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Citizens for Responsibility and Ethics in Washington v. Federal Election Commission

United States District Court, District of Columbia

August 3, 2018




         Table of Contents

         I. BACKGROUND .................................................................................................................... 5

         A. PLAINTIFFS' ADMINISTRATIVE COMPLAINT TO THE FEC ............................... 5


         C. THE INSTANT LITIGATION ...................................................................................... 16

         II. LEGAL STANDARDS ........................................................................................................ 17

         A. SUMMARY JUDGMENT UNDER THE APA ............................................................ 17

         B. SUMMARY JUDGMENT UNDER THE FECA .......................................................... 20

         III. DISCUSSION ....................................................................................................................... 21

         A. STATUTORY AND REGULATORY FRAMEWORK ............................................... 22

         1. Statutory Disclosure Requirements for Not-Political Committees Making Independent Expenditures .......................................................................................... 23

         2. The Challenged FEC Regulation ................................................................................ 38


         1. Count II Is Not Time-Barred ...................................................................................... 44

         2. Plaintiffs Have Standing to Bring Count II ................................................................ 47

         3. Plaintiffs Have Exhausted Administrative Remedies for Counts II and III ............... 48


         1. 52 U.S.C. §§ 30104(c)(1) and (c)(2)(C) Are Unambiguous ....................................... 53

         2. The Defendants' Alternative Construction of § 30104(c) Is Unsupported ................. 65

         3. Vacatur Is Appropriate Remedy for Invalid Regulation ............................................. 93


         1. Legal Standard Applicable to Review of FEC Enforcement Actions ...................... 100

         2. OGC's First Recommendation at Issue in Counts I and II ....................................... 102

         3. OGC's Second Recommendation at Issue in Count III ............................................ 104

         IV. CONCLUSION ................................................................................................................... 110

         Campaign finance law has long recognized the value of disclosure as a means of enabling the electorate to make informed decisions about candidates, to evaluate political messaging, to deter actual, or the appearance of, corruption, and to aid in enforcement of the ban on foreign contributions, which may result in undue influence on American politicians. See Citizens United v. FEC, 558 U.S. 310, 366-71 (2010); Buckley v. Valeo, 424 U.S. 1, 64-68 (1976); v. Fed. Election Comm'n, 599 F.3d 686, 698 (D.C. Cir. 2010). As the protection of speech is also a fundamental value safeguarded under the First Amendment, disclosure has been upheld as “the least restrictive means of curbing the evils of campaign ignorance and corruption.” Buckley, 424 U.S. at 68; see also Citizens United, 558 U.S. at 369 (explaining “that disclosure is a less restrictive alternative to more comprehensive regulations of speech”).

         This case concerns the requisite disclosures about contributors that organizations making independent expenditures, in support of or opposition to particular candidates for federal office, must make, when those organizations are not political committees controlled by, or operating in coordination with, candidates or national political parties. These statutorily mandated disclosures are squarely “part of Congress'[s] effort to achieve ‘total disclosure' by reaching ‘every kind of political activity' in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence possible.” Buckley, 424 U.S. at 76 (quoting S. Rep. No. 229, 92d Cong., 2d Sess. at 57 (1971)). Moreover, an important aspect of this statutory disclosure regime is to further “the government's interest [] in preventing foreign influence over U.S. elections.” Bluman v. FEC, 800 F.Supp.2d 281, 283, 288 n.3 (D.D.C. 2011) (Kavanaugh, J., for a three-judge District Court) (holding “readily . . . constitutional” federal statute “banning foreign nationals . . . from making expenditures” on elections), aff'd, 565 U.S. 1104 (2012); see also, 599 F.3d at 698 (D.C. Cir. 2010) (noting that “requiring disclosure of such information deters and helps expose violations of other campaign finance restrictions, such as those barring contributions from foreign corporations or individuals”). Congress has heard the warning that “holes in campaign finance disclosure rules allow dark money organizations to spend on politics without revealing their donors, potentially hiding foreign sources of funds.” Oversight of Federal Political Advertisement Laws and Regulations: Hearing Before the Subcomm. on Information Technology of the H. Comm. on Oversight and Gov't Reform, 115th Cong. 55 (2017) (statement of Ian Vandewalker, Senior Counsel, Democracy Program, Brennan Center for Justice at NYU School of Law); see also R. Sam Garrett, Cong. Research Serv., Rpt. No. R42042, Super PACs in Federal Elections: Overview and Issues for Congress, Summary page (Sept. 16, 2016) [hereinafter 2016 CRS Report], available at, (noting that, although “[s]uper PACs must report their donors to the FEC . . . the original source of contributed funds-for super PACs and other entities-is not necessarily disclosed.”).

         The plaintiffs, Citizens for Responsibility and Ethics in Washington (“CREW”) and Nicholas Mezlak, a registered voter in Ohio, initiated this action under the Federal Election Campaign Act of 1971 (“FECA”), 52 U.S.C. § 30109(a)(8)(C), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, against the Federal Election Commission (“FEC”), challenging: (1) the FEC's regulation, codified at 11 C.F.R. § 109.10(e)(1)(vi), as “inconsistent with” FECA's statutory disclosure requirements in 52 U.S.C. § 30104(c); and (2) the FEC's allegedly improper dismissal of the plaintiffs' administrative complaint alleging that Crossroads Grassroots Policy Strategies (“Crossroads GPS” or “CGPS”), and its agents, failed “to comply with the FECA's disclosure requirements” when making independent expenditures (“IEs”) in multiple 2012 U.S. Senate races. Compl. ¶¶ 1, 2, 4, 17, ECF No. 1.[1] The plaintiffs seek both injunctive and declaratory relief against the defendant FEC in three counts, one of which survived in full and two of which survived in part, prior motions to dismiss by the FEC and the defendant-intervenor Crossroads GPS. See Citizens for Responsibility & Ethics in Wash., v. FEC (“CREW”), 243 F.Supp.3d 91, 105 (D.D.C. 2017).

         Now pending before the Court are the parties' cross-motions for summary judgment. See generally Pls.' Mot. Summ. J. (“Pls.' Mot.”), ECF No. 27; CGPS's Cross-Mot. Summ. J. (“CGPS's Cross-Mot.”), ECF No. 28; FEC's Cross-Mot. Summ. J. (“FEC's Cross-Mot.”), ECF No. 30. For the reasons set forth below, the plaintiffs' motion is granted, and the FEC's and Crossroads GPS's cross-motions are denied. Accordingly, subsection (vi) of 11 C.F.R. § 109.10(e)(1) is declared invalid and therefore vacated, with the vacatur stayed for 45 days to provide time for the FEC to issue interim regulations that comport with the statutory disclosure requirements of 52 U.S.C. § 30104(c), and the FEC's dismissal decision is declared “contrary to law, ” with the matter remanded to the FEC, which must conform with this Court's ruling within 30 days, pursuant to 52 U.S.C. § 30109(a)(8)(C).[2]

         I. BACKGROUND

         Much of the factual and procedural background for this case is set out in this Court's prior Memorandum Opinion resolving the FEC's Partial Motion to Dismiss and Crossroads GPS's Supplemental Motion to Dismiss, CREW, 243 F.Supp.3d at 93-97, and has been supplemented below with information provided in the Administrative Record (“AR”), ECF Nos. 38, 38-1.[3]


         CREW is a non-profit watchdog organization “committed to protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics.” Compl. ¶¶ 7-8. In furtherance of this mission, “CREW monitors the activities of those who run for federal office as well as those groups financially supporting candidates for office or advocating for or against their election.” Id. ¶ 10. Nicholas Mezlak is a U.S. citizen registered to vote in Ohio. Id. ¶ 17.

