No. 18A274
____________________
IN THE

Supreme Court of the United States
____________________
CROSSROADS GRASSROOTS POLICY STRATEGIES,

Applicant,
v.
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
& NICHOLAS MEZLAK,
and
FEDERAL ELECTION COMMISSION,

Respondents.
____________________
On Application for Emergency Stay Pending Appeal from the United States District
Court for the District of Columbia, Case No. 1:16-cv-00259-BAH
____________________
RESPONSE IN OPPOSITION TO EMEREGENCY APPLICATION TO CHIEF
JUSTICE ROBERTS, CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA,
FOR A STAY PENDING APPEAL
____________________
STUART C. MCPHAIL

Counsel of Record

ADAM J. RAPPAPORT
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON
455 Massachusetts Ave., N.W.
Washington, D.C. 20001
smcphail@citizensforethics.org
arappaport@citizensforethics.org
(202) 408-5565

Counsel for Citizens for Responsibility and
Ethics in Washington and Nicholas
Mezlak

 CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 29.6 of the Rules of the Supreme Court of the United
States, respondent Citizens for Responsibility and Ethics in Washington states that
it does have not a parent corporation and that no publicly-held companies hold 10%
or more of its stock.

i

 TABLE OF CONENTS
CORPORATE DISCLOSURE STATEMENT .................................................. i 
TABLE OF CONENTS .................................................................................... ii 
TABLE OF AUTHORITIES ........................................................................... iii 
INTRODUCTION .............................................................................................1 
STATEMENT OF THE CASE ..........................................................................3 
A. 

The FECA’s Unambiguous Reporting Requirements ...........................3 

B. 

The Regulation’s Conflicting Requirement ...........................................7 

C. 

The Administrative Proceeding and Litigation Below .........................9 

D. 

Post-Judgement Proceedings ...............................................................12 

ARGUMENT ...................................................................................................13 
A. 

Crossroads Fails to Overcome the Deference Owed to the Lower
Courts’ Denial of Its Stay .....................................................................13 

B. 

Crossroads Fails to Show a Reasonable Probability of Certiorari
or a Fair Prospect of Success Before This Court .................................16 
1. 

The District Court Rightfully Rejected Crossroads’s
Suggestions to Ignore the Clear Statutory Text ......................16 

2. 

The District Court Had Jurisdiction Below ..............................21 

C. 

Crossroads Fails to Show Any Irreparable Injury ..............................24 

D. 

The Equities Strongly Disfavor a Stay, Which Would Substantial
Harm CREW and the Public ................................................................27 

E. 

Vacatur was the Appropriate Remedy, and This Application is Not
the Proper Vehicle to Seek Reconsideration of that Remedy .............33 

ii

 TABLE OF AUTHORITIES
Cases 

Allied-Signal, Inc. v. Nuclear Regulatory Comm’n, 988 F.2d 146

(D.C. Cir. 1993)................................................................................................... 11, 33

Ariz. Free Enterprise Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011) .................................................................................................. 31

AT&T Co. v. FCC, 978 F.2d 727 (D.C. Cir. 1992), cert. denied,

509 U.S. 913 (1993) .................................................................................................. 21

Bailey v. Patterson, 368 U.S. 346 (1961) .................................................................... 24
Barnes v. E-Systems. Group Hosp. Medical & Surgical Ins. Plan,

501 U.S. 1301 (1991) ................................................................................................ 27

Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86 (D.C. Cir. 1986)............................. 23
Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011) .................................................. 29
Breswick & Co. v. U.S., 75 S. Ct. 912 (1955) .............................................................. 14
Buckley v. Valeo, 424 U.S. 1 (1976) .................................................................... passim
Catholic Leadership Coal. of Tex. v. Reisman, No. A-12-CA-566-SS,

2012 WL 12873174 (W.D. Tex. July 20, 2012) ........................................................ 31

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290

(D.C. Cir. 2006)......................................................................................................... 26

Cierco v. Mnuchin, 857 F.3d 407 (D.C. Cir. 2017) ................................................ 22, 23
Citizens United v. FEC, 558 U.S. 310 (2010) ................................................... 8, 25, 29
City of Arlington, Tex. v. FCC, 569 U.S. 290 (2013) ............................................ 20, 33
CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017) ................................................ 16, 21
Davis v. FEC, 554 U.S. 724 (2008) .............................................................................. 31
Doe v. Reed, 561 U.S. 186 (2010) .......................................................................... 25, 31
Emily’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009)........................................................ 33
FEC v. Akins, 524 U.S. 11 (1998) .................................................................... 21, 23, 27
iii

 FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986) (“MCFL”) ......................... 3, 5, 16
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) ............................................. 26
Graves v. Barnes, 405 U.S. 1201 (1972) ..................................................................... 13
Hollingsworth v. Perry, 558 U.S. 183 (2010) ...................................................... 2, 3, 24
Humane Soc’y of U.S. v. Zinke, 865 F.3d 585 (D.C. Cir. 2017) .................................. 33
Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012) ........................................................... 31
Laird v. Tatum, 408 U.S. 1 (1972)............................................................................... 26
Lucas v. Townsend, 486 U.S. 1301 (1988) .................................................................. 28
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................. 24
McComish v. Brewer, No. cv-08-1550-PHX-ROS, 2008 WL 4629337

(D. Ariz. Oct. 17, 2008) ............................................................................................. 31

McConnell v. FEC, 540 U.S. 93 (2003)........................................................................ 25
McCutcheon v. FEC, 572 U.S. 185 (2014) ................................................................. 5, 7
MCFL, 479 U.S. at 262 ................................................................................................ 17
McGraw-Hill v. Proctor & Gamble, 515 U.S. 1309 (1995) ......................................... 22
Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980)............................................................. 21
NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) ............................................................ 20
Pasadena City Bd. of Ed. v. Spangler, 423 U.S. 1335 (1975) ....................................... 1
Pereira v. Sessions, 138 S. Ct. 2105(2018) ................................................................. 15
Pillsbury v. United Eng’g Co., 342 U.S. 197 (1952) .................................................... 20
Purcell v. Gonzalez, 549 U.S. 1 (2006) .................................................................. 30, 31
Randall v. Sorrell, 548 U.S. 230 (2006)....................................................................... 32
Respect Maine PAC v. McKee, 622 F.3d 13 (1st Cir. 2010) ....................................... 31
Rostker v. Goldberg, 448 U.S. 1306 (1980) ......................................................... passim
Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) ....................................... 2, 16, 25
iv

 Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ............................................................... 33
STOP Hillary PAC v. FEC, 166 F. Supp. 3d 643 (E.D. Va. 2015) ............................. 30
Summers v. Earth Island Inst., 555 U.S. 488 (2009) ................................................. 23
Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115 (1974)............................................. 23
U.S.P.S. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 481 U.S. 1301 (1987) .............. 28
United States v. Williams, 553 U.S. 285 (2008) ......................................................... 20
Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ..................................................... 18
Warth v. Seldin, 422 U.S. 490 (1975) .......................................................................... 32
Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142 (D.C. Cir. 2014) .......... 21
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ................................................. 33

Whalen v. Roe, 423 U.S. 1313 (1975) ................................................................ 1, 14, 33
Statutes 
2 U.S.C § 434(e)(1) (1976) ........................................................................................ 6, 19
52 U.S.C. § 30101(4) ...................................................................................................... 4
52 U.S.C. § 30101(8) .................................................................................................... 20
52 U.S.C. § 30102 ........................................................................................................... 4
52 U.S.C. § 30104(a)(4) .................................................................................................. 4
52 U.S.C. § 30104(b)(3)(A) ............................................................................................. 4
52 U.S.C. § 30104(b)(4) .................................................................................................. 4
52 U.S.C. § 30104(c) ....................................................................................................... 4
52 U.S.C. § 30104(c)(1) ........................................................................................ passim
52 U.S.C. § 30104(c)(2)(C) ................................................................................... passim
52 U.S.C. § 30106(c) ..................................................................................................... 32
52 U.S.C. § 30109(a)(8)(A) ........................................................................................... 10

v

 Other Authorities 
FEC, Definition of Federal Election Activity, Interim Final Rule,
71 Fed. Reg. 14357 (Mar. 22, 2006) ......................................................................... 34
FEC, Independent Expenditures (last visited Sept. 12, 2018),
https://bit.ly/2MphFgB ............................................................................................. 23

