669 (10th Cir. 2010); N. Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 

 

explicitly because the express advocacy rule in the FECA and § 100.22 was “underinclusive.” 

See McConnell, 540 U.S. at 122, 126–29 (noting express advocacy rules’ failure to capture full 

scope of ads “advocat[ing] the election or defeat of clearly identified candidates” motivated 

Congress to enact BCRA). 

17 For that reason, the controlling commissioners’ omission of § 100.22(b)(1)’s requirement that 

an ad have an “unmistakable, unambiguous” “electoral portion” does not show the controlling 

commissioners applied a broader test than WRTL II’s framework imposes, cf. FEC Reply 22—

rather it merely shows they imposed the WRTL II version of the functional equivalency test 

which does not impose that requirement. 

Case 1:16-cv-02255-CRC Document 45 Filed 01/09/18 Page 29 of 48
 

25 

2008); FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004); FEC v. GOPAC, Inc., 917 F. Supp. 

851 (D.D.C. 1996)). Despite this Court’s admonition, the two controlling commissioners 

explained that they continue to interpret Buckley in reliance on that authority in a statement of 

reasons that is largely cut-and-paste from the statement this Court already rejected as unlawful. 

See McPhail Decl. Ex. 8 (Statement of Reasons of Vice Chair Caroline C. Hunter and Comm’r 

Lee E. Goodman at 8 n.35, 13–17 & nn.59, 60, MUR 6872 (New Models) (Dec. 20, 2017), 

https://www.fec.gov/files/legal/murs/current/100487860.pdf (relying on WRTL II, Barland, 

Leake, Malenick, and GOPAC to interpret Buckley)); see also AR 1690–1723. This new 

statement admits what the statement, following remand, of the controlling commissioners in this 

case tried to hide: the controlling commissioners continue to apply WRTL II’s expressadvocacy-only framework when interpreting Buckley.

This is now the controlling commissioners’ second time using WRTL II’s framework to 

excuse AAN from political committee reporting, to the detriment of Plaintiffs and the public. 

The Court was right to reject the application of the framework before, and should do so again 

because the FECA’s disclosure requirements, political committee reporting included, are not 

“limited to speech that is the functional equivalent of express advocacy.” Citizens United, 540 

U.S. at 369. 

2. Courts Have Rejected the “Issue Advocacy” Line as Unworkable and 

Inapposite to the Campaign Finance Disclosure Regimes. 

In the disclosure context, other courts have similarly rejected calls to draw the line at 

express advocacy or narrow the electioneering communication category to “issue ads.” Cf. AR 

1780; WRTL II, 551 U.S. at 457 (drawing line to exclude “issue advocacy” from regulation). A 

three-judge panel in Independence Institute v. FEC explicitly rejected the very test the 

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26 

controlling commissioners adopted below to distinguish between electioneering communications 

legally subject to regulation and “issue advocacy” electioneering communications. 216 F. Supp. 

3d 176 (D.D.C. 2016). That decision was upheld by the Supreme Court. Indep. Inst. v. FEC, 

137 S. Ct. 1204 (2017) (Mem.). The FEC attempts to cabin this decision as relating solely to the 

one-time event disclosure triggered when a group runs an electioneering communication. FEC 

Reply 28. That attempt to distinguish Independence Institute is meritless. The FEC fails to 

explain how a definition that is “entirely unworkable” and that “blink[s] reality” in the context of 

event-driven disclosure, 216 F. Supp. 3d at 188, could be workable or sensible when applied in 

the political committee context. 

Nor does the FEC wrestle with the inherent contradiction between its position and the 

holding of Independence Institute. The very characteristics that the controlling commissioners’ 

test uses to describe an electioneering communication as so-called “issue speech”—such as the 

ad’s “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”—are the same characteristics that the court in Independence Institute found 

proved voters have an informational interest in learning the financial source of the ad. Id. at 

190–91 (“Providing the electorate with information about the source of the advertisement will 

allow voters to evaluate the message more critically and to more fairly determine the weight it 

should carry in their electoral judgments.”). The FEC does not and cannot reconcile 

Independence Institute with the controlling commissioners’ decision to use those characteristics 

to deny voters access to information. 