         On November 14, 2012, CREW and two individual plaintiffs, other than Mezlak, filed an administrative complaint with the FEC, claiming that Crossroads GPS and its agents failed properly to report contributions for independent expenditures. Id. ¶ 55; AR 1-17 (Admin. Compl. 1-17).[4] This claim was triggered by press reports that, on August 30, 2012, American Crossroads, a “super PAC” affiliated with Crossroads GPS, hosted an event in Tampa, Florida, with approximately 70 attendees. AR 122-25 (Am. Admin. Compl., Ex. B, Sheelah Kolhatkar, Exclusive: Inside Karl Rove's Billionaire Fundraiser, Bloomberg Businessweek, Aug. 31, 2012 (“Kolhatkar, Rove's Fundraiser”); AR 103 (Am. Admin. Compl. ¶ 20) (citing id., Ex. C, Democracy Now, Interview with Sheelah Kolhatkar (Sept. 5, 2012),[5] The plaintiffs call the event a “fundraiser, ” AR 103 (Am. Admin. Compl. ¶ 20), while Crossroads GPS says the event was a “meeting, ” AR 79 (CGPS's Admin. Resp. at 7); see also CGPS's Mem. Supp. Cross-Mot. Summ. J. & Opp'n Pls.' Mot. (“CGPS's Opp'n”) at 15, ECF No. 28 (describing event as “informational meeting”). No. matter the characterization, the parties do not dispute that, at the Tampa event, a multimillion-dollar “matching challenge” contribution was revealed and donations to Crossroads GPS were solicited, as detailed below.

         Karl Rove, an unpaid advisor to Crossroads GPS and American Crossroads, see AR 94 (CGPS's Admin. Resp., Attach. 1, Karl Rove Affidavit, dated Jan. 17, 2013 (“Rove Aff.”) ¶ 2), briefed the Tampa event attendees on a call he received in the spring of 2012 “from an unnamed out-of-state donor, ” regarding the 2012 Ohio Senate race between the incumbent Democratic Senator Sherrod Brown and his Republican challenger, Josh Mandel, the Ohio State Treasurer. AR 103-04 (Am. Admin. Compl. ¶¶ 22-23) (citing id., Ex. D, Sheelah Kolhatkar, Exclusive: How Karl Rove's Super PAC Plays the Senate, Bloomberg Businessweek, Sept. 4, 2012 (“Kolhatkar, Rove's Super PAC”)); AR 94 (Rove Aff. ¶¶ 1, 3-4). During the conversation, as Rove recalled, the donor, who remains unidentified, stated, “I really like Josh Mandel, ” and “I'll give ya 3 million, matching challenge” to use toward Crossroads GPS's $6 million budget in the State of Ohio. AR 103-104 (Am. Admin. Compl. ¶¶ 23-24) (quoting Kolhatkar, Rove's Super PAC); AR 94 (Rove Aff. ¶ 3) (stating Rove's “recollection of a conversation . . . with a donor . . . that is recounted by Sheelah Kolhatkar . . . is substantially accurate”). Rove maintains that the conversation did not entail any discussion of spending the pledged funds “in any particular manner or on any particular or specific efforts or projects, ” but Rove understood that the contributions were intended “to be used in some manner that would aid the election of Josh Mandel.” AR 95 (Rove Aff. ¶ 10). Approximately $1.3 million was raised in connection with the “matching” challenge, which Rove understood to be solicited for “general use in Ohio.” AR 95 (Rove Aff. ¶ 13).

         The unnamed donor “subsequently contributed a larger amount to Crossroads GPS that was not in any way earmarked for any particular use.” Id. (Rove Aff. ¶ 14). Crossroads GPS ultimately reported spending $6, 363, 711 in independent expenditures in the 2012 Ohio race opposing Senator Brown, and none of the ten reports detailing these independent expenditures identified the anonymous donor who pledged “a larger amount” than $3 million or the individuals who contributed “matching” funds. AR 104 (Am. Admin. Compl. ¶¶ 24-25); see also Compl. ¶ 53 (citing Compl., Ex. A, CGPS, FEC Form 5, 2012 Year-End Report, dated Jan. 31, 2013 (“CGPS, FEC Form 5, 2012 Year-End Rept.”), ECF No. 1-1).

         In addition, at the Tampa event, fourteen television advertisements were shown, eleven of which advertisements were produced by Crossroads GPS. AR 104-05 (Am. Admin. Compl. ¶ 27) (citing Kolhatkar, Rove's Fundraiser); AR 77-78 (CGPS's Admin. Resp. at 5-6). The advertisements apparently targeted Democratic Senate candidates in at least four states (Ohio, Virginia, Montana, and Nevada), where Crossroads GPS ran broadcast advertisements that were later included in reports filed with the FEC by Crossroads GPS disclosing independent expenditures after August 30, 2012. AR 112-13 (Am. Admin. Compl. ¶¶ 58-60). Event attendees were also solicited for contributions to Crossroads GPS, after being shown these advertisements-thirteen of which had been paid for and aired, and the fourteenth of which never aired-as a demonstration of “the quality and range of the two entities' activities.” CGPS's Opp'n at 16-17; see also AR 103-05 (Am. Admin. Compl. ¶¶ 20, 27); AR 77-78 (CGPS's Admin. Resp. 5-6).

         The plaintiffs indicate, without dispute from Crossroads GPS, that Crossroads GPS reported spending over $17 million in independent expenditures reflected in reports filed in 2012, without identifying the names of donors providing those funds. AR 106 (Am. Admin. Compl. ¶ 31); Compl. ¶ 53 (citing CGPS, FEC Form 5, 2012 Year-End Rept.; Compl., Ex. B, CGPS, FEC Form 5, 2012 October Quarterly Report, dated Oct. 15, 2012, ECF No. 1-2); CGPS's Answ. ¶ 53, ECF No. 14 (denying only “that Crossroads GPS's independent expenditure reports filed with the FEC failed to disclose the names of any donors that were required to be disclosed by relevant FEC regulations and precedent, ” and stating “Crossroads GPS'[s] independent expenditure reports filed with the FEC speak for themselves and require no response”).

