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, ) MOTION FOR SUMMARY 

 ) JUDGMENT 

 Defendant, ) 

 ) 

AMERICAN ACTION NETWORK, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MOTION FOR SUMMARY JUDGMENT 

In accordance with the Court’s Amended Scheduling Order (Docket No. 27), defendant 

Federal Election Commission (“Commission”) respectfully moves this Court for an order 

granting summary judgment to the Commission pursuant to Rule 56 of the Federal Rules of Civil 

Procedure and Local Civil Rule 7(h). In support of this motion, the Commission is filing a 

Memorandum in Support of Its Motion for Summary Judgment, the Declaration of Shanna M. 

Reulbach, and a Proposed Order. 

 Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

Charles Kitcher (D.C. Bar No. 986226) 

Attorney 

ckitcher@fec.gov 

 

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2

Erin Chlopak (D.C. Bar No. 496370) 

Acting Associate General Counsel – Policy 

echlopak@fec.gov 

August 4, 2017 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:16-cv-02255-CRC Document 28 Filed 08/04/17 Page 2 of 54
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, ) MEMORANDUM 

 ) 

 Defendant, ) 

 ) 

AMERICAN ACTION NETWORK, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Associate General Counsel – Policy 

echlopak@fec.gov 

August 4, 2017 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

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i

TABLE OF CONTENTS 

 Page 

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

BACKGROUND ...................................................................................................................... 3 

I. STATUTORY AND REGULATORY BACKGROUND .............................................3 

A. The FEC and FECA’s Administrative Enforcement Process ............................3 

1. The Commission ....................................................................................3 

2. FECA’s Administrative Enforcement and Judicial-Review 

Provisions ...............................................................................................4 

B. FECA’s Registration and Reporting Requirements ...........................................6 

1. Event-Driven Reporting Requirements..................................................6 

2. Regulation of Political Committees .......................................................7 

II. FACTUAL BACKGROUND ........................................................................................9 

A. The Commission’s Previous Dismissals of Plaintiffs’ Administrative 

Complaints and the Court’s Remand .................................................................9 

............................10 

C. The Commission’s Dismissal of the AAN Matter on Remand ........................12 

D. Post-Remand Procedural History .....................................................................17 

ARGUMENT ...........................................................................................................................19 

I. STANDARDS OF REVIEW.......................................................................................20 

A. Standard of Review for Plaintiffs’ Failure-to-Act Claim.................................20 

B. Standard of Review for Plaintiffs’ Challenge to the AAN 

Dismissal Decision ...........................................................................................22 

.....................................................................................................................25 

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III. THE COMMISSION’S DISMISSAL OF THE AAN MATTER CONFORMS WITH 

THE COURT’S REMAND OPINION AND IS NOT OTHERWISE CONTRARY 

TO LAW OR ARBITRARY OR CAPRICIOUS ........................................................31 

A. The Controlling Dismissal Decision Is Supported by Courts’ Narrow 

Interpretations of FECA’s Political-Committee Definition and Based 

Upon the Commissioners’ Fact-Intensive Analysis of AAN’s 

Communications ..............................................................................................31 

B. The Controlling Dismissal Decision Is Not Contrary to Law .........................35 

C. The Controlling Statement Is Not Arbitrary or Capricious .............................42 

CONCLUSION ........................................................................................................................44 

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11 C.F.R. § 100.16 .................................................................................................................... 6 

11 C.F.R. § 100.29 .............................................................................................................. 6, 38 

11 C.F.R. § 104.20 .................................................................................................................... 7 

11 C.F.R. § 104.20(c)(9) ........................................................................................................... 7 

11 C.F.R. § 109.10(e)................................................................................................................ 7 

11 C.F.R. § 111.4 ...................................................................................................................... 4 

11 C.F.R. § 111.21 .................................................................................................................... 4 

*52 U.S.C. § 30101(4)(A)............................................................................................. 8, 25, 31

52 U.S.C. § 30101(8)(A)(i) ....................................................................................................... 8 

52 U.S.C. § 30101(9)(A)(i) ....................................................................................................... 8 

52 U.S.C. § 30101(17) .............................................................................................................. 6 

52 U.S.C. § 30103 ..................................................................................................................... 7 

52 U.S.C. § 30104(a) ................................................................................................................ 7 

52 U.S.C. § 30104(b) ................................................................................................................ 7 

52 U.S.C. § 30104(c)(1) ............................................................................................................ 7 

52 U.S.C. § 30104(c)(2)(A) ...................................................................................................... 7 

52 U.S.C. § 30104(c)(2)(C) ...................................................................................................... 7 

52 U.S.C. § 30104(f)(1) ............................................................................................................ 7 

52 U.S.C. § 30104(f)(2) ............................................................................................................ 7 

52 U.S.C. § 30104(f)(3) ...................................................................................................... 6, 38 

52 U.S.C. § 30106(b)(1) ........................................................................................................... 3 

52 U.S.C. § 30106(c) ............................................................................................................ 3, 4 

52 U.S.C. § 30107(2)(8) ........................................................................................................... 3 

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52 U.S.C. § 30109 ..................................................................................................................... 3 

52 U.S.C. § 30109(a)(1) ........................................................................................................ 3, 4 

52 U.S.C. § 30109(a)(2) ........................................................................................................ 3, 4 

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

52 U.S.C. § 30109(a)(6) ............................................................................................................ 3 

52 U.S.C. § 30109(a)(6)(A) ...................................................................................................... 4 

*52 U.S.C. § 30109(a)(8) .............................................................................................. 1, 17, 20 

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

*52 U.S.C. § 30109(a)(8)(C) .............................................................................................. 5, 20 

52 U.S.C. § 30109(a)(12)(A) .................................................................................................... 4 

52 U.S.C. § 30111(a)(8) ............................................................................................................ 3 

Federal Election Campaign Act Amendments of 1976, 

Pub. L. No. 94-283, § 109, 90 Stat. 483-85 ................................................................ 21 

Federal Election Campaign Act Amendments of 1979, 

Pub. L. No. 96-187, § 106, 93 Stat. 1356-57 .............................................................. 22 

Federal Election Campaign Act Amendments of 1979, 

Pub. L. No. 96-187, § 108, 93 Stat. 1358-61 ......................................................... 21-22 

Miscellaneous 

*FEC, Rules and Regulations: Political Committee Status,

72 Fed. Reg. 5595 (Feb. 7, 2007) ............................................................................... 32

FINAL VOTE RESULTS FOR ROLL CALL 647, 

http://clerk.house.gov/evs/2010/roll647.xml .............................................................. 43 

H.R. 12406, H. Rep. No. 94-917, 94th Cong., 2d Sess. (1976) ........................................ 24, 36 

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INTRODUCTION

In this lawsuit, plaintiffs Citizens for Responsibility and Ethics in Washington and 

Melanie Sloan once again challenge the Federal Election Commission’s (“FEC” or 

“Commission”) handling of their administrative complaints alleging certain campaign-finance 

violations by Americans for Job Security (“AJS”) and American Action Network (“AAN”). 

Plaintiffs’ administrative complaints alleged that AJS and AAN violated the Federal Election 

Campaign Act (“FECA” or “Act”) by spending substantial sums of money on advertising 

referencing federal candidates and legislative issues without registering with the Commission as 

political committees and complying with the disclosure requirements that apply to such groups. 

Following the Court’s determination, under FECA’s relevant judicial review provision, 52 

U.S.C. § 30109(a)(8), that certain aspects of the rationales for the earlier dismissals of plaintiffs’ 

administrative complaints were “contrary to law,” Citizens for Responsibility & Ethics in 

Washington v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) (“CREW I”), appeal dismissed, Nos. 16-

5300, 16-5343 (D.C. Cir. Apr. 4, 2017) (per curiam) (Doc. #1669311), the agency has 

reconsidered the two matters. Upon such reconsideration, 

 the Commission did not find, by the required four affirmative votes, that AAN 

was subject to FECA’s political committee requirements. The 

Commission has dismissed the administrative complaint concerning AAN. Plaintiffs 

allege that the Commission’s failure to take final action on the AJS matter, and its new dismissal 

of the AAN matter, are contrary to law. 

Plaintiffs’ contentions are meritless. 

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The Commission’s actions regarding the AAN matter were not contrary to law. 