Hearing Before the S. Comm. on Rules & Admin. to Amend the
Federal Election Campaign Act of 1971, as Amended, & for Other
Purposes, 96th Cong. (July 13, 1979) ........................................................................ 6
OpenSecrets.org, Outside Spending by Disclosure, Excluding Party
Committees (last visited Sept. 15, 2018), https://bit.ly/1AzZeKb........................... 29
Robert Maguire, One Nation rising: Rove-linked group goes from no
revenue to more than $10 million in 2015, OpenSecrets News (Nov. 17, 2016),
https://bit.ly/2fJebqp ................................................................................................ 26
Senate Select Committee on Intelligence, The Intelligence Community
Assessment: Assessing Russian Activities and Intentions in Recent U.S.
Elections (July 3, 2018) ............................................................................................ 29
Rules 
Fed. R. Civ. P. 60 ......................................................................................................... 33
Regulations 
11 C.F.R. § 100.51 ........................................................................................................ 20
11 C.F.R. § 100.71 ........................................................................................................ 21
11 C.F.R. § 109.10(e)(1)(vi) .................................................................................. passim

vi

 INTRODUCTION
Having had every one of its arguments rejected below, including its requests
to indefinitely stay the order vacating a regulation, Applicant Crossroads
Grassroots Policy Strategies (“Crossroads”) now seeks relief appropriate in only
“extraordinary cases.” Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980). Crossroads
asks this Court to grant a stay pending its appeal to the D.C. Circuit and,
presumably, review by this Court, of the considered judgment below of Chief Judge
Beryl A. Howell; a request that both the D.C. Circuit and Judge Howell have now
wholly rejected. At the heart of Crossroads’s request is its desire to avoid
compliance with its unambiguous disclosure obligations under the Federal Election
Campaign Act (“FECA”), a request that, if granted, would do immeasurable damage
to the American people by “depriv[ing] the electorate of donor information that was
intended and supposed to be disclosed,” Op. 96.1 Crossroads’s application appears
calculated to deny voters in the next federal election knowledge about “[t]he sources
of a candidate’s financial support” before they cast their ballots. Buckley v. Valeo,
424 U.S. 1, 67 (1976).
Crossroads fails, however, to meet its “heavy burden” of justifying the
“extraordinary” relief it seeks here: a stay by this Court while the matter is pending
on review in the circuit court below. Whalen v. Roe, 423 U.S. 1313, 1316 (1975); see

also Pasadena City Bd. of Ed. v. Spangler, 423 U.S. 1335, 1336 (1975) (“Ordinarily a
stay application to a Circuit Justice on a matter currently before a Court of Appeals
1

Crossroads Appl. Add. B; CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018).
1

 is rarely granted.”). Indeed, Crossroads’s burden is particularly high here, where
(a) the district court expressly considered its request to delay relief and crafted its
own limited stay based on a careful balance of the facts, and then rejected
Crossroads’s request to extend that stay, and (b) the D.C. Circuit likewise rejected
Crossroads’s stay request because Crossroads “fails every prong of the showing
required,” Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317 (1983) (lower court’s
finding that a “stay is unwarranted is entitled to considerable deference”).
Crossroads does not overcome that deference and cannot meet its heavy
burden. It first fails to show “a reasonable probability that four Justices will
consider the issue sufficiently meritorious to grant certiorari” or “a fair prospect
that a majority of the court will vote to reverse the judgment below.” Hollingsworth

v. Perry, 558 U.S. 183, 190 (2010) (per curiam). As the district court below held in
its thorough and well-reasoned opinion, the Federal Election Commission (“FEC”)
regulation that was struck and that Crossroads seeks to preserve is plainly
inconsistent with the disclosure required by the FECA. Op. 53–92. The regulation
limits disclosure by those making independent expenditures to only campaign
contributors who contribute to fund “the reported” independent expenditure—a
category so narrowly defined as to be nonexistent. See 11 C.F.R. § 109.10(e)(1)(vi);
Op. 7, 8. The FECA, however, far more broadly commands disclosure of the sources
of “all contributions” over $200, 52 U.S.C. § 30104(c)(1), as well the identification of
those who contribute for the purpose of furthering “an” independent expenditure, id.

2

 § 30104(c)(2)(C); accord FEC v. Mass. Citizens for Life, 479 U.S. 238, 262 (1986)
(“MCFL”).
Recognizing the statute and regulation impose inconsistent requirements,
Crossroads requests this emergency relief for the very purpose of using the narrow
regulation to avoid the disclosure mandated by the FECA. Crossroads then resorts
to attacking straw men and blatant misquotations in an attempt to mislead this
Court about its likelihood of success. Despite these tactics, Crossroads cannot make
out a “fair prospect” that the Court will ignore the FECA’s clear text to save the
invalid regulation.
Crossroads further fails to show any cognizable and “irreparable harm” from
a lack of a stay, Hollingsworth, 558 U.S. at 190, because Crossroads’s selfcensorship to avoid constitutional disclosure obligations is not a cognizable injury,
particularly where that censorship is wholly unrelated to the decision below.
Crossroads also fails to show that the “balance [of] equities” between “the relative
harms to [it]” and respondents Citizens for Responsibility and Ethics in Washington
and Nicholas Mezlak (together “CREW”), “as well as the interests of the public at
large,” favors a stay. Rostker, 448 U.S. at 1308. Accordingly, CREW respectfully
requests this Court deny Crossroads’s application.
STATEMENT OF THE CASE
A. The FECA’s Unambiguous Reporting Requirements
The FECA imposes two separate but complementary disclosure obligations on
groups that are not political committees who make more than $250 in “independent

3

 expenditures,” 52 U.S.C. § 30104(c), defined as communications that expressly
advocate for the election or defeat of a federal candidate, 52 U.S.C. § 30101(17).
First, the FECA requires:
Every 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 subsection (b)(3)(A) for all contributions
received by such person.
52 U.S.C. § 30104(c)(1). Subsection (b) governs the contents of disclosure reports
political committees must file, and subsection (b)(3)(A) covers the
scope of contributors that must be disclosed.2 By the explicit cross-reference to
subsection (b)(3)(A), subsection (c)(1) subjects non-political committees making
independent expenditures to the same obligation to disclose contributors that it
imposes on political committees. Specifically, they must both disclose “the
identification of each . . . person (other than a political committee) who makes a
contribution . . . whose contributions have an aggregate amount or value in excess
of $200 within the calendar year . . . , together with the date and amount of any
such contribution.” 52 U.S.C. § 30104(b)(3)(A).3

The FECA defines a political committee as a group that “receives contributions” or
“makes expenditures” over $1,000 in a calendar year, 52 U.S.C. § 30101(4), and this
Court has further limited their application to groups with the “major purpose” of
influencing elections, Buckley, 424 U.S. at 79.
3 Apart from the scope of contributor disclosure, the FECA imposes more rigorous
burdens on political committees than on others making independent expenditures,
including disclosure of all disbursements, 52 U.S.C. § 30104(b)(4); continuous
reporting, id. § 30104(a)(4); and certain recordkeeping and organizational burdens,
id. § 30102. Further, all funds donated to a political committee are contributions
2

4

 Second, the FECA also requires groups that are not political committees to
identify certain of those contributors:
Statements required to be filed by this subsection shall be filed in
accordance with subsection (a)(2), and shall include . . . the
identification of each person who made a contribution in excess of $200
to the person filing such statement which was made for the purpose of
furthering an independent expenditure.
52 U.S.C. § 30104(c)(2)(C) (emphasis added).
As this Court itself held, these provisions require non-political committees
making $250 worth of independent expenditures “to identify all contributors who
annually provide in the aggregate $200 in funds intended to influence elections . . .
[and] to identify all persons making contributions over $200 who request that the
money be used for independent expenditures.” MCFL, 479 U.S. at 262.4 As with all
disclosure provisions of the FECA, these complementary reporting obligations serve
a number of compelling interests, including “providing the electorate with
information about the sources of election-related spending” and “deter[ing] actual
corruption and avoid[ing] the appearance of corruption.” McCutcheon v. FEC, 572
U.S. 185, 223 (2014) (Roberts, C.J.) (internal quotation marks and citations
omitted).