         The FEC sent two letters to Crossroads GPS on October 25, 2012, and April 9, 2013, citing deficiencies in Crossroads GPS's reporting of its independent expenditures in 2012, including failing to disclose the required identification information for the individuals making donations used to fund the independent expenditures, as required by 11 C.F.R. § 109.10(e)(1)(vi), the challenged regulation in this litigation. AR 150 (Am. Admin. Compl., Ex. K, FEC's Requests for Additional Information (“RFAI”), dated Oct. 25, 2012, Re: CGPS's Oct. Quarterly Report (07/01/2012-09/30/2012)) (“Each contributor who made a donation in excess of $200 used to fund the independent expenditure(s) must be itemized . . . including their identification information.”); AR 156 (Am. Admin. Compl., Ex. M, FEC's RFAI, dated Apr. 9, 2013, Re: CGPS's Year-End Report (10/01/2012-12/31/2012)) (same); see also AR 106-08 (Am. Admin. Compl. ¶¶ 32-39). These letters requested that Crossroads GPS amend its reports to provide the missing information. AR 150, 156. These were not the first letters that the FEC had sent to Crossroads GPS about deficient reporting. The FEC had previously sent similar letters about deficiencies in reports filed by the organization in earlier years expressly citing deficiencies in its identification of donors used to fund independent expenditures. See, e.g., AR 141 (Am. Admin. Compl., Ex. I, FEC's RFAI, dated June 14, 2011, Re: CGPS's Oct. Quarterly Report (7/1/10-9/30/10)) (“Commission regulations require that you disclose identification information for each individual who made a donation used to fund the independent expenditure.”); AR 143 (Am. Admin. Compl., Ex. I, FEC's RFAI, dated June 14, 2011, Re: CGPS's Year-End Report (10/1/10-12/31/10)) (same).

         In response to the FEC's deficiency letters, Crossroads GPS asserted that the FEC had “misstate[d]” the requirements of the regulation, and that disclosure was only required if those contributions were “given ‘for the purpose of furthering the reported independent expenditure.'” AR 146 (Am. Admin. Compl., Ex. J, CGPS Counsel's Resp., dated July 19, 2011 (“CGPS July 2011 Resp.”)); AR 154 (Am. Admin. Compl., Ex. L, CGPS Treasurer's Resp., dated Nov. 29, 2012) (same)). In the view of Crossroads GPS, “[t]he question is not how an organization subsequently chooses to use a contribution, but whether the donor's contribution was given ‘for the purpose of furthering the reported independent expenditure'” and, under this reasoning, since “[n]o contributions accepted by [CGPS] were solicited or received ‘for the purpose of furthering the reported independent expenditure' . . . no contributions were required to be reported under the regulations.” AR 146-47 (CGPS's July 2011 Resp.) (emphasis in original) (citing “Statement of Reasons of Chairman Matthew S. Peterson and Commissioners Caroline C. Hunter and Donald F. McGahn in MUR 6002 (Freedom's Watch, Inc.) at 5 (‘In other words, a donation must be itemized on a non-political committee's independent expenditure report only if such donation is made for the purpose of paying for the communication that is the subject of the report' (emphasis in original)).”).


         The plaintiffs' administrative complaint alleged that Crossroads GPS's failure to disclose the names of (1) the anonymous donor who promised a $3 million contribution in the spring of 2012, (2) the other contributors to the “matching challenge” triggered by the anonymous donor, and (3) the contributors solicited at the Tampa, Florida event, constituted “direct and serious violations of the [FECA], ” citing “2 U.S.C. § 434, ” which was subsequently re-codified at 52 U.S.C. § 30104, and 11 C.F.R. § 109.10(e)(1)(vi). AR 98, 110-16 (Am. Admin. Compl. ¶¶ 1, 41-51, 57-61).[6] In response, Crossroads GPS asserted that the applicable regulation, 11 C.F.R. § 109.10(e)(1)(vi), required disclosure “only if the donor made the contribution ‘for the purpose of furthering the reported independent expenditure, '” AR 87 (CGPS's Admin. Resp. at 15) (emphasis in original), and none of three categories of donors challenged by plaintiffs, to the extent they made contributions to Crossroads GPS, had the requisite intent to further any specific reported independent expenditure, AR 85-86 (CGPS's Admin. Resp. at 13-14). Crossroads GPS also asserted that the plaintiffs' reading of § 109.10(e)(1)(vi) “would apply a very different substantive standard” and “[t]he FEC cannot . . . disregard the language of a duly-enacted, longstanding regulation” in the enforcement context. AR 83 (CGPS's Admin. Resp. at 11).

         The FEC's Office of General Counsel's (“OGC”), after review of the plaintiffs' administrative complaint in MUR 6696, recommended, in pertinent part, that (1) the FEC “find no reason to believe that Crossroads [GPS] violated 2 U.S.C. § 434(c)(2) and 11 C.F.R. § 109.10(e)(1)(vi), ” AR 165, 176 (First General Counsel's Report, dated Mar. 7, 2014 (“FGCR”) at 2, 13); and (2) “to the extent the question is presented . . . the Commission dismiss in the exercise of prosecutorial discretion the allegation that Crossroads violated 2 U.S.C. § 434(c)(1), ” AR 165-66 (FGCR at 2-3), with the resulting recommendation that the Commission “[c]lose the file, ” AR 177 (FGCR at 14).

         In making these recommendations, OGC relied on the challenged regulation, 11 C.F.R. § 109.10(e)(1)(vi). OGC acknowledged that “an unnamed individual contributed to Crossroads [GPS] in furtherance of [Crossroads GPS's] effort to support a clearly identified federal candidate.” AR 165 (FGCR at 2); see also AR 174 (FGCR at 11) (“[T]he initial discussion concerning the proposed contribution-‘I really like Josh Mandel . . . I'll give ya 3 million . . .' - was at least specific enough that Rove understood that the donor proposed to make a contribution to Crossroads [GPS] for it to use to support the election of Josh Mandel.”). Nevertheless, OGC concluded that “because the relevant information does not reasonably suggest that the donor made a contribution ‘for the purpose of furthering the reported independent expenditure,' it does not appear that Crossroads [GPS] was required to identify that contributor on its relevant independent expenditure report or reports under the applicable Commission regulation.” AR 165 (FGCR at 2) (quoting 11 C.F.R. § 109.10(e)(1)(vi)). This finding that the donor did not donate funds directly tied to a specific reported expenditure, as the FEC interpreted 11 C.F.R. § 109.10(e)(1)(vi) to require, was the basis for OGC's recommendation that the FEC find “no reason to believe” that Crossroads GPS violated the challenged regulation or “2 U.S.C. § 434(c)(2).” Id. OGC further determined, based on the same interpretation of 11 C.F.R. § 109.10(e)(1)(vi), “with respect to the other reported independent expenditures in question, the facts alleged” do not demonstrate that the “regulation imposed an obligation on Crossroads [GPS] to identify contributors in connection with those reports.” Id.