Following the Court’s remand, the Commissioners reconsidered plaintiffs’ allegations that AAN 

was required to register and report as a political committee. Once again, the agency did not have 

the requisite four votes to find reason to believe that AAN violated the Act, and, in a new 

statement of reasons, the same controlling group of Commissioners that had previously voted to 

dismiss plaintiffs’ administrative complaints reconsidered and revised their analysis in light of 

the Court’s determination in CREW I that AAN’s non-express advocacy could be indicative of a 

major purpose of nominating or electing candidates. Drawing upon their expertise, the 

Commissioners then performed an ad-by-ad analysis of each of AAN’s non-express advocacy 

electioneering communications that plaintiffs had placed at issue. On reconsideration, these 

Commissioners agreed that a number of those ads, like AAN’s express advocacy 

communications, should count towards a finding that AAN had the major purpose of nominating 

or electing candidates. The controlling Commissioners further concluded that a small set of 

other ads were a closer call and that the remaining ads were more indicative of AAN’s pursuit of 

legislative goals. Because they determined that the proportion of relevant spending indicating a 

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major purpose of nominating or electing candidates remained well below half of AAN’s overall 

spending — and in fact was closer to one-quarter, even when including those ads the controlling 

Commissioners viewed as close calls — the controlling group of Commissioners again 

concluded that there is no reason to believe AAN was a political committee. The controlling 

Commissioners’ revised analysis reflects a careful review of the record and is thoroughly 

explained in a lengthy statement of reasons that conforms with the Court’s remand decision and 

is not otherwise contrary to law or arbitrary or capricious. 

The Court should grant summary judgment to the Commission. 

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND 

A. The FEC and FECA’s Administrative Enforcement Process 

1. The Commission 

The FEC is a six-member, independent agency vested with statutory authority over the 

administration, interpretation, and civil enforcement of FECA. Congress authorized the 

Commission to “formulate policy” with respect to FECA, 52 U.S.C. § 30106(b)(1); “to make, 

amend, and repeal such rules . . . as are necessary to carry out the provisions of [FECA],” id.

§§ 30107(a)(8), 30111(a)(8); and to investigate possible violations of the Act, id. § 30109(a)(1)-

(2). The FEC has exclusive jurisdiction to initiate civil enforcement actions for violations of 

FECA in the United States district courts. Id. §§ 30106(b)(1), 30109(a)(6). It is required under 

FECA to make decisions through majority votes and, for certain actions, including enforcement 

decisions, with the affirmative vote of at least four Commissioners. Id. § 30106(c). 

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2. FECA’s Administrative Enforcement and Judicial-Review Provisions 

FECA permits any person to file an administrative complaint with the FEC alleging a 

violation of the Act. Id. § 30109(a)(1); see also 11 C.F.R. § 111.4. FEC administrative 

enforcement matters are required by FECA to be kept confidential until the administrative 

process is complete. 52 U.S.C. § 30109(a)(12)(A) (“Any notification or investigation made 

under this section shall not be made public by the Commission or by any person without the 

written consent of the person receiving such notification or the person with respect to whom such 

investigation is made.”); 11 C.F.R. § 111.21. After considering an administrative complaint and 

any response, the FEC determines whether there is “reason to believe” that FECA has been 

violated. 52 U.S.C. § 30109(a)(2). If at least four of the FEC’s six Commissioners vote to find 

reason to believe, the FEC may investigate the alleged violation; otherwise, it dismisses the 

administrative complaint. Id. §§ 30106(c), 30109(a)(2). 

If the FEC proceeds with an investigation, it then must determine whether there is 

“probable cause” to believe that FECA has been violated. Id. § 30109(a)(4)(A)(i). A probable 

cause determination also requires an affirmative vote of at least four Commissioners. Id.

§§ 30106(c), 30109(a)(4)(A)(i). If the Commission so votes, it is statutorily required to attempt 

to reach a conciliation agreement with the respondent. Id. The FEC’s assent to a conciliation 

agreement requires an affirmative vote of at least four Commissioners. Id. If the FEC is unable 

to reach a conciliation agreement, FECA authorizes the FEC to institute a de novo civil 

enforcement action in federal district court, upon an affirmative vote of at least four 

Commissioners. Id. §§ 30106(c), 30109(a)(6)(A). 

FECA permits an administrative complainant to challenge the FEC’s handling of an 

administrative complaint in two limited situations, both of which have been invoked here. First, 

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a party who has filed an administrative complaint may bring a judicial-review action against the 

Commission in the event of “a failure of the Commission to act on [the administrative] complaint 

during the 120-day period beginning on the date the [administrative] complaint is filed.” 52 

U.S.C. § 30109(a)(8)(A). The 120-day period is a jurisdictional threshold, not a timetable within 

which the Commission must resolve an administrative complaint. See FEC v. Rose, 806 F.2d 

1081, 1092 (D.C. Cir. 1986). 

Second, if, at any point in the administrative process, the Commission determines that no 

violation has occurred or decides to dismiss the administrative complaint for some other reason, 

the complainant may file suit in this District against the Commission to obtain judicial review of 

the Commission’s dismissal decision. 52 U.S.C. § 30109(a)(8)(A). Reviewable dismissal 

decisions include instances in which “the Commission deadlocks 3-3 and so dismisses a 

complaint.” FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) 

(“NRSC”); Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 1987) 

(“DCCC”). In such split-vote cases, the three Commissioners who voted to dismiss must provide 

a statement of their reasons” in order “to make judicial review a meaningful exercise.” NRSC, 

966 F.2d at 1476. “Since those Commissioners constitute a controlling group for purposes of the 

decision, their rationale necessarily states the agency’s reasons for acting as it did.” Id.; see also

CREW I, 209 F. Supp. 3d at 81. 

In either scenario, if a court finds that the Commission’s failure to act or dismissal was 

“contrary to law,” it may order the Commission to conform to the court’s decision within 30 

days. 52 U.S.C. § 30109(a)(8)(C); see In re Nat’l Cong. Club, Nos. 84-5701, 84-5719, 1984 WL 

148396, at *1 (D.C. Cir. Oct. 24, 1984) (per curiam); Rose, 806 F.2d at 1084; CREW I, 209 F. 

Supp. 3d at 95. 

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B. FECA’s Registration and Reporting Requirements 

One way FECA reduces corruption in politics is by requiring public disclosures 

concerning the financing of certain kinds of election-related communications. Buckley v. Valeo, 

424 U.S. 1, 67 (1976) (per curiam) (“[D]isclosure requirements deter actual corruption and avoid 

the appearance of corruption by exposing large contributions and expenditures to the light of 

publicity.”). Disclosure also “provid[es] the electorate with information about the sources of 

election-related spending.” McCutcheon v. FEC, 134 S. Ct. 1434, 1459 (2014) (internal 

quotation marks omitted). FECA imposes different kinds of disclosure obligations depending 

upon the nature of the organization making the communications and the timing, form, and 

content of the communications. 

1. Event-Driven Reporting Requirements 

FECA’s event-driven reporting requirements apply to particular communications meeting 

certain criteria. See CREW I, 209 F. Supp. 3d at 81-82. As relevant here, FECA requires that 

spending above certain thresholds on “independent expenditures” or “electioneering 

communications” must be disclosed. An “independent expenditure” is a communication 

“expressly advocating the election or defeat of a clearly identified candidate” and that is made 

without coordinating with the candidate or a political party. 52 U.S.C. § 30101(17); 11 C.F.R. 

§ 100.16. An electioneering communication is (1) a “broadcast, cable, or satellite 

communication” (2) referring to a “clearly identified” federal candidate (3) that is made within a 

30- or 60-day run up to an election, convention, or caucus (depending upon what kind of election 

or other event it is) and (4) is “targeted to the relevant electorate.” 52 U.S.C. § 30104(f)(3); 11 

C.F.R. § 100.29. The only content requirement to meet that definition is the clear reference to 

the applicable federal candidate; broadcast communications falling within the 30- or 60-day 

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statutory windows thus may be “electioneering communications” even if they do not expressly 

advocate for the identified candidate’s election or defeat. See McConnell v. FEC, 540 U.S. 93, 

189 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010). 

Any entity that spends more than $250 to finance independent expenditures must file 

with the Commission a disclosure report that identifies, inter alia, the date and amount of each 

expenditure and anyone who contributed more than $200 to further it. See 52 U.S.C. 

§ 30104(c)(1), (2)(A), (C); 11 C.F.R. § 109.10(e). Similarly, any entity making electioneering 

communications aggregating more than $10,000 must report, inter alia, the date and amount of 

each disbursement, the identity of all clearly identified candidates mentioned and the elections in 

which they are running, and the name and address of each donor who gave an aggregate of 

$1,000 or more to a segregated bank account if that account was used to make the disbursements. 

52 U.S.C. § 30104(f)(1)-(2); 11 C.F.R. § 104.20. If the disbursements were made by a 

corporation or labor union, the organization must identify the name and address of each person 

who contributed an aggregate of $1,000 or more over the course of the previous 12 to 24 months 

“for the purpose of furthering electioneering communications.” 11 C.F.R. § 104.20(c)(9). 