because political committees are “by definition, campaign related,” Buckley, 424
U.S. at 79, while only donations to those making independent expenditures
“intended to influence elections” are contributions, Op. 55.
4 While § 30104 was not at the center of the dispute in MCFL, the Court’s
understanding about the scope of the obligations it imposed was necessary to its
conclusion that the government had available “less restrictive” means than the ban
at issue and that still satisfied its interests. Id.
5

 The complimentary reporting obligations mirror the FECA’s prior dual
reporting obligations for independent expenditures. First, the prior statutory
language required those making independent expenditures to “file with the
Commission . . . a statement containing . . . the information required of a candidate
or political committee receiving . . . a contribution [in excess of $100].” 2 U.S.C.
§ 434(e)(1) (1976). The 1979 FECA Amendments made this incorporation of
political committee reporting obligations even more explicit by identifying exactly
what information the reporting entity should identify. Second, unlike the current
statute, the FECA then imposed an obligation on contributors to self-report,
requiring that any person “who makes contributions . . . , other than by contribution
to a political committee or candidate, in an aggregate amount in excess of $100
during a calendar year shall file . . . a statement containing the information
required of a person who makes a contribution in excess of $100 to a candidate or
political committee.” Id. In so doing, the prior statute imposed a duty on those
making contributions to report “contributions to independent expenditures” without
exception. See Crossroads Add. D at 3. In the 1979 FECA Amendments, Congress
shifted the latter reporting obligation onto the person making the independent
expenditure to “[s]implif[y] reporting without affecting meaningful disclosure.”

Hearing Before the S. Comm. on Rules & Admin. to Amend the Federal Election
Campaign Act of 1971, as Amended, & for Other Purposes, 96th Cong. 139 (July 13,
1979), https://bit.ly/2BopE8F.5
5

The district court’s decision provides a lengthy discussion of the history of the
6

 B. The Regulation’s Conflicting Requirement
Notwithstanding the FECA’s unambiguous statutory commands, the FEC
regulation implementing these provisions fails to capture the dual reporting
requirements Congress imposed. The regulation in question, 11 C.F.R.
§ 109.10(e)(1)(vi) completely ignores the reporting requirement of subsection (c)(1)
and inexplicably and “sharply narrows” the reporting requirement under subsection
(c)(2)(C), mandating that non-political committees making independent
expenditures merely “identi[fy] each person who made a contribution in excess of
$200 to the person filing such report, which contribution was made for the purpose
of furthering the reported independent expenditure.” Id. (emphasis added); D.C.
Cir. Stay Op. 1. The FEC has interpreted the regulation to require reporting only
where a contributor “earmarked contributions for specific expenditures in the
precise form set out in a particular report”—i.e., an “express link between the
receipt and independent expenditure” was deemed required. Op. 13, 80.
Accordingly, the FEC has found the regulation did not require disclosure of
contributions where the reporter knew funds were given to “support the election” of
a specific federal candidate, Op. 102, or where the contributors were solicited after
watching “example” independent expenditures, Op. 88. As a result, the regulation
produces almost no reporting about the “sources of election-related spending.”

McCutcheon, 572 U.S. at 223; see, e.g., Op. 8 (showing Crossroads aired over $17
million in independent expenditures but reported “0” in contributions).
relevant portions of the FECA. See Op. 25–35
7

 The FEC never issued an explanation for its abandonment of subsection
(c)(1)’s reporting requirement or its narrowing of subsection (c)(2)(C) . Rather, its
entire public explanation for the regulation comprised a single sentence: “This
section has been amended to incorporate the changes set forth in [52] U.S.C.
[§] [30104](c)(1) and (2) regarding reporting requirements for persons, other than a
political committee, who make independent expenditures.” Op. 39 (quoting 45 Fed.
Reg. 15080, 15087 (Mar. 7, 1980)). The rulemaking record also shows no reason for
the regulation’s divergence from the FECA or, in fact, that the agency was even
aware of this divergence. Rather, it shows that the FEC first proposed a regulation
reflecting the language of subsection (c)(2)(C), but inexplicably changed that
language to the final form without prompting or discussion. See Op. 38–39.
Nonetheless, prior to this Court’s decision in Citizens United v. FEC, 558
U.S. 310 (2010), the regulation’s divergence from the statute had little effect
because there were very few non-political committee independent expenditures.
OpenSecrets.org, Total Outside Spending by Election Cycle, Excluding Party
Committees, https://bit.ly/2OuygS0. With the explosion in independent
expenditures after Citizens United, however, new attention was paid to 11 C.F.R.
§ 109.10(e)(1)(vi), leading then-Congressman Van Hollen to petition for a
rulemaking change in 2011 to bring the regulation into compliance with the statute.

See Op. 13–14. Even though the FEC staff acknowledged that the regulation
conflicted with the statute, no action was taken. Id.

8

 C. The Administrative Proceeding and Litigation Below
The present action arises from the application of the invalid regulation to
CREW in an administrative proceeding where CREW alleged that Crossroads
violated 52 U.S.C. § 30104(c)(1), (c)(2)(C), and 11 C.F.R. § 109.10(e)(1)(vi). Op. 47–
48; see also Crossroads Add. I ¶¶ 14–16, 41, 47 (CREW’s administrative complaint).
CREW’s complaint asserted that Crossroads received a multi-million dollar
contribution for the known purpose of “aid[ing] the election of” a federal candidate,
accepted millions more in “matching” contributions for the same purpose, and
collected more contributions from individuals who were first shown “example”
independent expenditures that their contributions could go toward funding. Op. 5–
8, 88.6
The FEC staff also reviewed all of CREW’s allegations and recognized that
the regulation was in conflict with the statute. See Op. 12–15. Specifically, the
FEC Office of General Counsel (“OGC”) recognized that the regulation was “silent
concerning [the] additional reporting requirement” of subsection (c)(1), and was in
conflict with subsection (c)(2)(C)’s “arguably more expansive approach.” Id.
Nevertheless, finding itself bound by the FEC’s interpretation of the statute as
expressed in the regulation, the OGC recommending dismissing CREW’s complaint
Crossroads responded to CREW’s allegations, including—contrary to its assertion
to the Court here, see Crossroads Appl. 11—CREW’s allegation that Crossroads
violated subsection (c)(1). See Crossroads Appl. Add. I ¶ 16 n.1 (alleging regulation
fails to give “full effect to these provisions,” including subsection (c)(1)); Crossroads,
Response to MUR 6696, at 11 (Jan. 17, 2013) https://bit.ly/2xfpUHq (arguing
“CREW’s Suggestion That the Regulation Does Not ‘Give Full Effect’ to the Act Is
Irrelevant”).
6

9

 because it found the facts failed to establish an “express link” between the
contribution and a final specific independent expenditure. Op. 13.7 By a divided
three-to-three vote, the Commission deadlocked on the OGC’s recommendation,
leading to dismissal of CREW’s complaint. Op. 15.
CREW sought review of that dismissal under 52 U.S.C. § 30109(a)(8)(A) and
challenged the regulation’s validity under the Administrative Procedure Act. Op.
16. The district court, after considering the reporting obligations imposed by 52
U.S.C. § 30104(c)(1) and (c)(2)(C), found they “unambiguously require separate and
complementary” reports of contributors and “mandate significantly more disclosure
than” 11 C.F.R. § 109.10(e)(1)(vi). Op. 92. In doing so, it relied on the plain text of
the statute, which was supported by the statutory structure, statutory history, and
the fact that the Supreme Court had also construed 52 U.S.C. § 30104(c)(1) and
(c)(2)(C) to impose two separate reporting obligations: one to disclose “all
contributors” over $200 annually and another to identify all contributions “used for
independent expenditures.” Op. 53–65. The remainder of the district court’s
opinion was largely devoted to rejecting the FEC’s and Crossroads’s numerous
“unsupported” arguments, including various challenges to the court’s jurisdiction,
and considering CREW’s FECA claim. See Op. 43–51, 65–92, 99–112.
The district court also gave considered thought to the appropriate remedy for
CREW’s challenge to the regulation, weighing defendants’ arguments in favor of an
The OGC also stated that the existence of the regulation, which it assumed was
valid, could mean that Crossroads could raise “equitable concerns” about a failure to
report under subsection (c)(1). Op. 15.