         At the same time, however, OGC addressed two separate issues about the sufficiency of the FEC's challenged regulation in capturing fully the disclosure obligations mandated by the statute, in both subsections (c)(1) and (c)(2) of 2 U.S.C. § 434(c), now codified at 52 U.S.C. § 30104(c). First, OGC expressly noted that subsection (c)(2), now codified at 52 U.S.C. § 30104(c)(2), which “specifically mandates disclosure of the identity of those who contribute for the purpose of furthering ‘an independent expenditure, '” may take “an arguably more expansive approach” to disclosure than the challenged regulation. AR 175 n.57 (FGCR at 12 n.57). While the statute requires independent expenditure reports to identify each person contributing over $200 to the filer of “such statement which was made for the purpose of furthering an independent expenditure, ” AR 172 (FGCR at 9) (emphasis in original) (quoting 2 U.S.C. § 434(c)(2)(C) (2014)), the challenged implementing regulation requires the filer to include “[t]he identification of each person who made a contribution in excess of $200 to the person filing such a report which contribution was made for the purpose of furthering the reported independent expenditure, ” id. (emphasis in original) (quoting 11 C.F.R. § 109.10(e)(1)(vi)).

         In other words, the challenged implementing regulation narrows the statutory disclosure requirement in § 30104(c)(2) by substituting the phrase “the reported independent expenditure, ” for the statutory term “an independent expenditure.” Id. With this substitution, “the regulatory language of section 109.10(e)(1)(vi) ‘appears to require an express link between the receipt and independent expenditure, '” even though “Section 434(c) [§ 30104(c)] may reasonably be construed to require disclosure of the identity of certain contributors regardless of whether the contributor made a contribution to further a specific independent expenditure.” AR 173 (FGCR at 10).[7] By contrast to the “reasonably . . . construed” statutory language, “a donor's general purpose to support an organization in its efforts to further the election of a particular federal candidate does not itself indicate that the donor's purpose was to further ‘the reported independent expenditure'-the requisite regulatory test.” AR 173-74 (FGCR at 10-11).

         OGC observed that this discrepancy between the scope of disclosure required by the statute and the implementing regulation had previously been identified in a prior FEC matter, as well as in a 2011 rulemaking petition by then-Congressman Chris Van Hollen. AR 172 & n.48 (FGCR at 9 & n.48). The rulemaking petition asked the FEC to revise the regulation, 11 C.F.R. § 109.10(e)(1)(vi), “arguing that it ‘requires disclosure only of those contributors who state a specific intent to fund a specific (“the reported”) independent expenditure.'” Id. In response to this petition, OGC submitted a draft notice of proposed rulemaking to amend § 109.10(e)(1)(vi) to require “disclosure of all contributors who make a contribution for the purpose of furthering ‘an' independent expenditure.” Id. The FEC, however, “did not approve the proposal in the Federal Register.” Id.[8]

         The second issue identified by OGC about the sufficiency of the FEC's challenged regulation in capturing fully the disclosure obligations mandated by the statute, concerned yet another subsection of the statute, 52 U.S.C. § 30104(c)(1). This subsection, in OGC's view, “may impose additional reporting obligations for certain contributions made for the purpose of influencing a federal election generally, ” but the FEC's challenged regulation was “silent concerning any such additional reporting requirement.” AR 175-76 (FGCR at 12-13). As OGC explains, the “additional reporting obligations” under subsection (c)(1) are “namely, that every person (other than a political committee) who makes independent expenditures in excess of $250 must file a report identifying each person who, for the purpose of influencing a federal election made a contribution to that person in excess of $200 in a calendar year, regardless of whether the contribution was made for the purpose of furthering an independent expenditure.” AR 173 n.51 (FGCR at 10 n.51). For this construction, OGC cited the analysis provided in an earlier FEC matter and by the Supreme Court in FEC v. Mass. Citizens for Life, Inc. (“MCFL”), 479 U.S. 238, 262 (1986). AR 173 n.51 (FGCR at 10 n.51); see MCFL, 479 U.S. at 262 (“[A]n independent expenditure of as little as $250 by MCFL will trigger the disclosure provisions of § 434(c) [§ 30104(c)]. As a result, MCFL will be required to identify all contributors who annually provide in the aggregate $200 in funds intended to influence elections . . . and will be bound to identify all persons making contributions over $200 who request that the money be used for independent expenditures.”). Despite the Supreme Court's statement regarding the meaning of § 434(c), OGC reasoned that “[b]ecause the record here does not suggest a basis to find a violation of the regulatory standard at 11 C.F.R. § 109.10(e)(1)(vi) under its plain terms, a Respondent could raise equitable concerns about whether a filer has fair notice of the requisite level of disclosure required by law if the Commission attempted to impose liability under Section 434(c)(1) [§ 30104(c)].” AR 176 (FGCR at 13). Due to this perceived lack of “fair notice” of a regulatory, rather than statutory, standard, OGC recommended that “the Commission dismiss the allegation [of a violation of subsection (c)(1)] as a prudential matter in the exercise of prosecutorial discretion.” Id.

         The FEC Commissioners deadlocked three-to-three on OGC's recommendations, AR 193 (Certification of FEC Votes in MUR 6696 (dated Nov. 19, 2015)), which resulted in a six-to-zero vote to dismiss the plaintiffs' administrative complaint, AR 195 (Certification of FEC Votes in MUR 6696 (dated Dec. 18, 2015)). While four Commissioners, including the three who voted against opening an investigation, issued no explanation of their vote, two Commissioners, who voted to find reason to believe Crossroads GPS failed to disclose contributors as required by law, issued a Statement of Reasons. See AR 198-99 (Stmt. of Reasons, FEC Comm'rs Ann M. Ravel & Ellen L. Weintraub at 1 (dated Jan. 22, 2016)) (focusing on FEC's prior inaction in failing to find that Crossroads GPS was a “political committee” subject to “making full disclosures on every expenditure and of every contributor of $200 or more”) (emphasis in original).


         Three months after the FEC dismissed the administrative complaint, the plaintiffs initiated the instant action, on March 16, 2016, asserting three claims under both the APA and the FECA, alleging that the FEC's finding of no “reason to believe” a violation had occurred was “arbitrary, capricious, an abuse of discretion, and contrary to law” because: (1) the FEC ignored undisputed evidence that Crossroads GPS had violated 11 C.F.R. § 109.10(e)(1)(vi) by failing to disclose the identities of individuals whose donations to Crossroads GPS were used to fund independent expenditures (Count I), Compl. ¶¶ 110-16; (2) the FEC predicated dismissal of the plaintiffs' administrative complaint on 11 C.F.R. § 109.10(e)(1)(vi), which conflicts with the FECA's disclosure provision, 52 U.S.C. § 30104(c)(2) (Count II), id. ¶¶ 117-24; and, finally, (3) despite acknowledging that 52 U.S.C. § 30104(c)(1) may impose a separate disclosure obligation for independent expenditures intended to “influenc[e] a federal election generally, ” id. ¶ 127, the FEC nonetheless failed to apply any such standard in evaluating the plaintiffs' administrative complaint against Crossroads GPS (Count III), id. ¶¶ 125-31.