2. Regulation of Political Committees 

FECA also provides that certain organizations, which qualify as “political committees,” 

are subject to “[m]ore extensive disclosure rules.” CREW I, 209 F. Supp. 3d at 82. Political 

committees must, inter alia, register with the FEC, appoint a treasurer, maintain names and 

addresses of contributors, and file periodic reports disclosing most receipts of $200 or more. 52 

U.S.C. §§ 30103, 30104(a)-(b). 

Under FECA, any “committee, club, association, or other group of persons” that receives 

more than $1,000 in “contributions” or makes more than $1,000 in “expenditures” in a calendar 

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year is a “political committee.” 52 U.S.C. § 30101(4)(A); 11 C.F.R. § 100.5(a). The Act defines 

“contribution” and “expenditure” to include any payment of money to or by any person “for the 

purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i), (9)(A)(i). 

In Buckley, however, the Supreme Court explained that FECA’s definition of political-committee 

status “only in terms of amount of annual ‘contributions’ and ‘expenditures’” might result in an 

overbroad application by reaching “groups engaged purely in issue discussion.” 424 U.S. at 79. 

The Court therefore concluded that, in order to “fulfill the purposes of the Act,” FECA’s 

political-committee provisions “need only encompass organizations that are under the control of 

a candidate or the major purpose of which is the nomination or election of a candidate.” Id.; 

CREW I, 209 F. Supp. 3d at 82. Buckley thus established that an entity that is not controlled by a 

candidate must register as a political committee only if the group crosses the $1,000 threshold of 

contributions or expenditures and has as its “major purpose” the nomination or election of 

federal candidates. 

“Rather than adopt a rule specifically defining the contours of this ‘major purpose’ 

limitation, the FEC has pursued an adjudicative, case-by-case approach, an implementation 

choice which has been litigated, scrutinized, and ultimately validated by a fellow court in this 

District.” CREW I, 209 F. Supp. 3d at 82. As the Commission explained in 2007, “‘determining 

political committee status . . . requires’ a fact-intensive analysis of an organization’s ‘overall 

conduct,’ meaning ‘whether its major purpose is Federal campaign activity (i.e., the nomination 

or election of a Federal candidate).’” Id. (quoting FEC, Rules and Regulations: Political 

Committee Status, 72 Fed. Reg. 5595, 5597 (Feb. 7, 2007) (“Supplemental E&J”)). 

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II. FACTUAL BACKGROUND 

A. The Commission’s Previous Dismissals of Plaintiffs’ Administrative 

Complaints and the Court’s Remand 

Plaintiffs’ March 8, 2012 administrative complaint alleged that “AJS’s major purpose in 

2010 was the nomination or election of federal candidates,” and that, consequently, AJS and its 

president, Stephen DeMaura, had violated FECA by “failing to register as a political committee” 

and by “failing to file [the] periodic reports required of political committees.” (AR 11-12.) In a 

separate administrative complaint dated June 7, 2012, plaintiffs alleged that “AAN’s major 

purpose between July 23, 2009 and June 30, 2011 was the nomination or election of federal 

candidates” and that it likewise had violated FECA by “failing to register as a political 

committee” and by failing “to file [the] periodic reports” required of political committees. (AR 

1486-87.) On June 24, 2014, the Commission, by a vote of 3-3, did not find reason to believe 

that either AJS or AAN had violated FECA’s registration and reporting requirements for political 

committees. (AR 1434-35; AR 1686-87.) 

Plaintiffs sought judicial review of the dismissal decisions, challenging as contrary to law 

the controlling statements of reasons (AR 1438-69; AR 1690-1723) explaining the votes of the 

three Commissioners, Commissioners Goodman, Hunter, and Petersen, who had declined to 

approve finding reason to believe. After briefing and argument, the Court concluded that the 

controlling statements of reasons contained two legal errors. First, it held that the controlling 

Commissioners’ “understanding that the First Amendment effectively required the agency to 

exclude from its consideration all non-express advocacy in the context of disclosure” was 

erroneous. CREW I, 209 F. Supp. 3d at 93. Second, it held that the controlling “Commissioners’ 

refusal to give any weight whatsoever to an organizations’ relative spending in the most recent 

calendar year” was arbitrary and contrary to law. Id. at 94; see Mem. Op. & Order at 2, CREW v. 

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C. The Commission’s Dismissal of the AAN Matter on Remand 

Following the Court’s September 2016 remand order, the Commission also reconsidered 

the AAN matter and brought it to a close. As part of that reconsideration, the Commission and 

FEC Counsel reviewed AAN’s second supplemental response, which AAN submitted to the 

Commission on October 6, 2016. (AR 1733-59.) On October 18, 2016, by a vote of 3-3, the 

Commission did not find reason to believe that AAN had violated FECA’s registration and 

reporting requirements for political committees. (AR 1762.) Commissioners Walther, Ravel, 

and Weintraub voted to find reason to believe and Commissioners Petersen, Hunter, and 

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Goodman voted against so finding. (Id.) The Commission then voted 5-1 to close the file. (Id.)

On October 19, 2016, Commissioners Petersen, Hunter, and Goodman issued a statement 

explaining their October 18 votes concerning the matter. (AR 1763-81.) On December 5, 2016, 

Commissioners Ravel and Weintraub issued a statement explaining their votes. (AR 1784-89.) 

Because Commissioners Petersen, Hunter, and Goodman were the Commissioners voting against 

making the reason-to-believe finding, they remain the “controlling group” of Commissioners 

with respect to the October 18 dismissal. NRSC, 966 F.2d at 1476. 

After summarizing the previous dismissal of plaintiffs’ administrative complaint 

concerning AAN and the Court’s opinion (AR 1763-67), the controlling Commissioners 

reexamined AAN’s spending of $13.7 million on electioneering communications during 2009-

2010 (AR 1768-80). At the outset, the controlling Commissioners explained that evaluation of 

these communications required “look[ing] at the ad’s specific language for references to 

candidacies, elections, voting, political parties, or other indicia that the costs of the ad should be 

counted towards a determination that the organization’s major purpose is to nominate or elect 

candidates.” (AR 1767-68.) They also explained that additional relevant information included 

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

referenced in the ad,” “information beyond the content of the ad only to the extent necessary to 

provide context,” and “whether the communication contains a call to action and, if so, whether 

the call relates to the speaker’s issue agenda or . . . to the election or defeat of federal 

candidates.” (AR 1768.) 

The controlling Commissioners then engaged in an ad-by-ad analysis that discussed 

AAN’s electioneering communications by the following categories of subject matter: “Bush Tax 

Cuts”; “Federal Spending”; “Health Care”; “Energy”; and a “Miscellaneous” category containing 

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the last two advertisements. (AR 1770-79.) In each category, the controlling statement set forth 

the texts of the ads, AAN’s spending on them, and the controlling Commissioners’ analysis of 

the extent to which the ads evinced a purpose of nominating or electing federal candidates. (Id.) 

Those Commissioners concluded that AAN’s spending on the five electioneering 

communications concerning the “Bush Tax Cuts” should not count as relevant spending because 

“[n]one of [them] refer[red] to candidacies or the upcoming election, nor do they contain other 

campaign-related indicia.” (AR 1770-71.) In addition, “[e]ach of the ads . . . focuses on 

government spending and tax cuts and calls on viewers to contact the named officeholders to 

urge them to take specific legislative actions.” (AR 1771.) “[T]he action being advocated by the 

ads is consistent with and furthered AAN’s tax-related initiatives,” the Commissioners wrote. 

(AR 1772.) The Commissioners found that the “only content in the ads that is arguably electionrelated is the mention of November” but those references were “best understood as a reference to 

the time period in which [Congress’s] lame-duck session would commence.” (AR 1771.) 

Of the five “Federal Spending” communications, the controlling Commissioners found 

four to be analytically similar to those concerning the Bush tax cuts. (AR 1772-74.) However, 

they contrasted one ad, “Bucket,” which contained “no call to take a particular legislative action” 

and appeared “to be more about creating a negative impression of [the candidate, Russ Feingold] 

in the mind of the viewer than on changing Mr. Feingold’s legislative behavior.” (AR 1773-74.) 

The Commissioners concluded that the “Bucket” ad “is indicative of a major purpose to 

nominate or elect federal candidates.” (AR 1774; Show-Cause Decision at 3.) 

The controlling Commissioners determined that five of AAN’s six communications 

concerning “Health Care” were focused on the repeal of the Affordable Care Act and that AAN’s 

spending on these ads should not count towards indicating that AAN was a political committee. 