7

10

 indefinite stay by way of remand to the agency. Op. 93–99. Evaluating the factors
outlined in Allied-Signal, Inc. v. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51
(D.C. Cir. 1993), the district court found vacatur was the proper remedy. The
district court recognized the “regulation has deprived the electorate of donor
information that was intended and supposed to be disclosed” and that remand
rather than vacatur addressed the “significant concern” about the proven “inaction
by the FEC to address flaws” in the regulation. Op. 96, 99; see also Op. 13–15
(noting the FEC has known since at least 2011 that the regulation is inconsistent
with the statute but has refused to take action). Further, the district court rejected
Crossroads’s suggestions that vacatur would be “chaotic”—in contradiction to
Crossroad’s false representation here, see Crossroads Appl. 2—finding that “the fact
that not-political committees have been permitted to under-disclose by virtue of the
flawed challenged regulation and may now have to increase their contributor
disclosures to meet statutory requirements is not a consequence that, in the Court’s
view, is so disruptive or chaotic that vacatur should be avoided.” Op. 96.
Nonetheless, responding to the FEC’s arguments “that the timing of filing the
requisite disclosure statements to fulfill statutory disclosure obligations may be
complex” because it is not clear whether an organization like Crossroads that makes
large numbers of independent expenditures would have to resubmit every one of
their contributors with each report or whether it could simply update a previous
report with new contributors, the Court found that “that regulatory guidance from
the FEC on this timing issue would be helpful.” Op. 88. Accordingly, it stayed its

11

 judgment for 45 days. Op. 99. The district court, however, expressly asserted it did
not stay its decision to give the FEC time to craft a new regulation to “ignore,
narrow or misconstrue a statute in order to save reporting entities from a statutory
disclosure regime viewed by the FEC as ‘cumbersome and confusing,’ or
‘duplicative.’” Op. 88–89 (quoting FEC’s Opp’n at 37).
D. Post-Judgement Proceedings
As a result of the district court’s judgment on CREW’s FECA claim, the
administrative proceeding was remanded back to the FEC for further action within
thirty days. Op. 112. On remand, the FEC once again dismissed, this time finding
reason to believe Crossroads violated the law, but concluding that dismissal was
warranted because Crossroads could have reasonably relied on the regulation. First
General Counsel’s Report 15, MUR 6696R (Crossroads) (Aug. 24, 2018),
https://bit.ly/2OoygTC.
On August 24, three weeks after the district court’s decision and almost
halfway through the 45 day stay of the vacatur, Crossroads first moved for a stay of
judgment, demanding the district court reconsider the limited stay it provided and
grant Crossroads relief within six calendar days. When the district court did not
comply with Crossroads’s demand, Crossroads filed an emergency request to stay in
the D.C. Circuit. On September 15, 2018, both the district court and the Court of
Appeals rejected Crossroads’s requests for a stay. Order, CREW v. FEC, No. 185261 (D.C. Cir. Sept. 15, 2018) (hereinafter, “D.C. Cir. Stay Op.”) (attached as Add.
A); see also Minute Order, CREW v. FEC, No. 16-cv-259-BAH (D.D.C. Sept. 15,
2018) (denying Crossroads’s motion for a stay).
12

 ARGUMENT
“Stays pending appeal to this Court are granted only in extraordinary
circumstances.” Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell, J., in
chambers). “Relief from a single Justice is appropriate only in those extraordinary
cases where the applicant is able to rebut the presumption that the decisions
below–both on the merits and on the proper interim disposition of the case–are
correct.” Rostker, 448 U.S. at 1308.
In a case like the present one, this can be accomplished only if a fourpart showing is made. First, it must be established that there is a
reasonable probability that four Justices will consider the issue
sufficiently meritorious to grant certiorari or to note probable
jurisdiction. Second, the applicant must persuade [the Justice] that
there is a fair prospect that a majority of the Court will conclude that
the decision below was erroneous. . . . Third, there must be a
demonstration that irreparable harm is likely to result from the denial
of a stay. And fourth, in a close case it may be appropriate to balance
the equities—to explore the relative harms to applicant and
respondent, as well as the interests of the public at large.

Id. (internal quotation marks and citations omitted).
A. Crossroads Fails to Overcome the Deference Owed to the
Lower Courts’ Denial of Its Stay
As an initial matter, Crossroads application should be rejected because it
cannot overcome the deference owed to the lower courts’ decisions to reject its
request for a stay. The district court considered the same arguments Crossroads
raises here for a stay and found them insufficient to delay vacatur of the regulation
for any longer than 45 days after its decision. Op. 93–99. The D.C. Circuit found
that “Crossroads’[s] motion for a stay fails every prong of the showing required to
obtain the extraordinary relief of a say pending appeal. D.C. Cir. Stay Op. 3; see
13

 also Minute Order, CREW, No. 16-cv-259-BAH (denying Crossroads’s motion for a
stay).
“Justices have . . . weighed heavily the fact that the lower court refused to
stay its order pending appeal, indicating that it was not sufficiently persuaded of
the existence of potentially irreparable harm as a result of enforcement of its
judgment in the interim.” Whalen, 423 U.S. at 1317. For example, Justice Jackson
noted that it was his “almost invariable practice to refuse stays which the Court of
Appeals or its judges have denied” because “they are closer to the facts, have heard
the merits fully argued, and because [he] ha[d] confidence that they would grant
stays in worthy cases.” Breswick & Co. v. U.S., 75 S. Ct. 912, 915 n* (1955)
(Harlan, J.) (quotingUnited States ex rel. Knauff v. McGrath, 96 Cong. Rec. A3751
(1949)); see also id. at 915 (“A single Justice may also be expected to give due regard
to a lower court’s denial of a stay.”). Here, the lower court judges have unanimously
agreed Crossroads does not deserve the stay it requests.
The D.C. Circuit issued an order the day after Crossroads filed its application
here rejecting in toto Crossroads’s emergency motion for a stay of the district court
opinion below. First, the D.C. Circuit found that Crossroads “is unable to
demonstrate any ‘likelihood’ of success, and certainly not a ‘substantial’ one.” D.C.
Cir. Stay Op. 4 (emphasis added). The D.C. Circuit found that Crossroads ignored
the plain text of the FECA by “rel[ying] on (debatable) legislative history and postenactment congressional inaction.” Id. But it recognized that here, “text alone is
enough to resolve th[e] case.” Id. (quoting Pereira v. Sessions, 138 S. Ct. 2105, 2114

14

 (2018)); see also id. (recognizing “congressional acquiescence cannot change the
plain meaning of enacted text”). The D.C. Circuit similarly found the age of the
regulation could not save it, noting that, “unlike fine wines, regulations that so
materially rewrite and recast plain statutory text do not improve with age.” Id.
The D.C. Circuit also found CREW had standing below and its challenge was
timely, and found Crossroads’s mootness argument “is wrong chronologically since
it post-dates the decision under review and, in any event, the dismissal on remand
actually indicates that the regulation is continuing to deprive [CREW] of the
information it seeks and certainly is capable of repetition.” Id. at 5. The D.C.
Circuit further found Crossroads’s asserted injuries were neither “certain and
great,” nor “actual and not theoretical.” Id. Finally, the D.C. Circuit found CREW’s
and the public’s interest outweighed Crossroads’s, stating “where the complained-of
disclosure covers only those who donate for the intended purpose of influencing an

election, the interest in anonymity does not, for purposes of an exceptional stay,
outweigh [CREW’s] and the public’s countervailing interests in receiving importing
voting information and in transparency.” Id. at 6.
Further, district court Chief Judge Howell, who considered over four
hundred pages of briefing on the merits by the parties,8 as well as over eighthundred pages of record, and rendered two thorough and well-reasoned decisions
totaling 135 pages on CREW’s standing and the merits below, both rejected

The district court also had the benefit of the arguments of the FEC, which
appeared in the district court and has not participated in briefing here.