         The FEC moved to dismiss Count II under Rule 12(b)(1) on the ground that the plaintiffs' challenge to § 109.10(e)(1)(vi) was untimely because the regulation was promulgated in 1980, and the lawsuit was therefore brought outside the applicable statute of limitations of six years, under 28 U.S.C. § 2401(a). FEC's Partial Mot. Dismiss at 1, ECF No. 12; FEC's Mem. Supp. Partial Mot. Dismiss at 7, ECF No. 12. Crossroads GPS, whose motion to intervene had been previously granted, see Minute Order (dated Apr. 26, 2016), joined in the FEC's motion and also moved, under Rule 12(b)(6), to dismiss all portions of Counts I, II, and III seeking relief under the APA, since, according to Crossroads GPS, the FECA “provides the exclusive avenue for review of the FEC's dismissal of [an] administrative complaint.” CGPS's Not. Joinder & Suppl. FEC's Partial Mot. Dismiss & Mem. Supp. at 1-2, ECF No. 17.

         The FEC's partial motion to dismiss was denied, CREW, 243 F.Supp.3d at 93, because “when an agency applies a regulation to dismiss an administrative complaint, the party whose complaint was dismissed may challenge the regulation after the statute of limitations has expired on the ground that the regulation conflicts with the statute from which it derives, ” id. at 101 (relying on Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142 (D.C. Cir. 2014); AT&T Co. v. FCC, 978 F.2d 727 (D.C. Cir. 1992)). The FEC's additional argument that “the plaintiffs' injury in the instant case is so attenuated that they lack standing, ” was not persuasive since “‘the denial of information [a plaintiff] believes the law entitles him to' constitutes an injury in fact.” Id. at 101-02 (alteration in original) (quoting Shays v. FEC (“Shays II”), 528 F.3d 914, 923 (D.C. Cir. 2008)). Crossroads GPS's motion was granted as to the APA claims in Counts I and III, since “the APA is not intended to ‘duplicate existing procedures for review of agency action, '” id. at 104 (quoting Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)), and “the FECA provides an ‘adequate remedy, '” id. at 104-05. This motion was otherwise denied as to Count II, because “the D.C. Circuit has clearly instructed that, to the extent that Count II challenges the legal validity of 11 C.F.R. § 109.10(e)(1)(vi), FECA's remedy is not ‘adequate,' and review under the APA is proper.” Id. at 105. Following compilation of the administrative record, the parties filed the pending cross-motions for summary judgment, which are now ripe for review.



         Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when the court finds, based on the pleadings, depositions, affidavits, and other factual materials in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c); see also Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         In resolving cross-motions for summary judgment in a case challenging an agency action under the APA, “the district judge sits as an appellate tribunal, ” and “[t]he entire case on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks omitted) (collecting cases). As the APA expressly provides in describing the scope of review, “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. Thus, a complaint under the APA, “properly read, actually presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993)); see also Lacson v. U.S. Dep't of Homeland Sec., 726 F.3d 170, 171 (D.C. Cir. 2013) (noting in an APA case that “determining the facts is generally the agency's responsibility, not ours”).

         The reviewing court is required to “hold unlawful and set aside agency action” that is “found to be, ” inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” 5 U.S.C. § 706(2)(A), or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, ” id. § 706(2)(C). Where, as here, the challenge is to “an agency's interpretation of a statute Congress has authorized it to implement, ” the court employs the familiar two-step analysis set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (“Chevron”), 467 U.S. 837 (1984). Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell (“Confederated Tribes”), 830 F.3d 552, 558 (D.C. Cir. 2016); see Shays v. FEC (“Shays I”), 414 F.3d 76, 96 (D.C. Cir. 2005). At the first step of the inquiry, the court must “ask whether Congress has ‘directly addressed the precise question at issue.'” Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 52 (2011) (quoting Chevron, 467 U.S. at 842- 43). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” City of Arlington v. Fed. Commc'n Comm'n, 569 U.S. 290, 296 (2013) (quoting Chevron, 467 U.S. at 842-43); see also Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2124-25 (2016). A statute that is unambiguous “means that there is ‘no gap for the agency to fill' and thus ‘no room for agency discretion.'” United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487 (2012) (quoting Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005)).

         “[I]f the statute is silent or ambiguous with respect to the specific issue” under consideration, the analysis shifts to Chevron step two, where “the question for the court is whether the agency's answer is based on a permissible construction of the statute, ” City of Arlington, 569 U.S. at 296 (quoting Chevron, 467 U.S. at 843), and “if so, defer to it, ” Confederated Tribes, 830 F.3d at 558. In assessing whether the agency's statutory interpretation is a “‘permissible' and ‘reasonable' view of the Congress's intent, ” the court “look[s] to what the agency said at the time of the rulemaking-not to its lawyers' post-hoc rationalizations.” Council for Urological Interests v. Burwell, 790 F.3d 212, 222 (D.C. Cir. 2015). The court “owe[s] an agency's interpretation of the law no deference unless, after ‘employing traditional tools of statutory construction,' [the Court finds itself] unable to discern Congress's meaning.” SAS Inst., Inc. v. Iancu, 138 S.Ct. 1348, 1358 (2018) (quoting Chevron, 467 U.S. at 843 n.9). Indeed, “the Court need not resort to Chevron deference” where “Congress has supplied a clear and unambiguous answer to the interpretive question at hand.” Pereira v. Sessions, 138 S.Ct. 2105, 2113 (2018).

         Further, “[o]f course, agency action is always subject to arbitrary and capricious review under the APA, even when it survives Chevron Step Two . . . .” Confederated Tribes, 830 F.3d at 559. “Agency action is arbitrary and capricious ‘if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency.'” Animal Legal Def. Fund, Inc. v. Perdue (“ALDF”), 872 F.3d 602, 611 (D.C. Cir. 2017) (alteration in original) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co. (“State Farm”), 463 U.S. 29, 43 (1983)); see also Genuine Parts Co. v. EPA, 890 F.3d 304, 312 (D.C. Cir. 2018) (“An agency action is arbitrary and capricious when, inter alia, the agency has ‘entirely failed to consider an important aspect of the problem [or] offered an explanation for its decision that runs counter to the evidence before the agency.'” (quoting State Farm, 463 U.S. at 43)).


         Summary judgment is granted to a party challenging an FEC dismissal decision, under 52 U.S.C. § 30109(a)(8)(A), when the decision is “contrary to law.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). “The FEC's decision is ‘contrary to law' if (1) the FEC dismissed the complaint as a result of an impermissible interpretation of the Act, . . . or (2) if the FEC's dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion.” Id. (citing FEC v. Democratic Senatorial Campaign Comm. (“DSCC”), 454 U.S. 27, 31, 37 (1981); In re Carter-Mondale Reelection Comm., 642 F.2d 538, 542 (D.C. Cir. 1980)).