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(AR 1774-76.) The remaining ad, “Read This” (AR 1775), highlighted by the Court itself in its 

opinion, CREW I, 209 F. Supp. 3d at 80, “criticize[d] not only the policy judgment of the named 

officeholders but also the officeholders’ role in the process by which the Affordable Care Act 

was enacted,” and “could be read to ask viewers . . . to act ‘[i]n November.’” (AR 1776.) 

However, the Commissioners concluded that, “in light of the ongoing debate in Congress 

regarding the Affordable Care Act,” “Read This” is “best understood as a call to action to 

motivate viewers to contact the named officeholders and tell them to ‘fix the healthcare mess’ 

during the lame-duck session.” (Id.) Nevertheless, because it was a “close call” (id.) the 

Commissioners counted as relevant AAN’s spending on the “Read This” ad in certain of their 

analyses of AAN’s total spending. (AR 1776, 1779.) 

Of the four ads making up the last two categories of communications, the controlling 

Commissioners determined that three could or did indicate an electoral purpose. (AR 1777-79.) 

One of the “Energy” ads contained no reference to “candidacies or the election,” criticized the 

candidate’s role in a “cap-and-trade bill,” and included a “call to action focus[ing] on altering 

[the candidate’s] voting stance rather than encouraging viewers to defeat [him] in the election.” 

(AR 1777.) By comparison, the other “Energy” ad, “New Hampshire,” contained no “call to 

action” and contrasted the named candidate’s “position with that of Kelly Ayotte,” the 

candidate’s “opponent in the 2010 U.S. Senate race held in New Hampshire.” (AR 1777-78.) 

For that reason, the controlling Commissioners counted AAN’s spending on “New Hampshire” 

as relevant spending in the major purpose analysis. The Commissioners likewise counted as 

relevant AAN’s spending on “Order” and “Extreme,” which neither contained a “call to action” 

nor focused on “changing the voting behavior or policy stances of the named individuals now or 

in the future. . . . In fact, the subtext of both ads is that neither individual is likely to 

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change . . . .” (Id.) The Commissioners thus found that the ads “appear to be untethered to an 

issue and may reasonably support an inference that their cost may count toward a determination 

that AAN’s major purpose was the nomination or election of federal candidates.” (AR 1778-79.) 

Having considered each of AAN’s electioneering communications, the Commissioners 

then compared AAN’s spending indicating a major purpose of nominating or electing candidates 

to its total spending in July 2009 through June 2011. (AR 1779.) Of the reported $27,139,009 

AAN spent during that period, it spent $4,096,910 on independent expenditures — i.e., express 

advocacy. To that base of relevant spending, the controlling Commissioners added the 

$1,875,394 AAN spent on “‘Bucket,’ ‘New Hampshire,’ ‘Order,’ and ‘Extreme’” in order to 

conclude that the total of $5,972,304 represented “22% of AAN’s overall spending.” (Id.) They 

also determined that “[e]ven if we were to add in the costs for the ‘Read This’ ad ($1,065,000), 

AAN’s total outlay on ads indicating a purpose to nominate or elect federal candidates would 

still constitute only 26% — well under half — of its overall spending.” (Id.) The 

Commissioners further noted that, “[e]ven if we considered AAN’s spending solely in a single 

year (the July 1, 2010 to June 30, 2011 fiscal year disclosed on its 2010 IRS Form 990),” the 

amount of AAN’s “spending that indicates a purpose to nominate or elect federal candidates 

would constitute less than 28% of its total spending in that time period ($7,037,304 of 

$25,692,334).” (Id. n.52.) Thus, the Commissioners found that upon conducting their “factintensive” analysis, which they noted included consideration of “AAN’s mode of organization, 

official statements, and the fact that less than half of its spending indicates a major purpose of 

nominating or electing candidates, . . . there is no reason to believe that AAN violated [FECA] 

by failing to register with the Commission as a political committee.” (AR 1780.) 

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D. Post-Remand Procedural History 

On November 14, 2016, the same day plaintiffs filed this new action for judicial review 

under 52 U.S.C. § 30109(a)(8) (Docket No. 1), both AAN and plaintiffs sought to appeal the 

Court’s remand decision in CREW I. Those appeals were dismissed for lack of jurisdiction. 

Citizens for Responsibility & Ethics in Wash. v. FEC, Nos. 16-5300, 16-5343 (D.C. Cir. Apr. 4, 

2017) (per curiam) (Doc. #1669311). 

In addition, and also on that date, plaintiffs filed a motion in CREW I asking the Court to 

order the Commission to show cause why the agency should not be held to have violated the 

Court’s remand order. Pls.’ Mot. for an Order to Def. FEC to Show Cause, at 1, 25, CREW v. 

FEC, No. 14-1419 (CRC) (D.D.C. Nov. 14, 2016) (Docket No. 57) (“Show-Cause Motion”). In 

their Show-Cause Motion, plaintiffs argued that the Commission failed to act in conformity with 

the Court’s remand of their administrative complaint concerning AJS and that the agency’s 

prompt post-remand dismissal of their similar allegations concerning AAN was contrary to law, 

including this Court’s opinion in CREW I. This Court denied that motion and rejected plaintiffs’ 

arguments. (Show-Cause Decision at 4-6.) 

 

 

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Regarding AAN, the Court explained that “[o]n remand, and within the 30-day window 

set out in the [remand] Order, the FEC reopened the AAN matter, notified the parties, and 

reconsidered the record in light of the Court’s Order.” (Show-Cause Decision at 2.) The Court 

described the controlling Commissioners’ revised statement of reasons, citing its “nineteen 

single-spaced pages,” which “summarize[] this Court’s September Opinion,” including the two 

legal errors identified in that opinion; “outline[] a new framework for evaluating whether AAN’s 

electioneering communications (i.e., non-express advocacy) indicated a major purpose to 

nominate or elect a federal candidate; and then appl[y] that framework in a fact-intensive manner 

to each of AAN’s electioneering communications.” (Id. at 3.) The Court also distinguished the 

controlling group’s original and post-remand analyses: “Whereas prior to the Court’s [remand] 

Order, the [controlling group of Commissioners] had found no electioneering communications to 

indicate an election-related major purpose,” in reconsidering the matter on remand, those 

Commissioners “identified four.” (Id.) The Court observed that the revised controlling 

statement of reasons “developed a new framework for evaluating which expenditures suggested 

an election-related purpose, and applied that new framework to AAN’s ads,” and “[c]ritically, 

th[at] new framework . . . was free of the legal errors identified in this Court’s previous Opinion 

and Order.” (Id. at 5.) The Court also clarified that it had “never ordered the FEC to reach a 

particular result, or to consider any particular ad — or any proportion of electioneering 

communications — election-related,” and had merely “directed the FEC to reconsider its 

decision without ‘exclud[ing] from its [major purpose] consideration all non-express advocacy.” 

(Id. at 6 (alterations in original).) The Court found that “[t]he FEC did just that.” (Id.) 

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In this action, plaintiffs again seek judicial review of the FEC’s dismissal of plaintiffs’ 

administrative complaint regarding AAN and the Commission’s supposed “failure to act” 

regarding the AJS matter. (Docket No. 8 (“Am. Compl.”).) 

ARGUMENT

The Commission’s post-remand actions on the AJS and AAN matters should be 

sustained. Such actions are free from the errors identified in the Court’s remand opinion and are 

not otherwise contrary to law or arbitrary or capricious. 

 

In addition, the Commission’s post-remand dismissal of the AAN matter is not contrary 

to law. The controlling group of Commissioners’ new statement of reasons reflects their 

thorough review of AAN’s electioneering communications and their assessment, based on the 

Commissioners’ expertise and experience, of which communications appropriately should be 

counted towards a finding that AAN’s spending made it a political committee. In light of the 

congressionally designated and judicially approved deference owed to the Commission’s 

implementation choices in conducting this analysis, as well as the courts’ repeated instructions 

that FECA must be interpreted in a manner that is sensitive to the First Amendment, the 

dismissal decision is neither contrary to law nor arbitrary or capricious.

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I. STANDARDS OF REVIEW 

In this action for judicial review pursuant to 52 U.S.C. § 30109(a)(8), the Court’s review 

is based on the AJS chronology set forth in the accompanying declaration and the AAN 

administrative record. The Court should grant summary judgment to the Commission unless 

plaintiffs can carry their burden to demonstrate that the Commission’s actions on the AJS and 

AAN matters were “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). As explained below, the 

contrary-to-law standard of section 30109(a)(8) entails distinct judicial considerations with 

respect to plaintiffs’ contentions that the agency has (1) failed to act on the AJS matter and 

(2) made substantive legal errors in dismissing the AAN matter. 

