ORAL ARGUMENT NOT YET SCHEDULED

Nos. 15-5016 & 15-5017

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHRISTOPHER VAN HOLLEN, JR.,

Plaintiff-Appellee, 

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee,

CENTER FOR INDIVIDUAL FREEDOM,

Intervenor-Defendant-Appellant,

HISPANIC LEADERSHIP FUND,

Intervenor-Defendant-Appellant,

On Appeal from the United States District Court for the District of Columbia

No. 1:11-cv-00766-ABJ (Hon. Amy Berman Jackson)

FIRST CORRECTED OPENING BRIEF OF APPELLANT HISPANIC

LEADERSHIP FUND

Dated: April 21, 2015 Jason Torchinsky (D.C. Bar No. 976033)

Michael Bayes (D.C. Bar No. 501845)

Shawn Sheehy

HOLTZMAN VOGEL JOSEFIAK 

PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186 

(540) 341-8808

Attorneys for Hispanic Leadership Fund

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Pursuant to D.C. Circuit Rules 26.1 and 28(a)(1) the Hispanic Leadership

Fund (‘HLF’) submits this Certificate as to Parties, Rulings, and Related Cases.

A. Parties and Amici

The Center for Individual Freedom (‘CFIF’), HLF, Christopher Van Hollen, 

Jr., and the Federal Election Commission, were all parties before the district court. 

HLF and CFIF were defendant-interveners before the district court, while the FEC 

was a defendant and Christopher Van Hollen, Jr., was the plaintiff. Before this Court,

CFIF and HLF appear as Appellants while Christopher Van Hollen, Jr., and the FEC 

are Appellees.

HLF understands that at least one entity will file an amicus curiae brief in 

this appeal. No amicus curiae briefs were filed with the district court. In the first 

appeal before this Court, Nos. 12-5117 & 12-5118, the following persons filed 

amicus briefs on behalf of Appellants: Mitch McConnell, U.S. Senator; American 

Civil Rights Union; Base Connect, Inc.; Citizens United; Conservative Legal 

Defense and Education Fund; Downsize DC Foundation; DownsizeDC.org; Free 

Speech Coalition, Inc.; Free Speech Defense and Education Fund, Inc.; Gun 

Owners Foundation; Gun Owners of America, Inc.; Institute on the Constitution; 

Let Freedom Ring USA; National Right to Work Committee; Public Advocate of the 

United States; U.S. Border Control; U.S. Constitutional Rights Legal Defense Fund,

Inc.; and U.S. Justice Foundation.

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Additionally, the following persons filed amicus briefs on behalf of Appellees: 

AARP, Brennan Center for Justice, Center for Media and Democracy, Center for

Responsive Politics, Citizens for Responsibility and Ethics in Washington, Common

Cause, League of Women Voters of the United States, Progressive United, and

Sunlight Foundation.

Pursuant to Circuit Rule 26.1, HLF certifies that no publicly-held company 

owns ten percent or more of HLF. Furthermore, HLF itself has no parent company as

that term is defined in the Circuit Rules. HLF is a non-profit entity, organized under

the laws of 501(c)(4) of the Internal Revenue Code. The organization is dedicated to

strengthening working families by promoting common sense public policy 

solutions rooted in free enterprise, limited government, and individual freedom. HLF

educates the public on public policy issues such as taxes, the economy, small

businesses, education, regulation, immigration, border security, and the right to

life. The organization advocates for public policy solutions that strengthen working

families through grassroots activities such as mailings, phone calls, and

advertisements.

B. Rulings Under Review

HLF’s appeal arises from a memorandum opinion and order that United States

District Court Judge Amy Berman Jackson issued on November 25, 2014, Dkt. Nos.

99 (order) and 100 (opinion). As of the date of this filing, Judge

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Jackson’s opinion is not published in the federal reporter. Both the opinion and order

are reproduced in HLF’s Statement Of Underlying Decision From Which Appeal

Arises, filed on February 23, 2015.

C. Related Cases

This Court has previously issued an opinion in this case and it is reported at 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) (case 

no. 12-5117 & 12-5118). HLF is not aware of any other related case as defined by 

Circuit Rule 28.

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TABLE OF CONTENTS

Page

PARTIES AND AMICI ..............................................................................................i 

RULING UNDER REVIEW .................................................................................... ii 

RELATED CASES .................................................................................................. iii 

TABLE OF CONTENTS..........................................................................................iv 

TABLE OF AUTHORITIES ....................................................................................vi 

GLOSSARY OF ABBREVIATIONS ......................................................................xi 

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

JURISDICTIONAL STATEMENT ...........................................................................2

STANDING .............................................................................................................. 2

STATEMENT OF THE ISSUES................................................................................3

STATUTES AND REGULATIONS ........................................................................ 4

STATEMENT OF THE CASE...................................................................................4

A. Statutory and Regulatory Background ....................................................... 4 

i. The FECA and the Supreme Court’s Construction In Buckley............. 5

ii. BCRA Extends FECA’s Corporate And Labor Union

Independent Expenditure Prohibition To Electioneering

Communications.....................................................................................7 

iii. BCRA’s Disclosure Statute Sponsors Intended A Purpose

Requirement ...........................................................................................9

iv. WRTL II Causes A Gap In The Statute .................................................10

B. The Proceedings Below..............................................................................12

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SUMMARY OF THE ARGUMENT ........................................................................12