The FEC’s own argument on this topic further reinforces the unworkable nature of their 

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27 

position. The FEC relies on the fact that “the distinction between discussion of issues and 

candidates and advocacy of election or defeat of candidates may often dissolve in practical 

application.” See FEC Reply at 21, 27–28, 30 (quoting Buckley, 424 U.S. at 42). While true, the 

import of that fact is not that the FEC must therefore treat ads that have the purpose of electing 

or defeating candidates as unrelated to elections because they discuss issues, as the FEC 

concludes. Rather, it shows the distinction between the “discussion of issues” and “advocacy of 

election or defeat of candidates” is not a useful basis to determine the scope of voters’ interest in 

electoral transparency. See McConnell, 540 U.S. at 126. “[T]he two categories of 

advertisements prove[] functionally identical in important respects.” Id. That is because 

someone seeking to persuade a viewer to vote for or against a candidate must provide the viewer 

with a reason to vote, and that reason will almost always be that it will advance or halt some 

issue like legislation that will impact the viewer’s life or, at least, that the viewer cares about. 

The fact these electioneering communications have an “impact on an election . . . after the voters 

hear the information and choose—uninvited by the ad—to factor it into their voting decisions” 

rather than making an explicit appeal to vote for or against a candidate is irrelevant when it 

comes to the reasons for requiring disclosure. Cf. FEC Reply 31 (relying on the inapposite 

authority of WRTL II, 551 U.S. at 470, to argue such ads may not be trigger disclosure); see also 

McPhail Decl. Ex. 1 at 7 (statement of BCRA sponsors that electioneering communications 

which mention the “name of a bill” must still be treated political).18 Disclosure of the ads’ 

 18 In their opening brief, Plaintiffs noted that AAN’s express advocacy ads—ads clearly intended 

to influence elections—also discussed legislation and other “issues” and yet are still recognizably 

election related. CREW Br. 35. In response, the FEC contends that AAN’s express advocacy 

ads would not be issue ads because, even though they mentioned legislation and discussed issues, 

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28 

financial backing will still “allow voters to evaluate the message more critically and to more 

fairly determine the weight it should carry in their electoral judgments,” Indep. Inst., 216 Supp. 

3d at 191, to monitor if the named representative or her opponent is “‘in the pocket’ of so-called 

moneyed interests,” McConnell, 540 U.S. at 259, and to know “who is speaking about a 

candidate shortly before an election,” CREW, 209 F. Supp. 3d at 90 (emphasis omitted) (quoting 

Citizens United, 558 U.S. at 369). That is why the First Amendment does not “erect[] a rigid 

barrier between express advocacy and so-called issue advocacy.” McConnell, 540 U.S. at 193.19

The FEC concedes as much, as it must, admitting one-time event disclosure need not 

discriminate between so-called “issue” ads and others, but maintains that the distinction is 

nonetheless relevant in the application of political committee reporting regimes like that in the 

FECA. See FEC Reply 28. But the same informational interest justifying one-time event 

 

they named a candidate that was not a current officeholder. FEC Reply 31. But some of AAN’s 

express advocacy ads did identify a current officeholder. See, e.g., McPhail Decl. Ex. 9 (AAN 

Form 5 (Aug. 24, 2010), http://docquery.fec.gov/pdf/688/10991119688/10991119688.pdf

(express advocacy ad targeting Sen. Murkowski)). Regardless, there is nothing incompatible 

with discussing an issue or legislation in connection with a current officeholder and candidate 

and furthering the purpose of electing of defeating the named candidate. 

19 AAN contends that this means the FECA will extend to cover all “advocacy groups” and all 

speech, regardless of its relation to elections. AAN Reply 21. Similarly, the FEC suggests that 

electioneering communications may be subject to one-time event disclosures simply because it 

may regulate “certain kinds of speech.” FEC Reply 29. Not so—disclosure under the FECA 

extends only to those communications substantially related to an election, otherwise the 

regulation would fail exacting scrutiny. Citizens United, 558 U.S. at 366–67. The FEC may 

regulate electioneering communications because they are election related—because voters’ 

interest in knowing “who is speaking about a candidate shortly before an election” is 

“substantially related” to disclosure of electioneering communications. Id. at 366, 369. In other 

words, it is because all electioneering communications have the “purpose of nominating or 

electing a federal candidate,” FEC Reply 29—as evidenced by the facts that make them an 

electioneering communication—that they may be constitutionally regulated, McConnell, 540 

U.S. at 127, 196. 