A. Standard of Review for Plaintiffs’ Failure-to-Act Claim 

In the context of a “failure to act” claim, FECA’s contrary-to-law standard means “action 

which is arbitrary and capricious.” Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 

1980). The Court of Appeals has explained that “in using the language ‘contrary to law,’ 

Congress appears to have intended that the unreasonableness of the Commission’s delay in 

completing its task be tested under standards generally applicable to review of agency inaction.” 

In re Nat’l Cong. Club, 1984 WL 148396, at *1. To make this determination, the Court of 

Appeals has instructed district courts to consider the four factors used in Common Cause — “‘[1] 

the credibility of the allegation, [2] the nature of the threat posed, [3] the resources available to 

the agency, and [4] the information available to it, as well as the novelty of the issues involved,’” 

id. (quoting Common Cause, 489 F. Supp. at 744) — as well as the six factors discussed in 

Telecommunications Research & Action Center v. FCC: 

(1) the time agencies take to make decisions must be governed by a 

rule of reason; (2) where Congress has provided a timetable or 

other indication of the speed with which it expects the agency to 

proceed in the enabling statute, that statutory scheme may supply 

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content for this rule of reason; (3) delays that might be reasonable 

in the sphere of economic regulation are less tolerable when human 

health and welfare are at stake; (4) the court should consider the 

effect of expediting delayed action on agency activities of a higher 

or competing priority; (5) the court should also take into account 

the nature and extent of the interests prejudiced by delay; and 

(6) the court need not find any impropriety lurking behind agency 

lassitude in order to hold that agency action is unreasonably 

delayed. 

750 F.2d 70, 80 (D.C. Cir. 1984) (citations and internal quotation marks omitted) (“TRAC”). 

Although section 30109(a)(8)(A) authorizes a cause of action based on an alleged “failure 

of the Commission to act on [an administrative] complaint during the 120-day period beginning 

on the date the complaint is filed,” the Court of Appeals has made clear that FECA does not 

impose some particular time period within which FEC administrative enforcement matters must 

be fully resolved. See, e.g., Rose, 806 F.2d at 1091-92 & n.17 (citing Court of Appeals’s 

“unequivocal[] reject[ion]” of argument that FECA required the FEC to act on an administrative 

complaint within 120 days and embracing the FEC’s “entirely correct” view that “the 

Commission’s handling of a complaint should be judged under the deferential standards of 

review prescribed in the APA”); In re Nat’l Cong. Club, 1984 WL 148396, at *1 (rejecting 

presumption that the Commission has acted contrary to law whenever it fails to resolve a 

complaint within the two-year period between elections); accord Perot v. FEC, 97 F.3d 553, 559 

(D.C. Cir. 1996) (explaining the Congressional understanding that some complaints would not be 

investigated or reviewed by the judiciary until after the election at issue).3

 

 

3

 Indeed, in the 1979 amendments to FECA, Congress deleted (1) a previously existing 

requirement that the Commission conduct its investigations “expeditiously” and (2) a previously 

existing portion of section 30109(a)(8)(B) that had required delay cases to be brought “no later 

than” 150 days after the filing of an administrative complaint, while retaining the Commission’s 

authority to “conduct investigations and hearings expeditiously.” Compare Federal Election 

Campaign Act Amendments of 1976, Pub. L. No. 94-283, § 109, 90 Stat. 483-85, with Federal 

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B. Standard of Review for Plaintiffs’ Challenge to the AAN Dismissal Decision 

In the context of the dismissal of plaintiffs’ administrative complaint regarding AAN, the 

contrary-to-law standard allows “limited” review of the Commission’s decisions not to pursue an 

administrative enforcement action. Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988); 

Citizens for Responsibility & Ethics in Wash. v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) 

(explaining that judicial review under section 30109(a)(8) “is limited to correcting errors of 

law”). As this Court recently observed, relief is appropriate under the contrary-to-law standard 

only if “‘the FEC dismissed the complaint as a result of an impermissible interpretation of 

[FECA],’ or . . . ‘the FEC’s dismissal of the complaint, under a permissible interpretation of the 

statute, was arbitrary or capricious, or an abuse of discretion.’” CREW I, 209 F. Supp. 3d at 85 

(quoting Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986)). 

“To satisfy [the contrary-to-law] standard it is not necessary for [the Court] to find that 

the agency’s construction was the only reasonable one or even the reading the [C]ourt would 

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

Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) (“DSCC”). Thus, when faced 

with challenges to its dismissal decisions, the Commission generally receives deference pursuant 

to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), even if 

 

Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, § 108, 93 Stat. 1358-61, and

id. § 106, 93 Stat. 1356-57. “If Congress had intended that final action occur in all cases within 

120 days of a complainant’s filing, it would have made sense to leave in the” abandoned 150-day 

limitations period. Common Cause, 489 F. Supp. at 743. Thus, as explained by the thenChairman of the Committee on Rules and Administration which reported the Senate bill to 

amend FECA, section 30109(a)(8) is there “‘to assure that the Commission does not shirk its 

responsibility’” and “‘provides that a total failure to address a complaint within 120 days is a 

basis for a court action. But (this basis) for judicial intervention (is) not intended to work a 

transfer of prosecutorial discretion from the Commission to the courts.’” Id. at 743-44 (quoting 

125 Cong. Rec. S19099 (daily ed. Dec. 18, 1979) (statement of Sen. Pell)). 

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the dismissal decision resulted from an equally divided vote of Commissioners. CREW I, 209 F. 

Supp. 3d at 85-86 & n.5.4

 The Commission’s dismissal decisions are also subject to arbitrary 

and capricious review. To meet that standard, plaintiffs must show that “the agency . . . entirely 

failed to consider an important aspect of the problem, offered an explanation for its decision that 

runs counter to the evidence before the agency, or is so implausible that it could not be ascribed 

to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., 

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); CREW I, 209 F. Supp. 3d at 88. 

As the D.C. Circuit has explained, the standard for determining whether a Commission 

determination “was arbitrary or capricious or otherwise an abuse of discretion” is “extremely 

deferential” and “requires affirmance if a rational basis for the agency’s decision is shown.” 

Orloski, 795 F.2d at 167; Van Hollen v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016) (“State Farm

entails a very deferential scope of review that forbids a court from substitut[ing] its judgment for 

that of the agency.” (internal quotation marks omitted)). 

With respect to the AAN dismissal, the controlling Commissioners’ “implementation 

choices” “regarding the timeframe and spending amounts relevant in applying the ‘major 

purpose’ test . . . warrant the Court’s deference” because such matters are “within the agency’s 

sphere of competence.” CREW I, 209 F. Supp. 3d at 88. Indeed, this Court has joined other 

courts in observing that “[t]he Supreme Court has described the FEC as ‘precisely the type of 

 

4

 As the Court previously explained, the D.C. Circuit applied the contrary-to-law standard 

in Orloski by engaging in “the familiar two-step framework outlined in Chevron.” CREW I, 209 

F. Supp. 3d at 86 (citing Orloski, 795 F.2d at 161-62). In In re Sealed Case, the D.C. Circuit 

reiterated the propriety of Chevron deference after a “thorough consideration” of FECA’s 

“‘detailed statutory framework for civil enforcement . . . analogous to a formal adjudication.’” 

Id. at 85 & n.5 (quoting In re Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000)).

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agency to which deference should presumptively be afforded.’” Id. at 87 (quoting DSCC, 454 

U.S. at 37). 

The deference that is accorded to the Commissioners’ implementation choices is rooted 

in Congress’s design of the agency to take action with care and without the appearance of 

partisan politics. The Commission can “initiate investigations, . . . and take other steps of 

comparable importance only upon the affirmative vote of four . . . members. The four-vote 

requirement serves to assure that enforcement actions, as to which the Congress has no 

continuing voice, will be the product of a mature and considered judgment.” H.R. 12406, H. 

Rep. No. 94-917, 94th Cong., 2d Sess. at 3 (1976). The Court of Appeals has repeatedly 

emphasized this important element of the FEC’s decision-making. E.g., Combat Veterans for 

Cong. Political Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. Cir. 2015) (quoting legislative 

history); Public Citizen, Inc. v. Fed. Energy Regulatory Comm’n, 839 F.3d 1165, 1171 (D.C. Cir. 

2016) (“The [FEC’s] voting and membership requirements mean that, unlike other agencies — 

where deadlocks are rather atypical — FEC will regularly deadlock as part of its modus

operandi.”). 