STANDARD OF REVIEW.......................................................................................14

ARGUMENT.............................................................................................................14

A. Chevron and State Farm Standards Of Review......................................15

I. THE FEC USED ITS BROAD RULEMAKING POWERS TO FILL A GAP

THAT CONGRESS DID NOT CONTEMPLATE WHEN IT ENACTED

THE DISCLOSURE STATUTE .................................................................16

A. The NPRM Sought Comment On Disclosure Including Whether

The FEC Should Insert A Purpose Requirement ..................................17

B. The Submitted Comments Express Support For A Purpose

Requirement ..........................................................................................18

C. The Final Rule .......................................................................................21

D. The FEC’s Electioneering Communication Disclosure Regulation

Is Reasonable And Not Arbitrary And Capricious ...............................24

i. The District Court Wrongly Views The Holdings Of

McConnell And Citizens United..................................................27

ii. The District Court Misapplies The State Farm Standard

And Improperly Analyzes The Record ........................................30

iii. The FEC’s Regulation Does Not Frustrate The Purpose

Of Congress.................................................................................41

II. THE FEC WAS REQUIRED TO ADD A PURPOSE 

REQUIREMENT TO AVOID CONSTITUTIONAL INFIRMITIES...........45

CONCLUSION.................................................................................................48

CERTIFICATE OF COMPLIANCE..............................................................49

CERTIFICATE OF SERVICE.......................................................................50

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TABLE OF AUTHORITIES

*Cases chiefly relied upon

CASES

Page

*AFL-CIO v. Federal Election Commission,

333 F.3d 168 (D.C. Cir. 2003)...............................................................3, 26, 45

AT&T Corp. v. Iowa Utilities Board,

525 U.S. 366 (1999)...................................................................................41, 42

*Agape Church, Inc. v. FCC & United States,

738 F.3d 397 (D.C. Cir. 2013).......................................................26, 32, 35, 36

American Federation of Labor v. Donovan,

757 F.2d 330 (D.C. Cir. 1985)...................................................................22, 31

American Public Communs. Council v. FCC,

215 F.3d 51 (D.C. Cir. 2000)...........................................................................37

Amoco Oil Co. v. EPA,

501 F.2d 722 (D.C. Cir. 1974).........................................................................32

Bob Jones University v. United States,

461 U.S. 574 (1983).........................................................................................44

*Bowman Transport, Inc. v. Arkansas-Best Freight System, Inc.,

419 U.S. 281 (1974).............................................................................25, 27, 39

Buckley v. America Constitutional Law Foundation,

525 U.S. 182 (1999)...................................................................................46, 47

*Buckley v. Valeo,

424 U.S. 1 (1976)................................................ 4, 5, 6, 7, 9, 19, 27, 38, 46, 47

Cellco Partnership v. FCC,

357 F.3d 88 (D.C. Cir. 2004)...........................................................................16

Chamber of Commerce of the U.S. v. FEC,

76 F.3d 1234 (D.C. Cir. 1996).........................................................................15

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Chevron USA v. NRDC,

467 U.S. 837 (1984)...................................................... 3, 14, 15, 16, 27, 41, 42

Citizens United v. FEC,

530 F. Supp. 2d 274 (D.D.C. 2008).................................................................29

Citizens United v. FEC,

558 U.S. 310 (2010).......................................................................23, 29, 32, 40

*Continental Air Lines, Inc. v. Department of Transp.,

843 F.2d 1444 (D.C. Cir. 1988)...........................................................25, 41, 42

Ctr. for Individual Freedom, Inc. v. Tennant,

849 F. Supp. 2d 659 (S.D. W. Va. 2011) ........................................................45

Ctr. for Individual Freedom v. Van Hollen,

694 F.3d 108 (D.C. Cir. 2012).............................................2, 11, 14, 16, 24, 30

Defenders of Wildlife v. Gutierrez,

532 F.3d 913 (D.C. Cir. 2008) .................................................................. .....14

FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986)...................................................................6, 19, 23, 40, 46

General Instrument Corp. v. FCC,

213 F.3d 724 (D.C. Cir. 2000).........................................................................16

Hagelin v. FEC,

411 F.3d 237 (D.C. Cir. 2005) ................................................................... ....15

Halbig v. Burwell,

758 F.3d 390 (D.C. Cir. 2014).........................................................................44

Holland v. National Mining Association,

309 F.3d 808 (D.C. Cir. 2002) .................................................................... ...14

Industrial Union Department, AFL-CIO v. API,

448 U.S. 607 (1980).......................................................... ................. 36, 38, 40

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Investment Co. Institute v. CFTC,

720 F.3d 370 (D.C. Cir. 2013).............................................................34, 35, 37

McConnell v. FEC,

540 U.S. 93 (2003)...........................................................................7, 12, 27, 28

McCutcheon v. FEC,

134 S. Ct. 1441 (2014).....................................................................................47

Minnesota Citizens Concerned for Life, Inc. v. Swanson,

692 F.3d 864 (8th Cir. 2012)...........................................................................46

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile

Insurance Co., 463 U.S. 29 (1983)........................... 2, 3, 12, 14, 15, 16, 30, 39