         Whether the FEC's decision is unanimous or deadlocks in an evenly divided vote, the same standard for judicial review applies. See FEC v. Nat'l Republican Senatorial Comm. (“NRSC”), 966 F.2d 1471, 1476 (D.C. Cir. 1992); see also In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000). In cases where the Commission has deadlocked, “to make judicial review a meaningful exercise, the three Commissioners who voted to dismiss must provide a statement of their reasons for so voting.” NRSC, 966 F.2d at 1476; see also CREW v. FEC, 892 F.3d 434, 437 (D.C. Cir. 2018) (citing Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988)). Absent such a statement of reasons, the court may review the relevant OGC Report. See DSCC, 454 U.S. at 38 n.19. In determining whether an FEC dismissal decision is “contrary to law, ” the court employs the Chevron framework, and considers whether the dismissal was “arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161.


         Each party has moved for summary judgment on two issues: (1) whether the FEC's regulation, 11 C.F.R. § 109.10(e)(1)(vi), is valid as a proper interpretation and implementation of the FECA provision, 52 U.S.C. § 30104(c); and (2) whether the FEC's dismissal of the plaintiffs' administrative complaint, which dismissal was primarily predicated on the challenged regulation, was “contrary to law, ” under 52 U.S.C. § 30109(a)(8)(C). The plaintiffs' over-arching complaint is that the challenged regulation, 11 C.F.R. § 109.10(e)(1)(vi), is “[u]nexplained, [i]nexplicable, and [i]nvalid, ” Pls.' Mem. Supp. Summ. J. (“Pls.' Mem.”) at 28, ECF No. 27, because it requires covered entities making independent expenditures to report only contributors who gave to further ‘the reported' expenditure, . . . conflicting with the dual mandates of 52 U.S.C. § 30104(c)(1) and (c)(2)(C).” Pls.' Reply Mem. Opp'n Cross-Mots. Summ. J. & Supp. Mot. Summ. J. (“Pls.' Reply”) at 1, ECF No. 33. As such, the FEC's reliance on this regulation to dismiss the plaintiffs' administrative complaint against Crossroads GPS, a “sophisticated group” that “can read a statute, ” in the plaintiffs' view, must be set aside. Pls.' Mem. at 2.

         For its part, Crossroads GPS contends that the plaintiffs' action “comes 30 years too late” and, if the plaintiffs were to prevail, “CGPS's statutory and constitutional right to rely on a long-accepted regulation” would be violated, and the plaintiffs would be permitted “to subvert congressional intent and the FEC's considered judgment on this regulatory issue.” CGPS's Reply Mem. Supp. Cross-Mot. (“CGPS's Reply”) at 1, ECF No. 36. Finally, the FEC echoes Crossroad GPS's argument that the agency properly dismissed the plaintiffs' administrative complaint because the agency's “interpretation of the statute is permissible, particularly given the highly deferential standard of review that applies to agency decisions like this.” FEC's Reply Mem. Supp. Mot. Summ. J. (“FEC's Reply”) at 1, ECF No. 37.

         The statutory and regulatory provisions at issue may be properly construed only in the context of the FECA's disclosure regime, which is described below, followed by analysis of the parties' arguments regarding the challenged regulation and the FEC's dismissal decision. As more fully discussed below, the unambiguous language of 52 U.S.C. § 30104(c) renders the challenged regulation invalid. Since the FEC's dismissal of the amended administrative complaint was primarily predicated on an invalid regulation, that decision is “contrary to law” under 52 U.S.C. § 30109(a)(8)(C). As a result, the regulation is vacated, and the administrative case is remanded to the FEC.


         The FECA was originally enacted in 1972 and, as amended over time, continues to regulate federal political campaign financing, inter alia, by imposing limitations on contributions and requiring disclosure of persons contributing money for expenditures to influence federal elections. See, e.g., 52 U.S.C. § 30116 (imposing limitations on contributions and on certain coordinated expenditures); id. § 30103 (requiring registration of political committees); id. § 30104 (imposing reporting requirements). As already noted, these regulatory mechanisms are designed to deter corruption, prevent particular individuals or organizations from having an undue influence on federal elections, and assist in enforcement of laws prohibiting foreign contributions in federal elections, while also protecting the exercise of political speech so crucial to the functioning of this country's vibrant democracy. See Citizens United, 558 U.S. at 366-67; Buckley, 424 U.S. at 66-68.[9] Resolution of the parties' dispute over the sufficiency of the challenged regulation to fulfill the statutory disclosure mandates is aided by review of the relevant FECA provisions governing disclosure before turning to the regulation itself.

         1. Statutory Disclosure Requirements for Not-Political Committees Making Independent Expenditures

         At issue in this case are the disclosure requirements imposed on persons “other than political committees” (“not-political committees”) that make independent expenditures.[10] An entity is designated as a “political committee” when it meets certain monetary thresholds for receiving or making contributions or expenditures, see 52 U.S.C. § 30101(4), and the FEC determines that the entity is “under the control of a candidate or the major purpose of which is the nomination or election of a candidate, ” Buckley, 424 U.S. at 79; see also Unity08 v. FEC, 596 F.3d 861, 863 (D.C. Cir. 2010) (explaining “gloss that Buckley . . . put on the Act's definition of a political committee in the interest of partially saving the statute's constitutionality”). Under the FECA, political committees, which include political action committees (“PACs”), national party committees, and candidate committees, are subject to prescriptive requirements regarding their organizational structure, recordkeeping, and financial reporting. See, e.g., 52 U.S.C. § 30102(a)-(c) (requiring a political committee to have a treasurer, maintain a segregated bank account, and keep records of contributions and disbursements). Political committees must also disclose to the FEC the identification of each person contributing “in excess of $200 within the calendar year, ” together with “the date and amount of any such contribution.” Id. § 30104(b)(3)(A). A “contribution” is defined to include “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” Id. § 30101(8)(A)(i).[11]

         The FECA also regulates federal campaign activities of persons “other than political committees, ” see 52 U.S.C. § 30104(c), referred to herein as “not-political committees, ” which include entities, such as Crossroads GPS, organized under 501(c) of the Internal Revenue Code (“IRC”) that are supposed to have “major purposes” other than political advocacy, see, e.g., 26 U.S.C. § 501(c)(4) (describing tax-exempt non-profit organizations “operated exclusively for the promotion of social welfare”). While not subject to the same organizational and record keeping requirements as political committees, not-political committees making independent expenditures over the low threshold of $250 in a calendar year must comply with disclosure obligations that are closely analogous to those imposed on political committees. See, 599 F.3d at 697 (D.C. Cir. 2010) (explaining that additional reporting requirements imposed on a political committee in comparison to a not-political committee making independent expenditures “are minimal”). An “[i]ndependent expenditure” is defined as “an expenditure by a person . . . expressly advocating the election or defeat of a clearly identified candidate” but “that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate's authorized political committee, or their agents, or a political party committee or its agents.” 52 U.S.C. § 30101(17); see also Citizens United v. FEC, 558 U.S. at 360 (2010) (“By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”).[12] In contrast to “independent expenditure, ” the term “expenditure” is statutorily defined more broadly as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal Office.” Id. § 30101(9).[13] Notably, both the definition of “contribution” and “expenditure” incorporate the identical purpose clause. Only the making of “independent expenditures, ” as opposed to the making of “expenditures, ” currently triggers the disclosure requirements for not-political committees under § 30104(c).