While a split-vote FEC decision “is not binding legal precedent or authority in future 

cases,” CREW I, 209 F. Supp. 3d at 85 n.5 (internal quotation marks omitted); Common Cause, 

842 F.2d at 449 n.32, a judicial failure to “accord Chevron deference to a prevailing decision that 

specific conduct is not a violation,” potentially subjecting “parties . . . to criminal penalties,” 

would be inconsistent with Congress’s intent that enforcement decisions be non-partisan. In re 

Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000); accord DCCC, 831 F.2d at 1135 n.5 (noting 

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III. THE COMMISSION’S DISMISSAL OF THE AAN MATTER CONFORMS

WITH THE COURT’S REMAND OPINION AND IS NOT OTHERWISE 

CONTRARY TO LAW OR ARBITRARY OR CAPRICIOUS 

The controlling Commissioners’ dismissal of the AAN matter should be upheld. It is 

consistent with judicial guidance and the agency’s Supplemental E&J. It is also consistent with 

the Court’s remand decision. In a change from their prior analysis found to be contrary to law, 

the Commissioners found that certain of AAN’s non-express advocacy could be viewed as 

evincing a purpose to nominate or elect candidates, and they applied their knowledge of 

candidate and legislative advocacy campaigns to review all of AAN’s electioneering 

communications afresh. (AR 1767-79.) The revised dismissal was not contrary to law or 

arbitrary or capricious. 

A. The Controlling Dismissal Decision Is Supported by Courts’ Narrow 

Interpretations of FECA’s Political-Committee Definition and Based Upon 

the Commissioners’ Fact-Intensive Analysis of AAN’s Communications 

In establishing the major-purpose test, the Supreme Court imposed a “narrowing 

construction” on FECA’s political-committee definition in 52 U.S.C. § 30101(4)(A). CREW I, 

209 F. Supp. 3d at 82. “If not controlled directly by a political candidate, the entity’s ‘major 

purpose’ must be ‘the nomination or election of a candidate.’” Id. (quoting Buckley, 424 U.S. at 

79 and citing FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986)). The Court in 

Buckley imposed that construction to ensure that the Act would not be applied to reach “groups 

engaged purely in issue discussion.” 424 U.S. at 79. Following the Supreme Court’s lead, the 

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D.C. Circuit has explained that because evaluating political-committee status arises in the 

“delicate” First Amendment area, “there is no imperative” to stretch the statute or to “read into it 

oblique inferences of Congressional intent.” FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380, 394 (D.C. Cir. 1981); accord Van Hollen, 811 F.3d at 501 (noting the FEC’s 

“unique prerogative to safeguard the First Amendment” and upholding an FEC regulation as an 

“able attempt to balance the competing values that lie at the heart of campaign finance law”). 

Here, the controlling Commissioners’ approach of distinguishing between communications 

“relat[ing] to the speaker’s issue agenda,” on the one hand, and “the election or defeat of federal 

candidates,” on the other (AR 1768), is consistent with guidance from the Supreme Court in 

Buckley and the D.C. Circuit in Machinists and Van Hollen. 

The controlling Commissioners’ approach is also consistent with the agency’s 

Supplemental E&J, which explained why the FEC has eschewed regulating political-committee 

status through rulemaking, adhering instead to its approved “adjudicative, case-by-case 

approach” to the major-purpose test. CREW I, 209 F. Supp. 3d at 82 (citing Shays v. FEC, 424 

F. Supp. 2d 100 (D.D.C. 2006)). In addition to continuing to analyze AAN’s organizational 

documents, AR 1780; accord Supplemental E&J, 72 Fed. Reg. at 5601 (“[a]n analysis of [an 

organization’s] public statements can . . . be instructive in determining an organization’s 

purpose”), the Commissioners evaluated AAN’s “spending on Federal campaign activity, as well 

as any other spending by the organization,” Supplemental E&J, 72 Fed. Reg. at 5601. In so 

doing, the controlling Commissioners performed the required “fact-intensive analysis of 

[AAN’s] ‘overall conduct,’” CREW I, 209 F. Supp. 3d at 82 (quoting Supplemental E&J, 72 Fed. 

Reg. at 5597), engaging in a “holistic analysis” of AAN, “incorporating a fact-intensive 

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comparison of organizational documents, activities, and communications in the administrative 

record.” (AR 1780.) 

Indeed, drawing “heavily on [their] expertise and experience regulating political 

activities” (AR 1780), the controlling Commissioners devoted more than ten single-spaced pages 

to analyzing each of AAN’s electioneering communications that plaintiffs placed at issue (AR 

1767-79). They distinguished between those communications aimed at changing officeholders’ 

legislative behavior by urging constituent pressure and those closer to express advocacy urging 

the election or defeat of candidates. For example, the controlling Commissioners determined 

that AAN’s “Ridiculous” ad, which criticized the stimulus, urged voters to contact former Ohio 

Representative Charlie Wilson to “‘[t]ell him to keep the tax cuts [and] ditch the stimulus,’” and 

provided contact information and identified a pending bill for callers to reference, did not 

indicate a major purpose of electing or nominating a candidate. (AR 1771.) By contrast, the 

controlling Commissioners determined that AAN’s “New Hampshire,” “Order,” and “Extreme” 

ads were more electoral in nature. These communications contained no “call to action,” no 

“focus on changing the voting behavior” of the named candidates (and in fact had the opposite 

“subtext,” suggesting that the named candidates were unlikely to change views), and the “New 

Hampshire” communication specifically contrasted the officeholder’s views with those of former 

Senator Kelly Ayotte, his then-opponent (“‘Kelly Ayotte would stop the cap-and-trade tax. 

Cold.’”). (AR 1777-78.) The controlling Commissioners’ determinations that an ad such as 

“New Hampshire” is more indicative of a major purpose of nominating or electing candidates 

than one like “Ridiculous” is consistent with the Court’s own suggestion that a number of the 

AJS and AAN ads appeared to be “designed to influence the election or defeat of a particular 

candidate in an ongoing race.” CREW I, 209 F. Supp. 3d at 93. 

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The controlling Commissioners further acknowledged that certain of AAN’s ads 

referencing “November” — “the month in which the midterm election took place” — made them 

appear arguably more “election-related.” (AR 1771.) In scrutinizing these references, however, 

the Commissioners determined that “the word ‘November’ is used only in calls to take specific 

legislative actions” in “a lame-duck session [of Congress that] was widely expected to take place 

in November and, in fact, did begin on November 15, 2010.” (Id.) In AAN’s “Taxes” 

communication, for example, the script references “November” in just this way: “‘Tell 

Congressman Mark Critz to vote to extend the tax cuts in November.’” (Id.) The 

Commissioners concluded that “the use of ‘November’ in the ads is best understood as a 

reference to the time period in which the lame-duck session would commence.” (Id.; see AR 

1774, 1776.) This assessment accords with the controlling Commissioners’ stated commitment 

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

Act” and avoidance of “speculating about the subjective motivations of a speaker, since doing 

otherwise could lead to identical communications being treated differently based on perceptions 

of intent.” (AR 1768.) 

After completing their ad-by-ad review, the Commissioners calculated that AAN’s 

spending indicating a major purpose of nominating or electing candidates constituted 22 percent, 

26 percent, or at most “less than 28 [percent]” of its total spending, depending on the inclusion of 

the “Read This” ad and whether the time period used was the entire two-year record or AAN’s 

2010 fiscal year. (AR 1779 & n.52.) They thus found that because “AAN’s total outlay on ads 

indicating a purpose to nominate or elect federal candidates would still constitute” less than 30 

percent or “well under half” of its overall spending, there was no reason to believe that AAN 

violated FECA by failing to register and report as a political committee. (AR 1779.) The 

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controlling statement includes conscientious, expert evaluations of each AAN communication 

and heeds binding judicial precedent to use sensitivity when determining the extent to which 

communications discuss issues of importance to a group or indicate a major purpose of 

nominating or electing a candidate. It reasonably concluded AAN did not have as its major 

purpose federal campaign activity. 

B. The Controlling Dismissal Decision Is Not Contrary to Law 

No aspect of the controlling analysis is contrary to law. No law — not this Court’s 

remand decision or any other authority — 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. The Court has already determined that the 

controlling Commissioners’ revised statement of reasons is “free of the legal errors identified in 

this Court’s [remand] Opinion and Order.” (Show-Cause Decision at 5.) “With respect to the 

AAN matter, the FEC reopened it, developed a new framework for evaluating which 

expenditures suggested an election-related purpose, and applied that new framework to AAN’s 

ads.” (Id.) They “no longer excluded as irrelevant to the major-purpose inquiry, on a categorical 

basis, all spending on electioneering communications (i.e., non-express advocacy).” (Id.) In 

addition, the Commissioners’ revised analysis is not only supported by the Supreme Court’s 

treatment of ads that are similar to those at issue here, but, critically, plaintiffs have not identified 

any law compelling the Commissioners to analyze AAN’s major purpose in their preferred way. 