New York v. United States EPA,

413 F.3d 3 (D.C. Cir. 2005).................................................................36, 39, 40

North Carolina Right to Life v. Leake,

525 F.3d 274, 281 (4th Cir. 2008).....................................................................4

*Nuvio Corp. v. FCC,

473 F.3d 302 (D.C. Cir. 2006) ..................................................... 26, 32, 35, 37

*Republican National Committee v. FEC

76 F.3d 400. (D.C. Cir. 1996)..................................................16, 24, 27, 30, 39

Serono Laboratories, Inc. v. Shalala,

158 F.3d 1313 (D.C. Cir. 1998).......................................................................15

Shays v. FEC,

414 F.3d 76 (D.C. Cir. 2005).......................................................................7, 41

Sorenson Communications Inc. v. FCC,

755 F.3d 702 (D.C. Cir. 2014).................................................26, 27, 32, 34, 35

Van Hollen v. FEC,

851 F. Supp. 2d 69, 89 (D.D.C. 2012).............................................................14

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Virginia v. Hicks,

539 U.S. 113 (2003)...................................................................................33, 46

White Stallion Energy Ctr., LLC v. EPA,

748 F.3d 1222 (D.C. Cir. 2014).......................................................................15

FEC v. Wisconsin Right to Life,

551 U.S. 449 (2007)...............................................................................1, 10, 40

STATUTES

2 U.S.C. § 434(f)......................................................................................................11

2 U.S.C. § 437d(a)(8)...............................................................................................11

5 U.S.C. § 553(b).....................................................................................................17

52 U.S.C. § 30101(8)(A)......................................................................................8, 44

52 U.S.C. 30101(17)(A)...........................................................................................44

52 U.S.C. § 30104(c)(2)(C) ...............................................................................38, 44

52 U.S.C. § 30104(f)(3)(A)..................................................................................7, 44

52 U.S.C. § 30104(f)(1).............................................................................................8

52 U.S.C. § 30104(f)(2)(F) ........................................................................................8

52 U.S.C. § 30104(f)(3)(B)(ii)...................................................................................8

52 U.S.C. § 30118 .......................................................................................7, 24, 47

REGULATIONS

11 C.F.R. § 104.20(c).....................................................................................2, 11, 43

11 C.F.R. § 109.21(b) ..............................................................................................47

RULES

D.C. Circuit Rule 26.1 ................................................................................................i

D.C. Circuit Rule 28(a)(1) ..........................................................................................i

OTHER AUTHORITIES

144 Cong. Rec. S972-01 ....................................................................................10, 25

144 Cong. Rec. S994............................................................................................9, 25

147 Cong. Rec. S3005....................................................................................9, 25, 42

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147 Cong. Rec. S3022-05 ..........................................................................................9

147 Cong. Rec. S3070................................................................................................9

H.R. 5175, 111th Cong. § 211(b)(1)(B) (2010).......................................................44

1 Richard J. Pierce, Administrative Law Treatise, § 7.4 (4th ed. 2002)..................35

Notice of Proposed Rulemaking, 72 Fed. Reg. 50261 (Aug. 31, 2007)....................1

Bipartisan Campaign Reform Act of 2002; Reporting, 67 Fed. Reg. 64555,

64560-61 (Oct. 21, 2002).......................................................................................8, 9

Defendant-Intervenors’ Excerpts of Br. of Defs.

McConnell v. FEC, Civ. No. 02-0582 (D.D.C.) .................................................9, 28 

available at http://campaignfinance.law.stanford.edu/case-materials/mcconnell-vfec/.

Final Brief of BCRA Congressional Sponsors

McConnell v. FEC, Civ. No. 02-0582 (D.D.C.), ....................................................28

available at http://www.democracy21.org/uploads/%7b127BB9C3-9D65-

4A05-B74B-821EDC4382BC%7d.PDF

Brief for Appellee (Brief of the Solicitor General)

Citizens United v. FEC, No. 08-205 558 U.S. 310 (2010) ............................. .......29

FEC Electioneering Communications Table 1

Electioneering Communications Reported .......................................................32, 46

Available at

http://www.fec.gov/press/summaries/2012/tables/ec/EC1_2012_24m.pdf

CONSTITUTIONAL AMENDEMENT

U.S. Const. amend. I..................................................................................................4

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GLOSSARY OF ABBREVIATIONS

AFL-CIO: American Federation of Labor-Congress of Industrial

Organizations

BCRA: Bipartisan Campaign Reform Act 

CFIF: Center For Individual Freedom

FECA: Federal Election Campaign Act 

FEC: Federal Election Commission 

HLF: Hispanic Leadership Fund

IRS: Internal Revenue Service 

JA: Joint Appendix

NPRM: Notice of Public Rulemaking

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INTRODUCTION

In the wake of the Supreme Court’s decision in FEC v. Wisconsin Right to 

Life, Inc., 551 U.S. 449 (2007) (‘WRTL II’), the Federal Election Commission 

(‘FEC’) was required to navigate in uncharted waters. This included developing 

regulations for corporate and union-funded political speech that was prohibited 

prior to WRTL II. The FEC needed to promulgate regulations that satisfactorily 

sailed between the Scylla of the Bipartisan Campaign Reform Act (‘BCRA’) and 

the Charybdis of the First Amendment. Prior to disembarking, the FEC sought 

comment on—among other things—what a corporation or labor union was 

required to disclose when making a newly-permitted electioneering 

communication from its general treasury funds. Notice of Proposed Rulemaking 72

Fed. Reg. 50261, 50271 (Aug. 31, 2007) (JA-37). The FEC then proposed limiting 

the disclosure requirement to those donors who donated $1,000 annually “[f]or the 

express purpose of making electioneering communications.” Id.

In response, the FEC received 27 comments. Included were comments from 

several labor unions and nonprofits concerned that the proposed rule requiring 

disclosure of all donors who donated $1,000 annually was: (1) burdensome and 

costly, requiring broader disclosure than what the Department of Labor requires of 

labor unions and what the IRS requires of non-profits, a point uncontroverted in

the record; (2) and misleading to the public because the disclosure of all donors

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who donated $1,000 annually was not substantially related to the goals of BCRA. 