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disclosure also justifies the application of political committee reporting. See SpeechNow v. FEC, 

599 F.3d 686, 698 (D.C. Cir. 2010) (political committee reporting serves public’s “interest in 

knowing who is speaking about a candidate and who is funding that speech”). That is why 

courts have found that the issue advocacy distinction is similarly irrelevant to political committee 

disclosure regimes. See Nat’l Assoc. of Gun Rights, Inc. v. Motl, CV 16-23-H-DLC, 2017 WL 

3908078, *5 (D. Mont. Sept. 6, 2017) (finding group’s electioneering communications, defined 

similarly under state law as under federal law, may subject the group to political committee 

reporting even if the ads were “issue advocacy”); see also Nat’l Org. for Marriage v. McKee, 

649 F.3d 34, 54–55, 59 (1st Cir. 2011) (rejecting issue advocacy dichotomy had any relevance to 

state’s political committee reporting regime); Human Life of Washington v. Brumsickle, 624 F.3d 

990, 997, 1016–17 (9th Cir. 2010) (rejecting issue advocacy distinction in defining covered 

“expenditures” that trigger political committee reporting). 

The FEC fails to meaningfully distinguish this authority. The FEC argues that Motl

addresses only a state political committee regime, and therefore does not involve an application 

of Buckley. FEC Reply 29 n.8. While true, that misses the mark. The point is that the attempt to 

distinguish electoral from non-electoral electioneering communications based on the “issue 

advocacy” characterization in the application of a political committee regime has been rejected. 

Rather, courts have found the informational interests served by political committee reporting 

regimes is equally served when applied to groups making either type of electioneering 

communication. That fact is equally true for the federal political committee reporting regime. 

Therefore, because Buckley only excuses groups from reporting where their disclosure would not 

“fulfill the purposes of the Act” to provide voters with information “about where political 

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30 

campaign money comes from” 424 U.S. at 66, and because courts have found requiring groups to 

report as political committees even though they run “issue” electioneering communications 

fulfills that purpose, Buckley does not excuse those groups from reporting. In other words, there 

is no permissible interpretation of Buckley that would require the FEC to excuse groups from 

political committee reporting because they run such ads. 

3. Neither This Court, Nor Buckley, Compel the Controlling Commissioners to 

Draw a Line at Electioneering Communications that Discuss “Issues.” 

Nevertheless, the FEC and AAN argue that the controlling commissioners had to 

distinguish between electioneering communications on remand because either this Court, or 

Buckley itself, compelled them to. But they simply misconstrue statements in both decisions. 

Neither compel the result below. 

First, the FEC argues that, because this Court refrained from “replacing the 

Commissioners’ bright-line rule with one of its own” that would have ordered the FEC to cease 

excusing AAN from reporting because it ran electioneering communications, the commissioners 

could not adopt their own “bright line” test recognizing that Buckley does not excuse groups 

from reporting solely because they make electioneering communications. FEC Reply 29 

(quoting CREW, 209 F. Supp. 3d at 93). The FEC misconstrues the Court’s statement, however, 

and introduces legal error into the Court’s judgment where there was none. Far from ordering 

the FEC to foreswear all “bright-line[s],” the Court “limit[ed]” its holding “to identifying the 

legal error in the Commissioners’ statements” and did not go further into describing the test the 

FEC must adopt on remand. CREW, 209 F. Supp. 3d at 93 (stating Court would “refrain” from 

outlining its own rule). In other words, the Court simply did not reach the question of whether 

Buckley permits a group to evade reporting because it runs an electioneering communication. At 

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no point did the Court order the FEC to craft an arbitrary and unworkable rule to artificially 

segregate electioneering communications without any basis in jurisprudence. 

Second, AAN argues that Buckley itself required the commissioners to try to identify 

purported “issue advocacy” among its electioneering communications. Buckley’s carve-out for 

“group[s] engaged purely in issue discussion,” however, is inapplicable to AAN. AAN Reply 14 

(quoting Buckley, 424 U.S. at 79). As a preliminary matter, having spent over $4 million in 

independent expenditures, AAN is far from a group engaged “purely” in non-election-related 

issue discussion. More importantly, Buckley’s recognition that the FECA does not require 

organizations engaged “purely in issue discussion” to disclose as political committees is 

informed by the fact that Buckley recognized requiring such groups to report would not “fulfill 

the purposes of the Act.” 424 U.S. at 79. In other words, Buckley’s “issue discussion” is, by 

definition, discussion that is so unrelated to elections that the government could not justify a 

reporting requirement by pointing to voters’ informational interests. Citizens United, 558 U.S. at 

366–67 (communications must be “substantial[ly] relat[ed]” to elections for disclosure to 

constitutionally serve important government interest in ensuring an informed electorate). 

