Citizens for Responsibility and Ethics in Washington v. Federal Election Commission
209 F. Supp. 3d 77
D.D.C.2016Background
- In 2010 American Action Network (AAN) and Americans for Job Security (AJS), tax-exempt nonprofits, ran millions in ads (including express advocacy and electioneering communications) but did not register as political committees with the FEC.
- CREW filed administrative complaints alleging AAN and AJS were unregistered political committees because their spending showed a "major purpose" of nominating or electing federal candidates under Buckley's narrowing construction of FECA.
- The FEC deadlocked 3–3 and the controlling Commissioners dismissed the complaints, explaining they counted only express-advocacy (independent expenditures) toward "major purpose," excluded electioneering communications as "genuine issue ads," and measured spending over each organization’s lifetime.
- CREW sued in district court under FECA’s review provision, arguing the Commissioners misapplied Supreme Court precedent and misused lifetime and percentage thresholds in the major-purpose analysis.
- The district court held the Commissioners’ dismissal was "contrary to law" because they: (1) improperly excluded non-express-advocacy electioneering communications from the disclosure/major-purpose inquiry in light of Citizens United; and (2) arbitrarily relied exclusively on lifetime spending rather than giving meaningful weight to recent/calendar-year activity. The court remanded to the FEC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEC may exclude non-express-advocacy electioneering communications from the major-purpose/disclosure analysis | Excluding such communications is unlawful; Citizens United allows disclosure to reach beyond express advocacy and the FEC must consider electioneering communications in the major-purpose inquiry | Commissioners relied on WRTL II and Barland to limit consideration to express advocacy (or its functional equivalent) to protect First Amendment interests | Court: Commissioners erred — WRTL II distinction is inapplicable to disclosure; Citizens United and post-Citizens United authority allow considering non-express-advocacy speech for disclosure/major-purpose purposes; exclusion was contrary to law |
| Proper temporal window for assessing "major purpose" (lifetime vs. recent/calendar-year) | Major purpose can change; FEC cannot ignore recent activity—calendar-year or recent-period spending must be considered | No statutory or judicially mandated time period; totality-of-circumstances can include lifetime spending | Court: Lifetime-only approach was arbitrary as applied (failed to consider important aspect—recent intensified political activity); contrary to law for AJS context |
| Whether Commissioners applied a rigid >50% spending threshold to find "major purpose" | Commissioners effectively required a majority of spending on express advocacy to infer major purpose | Commissioners did not formally adopt a 50% rule; even if used, such a threshold could be reasonable | Court: Did not find reversible error on a 50% threshold; issue not necessary to decide here |
| Standard of review / deference to FEC on interpretation of Supreme Court precedent | FEC argued for deference to Commissioners' legal interpretation | CREW argued courts owe no Chevron-like deference to an agency’s interpretation of Supreme Court precedent | Court: No deference to FEC on interpreting Supreme Court First Amendment precedent; but agency implementation choices (e.g., timeframe) get Chevron-like deference and are reviewable for arbitrary or capricious reasoning |
Key Cases Cited
- Buckley v. Valeo, 424 U.S. 1 (1976) (establishes "major purpose" test for political-committee status)
- Citizens United v. FEC, 558 U.S. 310 (2010) (disclosure may reach beyond express advocacy; rejects confining disclosure to WRTL II binary)
- FEC v. Wisconsin Right To Life, 551 U.S. 449 (2007) (WRTL II: distinguishes express advocacy/functional equivalents from issue advocacy in the context of a speech ban)
- McConnell v. FEC, 540 U.S. 93 (2003) (discusses regulation of electioneering communications in BCRA context)
- SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc) (treats political-committee registration and reporting as disclosure-related burdens and upholds disclosure interests)
- Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) (sets out review standard for FEC dismissals — arbitrary/capricious or contrary to law)