Ultimately, several commenters urged the FEC to adopt a standard similar to the 

independent expenditure disclosure provision requiring the disclosure of donors 

who donated for the purpose of furthering the reported communications. The FEC 

did precisely this.

The district court wrongly analyzes the factual record and wrongly applies 

the State Farm standard. These erroneous premises guided the district court to its 

erroneous conclusion that the FEC acted arbitrarily and capriciously.

JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. HLF timely filed 

its notice of appeal on January 12, 2015 (JA-17), from the District Court’s order 

vacating 11 C.F.R. § 104.20(c)(9) and entered November 25, 2014. The district 

court had jurisdiction pursuant to 28 U.S.C. § 1331.

STANDING

This Court has previously ruled that HLF has standing because the district 

court’s vacating of the FEC’s regulation has directly harmed both interveners in 

this case. See Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108, 110 (D.C. 

Cir. 2012).

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STATEMENT OF THE ISSUES

1. This Court has already ruled that Congress’s electioneering communication 

disclosure statute is susceptible to multiple interpretations. Under Chevron and

State Farm, did the FEC act reasonably when, after receiving comments 

expressing concern that its draft rule could require the burdensome and 

costly disclosure of an organization’s investors and members, the FEC, in 

response to the same commenters requests, enacted a disclosure regulation that 

paralleled the independent expenditure disclosure statute requiring the disclosure

of those who donated for the purpose of furthering electioneering 

communications?

2. The First Amendment permits the public disclosure of an organization’s donors

only where the government provides a sufficiently important interest, and the

disclosure requirements bear a substantial relation to the interest stated. Under

this Court’s precedent in AFL-CIO v. Federal Election Commission, 333 F.3d 168

(D.C. Cir. 2003), does the District Court’s order vacating the FEC’s 2007

regulation impose an impermissible burden on the First Amendment rights of 

organizations, burdens that the district court failed to consider?

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STATUTES AND REGULATIONS

HLF adopts and incorporates by reference the addendum that CFIF submits 

with its Opening Brief.

STATEMENT OF THE CASE 

A. Statutory and Regulatory Background

Congress’s power to regulate federal election activity to prevent corruption 

or the appearance thereof, Buckley v. Valeo, 424 U.S. 1, 13, 26 (1976), is tempered 

by the First Amendment’s guarantee that “Congress shall make no law... abridging 

the freedom of speech....” U.S. Const. amend. I. Congress’s power intersects with 

the touchstone of American constitutional government, namely, the right to free, 

unregulated expression of political ideas in order ‘to assure [the] unfettered 

interchange of ideas for the bringing about of political and social changes desired 

by the people.’" Buckley, 424 U.S. at 14. The challenge posed to every court since 

Buckley is to balance free speech rights concerning political issues, an area where 

First Amendment freedoms are at their broadest, and the legislature’s ability to 

regulate political speech to prevent corruption or the appearance of corruption. See 

North Carolina Right to Life v. Leake, 525 F.3d 274, 281 (4th Cir. 2008).

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i. FECA And The Supreme Court’s Construction In 

Buckley.

In Buckley, the Court limited FECA’s reach when applied to entities, like 

HLF, whose central purpose is something other than influencing elections. For 

example, while the Court applied an expansive definition of “contribution” to 

candidates, political committees, and party committees, when it came to other 

organizations and individuals, the term “contribution” was limited to those 

contributions “[e]armarked for political purposes.” Buckley, 424 U.S. at 78.

The Supreme Court similarly circumscribed FECA’s disclosure provisions. 

The original disclosure provision was inserted “[t]o achieve "total disclosure" by 

reaching "every kind of political activity....” Id. at 76. Congress “[w]ished to 

promote full disclosure of campaign-oriented spending to insure both the reality 

and the appearance of the purity and openness of the federal election process,” Id. 

at 78, and to nurture a fully informed electorate and achieve maximum deterrence 

of corruption. Id. at 76. Congress also sought to prevent persons from routing 

financial support to candidates in ways that would escape FECA’s reach. Id. 

Finally, the disclosure provision applied to “every person” who made contributions,

expenditures, or both. Id. at 77. Congress had imposed on entities other than

political committees a disclosure requirement that was triggered when the entity

spent more than $100 on expenditures and which required the disclosure

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of all contributors who contributed in excess of $100 annually. Id. at 157-60.

The Supreme Court interpreted the disclosure provision in a manner that 

furthered the goals of Congress. Id. at 78. The Court recognized that, as applied to 

non-political committee entities, the disclosure provision sought information that 

in relation to the FECA “[m]ay be too remote.” Id. at 79-80. The Court construed 

the disclosure provision to require only the disclosure of those funds that are 

“[u]nambiguously related to a campaign”, i.e., those funds that expressly advocate 

the election or defeat of a clearly identified federal candidate. Id. at 79-80. To 

interpret the disclosure provision more broadly would risk capturing speech that 

was merely issue advocacy and not campaign related. Id. at 79.

In subsequent cases, the Supreme Court continued to limit disclosure 

provisions to contributors whose contributions are unambiguously campaign related.

See, e.g., FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 253-55, 263 (1986)

(‘MCFL’) (holding that a separate segregated fund is not a viable option because it is 

burdensome and costly to establish, so much so that groups may think their speech is

simply not worth the trouble, and holding that certain nonprofits, like HLF, can 

make independent expenditures from their general treasury funds and must only 

disclose those contributors who contributed for the purpose of furthering the reported

independent expenditure). The Supreme Court has previously rejected the disclosure

requirements that Congressman Van Hollen seeks to impose through litigation.

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Van Hollen’s requirements are also unreasonable.

ii. BCRA Extends FECA’s Corporate And Labor Union 

Independent Expenditure Prohibition To Electioneering 

Communications.