Accordingly, neither express advocacy nor electioneering communications can constitute “issue 

discussion” as Buckley meant it: both types of communication are subject to disclosure because 

they are substantially related to elections. See McConnell, 540 U.S. at 196. Any Buckley carveout for “issue discussion” does not apply where that ad is substantially related to elections, as is 

the case with all of AAN’s ads at issue here.20 

 20 Moreover, Buckley must be interpreted in light of subsequent precedent holding that disclosure 

requirements like the political committee reporting regime need not adhere to “a rigid barrier 

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In sum, the issue advocacy/express advocacy and its functional equivalent framework is 

completely inapposite to interpreting Buckley’s command to excuse groups without a qualifying 

major purpose from the congressionally commanded reporting regime. The Court was right to 

reject that framework when it was expressly adopted and applied by the controlling 

commissioners the first time, and should reject that framework when it was surreptitiously 

adopted and applied by the controlling commissioners on remand. It has no application in 

defining the contours of a disclosure regime like the political committee reporting regime 

imposed by the FECA. There is no permissible interpretation of Buckley that would excuse a 

group from reporting because it runs ads otherwise indistinguishable from indisputable election 

advocacy. 

C. The Court’s Review of the Controlling Commissioners’ Interpretation of 

Buckley is De Novo. 

The Court previously rejected the legal analysis of the controlling commissioners in 

deciding which ads would excuse AAN from political reporting based on a de novo review of the 

case law. CREW, 209 F. Supp. 3d at 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.”). The controlling commissioners have 

engaged in the same legal analysis below to once again excuse AAN from political committee 

reporting. AR 1780. Just as before, the Court reviews the propriety of that analysis de novo. 

CREW, 209 F. Supp. 3d at 87; see also Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en 

 

between express advocacy and so-called issue advocacy.” McConnell, 540 U.S. at 192; see also

Citizens United, 558 U.S. at 369 (disclosure is not “limited to speech that is the functional 

equivalent of express advocacy”). 

Case 1:16-cv-02255-CRC Document 45 Filed 01/09/18 Page 37 of 48
 

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banc), vacated on other grounds, 524 U.S. 11 (1998) (“In sum, since it is not, and cannot be, 

contended that the statutory language itself is ambiguous, and the asserted ‘ambiguity’ only 

arises because of the Supreme Court’s narrowing opinions, we must decide de novo the precise 

impact of those opinions.”).

Nonetheless, the FEC and AAN argue that this Court should apply deferential analysis 

under Chevron USA Inc. v. NRDC, Inc., 467 U.S. 837 (1984), because the Court found that not 

“every judicial challenge to an FEC action linked in any way to the major purpose test” is an 

“issue for the courts’ de novo review.” FEC Reply 7 (quoting CREW, 209 F. Supp. 3d at 88); 

accord AAN Reply 5. Yet the FEC and AAN ignore the fact that the question before the Court 

is identical to the question presented before: whether the controlling commissioners properly 

interpret the scope of activities Buckley contemplated would excuse a group from political 

committee reporting. While the Court recognized some gap-filling decisions by the FEC could 

be subject to discretion, see CREW, 209 F. Supp. 3d at 88 (citing Shays v. FEC, 511 F. Supp. 2d 

19, 31 (D.D.C. 2007) (noting agency has discretion about whether to interpret Buckley in the 

course of adjudication or rulemaking)), it squarely held the question on review here is subject to 

de novo review. Neither the FEC nor AAN raise any meritorious grounds to distinguish the issue 

on review here, nor do they make any argument worthy of consideration showing error in the 

Court’s previous judgment. 

Furthermore, in response to Plaintiffs’ argument that no deference is available because 

the statement on review is not the statement of the agency but only the statement of three 

commissioners, the FEC argues that the D.C. Circuit has held the statement of three 

commissioners receives Chevron deference even after United States v. Mead Corp, 533 U.S. 218 

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(2001). FEC Reply 9. But the FEC mispresents the case on which it relies. While FEC v. 