8

15

 Crossroads’s request to remand-but-not-vacate,see Op; CREW v. FEC, 243 F. Supp.
3d 91 (D.D.C. 2017), and Crossroads’s request to stay, see Minute Order, CREW,
No. 16-cv-259-BAH. Crossroads provides no reason for this Court to disturb the
considered judgment of the courts below.9
B. Crossroads Fails to Show a Reasonable Probability of Certiorari or a Fair
Prospect of Success Before This Court

1. The District Court Rightfully Rejected Crossroads’s Suggestions to
Ignore the Clear Statutory Text
Turning to the factors themselves, Crossroads’s application immediately
falters because, rather than make a strong showing of a likelihood of success in
reversing the district court’s well-reasoned decision below, it resorts to
misconstruing the court’s analysis to attack straw men, while ignoring the
reasoning the district court actually gave.
The district court rendered its considered judgment that the FECA provides
two unambiguous and complementary reporting obligations for non-political
committees making independent expenditures: (1) to disclose “all contributions”
over $200 annually in the same manner that political committees do, and (2) to
identify contributors who intended to fund “an independent expenditure.” Op. 53–
60, 65; see also MCFL, 479 U.S. at 262. Its primary reasoning was straightforward:
the text explicitly calls for such disclosure. See also D.C. Cir. Stay Op. at 4 (holding
“text alone” resolves this case).

Crossroads also waited three weeks from that decision before asking to extend the
stay. Crossroads’s “failure to act with greater dispatch tends to blunt [its] claim of
urgency and counsels against the grant of a stay.” Ruckelshaus, 463 U.S. at 1318.
9

16

 The district court found that the plain reading of subsection (c)(1) was
supported by the fact that the FECA expressly incorporates by reference the
contributor reporting obligations imposed on political committees, making “clear
that these disclosure obligations for contributors are closely aligned.” Op. 54. This
incorporation, the district court noted, was reflected in prior versions of the FECA,
and that Congress’s only changes to this requirement over the years were to make it
more explicit. Op. 55 n.35.
The district court also recognized that, with respect to subsection (c)(2)(C),
Congress expressly provided the particular scope of the subset of contributors that
must be further identified: those intending to support “an independent
expenditure.” Op. 56–58. The district court held that the word “an” must be given
its “plain and ordinary meaning,” which, as shown by contemporary dictionaries
and context, is “one, some, any.” Id. That meaning, the district court concluded, is
more expansive than “a particular, specified independent expenditure,” and extends
to a contribution “without regard to the actual reported form of the express
advocacy funded by the expenditure.” Op. 59.
The district court further recognized that the Supreme Court itself ascribed
the exact same reading to these provisions more than thirty years ago. Op. 55–56
(discussing MCFL, 479 U.S. at 262); id. at 60–61 (same). Accordingly, the district
court found the regulation—which did not require either type of disclosure, but

17

 rather limited contributor reporting to such an extent that contributors were rarely
if ever reported—conflicted with the statute. Op. 92.10
The district court also devoted significant consideration to the FEC’s and
Crossroads’s numerous arguments suggesting that both the agency and the court
could ignore the plain text, finding their arguments “[u]nsupported.” See Op. 65–
91; see also D.C. Cir. Stay Op. 4 (noting “district court’s opinion spent just twelve
pages analyzing the plain text of two interrelated statutory provisions . . .” and
“[t]he balance of the opinion is devoted to background sections, dismantling
Crossroads’[s] and the [FEC’s] varied efforts to manufacture ambiguity, and
disposing of other issues in the case”). Among those rejected arguments was
Crossroads’s claim that the FEC (and the court) could ignore the text of the statute
because the FECA “does not require disclosure at all costs,” Op. 77 (discussing
Crossroads’s argument based on Van Hollen v. FEC, 811 F.3d 486, 494–95 (D.C.
Cir. 2016)), thus permitting the FEC to narrow the disclosure Congress mandated,

see Crossroads Appl. 29 (arguing for Crossroads’s preferred policy of limited-to-no
disclosure).
Nonetheless, Crossroads now mischaracterizes the district court’s decision
below and remarkably accuses it of engaging in an over-expansive purposive
analysis at the cost of the text. Crossroads Appl. 16. But even a cursory reading of

The district court also found the regulation was “arbitrary and capricious”
because the single-sentence explanation provided “wholly fails to explain how
subsection (c)(1) is implemented or provide justification for narrowing the disclosure
of subsection (c)(2)(C).” Op. 92 n.48.

10

18

 the district court’s opinion shows that Crossroads’s characterization is wrong.
Indeed, the portions Crossroads quotes stem not from any purposive-driven
approach, but rather from the district court’s rejection of the defendants’ suggestion
that the FEC and the court should ignore 52 U.S.C. § 30104(c)(1) solely to advance
their unsupported assumption that the statute simply could not have meant to
impose parallel reporting obligations. Compare Crossroad Appl. 16 with Op. 77
(responding to defendants’ argument that “Congress did not intend for not-political
committees to be regulated in the same way as political committees”); id. at 87–88
(responding to defendants’ argument that “the event-driven independent
expenditure reports filed by [not-political committees] are intended to provide
information only about the reported expenditure, not a wider range of activity”).
Crossroads also insists the district court “discounted the legislative history.”
Crossroads Appl. 17. Not so. The district court opinion includes a lengthy
discussion of the legislative history, see Op. 25–35, and it found that history
confirmed the “unambiguous” nature of the statutory sections, Op. 53. Crossroads
contests this by oddly relying on the fact that the historical record uses a definite
article at times to refer to various items. See Crossroads Appl. 8–9 (underlining the
word “the” in several texts). Crossroads points to nothing, however, to dispute the
fact that the prior versions of the FECA also imposed a duty on those making
independent expenditures to disclose the same information about contributors that
political committees disclosed, and on contributors to report if they gave to fund any
independent expenditure. See 2 U.S.C § 434(e)(1) (1976). Nor does the use of “the”

19

 anywhere else in the record alter the fact that, with respect to subsection (c)(1), and
(c)(2)(C), Congress expressly rejected such an express link between the independent
expenditure triggering the report and the contribution. “Congress knew the
difference between ‘[the]’ and ‘[an]’ and used the words advisedly.” Pillsbury v.

United Eng’g Co., 342 U.S. 197, 199 (1952). At any rate, where, as here, the
statutory text is unambiguous, there is no need to consider legislative history or
other extra-textual evidence. See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 942 (2017)
(Roberts, C.J.) (“The [statutory] text is clear, so we need not consider this extratextual evidence.”); accord D.C. Cir. Stay Op. 4.
Crossroads also insists that the term “contribution” is vague because it is
defined in the statute as funds “for the purpose of influencing any election” and by
the Supreme Court as funds “earmarked for political purposes,” and therefore the
FEC could ignore subsection (c)(1). Crossroads Appl. 17. Even if there were some
ambiguity as to what a contribution is (and there is not11), Congress still
commanded the same disclosure of “all” contributors that it imposes on political
committees, which alone invalidates the regulation. See City of Arlington, Tex. v.

FCC, 569 U.S. 290, 296 (2013). Further, it was this Court that defined
“contribution” to include funds “earmarked for political purposes,” Buckley, 424
U.S. at 78, which it did to render the statute not vague, see id.; Mott v. FEC, 494 F.