         a) Legislative History of § 30104(c)

         When enacted, the FECA required political committees and candidates for federal office to report, in relevant part, “the full name and mailing address (occupation and the principal place of business, if any) of each person who has made one or more contributions to or for such committee . . . within the calendar year in an aggregate amount or value in excess of $100, together with the amount and date of such contributions.” 2 U.S.C. § 434(b)(2) (1972). Another section set out disclosure requirements for individual contributors and not-political committees, describing who was covered as follows: “[e]very person (other than a political committee or candidate) who makes contributions or expenditures, other than by contribution to a political committee or candidate, ” of over $100 annually. 2 U.S.C. § 435 (1972).[14] As to what these individuals and not-political committees were required to report, section 435 mandated disclosure of the same information about contributions that political committees and candidates were required to disclose in reporting statements. Id. By its terms, section 435 imposed a reporting requirement on both not-political committees and individual contributors making either “expenditures” or “contributions” to influence federal elections, with the result that both sources of funding in political campaigns were identified and disclosed. Id. (emphasis added).[15] Both “contribution' and “expenditure” were defined with the identical purpose clause, as including “anything of value, made for the purpose of influencing the nomination for election, or election, of any person to Federal office . . . .” Id. § 431(e)(1) (1972) (defining “contribution”); id. § 431(f)(1) (1972) (defining “expenditure”). Over the next decade, the provision pertaining to not-political committees was substantively amended twice, in 1976 and 1979, as described below.

         (i) 1974 and 1976 Amendments

         Congress first amended the FECA in 1974, largely in response to the election abuses that surfaced in 1972. FECA Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (1974). Section 435 pertaining to not-political committees was recodified at 2 U.S.C. § 434(e), but otherwise the disclosure obligations remained the same, along with the definitions of “contribution' and “expenditure” in relevant part. Compare 2 U.S.C. § 435 (1972), with 2 U.S.C. § 434(e) (1974); compare 2 U.S.C. § 431(e)(1), (f)(1) (1972), with 2 U.S.C. § 431(e)(1), (f)(1) (1974).

         Two years later, in Buckley v. Valeo, the Supreme Court upheld § 434(e) against an overbreadth challenge, but clarified the meaning of the phrase “for the purpose of . . . influencing” contained in the definitions of “contribution” and “expenditure, ” to ensure the provision was “within constitutional bounds.” 424 U.S. at 60-63.[16] Recognizing that § 434(e) was “part of Congress'[s] effort to achieve ‘total disclosure' by reaching ‘every kind of political activity, '” id. at 76 (quoting S. Rep. No. 229, 92d Cong., 2d Sess. at 57), the Supreme Court explained this goal was rooted in three “substantial governmental interests”: (1) to “provide[] the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate' in order to aid the voters in evaluating those who seek federal office”; (2) to “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity, ” which “[p]ublicity is justly commended as a remedy for social and industrial disease, ” as “[s]unlight is said to be the best of disinfectants; electric light the most efficient policeman”; and (3) to provide “an essential means of gathering the data necessary to detect violations of the contribution limitations . . . .” Id. at 66-68. The Court acknowledged that “public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute, ” and, further, that “[i]n some instances, disclosure may even expose contributors to harassment or retaliation, ” which “are not insignificant burdens.” Id. at 68. Nevertheless, “disclosure requirements certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress [has] found to exist.” Id.

         At the same time, noting a vagueness within § 434(e), the Court stated that, because “‘[c]ontributions' and ‘expenditures' are defined in parallel provisions in terms of the use of money or other valuable assets ‘for the purpose of . . . influencing' the nomination or election of candidates for federal office, ” id. at 77 (second alteration in original) (citing 2 U.S.C. § 431(e), (f) (1974)), the Court's “task” was to “construe ‘for the purpose of . . . influencing,' incorporated in § 434(e) through the definitions of ‘contributions' and ‘expenditures,' in a manner that precisely furthers [Congress's] goal.” Id. at 78 (first alteration in original). The Court construed “contribution” to include “contributions made to other organizations or individuals but earmarked for political purposes” as well as “contributions made directly or indirectly to a candidate, political party, or campaign committee” and “all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate.” Id.; see also Id. at 23 n.24. With respect to “expenditure, ” the Court noted “line-drawing problems” as applied to not-political committees, and ultimately construed the term “for purposes of [§ 434(e)] . . . to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” Id. at 80. Words of express advocacy include terms “such as ‘vote for,' ‘elect,' ‘support,' ‘cast your ballot for,' ‘Smith for Congress,' ‘vote against,' ‘defeat,' ‘reject.'” Id. at 44 n.52.

         The Court summarized that the provision then-codified at § 434(e) was “constitutional, ” as long as it was construed to impose “independent reporting requirements on individuals and groups that are not candidates or political committees” in only two circumstances: “(1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate.” Id. at 80. This construction, the Court explained, “goes beyond the general disclosure requirements to shed the light of publicity on spending that is unambiguously campaign related but would not otherwise be reported because it takes the form of independent expenditures or of contributions to an individual or group not itself required to report the names of its contributors.” Id. at 81 (emphasis added). With this clarifying construction of § 434(e), reporting not-political committees (which must report due to their making expenditures of over $100 annually) were required to report expenditures that “expressly advocate the election or defeat of a clearly identified candidate, ” and donors making non-trivial contributions to not-political committees, including per the request of a candidate or political committee, were required to report those contributions “earmarked for political purposes” in connection with a federal election. See Id. at 80. The Court offered no further clarification of the meaning of “for political purposes, ” except to suggest that “‘contributions' have a sufficiently close relationship to the goals of the [FECA], for they are connected with a candidate or his campaign.” Id. at 78.

         After Buckley, in 1976, Congress amended § 434(e) in an effort to conform to the constitutional boundaries set by the Supreme Court. See FECA Amendments of 1976, Pub. L. 94-283, § 104(e), 90 Stat. 475, 481 (1976).[17] The amended § 434(e) maintained the dual reporting obligations on individual contributors and not-political committees, describing, in subsection (e)(1), who must report as follows: “[e]very person (other than a political committee or candidate) who makes contributions or independent expenditures expressly advocating the election or defeat of a clearly identified candidate, other than by contribution to a political committee or candidate, in an aggregate amount in excess of $100 during a calendar year . . . .” 2 U.S.C. § 434(e)(1) (1976).[18] This description of who was covered by the FECA reporting obligation incorporated the Supreme Court's narrowing of the term “expenditure, ” as applied to not-political committees, by using the newly defined term “independent expenditure, ” plus part of the new definition, despite the resulting redundancy. See 2 U.S.C. § 431(p) (1976) (defining “independent expenditure” as an expenditure “expressly advocating the election or defeat of a clearly identified candidate . . . without cooperation or consultation with any candidate or any authorized committee or agent of such candidate and which is not made in concert with, or at the request or the suggestion of, any candidate or any authorized committee or agent of such candidate”). As to what must be reported, § 434(e) required covered persons to file disclosure statements “on a form prepared by the [FEC]” containing the same information that direct contributors of over $100 to candidates and political committees were required to disclose, as well as the same information that candidates and political committees receiving such contributions were required to disclose. Id.[19] In other words, the reporting not-political committees were obliged to disclose their non-trivial donors, just as political committees were required to do.