National Rifle Association of America, 254 F.3d 173 (D.C. Cir. 2001), indeed postdated Mead

and cited In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000), see FEC v. NRA of Am., 254 F.3d at 

185, the actual agency decision on review there was an advisory opinion adopted by a majority 

of the Commission, see id. at 184 (discussing Advisory Opinion 1984-24); McPhail Decl. Ex. 10 

(AO 1984-24, at 6 (July 13, 1984), http://saos.fec.gov/aodocs/1984-24.pdf (noting only two 

dissents from advisory opinion)): see also id. Ex. 11 (Dissenting Op. of Cmm’r Lee Ann Elliott 

in AO 1984-24, at 1 (Aug. 17, 1984), https://www.fec.gov/files/legal/aos/79908.pdf (describing 

“majority opinion of the Commission in AO 1984-24”)). The court’s discussion of In re Sealed 

Case makes no mention of the fact that the statement on review there was not adopted by the 

agency and that it lacked force of law. See NRA, 254 F.3d at 185 (erroneously stating statement 

on review in In re Sealed Case was that of the “Commission”). Indeed, it appears that the FEC 

neglected to inform the court in National Rifle Association that In re Sealed Case considered a 

statement not adopted by the Commission. See McPhail Decl. Ex. 12 (Brief of the FEC 18 & 

n.9, FEC v. NRA of Am., 00-5163 (D.C. Cir. Nov. 21, 2000) (citing In re Sealed Case to support 

proposition that deference is given to the “agency’s interpretation”)). Accordingly, National 

Rifle Association stands for only the unremarkable proposition that a statement adopted by a 

majority of the Commission reflects the decision of the agency and, if it has force of law, may be 

afforded Chevron deference. See 52 U.S.C. § 30108(c) (providing advisory opinions are binding 

on FEC action as to third parties involved in “indistinguishable” activities).21 It does not show In 

 21 For its part, AAN simply resorts to misstating the record, claiming that the statement on 

review here is the statement of the “Commission.” See AAN Reply 4 (asserting the 

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re Sealed Case survives Mead, and does not show an agency decision that lacks force of law 

because it has no binding effect beyond the parties before the agency warrants Chevron

deference. See Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 

1137 (D.C. Cir. 2014) (decision must be “binding [as to] . . . third parties,” and not merely 

“conclusive” as to the parties to warrant Chevron deference).22

III. The Controlling Commissioners’ Buckley Analysis is Also Arbitrary and 

Capricious. 

The “unworkable” nature of the controlling commissioner’s analysis goes hand-in-hand 

with its arbitrary and capricious nature. The controlling commissioners’ analysis ignores 

evidence that contradicts their predetermined conclusion, looking only to the self-serving 

materials submitted by AAN and other materials they gathered in service of their goal to excuse 

AAN from reporting. Further, the FEC fails to show the controlling commissioners considered 

any of the items identified by Plaintiffs or show they are not relevant to an analysis of the ads’ 

electoral purpose. Accordingly, the FEC fails to show the analysis was not arbitrary and 

capricious. 

 

“Commission” engaged in an “ad-by-ad analysis”); id. at 11 (stating the “Commission changed 

its characterization of four out of twenty disputed electioneering communications”); id. at 12–13 

(stating the “Commission . . . classified nearly $1.9 million spent by AAN on non-express 

advocacy as indicative of a major purpose”). Since no more than three commissioners did any of 

these things, the “Commission” did not adopt any of these positions. See 52 U.S.C. § 30106(c) 

(four votes necessary for Commission action). 

22 Similarly, the FEC’s contention that the fact that the three commissioners’ statement arose in 

the course of a formal adjudication is sufficient to warrant deference, FEC Reply 9, misses the 

mark. See Mead Corp., 533 U.S. at 229 (agency interpretation arising from formal adjudication 

is only an “indicator” that interpretation has force of law warranting Chevron deference). If that 

were all that were required, then the Court would also owe deference to the statement of the two 

commissioners who found reason to believe AAN was a political committee and interpreted 

Buckley to permit that, AR 1784–89, because it also was the product of the same adjudication. 