“[F]ederal campaign finance law is complex, and BCRA is no exception.” 

Shays v. FEC, 414 F.3d 76, 79 (D.C. Cir. 2005). “[D]esigned to address Congress' 

concerns about the increasing use of soft money and issue advertising to influence 

federal elections[]” McConnell v. FEC, 540 U.S. 93, 132 (2003), BCRA sought to 

close the ‘soft money loophole’ and regulate “sham” issue advertisements as 

federal campaign activity. Id. at 131-132. Issue advertising was not captured under 

FECA because FECA was construed to apply only to communications that used 

words expressly advocating the election or defeat of a candidate. Buckley, 424 U.S. 

at 43-44 n.52. To expand the scope of regulation to include advertising that did not 

contain express advocacy, BCRA prohibited “[c]orporations and labor unions from 

using general treasury funds for communications that are intended to, or have the 

effect of, influencing the outcome of federal elections.” McConnell, 540 U.S. at

132. BCRA introduced the term “electioneering communication” to regulate 

broadcast communications that merely refer to a clearly identified federal candidate

within thirty days of a primary, or within sixty days of a general election.

52 U.S.C. § 30104(f)(3)(A). BCRA prohibited corporations and labor unions from 

using their general treasury funds to make independent expenditures. Id. § 30118.

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Therefore, only individuals or unincorporated entities could lawfully make 

electioneering communications.

To accompany this new electioneering communications regime, Congress 

established an electioneering communications disclosure statute that required all 

persons – other than corporations and labor unions – who were still permitted to 

“[m]ake[] a disbursement for the direct costs of producing and airing 

electioneering communications...” to file disclosure reports within 24 hours of 

spending more than $10,000. Id. § 30104(f)(1). For the narrow class of “persons” 

still lawfully permitted to make electioneering communications, Congress required 

the disclosure of the names and addresses “[o]f all contributors who contributed an 

aggregate amount of $1,000 or more...” in the previous calendar year. Id. §

30104(f)(2)(F).

The term ‘contribution’ itself contains a purpose element, namely that it is 

given for the purpose of influencing an election. Id. § 30101(8)(A)(i) 

Electioneering communications, by contrast are not express advocacy. Id. §

30104(f)(3)(B)(ii). The FEC discovered this discrepancy and proposed to substitute 

the words ‘contributor who contributed’ for ‘donor who donated’ because Congress

could not have intended donations to non-political committee entities to count as

contributions subject to FECA’s limits. See Bipartisan Campaign Reform Act of

2002; Reporting, 67 Fed. Reg. 64555, 64560-61 (Oct. 21, 2002). Congress’s choice 

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of words alone required the agency to fill the gap between election spending and

non-election spending.

iii. BCRA’s Disclosure Statute Sponsors Intended A Purpose

Requirement.

Similar to Congress’s goals in crafting the FECA, Buckley, 424 U.S. at 78, 

with BCRA, Congress was determined to “shine[] sunlight on the undisclosed 

expenditures for sham issue advertisements”, 147 Cong. Rec. S3022-05, S3034 

(March 28, 2001) (statement by Sen. Jeffords) (quoted at JA-446), and further 

determined to “[u]nveil the masquerade” 147 Cong. Rec. S3070, 3074 (daily ed. 

March 29, 2001) (statement of Senator Snowe). But Congress was restrained, even 

“modest”1 in its approach. As part of the “Snow-Jeffords Amendment” to BCRA, 

Senator Snowe placed into the record an academic’s analysis of her amendment 

explaining that it “requires disclosure of large contributions designated for such 

ads.” 147 Cong. Rec. S3005, 3038 (emphasis added); see also 144 Cong. Rec. 

S994, S998 (daily ed. Feb. 25, 1998) (explaining that in a materially similar bill 

where the sole difference was the reporting threshold—$500 as opposed to

$1,000—the electioneering communications disclosure regime would not create

 1 Defendant-Intervenors’ Excerpts of Br. of Defs. At I-118, McConnell v. FEC, Civ.

No. 02-0582 (D.D.C.) (‘Defendant-Intervenors’ Brief in McConnell’) available at 

http://campaignfinance.law.stanford.edu/case-materials/mcconnell-v- fec/.

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“invasive disclosure rules that require the disclosure of entire membership lists.”). 

Senator Snowe further explained that the disclosure provision was drafted narrowly 

to avoid abridging First Amendment rights. See 144 Cong. Rec. S972-01, S973

(daily ed. Feb 25, 1998).

None of the legislative comments that the district court highlighted in its 

opinion, are to the contrary. The quotes are merely aspirational, opining on the 

virtues of disclosure in general, namely an informed electorate. See (JA-446) 

(quoting Senators Jeffords and Feinstein). There is no indication in the legislative 

history that any senator demanded disclosure any broader than the disclosure 

required of independent expenditures. This demonstrates that Congress intended 

what the FEC implemented.

iv. WRTL II Causes A Gap In The Statute.

In WRTL II, the Supreme Court determined that Congress violated the First 

Amendment when it made it a federal crime for corporations and labor unions to 

broadcast advertisements that merely referred to a clearly identified federal candidate

close in time to an election, but where that advertisement was not the functional

equivalent of express advocacy. WRTL II, 551 U.S. at 455-56.