Both the FECA and FEC implementing regulations contain long explanations of
what is and is not a contribution. See 52 U.S.C. § 30101(8)A)(i)–(B)(xiv); 11 C.F.R.
§§ 100.51–94. The mere fact there may be “close cases” on the facts does not mean
the definition is vague. United States v. Williams, 553 U.S. 285, 305–06 (2008).
11

20

 Supp. 131, 136 (D.D.C. 1980) (recognizing Buckley interpreted “contribution” to
eliminate vagueness); see also Op. 55 (adopting definition of “contribution” provided
in Buckley).12

2. The District Court Had Jurisdiction Below
Crossroads also tries to resuscitate a twice-rejected argument that CREW
lacked standing to challenge the regulation. Crossroads Appl. 17–21. As the
district court properly held, the FEC “applied” the regulation to CREW in
dismissing CREW’s administrative complaint, depriving CREW of access to
information to which it is legally entitled. Op. 47–48 (citing Weaver v. Fed. Motor

Carrier Safety Admin., 744 F.3d 142, 145 (D.C. Cir. 2014); AT&T Co. v. FCC, 978
F.2d 727, 737 (D.C. Cir. 1992), cert. denied, 509 U.S. 913 (1993), CREW, 243 F.
Supp. 3d at 101 (finding statute of limitations did not bar CREW’s claim); see also

FEC v. Akins, 524 U.S. 11, 24–25 (1998) (plaintiff deprived of information to which
it is legally entitled may challenge denial). The D.C. Circuit has now agreed with
the district court’s opinion. D.C. Cir. Stay Op. 4–5. As before, Crossroads

Crossroads’s concerns about the clarity of the FECA’s definition of “contribution”
also are irrelevant to the question on which it would need to succeed here: whether
11 C.F.R. § 109.10(e)(1)(vi) comports with the disclosure required by the FECA,
which requires “all contributions,” however they are defined, to be disclosed, rather
than only those that were earmarked for a specific ad in its final form. The
regulation at issue did not purport to define what is and is not a contribution,
compare 11 C.F.R. § 109.10(e)(1)(vi) with 11 C.F.R. §§ 100.71–94, and the FEC did
not explain its promulgation of the regulation based on any desire to address any
vagueness concerns in the definition of “contribution.” Nothing in Crossroads’s
argument event attempts to show the regulation is consistent with the statute
rather than merely reflect Crossroads’s own objections to the statutory reporting
obligations.
12

21

 bootstraps irrelevant issues—whether the FEC could lawfully dismiss CREW’s
complaint on remand, and whether prosecutorial discretion blocked CREW’s FECA
claim—on to its attack on CREW’s standing. Crossroads Appl. 20. Yet Crossroads
continues to miss the point. It is because the regulation blocks CREW’s access to
information, whether directly or because groups like Crossroads can rely on it to
block FEC enforcement, that CREW is injured by the regulation. CREW’s past and
future lack of access to that information will be remedied when the regulation is
struck.13
Nor is Crossroads correct in claiming that the mooting of its appeal of
CREW’s FECA claim has any bearing on the district court’s jurisdiction to vacate
the regulation. Crossroads Appl. 18–19 (citing Cierco v. Mnuchin, 857 F.3d 407,
417 (D.C. Cir. 2017)). First, Crossroads’s argument is “wrong chronologically.” D.C.
Cir. Stay Op. 5. The mooting of Crossroads’s appeal after judgment can hardly
retroactively deprive the district court of jurisdiction before judgment. Id. 14
Second, even if CREW’s as-applied challenge to the statute was moot because
the FEC has again dismissed CREW’s administrative complaint on remand, the
district court had jurisdiction over CREW’s facial challenge. See Better Gov’t Ass’n
The issues Crossroads raises go only to the possibility of relief on CREW’s FECA
claim. Even if meritorious—and they are not—they have no bearing on CREW’s
APA claim against the regulation that is now the sole subject of any appeal.
14 As it does several times, Crossroads resorts to gross misquotation, claiming
CREW asserted below its “FECA claim is now moot.” Crossroads Appl. 13. CREW
actually stated that “Crossroads’s request to stay CREW’s FECA claim is now
moot.” CREW D.C. Cir. Opp. at 3 n.2 (emphasis added) (attached as Add. B).
Crossroads’s lack of candor with this Court alone warrants denial of its application.
McGraw-Hill v. Proctor & Gamble, 515 U.S. 1309, 1310–11 (1995).
13

22

 v. Dep’t of State, 780 F.2d 86, 90–91 (D.C. Cir. 1986) (holding that while “the
appellants’ challenge to the standard as applied to their specific fee waiver requests
is, in fact, moot,” there is, “however, no question that the appellants’ other
arguments concerning the facial validity of the DOJ guidelines and the interior
regulation are not moot”) (citing Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115,
121–22 (1974)).
CREW’s injuries from the regulation are also far from moot. First, the
regulation was again applied to CREW’s complaint. See First General Counsel’s
Report 15, MUR 6696R (Crossroads). “[T]he dismissal on remand actually indicates
that the regulation is continuing to deprive [CREW] of the information it seeks.”
D.C. Cir. Stay Op. 5. Second, there are “concrete application[s] that threaten[]
imminent harm to [CREW]’s interests” if the regulation remains in effect. Cierco,
857 F.3d at 416 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009)).
Despite Crossroads’s claim that groups are refraining from making independent
expenditures due to uncertainty after the district court decision, the facts show
millions in independent expenditures continue to be made. See FEC, Independent
Expenditures (last visited Sept. 12, 2018), https://bit.ly/2MphFgB. However, due to
the stay, the reports still fail to disclose contributions, see, e.g., Americans for
Prosperity, Form 5 (Aug. 31, 2018), https://bit.ly/2N6Xnhf (reporting “0” in
contributions), and each report injures CREW by depriving it of the information to
which it legally entitled, Akins, 524 U.S. at 20–25. CREW’s claim against the

23

 regulation is therefore very much live. D.C. Cir. Stay Op. 5 (further noting CREW’s
injury “certainly is capable of repetition”).
In contrast, Crossroads standing here is at best highly questionable. See
D.C. Cir. Stay Op. 6. As noted, Crossroads received full relief already. Moreover,
Crossroads does not identify any concrete risk of future harm. It merely asserts
that it “would like to maintain the ability to continue making independent
expenditures.” Crossroads Appl. Add. L (Aff. of Steven Law) ¶ 10. But “[s]uch
‘some day’ intentions—without any description of concrete plans . . . —do not
support a finding of ‘actual or imminent’ injury that our cases require.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 564 (1992); D.C. Cir. Stay Op. 6 (“Crossroads
[does not] identify an actual independent expenditures it has made this quarter or
had intended to make in the coming months that are deterred by the order.”).
Where there are “serious question[s]” about the movant’s standing, that alone
justifies denying the stay. Bailey v. Patterson, 368 U.S. 346, 346 (1961).
In short, Crossroads provides no grounds to think it has a “reasonable
probability that four Justices” will grant certiorari, never mind a “fair prospect that
a majority of the Court will vote to reverse the judgment below.” Hollingsworth,
558 U.S. at 190. Accordingly, Crossroads’s application fails.
C. Crossroads Fails to Show Any Irreparable Injury
To justify the extraordinary remedy of a stay, “there must be a demonstration
that irreparable harm is likely to result.” Rostker, 448 U.S. at 1308. “An
applicant’s likelihood of success on the merits need not be considered . . . if the
applicant fails to show irreparable injury from the denial of a stay.” Ruckelshaus,
24

 463 U.S. at 1317. Crossroads proves no such injury here. D.C. Cir. Stay Op. 5
(holding Crossroads’s purported injuries are neither “certain and great,” nor “actual
and not theoretical”).
Indeed, in its entire argument supposedly devoted to the irreparable harm it
will face, Crossroads never mentions anything that will actually happen to it. See
Crossroads Appl. 21–30. Rather, it attempts to rely on potential harms to the
public or other groups that wish to make independent expenditures.
At best, Crossroads speculates that groups like it “will be forced to decide
whether to refrain from speaking at all pending appeal or risk exposing their
donors.” Crossroads Appl. 29–30. Disclosure, however, “do[es] not prevent anyone
from speaking.” Doe v. Reed, 561 U.S. 186, 196 (2010) (Roberts, C.J.); D.C. Cir.
Stay Op. 6 (“Nothing in the district court’s order prohibits the making of
independent expenditures.”). Moreover, the disclosure that Crossroads fears has
been upheld against First Amendment challenge in numerous cases, even where it
does chill speech. See Citizens United, 558 U.S. at 368–71; McConnell v. FEC, 540
U.S. 93, 690–92 (2003); Buckley, 424 U.S. at 68. Even the loss of contributors for
fear of disclosure does not create a First Amendment injury where disclosure is
constitutional. Buckley, 424 U.S. at 68 (recognizing “public disclosure of
contributions . . . will deter some individuals who otherwise might contribute” but
nonetheless “appear[s] to be the least restrictive means of curbing the evils of
campaign ignorance and corruption”). As Crossroads cannot “show that their First
Amendment interests are either threatened or in fact being impaired” by the