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In their analysis, the controlling commissioners cherry pick news articles to confirm their 

preexisting conclusion, but utterly ignore “important aspect[s] of the problem.” Nat’l Ass’n of 

Home Builders v. Defenders of Wildlife, 551 U.S. 633, 658 (2007). First, when conducting an 

inquiry into whether an ad “intend[s] to affect election results,” McConnell, 540 U.S. at 127, an 

important aspect of the inquiry would be to look to see if the ads are in fact aimed at elections, 

see CREW Br. 36–39. The controlling commissioners, however, gave that consideration no 

thought. “Underinclusiveness raises serious doubts about whether the [actor] is in fact pursuing 

the interest it invokes,” Brown v. Entm’t Merch. Ass’n, 564 U.S. 786, 802 (2011), but the 

controlling commissioners were unperturbed by the fact that AAN’s ads did not target even one 

officeholder not facing serious risk of defeat at the polls “in November.” See, e.g., AR 1775. 

Ignoring so many relevant members of Congress calls into question whether AAN’s purpose 

could credibly have been to lobby for legislation and gives rise to at least a “reason to believe” 

AAN’s ads sought to elect or defeat the named candidates.23 

Second, the controlling commissioners ignore the most logical explanation for AAN’s 

laser-like focus on “November,” instead asserting that it is best interpreted as a reference to a 

possible lame-duck legislative session. AR 1769–70. However, they made absolutely no 

attempt to explain why AAN would direct voters to register their displeasure in “November” but 

never at any other time, despite the fact that AAN’s ads ran in October or earlier, a lame-duck 

 23 AAN contends one of the candidates it targeted for election was not in a close race, but one 

was rated “Solid Republican.” AAN Reply 25. But AAN’s electioneering communications ran 

in October or earlier, McPhail Decl. Ex. 13, when the race was rated “lean GOP,” see McPhail 

Decl. Ex. 14 Election 2010: Senate Balance of Power, Rasmussen Reports (Nov. 1, 2010), 

http://bit.ly/2fcd0k0). Anyway, the controlling commissioner now agree this ad exhibits the 

purpose of nominating or electing candidates. AR 1777–78 (addressing “New Hampshire” ad). 

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37 

would be equally as likely in December, references to “this winter” or “after the election” or “in 

the lame duck” would equally suffice, and despite the fact that the referenced legislative issues 

were not limited to the lame duck and some were not even raised in the lame duck. See CREW 

Br. 39–40; see also McPhail Ex. 13 (FEC, Details for Committee ID: C30001648 (AAN) 

(showing under “From Date” and “End Date” columns that AAN’s 2010 electioneering 

communications started in August, with most running October). AAN’s sole focus on 

“November” is exceedingly strange if its purpose was to lobby; it makes perfect sense, however, 

if AAN’s purpose was to influence the elections. The controlling commissioners’ willful 

ignorance of relevant contrary information renders their analysis farcical.24

In response to all this, the FEC tries to view each fact showing the ad’s electoral purpose 

in isolation, asserting no single one conclusively shows that the ad’s purpose was solely to 

influence an election. But the FEC utterly failed to address the fact that AAN’s ads possessed all

of the indicators Plaintiffs identified that demonstrated their electoral purpose, and thus failed in 

its duty to review the “record . . . as a whole.” Defenders of Wildlife and Cntr. for Biological 

Diversity v. Jewell, 815 F.3d 1, 9 (D.C. Cir. 2016). And its isolated defenses—consisting of a 

scant three pages of briefing—are wholly unreasoned and meritless. For example, the FEC 

 24 Similarly ignored by the controlling commissioners was the $1.1 million AAN reported to the 

IRS that it spent on politics above what it spent on express advocacy. While both the FEC and 

AAN assume that money is subsumed within the $1.75 million the controlling commissioners 

begrudgingly now recognize was spent on the elections, see FEC Reply 37; AAN Reply 30, there 

is nothing in the record to support that assumption because the FEC never bothered to ask AAN 

on what it spent that $1.1 million. It may have been part of the funds AAN spent on 

electioneering communications, or it may have been spent on other federal election activity, like 

partisan voter registration drives, etc., 52 U.S.C. § 30101(20). If the latter, such funds could not 

count in favor of excusing AAN from reporting as a political committee. Surely, $1.1 million in 

election activity is an “important aspect” of the question on remand, yet the controlling 

commissioners never considered it. Nat’l Ass’n of Home Builders, 551 U.S. at 658. 