In doing so, the Supreme Court removed the blanket prohibition on 

corporate and labor union-funded electioneering communications, expanding the

class of persons who could make electioneering communications. The Supreme

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Court’s WRTL II opinion does not discuss disclosure. Thus, the Supreme

Court’s decision created a situation never contemplated in BCRA – the disclosure 

requirements applicable to corporate and labor union-funded electioneering 

communications. As this Court previously observed:

Indeed, it is doubtful that, in enacting 2 U.S.C. §

434(f), Congress even anticipated the circumstances

that the FEC faced when it promulgated 11 

C.F.R. §

104.20(c)(9). It was due to the complicated situation

that confronted the agency in 2007 and the absence

of plain meaning in the statute that the FEC acted 

pursuant to its delegated authority under 2 U.S.C. §

437d(a)(8) to fill "a gap" in the statute.

Van Hollen, 694 F.3d at 111 (emphasis added). In light of WRTL II,

the FEC was confronted with the challenge of applying BCRA’s disclosure rules

to speech that BCRA intended to prohibit altogether.

Four years after the FEC’s electioneering communication disclosure 

regulation went into effect, and after the Courts, the agency and the Solicitor 

General argued over these same provisions in Citizens United, Congressman

Chris Van Hollen brought this lawsuit to attempt to obtain through litigation what 

Congress declined to do following Citizens United.

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B. The Proceedings Below

HLF adopts and incorporates by reference CFIF’s description of the 

proceedings below.

SUMMARY OF THE ARGUMENT

1. The FEC Used Its Broad Rulemaking Powers To Fill A Gap That Congress 

Did Not Contemplate When It Enacted The Disclosure Statute.

2. The FEC’s Electioneering Communication Disclosure Regulation Is 

Reasonable And Not Arbitrary And Capricious. This is because the FEC was

making an inherently predictive judgment about speakers who, until WRTL II, 

could not speak in elections. Furthermore, the FEC examined the major policy 

issues raised, made a rational connection between the evidence in the record and

the choice it made.

3. The District Court Wrongly Views The Holdings Of McConnell And Citizens

United. The electioneering disclosure statute was presented to these Courts as

requiring the disclosure only of those donors who donated with the purpose of

funding the electioneering communication. The Court similarly interpreted the 

statute as containing a purpose element.

4. The District Court Misapplies The State Farm Standard And 

Improperly Analyzes The Record. The district court wrongly asserts that none 

of the commenters requested the language the FEC adopted. In fact, several

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commenters did make such requests; the district court claims that the FEC lacked

evidence for its justifications of its adopted regulation. In fact, the FEC had

sufficient evidence supplied from commenters to support its justification. The 

FEC was also making predictive judgments which are entitled to “particularly

deferential treatment.”

5. The FEC’s Regulation Does Not Frustrate The Purpose Of Congress. In fact, 

the regulation is compatible with the comments of the electioneering 

communication disclosure statute’s sponsors.

6. The FEC Was Required To Add A Purpose Requirement To Avoid 

Constitutional Infirmities. The FEC has a duty to promulgate regulations that

avoid needlessly infringing the constitutional rights of speakers. As several

commenters noted, requiring the disclosure of all donors who donated $1,000 or

more to a non-political committee entity is not substantially related to the

information sought. The FEC tailored the disclosure statute to avoid needlessly

infringing the First Amendment.

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STANDARD OF REVIEW

When reviewing a district court’s grant of appellee’s motion for summary 

judgment and denial of appellant’s cross-motion for summary judgment, this Court 

reviews those rulings de novo. See Defenders of Wildlife v. Gutierrez, 532 F.3d

913, 918 (D.C. Cir. 2008). This Court also reviews the district court’s application 

of the Chevron and State Farm standards de novo. See Holland v. Nat'l Mining 

Ass'n, 309 F.3d 808, 814 (D.C. Cir. 2002).

ARGUMENT

This Court previously rejected the district court’s contention that BCRA’s 

text is clear and rejected the contention that “Congress spoke plainly [and] did not 

delegate authority to the FEC to narrow the disclosure requirement through agency 

rulemaking.” Van Hollen, 694 F.3d at 110 (quoting Van Hollen v. FEC, 851 F. Supp.

2d 69, 89 (D.D.C. 2012)). In fact, this Court declared that “[t]he statute is anything 

but clear,” especially after the Supreme Court’s Citizens United and WRTL II

decisions. Id. This Court held that Congress did not have “[a]n intention on the

precise question at issue” and that “[i]t is doubtful that...Congress even anticipated

the circumstances that the FEC faced when it promulgated” the disclosure regulation. 

Id.at 111. Due to the “[c]omplicated situation that confronted the agency in 2007,”

the FEC was left with the task of filling an unanticipated gap. Id.

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This Court instructed the district court to “[a]llow the parties to present 

arguments on [Van Hollen’s] claims that the regulation cannot survive review 

under Chevron Step Two or State Farm[.]” Id. at 112.

A. Chevron and State Farm Standards Of Review

The FEC is “[p]recisely the type of agency to which deference should 

presumptively be afforded.” Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005). 

A court must uphold the FEC’s interpretation of the statute so long as it is a 

permissible construction of the statute. See White Stallion Energy Ctr., LLC v. 

EPA, 748 F.3d 1222, 1234-35 (D.C. Cir. 2014). Because the FEC is interpreting a 

statute it is entrusted to administer, courts must give the FEC’s interpretation 

considerable weight. See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843-

44 (1984). This Court may not substitute its own construction of the statute in 

place of the FEC’s reasonable interpretation. Id. Even if the parties or this Court 

develop interpretations that are deemed more reasonable, this Court cannot substitute 

its more reasonable judgment for the FEC’s reasonable judgment. Serono

Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998).