Plaintiffs maintain that the controlling Commissioners’ “continued refusal” to treat all

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

candidates is based on an impermissible interpretation of Buckley and [the Court’s] judgment.” 

(Am. Compl. ¶ 79.) In plaintiffs’ view, the controlling Commissioners “erroneously interpreted” 

Case 1:16-cv-02255-CRC Document 28 Filed 08/04/17 Page 44 of 54
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the Court’s remand opinion “to prohibit the conclusion that all of AAN’s electioneering 

communications were political.” (Id.) But the Commissioners did no such thing, and the Court 

explicitly refrained from mandating that “all electioneering communications” must be counted as 

election-related. CREW I, 209 F. Supp. 3d at 93. That choice accords with Congress’s and the 

courts’ recognition of the FEC’s unique structure constraining the potential for partisan action. 

DSCC, 454 U.S. at 37; Combat Veterans for Cong. Political Action Comm., 795 F.3d at 153; 

Pub. Citizen, Inc., 839 F.3d at 1171; H.R. 12406, H. Rep. No. 94-917, 94th Cong., 2d Sess. at 3 

(1976). It also respects the agency’s own choice of a “flexib[le] . . . case-by-case” method of 

determining an organization’s major purpose, Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 

544, 556 (4th Cir. 2012), and allows it to employ the “practical . . . expertise” upon which the 

principles of agency deference are based, Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 

633, 651-52 (1990); CREW I, 209 F. Supp. 3d at 87-88 (referring to the FEC’s “special 

regulatory expertise” and observing that the Shays court was right to defer to the agency’s 

implementation choice of adjudication in lieu of rulemaking). 

Plaintiffs’ insistence that it was “impermissible” for the FEC not to treat all

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

candidates” (Am. Compl. ¶ 79) is itself discordant with the Court’s determination not to draw 

bright lines regarding the treatment of non-express advocacy in the political-committee context. 

Plaintiffs appear to believe that there is no material difference between the “‘Yellowtail’” ad, a 

paradigmatic example of sham issue advocacy from McConnell, and AAN’s electioneering 

communications. (Id. ¶ 78.)6

 Yet the controlling Commissioners themselves quoted with 

 

6

 The text of the Yellowtail ad is as follows: 

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approval the Supreme Court’s assessment that “‘the notion that th[e Yellowtail] advertisement 

was designed purely to discuss the issue of family values strains credulity’” and explained that 

“ads like the Yellowtail ad may evidence an electoral purpose.” (AR 1768 n.23 (quoting 

McConnell, 540 U.S. at 193 n.78).) Accordingly, those Commissioners concluded that AAN’s 

“Bucket” ad would be deemed indicative of a major purpose to nominate or elect a federal 

candidate because, like the Yellowtail ad, it in part “appears to be more about creating a negative 

impression of [the candidate] in the mind of the viewer than on changing [his] legislative 

behavior.” (AR 1774; accord AR 1777-79.) 

Contrary to plaintiffs’ suggestion (Am. Compl. ¶¶ 58, 78), the controlling Commissioners 

did not categorically exclude all communications that, like the Yellowtail ad, “call[] on viewers 

to contact the named officeholders to urge them to take specific legislative actions” (see AR 

1775-76, 1779 (acknowledging that communication urging viewers to “‘tell [Charlie Wilson/Jim 

Himes/Chris Murphy] to read this’” could arguably be counted towards finding that AAN has the 

major purpose of nominating or electing candidates).) Rather, over the course of many pages 

analyzing the ads according to their subject matter, the Commissioners applied the new 

“framework in a fact-intensive manner to each of AAN’s electioneering communications.” 

(Show-Cause Decision at 3.) It was not contrary to law for the Commissioners to distinguish 

between a message to “[c]all Bill Yellowtail” (who “took a swing at his wife”) to “[t]ell him to 

 

Who is Bill Yellowtail? He preaches family values but took a 

swing at his wife. And Yellowtail’s response? He only slapped 

her. But “her nose was not broken.” He talks law and order . . . 

but is himself a convicted felon. And though he talks about 

protecting children, Yellowtail failed to make his own child 

support payments — then voted against child support enforcement. 

Call Bill Yellowtail. Tell him to support family values. 

 

McConnell, 540 U.S. at 193 n.78 (some internal quotation marks omitted). 

Case 1:16-cv-02255-CRC Document 28 Filed 08/04/17 Page 46 of 54
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support family values,” McConnell, 540 U.S. at 193 n.78 (some internal quotation marks 

omitted), and an ad AAN ran criticizing health care reform and urging viewers: “‘In November, 

tell [Congressman Mark] Shauer to vote for repeal H.R. 4903 (202)225-6276’” (AR 1775). 

Consistent with the controlling Commissioners’ nuanced approach, the Supreme Court 

has recognized that not all electioneering communications are sham issue ads. Some 

electioneering communications may constitute genuine issue advocacy. FEC v. Wis. Right to 

Life, Inc., 551 U.S. 449, 470 (2007) (“WRTL”) (“An issue ad’s impact on an election, if it exists 

at all, will come only after the voters hear the information and choose — uninvited by the ad — 

to factor it into their voting decisions.”); McConnell, 540 U.S. at 206 (suggesting that at least 

some of the ads in the McConnell record that would have met the statutory electioneering 

communication definition likely “had no electioneering purpose”). And although the line 

between campaign advocacy and issue advocacy can “‘dissolve in practical application,’” WRTL, 

551 U.S. at 456-57, the distinction matters in the context of determining an organization’s 

political-committee status because the major-purpose test was established to exclude “groups 

engaged purely in issue discussion” from the registration and more substantial reporting 

requirements that apply to groups that do have the major purpose of nominating or electing 

federal candidates. Buckley, 424 U.S. at 79. Thus, while a group’s electioneering 

communications may obligate it to file certain disclosure reports, 52 U.S.C. § 30104(f)(3); 11 

C.F.R. § 100.29, as AAN has done, the potential for electioneering communications to constitute 

genuine issue speech supports the controlling Commissioners’ approach of analyzing AAN’s ads 

beyond simply asking, as plaintiffs apparently prefer, whether they are electioneering 

communications. 

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WRTL is instructive in assessing the nature of such communications. There, the Supreme 

Court considered three ads with the same general format: 

“PASTOR: And who gives this woman to be married to this man? 

BRIDE’S FATHER: Well, as father of the bride, I certainly could. 

But instead, I’d like to share a few tips on how to properly install 

drywall. Now you put the drywall up . . . 

VOICE-OVER: Sometimes it’s just not fair to delay an important 

decision. But in Washington it’s happening. A group of Senators 

is using the filibuster delay tactic to block federal judicial 

nominees from a simple ‘yes’ or ‘no’ vote. So qualified candidates 

don’t get a chance to serve. 

It’s politics at work, causing gridlock and backing up some of our 

courts to a state of emergency. 

Contact Senators Feingold and Kohl and tell them to oppose the 

filibuster. 

Visit: BeFair.org. 

Paid for by Wisconsin Right to Life (befair.org), which is 

responsible for the content of this advertising and not authorized 

by any candidate or candidate’s committee.” 

WRTL, 551 U.S. at 458-59; see also id. at 459 & nn.2-3 (noting similarities to other ads). The 

Supreme Court held that these ads were issue speech, concluding that “their content is consistent 

with that of a genuine issue ad.” Id. at 470. They “focus[ed] on a legislative issue, t[ook] a 

position on the issue, exhort[ed] the public to adopt that position, and urg[ed] the public to 

contact public officials with respect to the matter.” Id. In addition, “their content lack[ed] 

indicia of express advocacy” because they did “not mention an election, candidacy, political 

party, or challenger; and they d[id] not take a position on a candidate’s character, qualifications, 

or fitness for office.” Id. Here, the controlling Commissioners’ similar assessments were not 

contrary to law. (AR 1767-68 (explaining that the controlling Commissioners “look[ed] at the 

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40

ad’s specific language for references to candidacies, elections, voting, political parties, or other 

indicia that the costs of the ad should be counted towards a determination that the organization’s 

major purpose is to nominate or elect candidates”).) 