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guesses AAN exclusively focused on close races because AAN “viewed officeholders in tight 

races as susceptible to constituent demands.” FEC Reply 34. Of course, they would be 

susceptible to constituent demands because they are at risk of losing their election. AAN’s 

desire to use possible influence on the elections to advance its policy goals hardly demonstrates 

the ads are not substantially related to impacting elections—rather it proves they were. 

Moreover, in addressing each of these facts, the FEC can only guess what the controlling 

commissioners would say about them because nothing in the record shows the controlling 

commissioners considered these issues at all. As with all the “important aspects” of the question 

on remand ignored by the controlling commissioners, the FEC is left to attempt post-hoc 

rationalizations. But its attempts are as irrelevant as they are unmeritorious: the court “must 

judge the propriety of . . . [the controlling commissioners’] action solely by the grounds invoked 

by [them],” Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947), and “may not 

accept[] counsel’s post hoc rationalizations for agency action,” Motor Vehicle Mfrs. Ass’n of 

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). It is indisputable the 

controlling commissioners “entirely failed to consider” the factors identified by Plaintiffs and 

that such factors are clearly “important aspect[s]” of the ads’ electoral nature. That renders their 

analysis arbitrary and capricious. Nat’l Ass’n of Home Builders, 551 U.S. at 657. 

In addition to failing to consider these aspects, what the controlling commissioners did do 

is equally damning. They relied solely on the selected materials and analysis submitted by AAN, 

failing to even ask their own Office of General Counsel for an analysis of the Court’s opinion.25 

 25 The FEC asserts that “plaintiffs themselves chose not to provide any further context of their 

own, thus choosing to leave the administrative record devoid of the information they now claim 

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39 

Moreover, even with respect to the evidence they apparently thought was relevant—newspaper 

articles discussing the elections and legislation—the record does not reveal an evenhanded or 

comprehensive review. Rather, they selected evidence confirming their preexisting conclusion 

while ignoring other contemporary news reports recognizing AAN’s ads were “campaign” or 

“political” ads.26 “Such cherry-picking embodies arbitrary and capricious conduct.” Sierra Club 

v. Salazar, 177 F. Supp. 3d 512, 540 (D.D.C. 2016) (citing Am. Radio Relay League, Inc. v. 

FCC, 524 F.3d 227, 237 (D.C. Cir. 2008)). 

In sum, the controlling commissioners have adopted an “unworkable” test that allows 

them to cherry pick evidence to excuse groups they favor, while ignoring the most relevant 

evidence to determining whether ads are aimed at influencing elections. That their test is 

arbitrary and capricious only proves Congress’s wisdom in creating a clear but narrowly tailored 

category to demark ads intended to influence elections: those that are electioneering 

 

to be essential.” FEC Reply 33. The facts Plaintiffs cite, however, are either apparent on the 

face of the ads, were submitted with the record on remand, or come from the agency’s own 

records or other public sources the FEC would have gathered in any unbiased investigation. 

Furthermore, the FEC’s notice that they were not appealing this Court’s decision did not invite 

Plaintiffs to submit any materials, see AR 1761, nor would it have provided a reasonable 

opportunity as the Commission voted on the case mere days later, see AR 1762. 

26 See, e.g., McPhail Decl. Ex. 15 (Lynn Bartels, 9News removes anti-Perlmutter ad deemed a 

“whopper”, Denver Post (Oct. 26, 2010), http://www.denverpost.com/2010/10/26/9newsremoves-anti-perlmutter-ad-deemed-a-whopper/ (describing AAN’s “Skype” “campaign ad”)); 

id. Ex. 16 (Daniela Altimari, Television Pulls Ad Against Murphy, Citing Unsubstantiated 

Claims, Hartford Courant (Oct. 26, 2010), http://articles.courant.com/2010-10-26/news/hcviagra-ad-pulled-1027-20101026_1_politicalads-review-commercials-murphy (discussing 

AAN’s “Mess” “political ad”)); id. Ex. 17 (Jake Gibson, Connolly, Like Many House Dems in 

Swing Districts, Faces tough Re-election campaign, Fox News (Oct. 25, 2010), 

http://www.foxnews.com/politics/2010/10/25/connolly-like-many-house-dems-in-swingdistricts-faces-tough-re-election.html (stating AAN spent $900,000 to “run [the ‘Back Pack’ ad] 

against Connolly” in election)). 

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communications. 