         The FEC's implementing regulations for the 1976 version of § 434(e) required “[e]very other person [than a political committee] who makes independent expenditures” over $100 annually to file a report with the FEC, disclosing, among other things, “the person's identification, occupation, principal place of business.” 11 C.F.R. §109.2(b)(1) (1977). A separate regulation required every person, other than a political committee or candidate, making a contribution of over $100 annually “for the purpose of expressly advocating the election or defeat of a clearly identified candidate, ”-thereby covering individual contributors as well as reporting not-political committees contributing for this purpose-to disclose in reports to the FEC the same information required of reporting not-political committees. Id. § 109.5 (1977).[20]Thus, under the FEC regulations implementing the 1976 amendments, both reporting not-political committees and individual donors of over $100 annually to such organizations were required, under both the statute and FEC regulations, to disclose to the FEC their contributions and expenditures made for expressly advocating the election or defeat of candidate for federal office, with individual contributors for this purpose expressly directed to file a report identifying themselves “in the same manner as is required with respect to independent expenditures under §109.2.” Id.

         (ii) 1979 Amendments

         Three years later, the text of the statutory provision pertaining to the disclosure requirements for not-political committees was amended for the last time in the 1979 FECA Amendments, which recodified § 434(e) at § 434(c). 2 U.S.C. § 434(c) (1980); see FECA Amendments of 1979, Pub. L. 96-187, § 104(c), 93 Stat. 1339, 1354 (1980). The 1979 Amendments were intended to “enhance[]” the “laudable goals of disclosure and limitations on the influence of money in Federal campaigns, ” while simultaneously “easing the bureaucratic obstacles for individuals and committees to participate in political campaigns.” Hearing Before the S. Comm. on Rules & Admin. to Amend the Federal Election Campaign Act of 1971, as Amended, & for Other Purposes, 96th Cong. 1-2 (July 13, 1979) [hereinafter S. Comm. Hearing 1979] (statement of Sen. Claiborne Pell, Chairman, S. Comm. On Rules & Admin.). As part of easing regulatory burdens, the FEC recommended raising the threshold amount triggering disclosure of independent expenditures from $100 to $250 and, in lieu of reporting by individual contributors, requiring not-political committees filing independent expenditure reports “to report the sources of any contributions in excess of $100 which is donated with a view toward bringing about an independent expenditure.” S. Comm. Hearing 1979, at 18-19 (statement of FEC).[21]

         The FEC's recommendations were reflected in draft legislation considered at the Senate Committee's July 13, 1979 hearing, which draft also provided that, under new § 434(c)(2)(C), disclosure statements would include “an identification of each person who has made a contribution of more than $200 to the person filing such statement, which was made for the purpose of furthering an independent expenditure.” Id. at 71-72 (“Discussion Draft, ” dated July 6, 1979). The proposed amendment to the new § 434(c) was described as “[s]implif[ying] reporting without affecting meaningful disclosure.” Id. at 139 (Staff of S. Comm. on Rules & Admin., 96th Cong., Summary of Committee Working Draft No. 2-FECA Amendments).

         The relevant committee report explaining the FECA Amendments of 1979, outlined two over-arching goals for the amendments: “(1) [t]o simplify reporting requirements for candidates and committees under the [FECA], and (2) to encourage grass roots participation in Federal election campaigns.” S. Rep. No. 319, 96th Cong., 1st Sess. at 1 (1979).[22] The amendments were intended to “reduce substantially the number of reports required to be filed with the Commission and appropriate State offices without diminishing public disclosure.” Id. at 3. This aim was accomplished, in part, by eliminating the dual reporting requirement in § 434(e) (1976) and requiring reporting not-political committees to assume the filing responsibility instead of their donors, as explained in the Senate committee report as follows: “those who make independent contributions would be relived of reporting, that responsibility being transferred to the recipient of such a contribution . . . .” Id. (emphasis added).

         The FECA Amendments of 1979 applicable to not-political committees and their contributors, codified at 2 U.S.C. § 434(c) (1979), contained three parts, similarly to the predecessor provision, § 434(e) (1976). As relevant here, textual changes were made in the first and second parts of this provision in describing who must report what: the new § 434(c)(1) defined the “person (other than a political committee)” required to file disclosure statements with the FEC as such persons “mak[ing] independent expenditures” over $250 annually, eliminating the reference to those making “contributions” as well as the redundancy in the predecessor statute, which had referenced both “independent expenditures” and part of the definition for that term. As to what disclosures were required to be made by the covered entities, this subsection used a specific cross-reference to “the information required under subsection (b)(3)(A) of this section for all contributions received by such person, ” a more precise formulation than in the predecessor statute. Compare 2 U.S.C. § 434(c)(1) (1979), with 2 U.S.C. § 434(e)(1)(1976). The second part of the amended provision in subsection (c)(2), like its predecessor, described the contents of statements to be filed with FEC, but added a new paragraph (C) requiring the reporting not-political committee to disclose the identity of each person contributing over $200 annually “for the purpose of furthering an independent expenditure.” 2 U.S.C. § 434(c)(2)(C)(1979).

         The provisions codified at 2 U.S.C. § 434(c) (1979) were later recodified in Chapter 301 of Title 52, at § 30104(c), without significant change to the text of these subsections. Compare 2 U.S.C. § 434(c) (1979), with 52 U.S.C. § 30104(c) (2016).

         b) Summary of Current § 30104(c)

         Like the predecessor statutes dating back to the 1976 FECA amendments, the disclosure obligations under 52 U.S.C. § 30104(c) are set out in three parts. First, subsection (c)(1) describes who is required to disclose what, mandating that “[e]very person (other than a political committee) who makes independent expenditures in an aggregate amount or value in excess of $250 during a calendar year shall file a statement containing the information required under [§ 30104](b)(3)(A) for all contributions received by such person.” 52 U.S.C. § 30104(c)(1). The referenced subsection “(b)(3)(A)” requires political committees to identify each contributor, other than a political committee, of over $200 in a calendar year, or a lesser amount in the discretion of the reporting committee, along with the date and amount of any contribution reported. See Id. § 30104(b)(3)(A).[23] By its terms, § 30104(c)(1) obligates reporting not- political committees (which must file reports due to their making annual independent expenditures over $250) to provide identifying information for donors of more than $200 for “all contributions received, ” id. § 30104(c)(1), which contributions, by definition, are intended to “influenc[e] any election for Federal office, ” 52 U.S.C. § 30101(8)(A)(i); see also Buckley, 424 U.S. at 80 (construing “contribution” to refer to funds “earmarked for political purposes or authorized or ...

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