Also incorrect are plaintiffs’ assertions that the controlling Commissioners “once again 

applied [WRTL’s] ‘express advocacy/issue speech distinction’ despite [the Court’s] decision 

finding such application in a disclosure case was legal error,” and that this distinction has “no 

relevancy to the FECA’s disclosure obligations.” (Am. Compl. ¶¶ 4, 57, 80.) In its remand 

opinion, the Court determined that the controlling Commissioners’ earlier “decision to apply 

WRTL[’s] express advocacy/issue speech distinction in the realm of disclosure, thereby 

excluding all non-express advocacy speech from consideration, was ‘contrary to law.’” CREW I, 

209 F. Supp. 3d at 92. But that determination did not preclude Commissioners from analyzing 

AAN’s communications by reference to their content, consistent with the Supreme Court’s 

analysis in WRTL, when considering whether the ads were electoral in nature. Accordingly, 

when plaintiffs argued that “the controlling commissioners relied on the inapposite authority of 

WRTL [] in a disclosure context,” in “[d]irect[] contravention” of the Court’s remand opinion 

Pls.’ Reply in Supp. of the Mot. for an Order to Def. Federal Election Commission to Show 

Cause at 8, Citizens for Responsibility & Ethics in Wash. v. FEC, No. 14-1419 (Docket No. 68) 

(D.D.C. Jan. 20, 2017), the Court explained that, in fact, the FEC’s “new framework . . . was free 

of the legal errors identified in [the remand opinion].” (Show-Cause Decision at 5.) The 

Commissioners thus did not “impermissibly exclud[e] relevant ads by relying on inapposite 

authority.” (Am. Compl. ¶ 3.) 

Plaintiffs similarly err in maintaining that a statement in the Court’s remand opinion — 

that “it ‘blinks reality to conclude that many of the ads considered by the Commissioners in this 

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41

case were not designed to influence the election or defeat of a particular candidate in an ongoing 

race’” — demonstrates that it was “erroneous” for the controlling Commissioners to find “only 

four of AAN’s twenty electioneering communications” election related. (Am. Compl. ¶ 77 

(quoting CREW I, 209 F. Supp. 3d at 93).) 

 More importantly, the Court “never 

ordered the FEC to reach a particular result, or to consider any particular ad — or any proportion 

of electioneering communications — election-related.” (Show-Cause Decision at 6.)7

In sum, plaintiffs have identified no law that the controlling statement of reasons 

contravenes. While plaintiffs may prefer their proposed standard that “all electioneering 

communications” should be construed to be “indicative of a purpose to nominat[e] or elect[ ] . . . 

a candidate,” the Court has already declined to impose that standard on the Commission. CREW

I, 209 F. Supp. 3d at 93 (alterations in original) (internal quotation marks omitted). It instead 

directed the “FEC to reconsider its decision without exclud[ing] from its [major purpose] 

consideration all non-express advocacy.” (Show-Cause Decision at 6 (alterations in original) 

 

7

 And any suggestion that the controlling Commissioners failed to use the proper time 

period in analyzing AAN’s activity (e.g., Am. Compl. ¶¶ 43-44) is meritless. As the Court 

noted, “[t]he Commissioners also made clear that their determination did not turn on the 

application of the ‘lifetime-only’ rule.” (Show-Cause Decision at 5 n.4 (citing AR 1779 n.52).) 

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(internal quotation marks omitted).) The Commission “did just that.” (Id.) The controlling 

Commissioners’ revised dismissal decision is not contrary to law. 

 C. The Controlling Statement Is Not Arbitrary or Capricious 

Finally, the controlling Commissioners’ analysis of the AAN matter is not arbitrary or 

capricious. Plaintiffs cannot meet their burden of showing that the Commissioners “entirely 

failed to consider an important aspect of the problem, offered an explanation for its decision that 

runs counter to the evidence before the agency, or is so implausible that it could not be ascribed 

to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. As 

explained above, see supra pp. 31-35, the Commissioners carefully scrutinized AAN’s 

communications and drew reasonable comparisons explaining why certain ads were more 

indicative of a major purpose than others, thus showing the requisite “rational basis for the 

agency’s decision,” Orloski, 795 F.2d at 167 (internal quotation marks omitted). In this context, 

the Court has recognized that “[a] reasonable application of a 50%-plus rule would not appear to 

be arbitrary and capricious.” CREW I, 209 F. Supp. 3d at 95. Here, AAN’s relevant spending 

fell far short of that threshold, making the dismissal neither arbitrary nor capricious. 

Plaintiffs hardly contend otherwise. First, they argue that the controlling Commissioners 

“unreasonably limit[ed] the context that could be admitted for consideration, ignoring relevant 

evidence instructive as to the advertisement’s purposes, and drawing unsupported conclusions 

about what legislation could or would be before Congress.” (Am. Compl. ¶ 81.) But in WRTL, 

the Supreme Court explained that “contextual factors . . . should seldom play a significant role” 

in determining whether an ad is the functional equivalent of express advocacy. 551 U.S. at 473-

74. The Court did note, however, that “[c]ourts need not ignore basic background information 

that may be necessary to put an ad in context — such as whether an ad describes a legislative 

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43

issue that is either currently the subject of legislative scrutiny or likely to be the subject of such 

scrutiny in the near future.” Id. at 474 (internal quotation marks omitted); accord AR 1768 

(“Consideration of the context in which the electioneering communications were run allows for 

better understanding and more accurate assessments of them.”). Further, rather than making 

“unsupported conclusions about what legislation could or would be before Congress” (Am. 

Compl. ¶ 81), the controlling Commissioners cited news reports about potential legislative 

activity (AR 1768-70 & nn. 27-37) and explained, for example, that “Congress ultimately took 

up the issue [of re-authorizing the Bush-era tax cuts] during the [2010 lame duck] session, 

resulting in the tax cuts being reauthorized in their entirety” (AR 1770). AAN’s ads on this 

subject specifically urged viewers to “‘[c]all Charlie Wilson. Tell him to keep the tax cuts’” or 

“‘[t]ell Congressman Mark Critz to vote to extend the tax cuts in November.’” (AR 1771.) Both 

Congressmen Wilson and Critz did vote in favor of extending the tax cuts by voting “yea” on 

H.R. 4853. FINAL VOTE RESULTS FOR ROLL CALL 647, 

http://clerk.house.gov/evs/2010/roll647.xml. 

Plaintiffs’ other contentions (Am. Compl. ¶ 81), that the controlling Commissioners 

allegedly failed to account for certain of AAN’s ads, are unpersuasive. Their claim (id. ¶¶ 41, 

81) that the controlling Commissioners failed to include $725,000 worth of spending on AAN’s 

“‘Secret’” communication mentioning Rep. Perlmutter, see FEC, 24 HOUR NOTICE OF 

DISBURSEMENTS/OBLIGATIONS FOR ELECTIONEERING COMMUNICATIONS (AAN) at 3 

http://docquery.fec.gov/pdf/170/10931541170/10931541170.pdf, even if correct, would only 

reinforce the Commissioners’ conclusion that AAN was not a political committee because they 

viewed the ad as not indicating a major purpose of nominating or electing candidates (AR 1775-

76). Additional spending on that ad would thus decrease AAN’s ratio of relevant spending. 

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Lastly, plaintiffs claim that the Commissioners failed to consider approximately $1.25 

million in AAN’s political spending based on figures in AAN’s tax returns (Am. Compl. ¶¶ 45, 

47, 81), but the controlling Commissioners’ conclusion that $5,972,304 of AAN’s spending 

could be counted as relevant (AR 1779) indicates that they considered $751,243 more of AAN’s 

spending to count as relevant than the amount AAN itself identified on the subject tax returns 

(see AR 1598 (identifying a corrected total of $5,221,061 as AAN’s “total spending on political 

campaign activity” from July 2009 to June 2011)). And in the controlling Commissioners’ 

alternative analysis, they counted more than another $1 million as potentially relevant (AR 

1779). Thus, the Commissioners considered roughly $1.75 million more of AAN’s spending to 

be relevant or potentially relevant campaign activity, not $1.25 million less. 

CONCLUSION 

For the foregoing reasons, the Court should grant the Commission’s motion for summary 

judgment. 

 Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Associate General Counsel – Policy 

echlopak@fec.gov

August 4, 2017 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

Charles Kitcher (D.C. Bar No. 986226) 

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:16-cv-02255-CRC Document 28 Filed 08/04/17 Page 53 of 54
CERTIFICATE OF SERVICE 

I hereby certify that on this 4th day of August, 2017, I served the unredacted version of 

the FEC’s Memorandum in Support of Its Motion for Summary Judgment and the unredacted 

version of the accompanying declaration of Shanna M. Reulbach that were filed with the Court 

under seal, by sending these materials by email to the following counsel: 

Stuart C. McPhail 

Adam J. Rappaport 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Ave., N.W., Sixth Floor 

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

smcphail@citizensforethics.org 

arappaport@citizensforethics.org 

Jan Witold Baran 

Caleb P. Burns 

Claire J. Evans 

Wiley Rein LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

jbaran@wileyrein.com 

cburns@wileyrein.com 

cevans@wileyrein.com 

/s/ Charles Kitcher 

Charles Kitcher 

Attorney 

Federal Election Commission 

Case 1:16-cv-02255-CRC Document 28 Filed 08/04/17 Page 54 of 54