IV. The Court May Consider Submitted Materials.

Finally, the FEC asks the Court to ignore indisputably relevant materials that can assist 

the Court in interpreting Buckley, FEC Reply 32–34, but does not show any such materials are 

not properly before the Court. Much of this material, consisting of the FEC’s own reports and 

filings with the agency or summaries of such materials, was submitted when this matter was 

before the Court initially, and thus are part of the record the Court “remand[ed] . . . to the FEC.” 

CREW, 209 F. Supp. 3d at 81; accord FEC, Certified List of Contends of Administrative Record, 

ECF No. 18 (recognizing record was “remanded to the Commission”). Even if they were not 

part of the remanded record, the Court may consider these materials where they show the agency 

“failed to examine all relevant factors.” Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 45 (D.D.C. 

2009); see Blair v. Cal. State Dep’t of Transp., 867 F. Supp. 2d 1058, 1068 (N.D. Cal. 2012) 

(admitting extra-evidence to prove agency failed to examine relevant facts); cf. Nat’l Treasury 

Emp. Union v. Hove, 840 F. Supp. 165, 169 (D.D.C. 1994) (refusing to consider outside record 

evidence for purpose of showing agency failed to consider all relevant factors when the 

information “concern[ed] factors actually considered by” the agency). If a plaintiff were limited 

to evidence concerning the aspects the agency did consider, as the FEC proposes, a plaintiff 

could never show an agency “failed to consider an important aspect of the problem.” State 

Farm, 463 U.S. at 43. Finally, all materials are relevant to the Court’s interpretation of Buckley, 

a “rule of domestic law,” and so the Court “is unrestricted in his investigation and conclusion.” 

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FED. R. EVID. 201 (cmmt).27 The FEC’s complaint that that exception swallows the rule 

against considering extra-record evidence, FEC Reply 33, confuses the various inquiries before 

the Court. When the Court asks what the law is rather than say what the respondent did, the 

Court may consider any matter it deems relevant. The latter question is not in dispute here, and 

the Court may consider any and all materials it deems relevant in its resolution of the former.28

CONCLUSION 

The controlling commissioners once again misinterpreted Buckley to reach their 

predetermined conclusion: that AAN must be excused from political committee reporting. Just 

as before, however, that interpretation is impermissible because it rests on an interpretation of 

Buckley that excuses organizations from reporting because they disseminate ads that are 

“specifically intended to affect election results.” McConnell, 540 U.S. at 127. They contrive an 

“unworkable” test, Indep. Inst. 216 F. Supp. 3d at 188, to segregate ads in line with an 

“inapposite” framework that has no application “in the disclosure context,” CREW, 209 F. Supp. 

3d at 90. They chose to rely on an arbitrary and capricious cherry picking of facts, while 

ignoring the most relevant facts about the ads; facts of which this Court rightly took notice when 

 27 See also Beach Commc’n, Inc. v. FCC, 959 F.2d 975, 987 (D.C. Cir. 1992) (“‘[I]t may 

sometimes be appropriate to resort to extra-record information to enable judicial review of 

agency action to become effective.’ . . . In the instant case, we require additional ‘legislative 

facts’ . . . .” (citations omitted)); see also Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest

Serv., 305 F.R.D. 256, 298 (D.N.M. 2015) (“To the extent that materials go towards elucidating 

the standard by which the Court should judge the facts of this case, rather than elucidating the 

facts themselves, the Court may look to, and the parties may cite to, evidence outside the 

record.”). 

28 In contrast, AAN cites materials related to its activities in 2017, see AAN Reply 24 n.5, but 

these materials have no relation to the proper interpretation of Buckley or any other rule of 

domestic law and, dating more than seven years after the relevant time-period in question here, 

are wholly irrelevant. See CREW, 209 F. Supp. 3d at 94 (expenditures in the requisite “calendar 

year” are most relevant). 

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it declared that it “blinks reality to conclude” the ads were “not designed to influence the election 

or defeat of a particular candidate.” Id. at 93. The controlling commissioners’ new analysis 

leaves one still blinking. Thus, the dismissal below was, as was the case previously, contrary to 

law. Plaintiffs therefore respectfully request the Court enter summary judgment in their favor, 

declare that it is impermissible to interpret Buckley to excuse organizations from reporting as 

political committees because they run electioneering communications, and remand for further 

consideration in light of that declaration. 

 

 

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Dated: January 9, 2018. 

/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 

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