25

 statute, it cannot establish irreparable injury from such application. See

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006)
(citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (finding irreparable harm only
because First Amendment freedoms were “in fact being impaired”)).
Crossroads tries to convert its noninjury into an irreparable injury by
suggesting that it might stop making independent expenditures due to the court’s
ruling. Crossroads Appl. 27 (asserting Crossroads is “deterred”) (quoting Add. L
(Aff. Law) ¶ 10). But “self-censorship resulting from a statute is not enough to
render [a law] unconstitutional.” Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46,
60 (1989). Crossroads may believe it is “chill[ed],” Crossroads Appl. 1, but
“subjective chill” is not a substitute for proof of “specific present objective harm or a
threat of specific future harm,” Laird v. Tatum, 408 U.S. 1, 13–14 (1972). Moreover,
Crossroads’s current lack of independent expenditures is not caused by the district
court order: it ceased making independent expenditures in 2014. See FEC,
Independent Expenditures, Crossroads Grassroots Policy Strategies (last visited
Sept. 15, 2018), https://bit.ly/2wN08dz (showing Crossroads’s last independent
expenditure was October 31, 2014). In fact, public reporting indicates that
Crossroads has essentially terminated its political operations, with its leadership
transferring activities to a new nonprofit. See Robert Maguire, One Nation rising:
Rove-linked group goes from no revenue to more than $10 million in 2015,
OpenSecrets News (Nov. 17, 2016), https://bit.ly/2fJebqp; see also Crossroads Appl.
Add L (Law Aff.) ¶ 10 (asserting only that Crossroads “would like to maintain” the

26

 ability to hide its contributors, but not identifying any concrete plans to create
independent expenditures). The decision below does no irreparable injury to
Crossroads because it has no current application to Crossroads. See D.C. Cir. Stay
Op. 6
In sum, Crossroads fails to prove any irreparable injury will certainly befall it
because of the district court’s decision. Rather, it merely recognizes that it will be
required to report its contributors, consistent with its First Amendment rights.
That, however, is not an injury that could warrant the requested stay.
D. The Equities Strongly Disfavor a Stay, Which Would Substantial Harm
CREW and the Public
Crossroads’s lack of injury also does not “clearly exceed” the harm its stay
will impose on CREW and the public. Barnes v. E-Systems. Group Hosp. Medical &

Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991); see also Rostker, 448 U.S. at 1308.
Accordingly, the balance of equities favors denying its application.
First, the regulation at issue here has deprived CREW of information to
which it is legally entitled: the identities of those who contributed to those making
independent expenditures. See Akins, 524 U.S. at 24–25 (lack of access to
information is an injury). CREW further needs access to such information to carry
out its mission to “protect[] 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.” Op. 5. The continued existence of the regulation continues to injure
CREW, depriving CREW of its access to information to which it is entitled. See
27

 D.C. Cir. Stay Op. 5 (regulation is “continuing” to injure CREW). Indeed,
Crossroads brings this application for the very purpose of denying CREW and the
public access to the information to which they are entitled and to prevent them from
discussing that information with others. Crossroads Appl. 29.
Crossroads asserts, however, that because CREW has suffered this injury
before, the court below lacked jurisdiction. Crossroads Appl. 33. Yet the authority
it cites hardly supports that claim. CREW does not solely seek remedy for some
long-past wrong, cf. U.S.P.S. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 481 U.S.
1301, 1303 (1987) (finding employee harm suffered three years earlier could not
prevent stay), nor is CREW’s injury solely the result of some inaction on its part
long ago, cf. Lucas v. Townsend, 486 U.S. 1301, 1305 (1988) (respondent injury was
self-caused).15 Rather, CREW is injured each time a report is made that omits the
information required by 52 U.S.C. § 30104(c)(1) and (c)(2)(C), including those that
would be issued during any extended stay here.16
Second, the public interest here weighs heavily against a stay. A long line of
decisions from this Court show the public’s interest is in being “fully informed about

That CREW did not submit a comment in one public request for a rulemaking
does not undercut CREW’s injury, as Crossroads suggests. See Op. 33. CREW’s
standing is not conditioned on its prior participation in such a proceeding. At any
rate, CREW submitted comments to the FEC about the regulation’s invalidity at
other times, Op. 105 n.54, including by means of the administrative complaint
below.
16 In addition, the facts show that any attempt by CREW to seek remedy for its
injury through requested rulemaking would be futile. See Op. 13–14, 49 n.30, 99;
see also Crossroads Appl. 13 (quoting commitment by two commissioners to not
correct the regulation).
15

28

 the person or group who is speaking” on election-related matters. Citizens United,
558 U.S. at 368; id. at 369 (holding “the public has an interest in knowing who is
speaking about a candidate shortly before an election” that extends to “the funding
sources for the ads”). The public’s interest in disclosure includes knowing “where
political campaign money comes from and how it is spent” in order to know the
“sources of a candidate’s financial support,” and “deter[ing] actual corruption and
avoid[ing] the appearance of corruption by exposing large contributions and
expenditures to the light of publicity.” Buckley, 424 U.S. at 66–68. Disclosure also
protects the public’s “interest . . . in preventing foreign influence over U.S.
elections.” Bluman v. FEC, 800 F. Supp. 2d 281, 288 n.3 (D.D.C. 2011) (Kavanaugh,
J., for a three-judge District Court).
The stay requested by Crossroads would severely undermine these interests,
depriving the public of knowledge about the sources of huge sums spent in our
elections. See OpenSecrets.org, Outside Spending by Disclosure, Excluding Party
Committees (last visited Sept. 15, 2018), https://bit.ly/1AzZeKb ($57 million spent
on election without disclosure in the 2018 election cycle so far). When foreign
powers are interfering in our elections, that deprivation is particularly worrisome.

See, e.g., Senate Select Committee on Intelligence, The Intelligence Community
Assessment: Assessing Russian Activities and Intentions in Recent U.S. Elections
(July 3, 2018), https://bit.ly/2u1i6GP (finding Russia engaged in covert attempts to
influence recent U.S. elections through funding campaign communications).

29

 Standing against these overwhelming interests, Crossroads contends that the
public also has an interest in anonymous and unaccountable speech, and that
disclosure might reduce the amount of speech created. Crossroads Appl. 24.
Congress, however, considered those interests and decided they weighed in favor
disclosing of “all contributions” over $200. 52 U.S.C. § 30104(c)(1); see also Buckley,
424 U.S. at 68 (recognizing Congress enacted FECA because protect public interests
in disclosure outweigh risk “public disclosure of contributions . . . will deter some
individuals who otherwise might contribute”).17
Unable to show that the public has an interest in knowing less about who is
funding their candidates, Crossroads argues that courts should hesitate to change
election procedures shortly before an election, lest it result in “voter confusion and
consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S.
1, 4–5 (2006). That principle has no application here. First, Crossroads fails to
show how a change that will result in more information being made available to
voters could result in voter “confusion.” Cf. id. at 5; STOP Hillary PAC v. FEC, 166
F. Supp. 3d 643, 647–49 (E.D. Va. 2015) (refusing to enjoin provision designed to
“alleviate the constant public confusion”). Second, the change in law effected by the
district court’s decision does not serve to upset expectations, leaving parties at a
comparative disadvantage. Unlike the candidates in Lair v. Bullock, 697 F.3d 1200
(9th Cir. 2012), Crossroads has not been placed at a fundraising disadvantage,
finding itself needing to unexpectedly play catchup in the final weeks before an
17

Crossroads’s concern is also not being borne out. See supra at p. 23.
30

 election against an opposing candidate who received a surprising windfall, id. at
1214. Rather, Crossroads is still free to spend as much as it previously had planned
on independent expenditures. Cf. Respect Maine PAC v. McKee, 622 F.3d 13, 16
(1st Cir. 2010) (rejecting challenge that would deprive candidates of public
matching funds within the “final weeks before an election”); McComish v. Brewer,
No. cv-08-1550-PHX-ROS, 2008 WL 4629337, at *10 (D. Ariz. Oct. 17, 2008) (same).
As this Court recognized, disclosure of funding sources “does not result in a cash
windfall to [one’s] opponent. Ariz. Free Enterprise Club’s Freedom Club PAC v.