The analyses under the Chevron and State Farm standards overlap and are 

both narrow. See Chamber of Commerce of the U.S. v. FEC, 76 F.3d 1234, 1235 

(D.C. Cir. 1996); see also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (U.S. 1983) (stating that the standard is narrow). The standard

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is ‘highly deferential’ and presumes the validity of the regulation, a presumption that

is rebutted only where the agency “[f]ailed to consider relevant factors or made

a clear error in judgment. See Cellco Partnership v. FCC, 357 F.3d 88, 93-94 (D.C.

Cir. 2004). The standard is “[n]ot particularly demanding” and requires only that the

agency describe “[w]hat major issues of policy were ventilated...and why the agency

reacted to them as it did.” Republican National Committee v. FEC, 76

F.3d 400, 407 (D.C. Cir. 1996).

What distinguishes the two standards is that Chevron asks whether the 

agency’s interpretation of the statute is reasonable, whereas State Farm asks whether 

the agency’s actions underlying the regulation were reasonable. See Gen. Instrument

Corp. v. FCC, 213 F.3d 724, 732 (D.C. Cir. 2000).

I. THE FEC USED ITS BROAD RULEMAKING POWERS TO 

FILL A GAP THAT CONGRESS DID NOT CONTEMPLATE 

WHEN IT ENACTED THE DISCLOSURE STATUTE.

Exercising its “broad” rulemaking authority, RNC, 76 F.3d at 404, the FEC 

faced this “complicated situation” requiring it to “fill a gap in the statute” Van 

Hollen, 694 F.3d at 111, which required the Commission to navigate between 

Congress’s statutory demands and the First Amendment.

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A. The NPRM Sought Comment On Disclosure Including

Whether The FEC Should Insert A Purpose Requirement.

The FEC issued a Notice of Public Rulemaking (‘NPRM’) that sought 

comment on—among other things— how a corporation or labor union, when using 

its general treasury funds to make previously prohibited electioneering 

communications, should determine which receipts qualify as reportable donations, 

and whether the FEC should include a purpose element in the disclosure 

regulation. (JA-37). Commenters had sufficient notice that disclosure was part of 

the subject matter to be discussed in the rulemaking. See 5 U.S.C. § 553(b).

The Commission proposed two alternatives. In Alternative 1, the FEC 

proposed new language permitting corporations and labor unions to use their general

treasury funds to make electioneering communications and subject those 

communications to disclosure. (JA-29-30). In Alternative 2, the FEC proposed 

exempting WRTL II communications from the definition of electioneering 

communications, which would have the effect of exempting such communications 

from the electioneering communications disclosure requirements. (JA-30). In 

Alternative 1, the FEC sought to revise its reporting rules, and expressly sought 

comment on how a labor union or corporation should determine which receipts to 

report when making electioneering communications with general treasury funds. 

Specifically, the FEC asked whether the regulation “[s]hould limit the donation

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reporting requirement to funds that are donated for the express purpose of making 

electioneering communications.” (JA-37).

B. The Submitted Comments Express Support For A Purpose

Requirement.

Twenty-seven organizations submitted comments in response to the FEC’s

NPRM. (JA-300).

The American Taxpayers Alliance, the Americans for Limited Government,

both non-profit corporations, and Independent Sector, an umbrella entity 

representing over 600 non-profits, (JA-97), filed comments exhorting the FEC to

protect donor privacy. (JA-99,139). American Taxpayer Alliance and Americans for 

Limited Government expressed concerns that if Alternative 1 were implemented,

donors would refuse to donate $1,000 or more annually. (JA-139). Similarly, 

Independent Sector warned the FEC that the daunting complexity of its 

reporting regulation would cause most nonprofits to abstain from speaking

during the 30/60 day windows. (JA-99). All three contended that Alternative 1’s 

disclosure provision violated the First Amendment. (JA-99,139).

The AFL-CIO, the American Federation of State, County, and Municipal 

Employees, the National Education Association, and the Service Employees

International Union, submitted a joint comment on behalf of more than 15 million

labor union members and approximately 60 labor organizations, (JA-156 n.1), in 

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which they urged that if the FEC adopted Alternative 1, the FEC clarify that it

did not require disclosure of membership dues and other business related income.

(JA-163). The labor unions argued that it would be misleading to the public and

burdensome to the unions to require the disclosure of the names and addresses of all

union members who donated $1,000 or more annually. (Id.). The unions warned

that Alternative 1 would be burdensome because it would require them to adhere to

reporting regulations far broader than the Department of Labor’s regulations that

require the disclosure of all receipts from a particular source of $5,000 or more

annually. (Id.); see also (JA-206). The proposed regulation would mislead the public

because broad membership reporting bears “no meaningful relationship to the

[electioneering communication] spending itself...” (JA-163); see Buckley, 424 U.S at

79-80. Finally, the unions dismissed the separate segregated fund option because it

undermines the very holding of WRTL II. (JA-163); see MCFL, 479 U.S. at 252-53.

Representing several nonprofit entities, (JA-143) (listing names of its 

members), the Alliance for Justice, raised similar concerns. Acknowledging that

Congress did not provide guidance on this precise issue, (JA-146), the Alliance for 

Justice addressed how labor unions and corporations could determine which receipts

constituted reportable donations. (JA-152). The Alliance for Justice noted that the

general treasuries of nonprofits contain membership dues, admission fees, and

proceeds from subscriptions and sales of educational materials. (JA-153). The 

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Alliance for Justice suggested that the FEC require disclosure of the sources of those 

funds listed on Line 1 of the nonprofit’s Form 990, referring to gifts, grants, and

contributions. (Id.).

Like the labor unions, the Alliance for Justice argued that disclosure of all

sources of revenue was burdensome to the nonprofit and misleading to the public. 