Bennett, 564 U.S. 721, 743 (2011) (Roberts, C.J.) (enjoining matching grant
program in part because it was not a disclosure regime).
Moreover, the district court’s judgment, rendered many months before the
upcoming mid-term election, did not impact an “impending” election. Purcell, 549
U.S. at 3 (characterizing election within five weeks of decision as impending); see

also Lair, 697 F.3d 1202 (refusing to issue order within three weeks of election);
McKee, 622 F.3d at 16 (refusing to enjoin matching funds within four weeks of
election); Catholic Leadership Coal. of Tex. v. Reisman, No. A-12-CA-566-SS, 2012
WL 12873174, at *2 (W.D. Tex. July 20, 2012) (refusing to invalidate entire political
committee regulatory structure eleven days before election). This Court has also
issued weighty decisions impacting campaign finance regimes in the summer before
an election without any order to stay its decision until after an election. See Reed,
561 U.S. at 246 (upholding public disclosure of referendum signatories in summer
before 2010 elections); Davis v. FEC, 554 U.S. 724, 743–44 (2008) (invalidating

31

 “Millionaire’s Amendment” and attendant disclosure rule in summer before
election); Randall v. Sorrell, 548 U.S. 230, 253 (2006) (invalidating state campaign
finance regime in summer before election). Crossroads ignores the fact that the
decision below similarly was issued months before an election, and focuses instead
on when the court’s 45-day stay expires. Crossroads Appl. 25. Yet, given that

Purcell’’s concern was with upset expectations, it is absurd to treat the end of the
district court’s 45-day stay as the operative date. Voters and regulated parties had
notice no later than August 3 (and likely well before then, see, e.g., Op. 107) that
the regulation was invalid and that independent expenditure reports must meet the
requirements of 52 U.S.C. § 30104(c)(1) and (c)(2)(C).
Finally, Crossroads asserts the lack of a stay would harm the FEC—an
argument it has no standing to make. Warth v. Seldin, 422 U.S. 490, 498 (1975).
Moreover, the fact that the FEC has neither appealed the judgment nor sought a
stay demonstrates that the agency does not share Crossroads’s view. See
Crossroads Appl. Add. K.18
Simply put, the relief Crossroads seeks—the indefinite violation of voters’
statutory right to information critical to the operation of our democracy, a right they
now expect to finally be realized—would do immense harm to the public. The
balance of equities is tilted decidedly against the grant of a stay here.

Crossroads contends that two commissioners nonetheless would have preferred
an appeal. Two commissioners, however, do not speak for the FEC, 52 U.S.C.
§ 30106(c), particularly where an equal number of commissioners apparently
believe the district court was right.

18

32

 *

*

*

In sum, Crossroads has failed to carry its “heavy burden” here for the
“extraordinary” relief it seeks. Whalen, 423 U.S. at 1316.
E. Vacatur was the Appropriate Remedy, and This Application is Not the
Proper Vehicle to Seek Reconsideration of that Remedy
Not only did the district court below exhaustively review the case on the
merits, it also carefully and thoroughly determined the appropriate remedy. Op.
93–99. Crossroads here improperly seeks to alter that remedy by obtaining a
remand by default through an indeterminate stay of the decision. Cf. Fed. R. Civ.
P. 60. Yet the court below properly analyzed the appropriate factors under Allied-

Signal, Inc., 988 F.2d at 150–51, finding they “militat[e] strongly in favor of
vacatur,” Op. 94. Crossroads provides no reason to second guess that decision. See

Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982) (district court’s equitable
remedy reviewed for “abuse[ of] discretion”).
Contrary to Crossroads’s suggestion, the FEC does not enjoy a special right
among agencies to keep invalid regulations on the books. Crossroads Appl. 28.
Courts have recognized the “common remedy when [courts] find a rule is invalid is
to vacate,” even for the FEC. Humane Soc’y of U.S. v. Zinke, 865 F.3d 585, 614
(D.C. Cir. 2017); see also Emily’s List v. FEC, 581 F.3d 1, 25 (D.C. Cir. 2009); Shays

v. FEC, 414 F.3d 76, 95, 100–02 (D.C. Cir. 2005). Indeed, given the regulation is
inconsistent with the statute, remand would be illogical: the only action the FEC
could lawfully take on remand is to vacate the offending regulation. See City of

Arlington, 569 U.S. at 296 (“If the intent of Congress is clear, that is the end of the
33

 matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.”).
Further, the district court properly found the risk of “disruptive
consequences” favored vacatur, Op. 95, notwithstanding Crossroads’s fear of
“chaos,” Crossroads Appl. 22. The district court reviewed defendants’ arguments,
noted the lack of any evidence of the purported disruption and the strong evidence
none would result, Op. 95–96, and compared that to the disruption to elections from
the continued denial of essential information for voters by allowing the regulation to
stand, Op. 96. Further, the district court recognized that remand here would be an
empty reward as the FEC has proven that it will “drag[] its feet” in correcting the
error. Op. 98 & n.52.
The district court also carefully crafted a limited stay of 45 days to allow the
FEC to issue “interim regulations that comport with the statutory disclosure
requirement of 52 U.S.C. § 30104(c),” Op. 99—rules which are not subject to the 30
day congressional submission requirement, cf. Crossroads Appl. 2; see, e.g., FEC,
Definition of Federal Election Activity, Interim Final Rule, 71 Fed. Reg. 14357
(Mar. 22, 2006) (interim rule made “effective March 24,” two days after publication).
But the district court did not suggest the FEC needed those days to “ignore, narrow
or misconstrue” the statute’s reporting obligations—and therefore there is no need
for a longer stay to provide time for groups like Crossroads make comments in a
rulemaking about their disagreement with Congress’s mandated disclosure. Cf.
Crossroads Appl. 27–28. Moreover, the district court’s fear of undue delay by the

34

 FEC has proven true: the agency apparently has not even started the process to
provide the limited guidance contemplated by the district court. Rather, the
indefinite stay Crossroads seeks would simply mean the regulations are never
corrected and voters are to be forever denied the information for which they have
been far too long deprived.
The district court properly weighed all the relevant interests and rendered
appropriate and moderate relief. Crossroads fails to demonstrate the district court
abused its discretion in doing so.
Dated: Sept. 15, 2018.
Respectfully submitted,

/s/ Stuart McPhail
Stuart C. McPhail

smcphail@citizensforethics.org
(D.C. Bar. No. 1032529)

/s/ Adam J. Rappaport
Adam J. Rappaport

arappaport@citizensforethics.org

(D.C. Bar No. 479866)
Citizens for Responsibility and Ethics
in Washington
455 Massachusetts Ave., N.W.
Washington, D.C. 20001
Telephone: (202) 408-5565
Fax: (202) 588-5020

Attorneys for Citizens for Responsibility
and Ethics in Washington and Nicholas
Mezlak

35

 CERTIFICATE OF SERVICE
I certify that on September 15, 2018, one copy of CREW’s RESPONSE IN
OPPOSITION TO EMEREGENCY APPLICATION TO CHIEF JUSTICE
ROBERTS, CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA, FOR A
STAY PENDING APPEAL, was sent electronically and on the following business
day were mailed to each of the following:
Office of the Solicitor General
950 Pennsylvania Avenue, NW
Washington, DC 20530
supremectbriefs@usdoj.gov
Kevin Deeley (kdeeley@fec.gov)
Harry Jacob Summers (hsummers@fec.gov)
Seth E. Nesin (snesin@fec.gov )
Federal Election Commission
Office of General Counsel
1050 First Street, NE
Washington, DC 20463
Thomas W. Kirby (tkirby@wileyrein.com )
Michael E. Toner (mtoner@wileyrein.com)
Andrew Woodson (awoodson@wileyrein.c om
Eric Wang (ewang@wileyrein.com)
Wiley Rein LLP
1776 K Street, NW
Washington, DC 20006
Thomas Josefiak (tjosefiak@holtzmanlaw.net)
J. Michael Bayes (mbayes@hotzmanlaw.net)
Holtzman Vogel Josefiak Torchinsky PLLC
45 North Hill Drive, Suite 100
Warrenton, VA 20186
/s/ Stuart McPhail
Stuart McPhail
1