(Id.). The disclosure proposed under Alternative 1 would be far broader and

enormously burdensome, in light of the existing requirements under IRS rules that 

nonprofit organizations disclose only those donors who donated $5,000 or more.

(JA-153, n.8). The Alliance for Justice argued that, consistent with BCRA’s purposes 

and the First Amendment, the FEC should adopt the same disclosure standard for

electioneering communications that is applied to independent expenditures. (JA-153-

54).

During the Commission’s hearings, labor union representatives urged the 

Commission to adopt the independent expenditure disclosure standard for the 

electioneering communication disclosure regulation. (JA-204) (Lawrence Gold) 

(“[R]egulations for reporting of independent expenditures provides an appropriate 

model.”); (JA-243-44) (Michael Trister) (“What we argue is that the distinction 

ought to be made between earmarked and non-earmarked. That is exactly what 

Congress did on reporting [independent expenditures]...Congress essentially said,

we are extending the [independent expenditure] reporting to [electioneering 

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communications].”); (JA-435) (Jessica Robinson) (“[T]he easiest way to

address [concerns that the term donor could be applied to membership dues] is to

require reporting only for those people who earmark funds to be used for WRTL

II type communications...”) (emphasis added). This method simplifies the disclosure 

requirements and provides clarity as to what unions must report. (JA-203-04, JA435). This method further respected the fact that neither BCRA nor FECA require a

non-political committee to report non-electoral activity. (JA-203-04). It would be 

insufficient to merely exempt membership dues because then a non-profit could 

avoid the disclosure regulation by demanding expensive membership dues. (JA213, JA-228-29). It also prevented absurd results. One witness testified that a labor 

union paid $150 a week for a radio program and, if a candidate’s name were 

mentioned during the broadcast within the particular timeframe, the FEC could 

subject the union to the disclosure requirements. (JA-207).

C. The Final Rule

The Commission adopted its final rule after receiving 27 comments and 

hearing testimony from 15 witnesses. (JA-300).

The Commission rejected Alternative 2, and adopted a revised version of 

Alternative 1. (JA-301). While all commenters agreed that the FEC should not 

require corporations and labor unions to disclose the sources of all funds that 

constituted their general treasuries, the precise requirement for disclosure was the 

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subject of disagreement. (JA-310). The FEC described the various positions taken

by the commenters. (JA-310-11). The Commission explained that some commenters

argued that labor unions should not be required to report membership dues and that

separate segregated fund option were not a viable alternative, (JA311), as well as expressing concern that the original disclosure provision in 

Alternative 1 would require disclosure broader than what the Department of Labor 

requires of unions and what the IRS requires of nonprofits. (JA-311).

The Commission decided to depart from the disclosure standard proposed in 

Alternative 1 and instead adopt a standard that paralleled the existing independent 

expenditure disclosure standard. Under the standard adopted, corporations and labor

union are required to disclose donors who donated $1,000 or more annually for the 

purpose of furthering electioneering communications. (JA-311); American 

Federation of Labor v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985) (stating that it

is expected that the final rule will differ from the proposed rule because the point of

notice and comment rulemaking is that the adopted rule will be different and 

improved from the proposed rule).

The Commission justified its disclosure rule on four grounds.

First, because the general treasury funds of labor unions and corporations 

consist of investors, purchasers, donations, and membership dues, the sources of 

these funds do not necessarily support the entity’s electioneering communications. 

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(JA-311). Consistent with the policy of BCRA, the final rule provides the public

with the same amount of information the public obtains with respect to

independent expenditures; does not mislead the public with the identities of donors 

who are unrelated to the electioneering communication; and does not burden 

corporations and labor unions with the herculean task of compiling all sources of

$1,000 or more in the previous year and then determining which donors to report. 

(JA-311).

Second, the Commission acknowledged that the efforts required to identify 

those donors who donated $1,000 or more are costly and burdensome because then 

the FEC would impose a disclosure regulation far broader than those disclosure 

regulations imposed by the Department of Labor and the IRS. (JA-311). MCFL,

479 U.S. at 252-53 (acknowledging reporting burdens); Citizens United v. FEC,

558 U.S. 310, 337-38 (2010) (same).

Third, to preserve the constitutionality of the electioneering communications 

disclosure statute, the Commission justified its final rule stating that it is “[n]arrowly 

tailored to address many of the commenters’ concerns regarding individual donor

privacy.” (JA-301)

Fourth, the rule responds to several comments, particularly from labor unions,

that the Commission clarify what is to be reported. (JA-163, 205, 435). The rule

provides clarity because it explicitly states that disclosure is requires only of those

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donors who “specifically designated” their contribution for electioneering

communications those funds received in response to a solicitation. (JA-311).

The agency more than satisfied its requirements to thoroughly describe “[w]hat

major issues of policy were ventilated...and why the agency reacted to them as it

did.” RNC, 76 F.3d at 407.

D. The FEC’s Electioneering Communication Dis closure

Regulation Is Reasonable And Not Arbitrary And Capricious.

The FEC was tasked with filling a gap, Van Hollen, 694 F.3d at 111, and to 

make predictive judgments about how speakers would now operate within a 

campaign finance system that, prior to WRTL II, were prohibited from speaking. 52

U.S.C. § 30118. The FEC was also tasked with promulgating a regulation that 

respected the guarantees of the First Amendment.

In response to comments from representatives of approximately 15 million 

labor union members, 60 labor organizations, and several nonprofit organizations, 

the FEC adopted an electioneering disclosure regulation that paralleled the 

independent expenditure disclosure statute. (JA-311 n. 22); (JA-156 n. 1) (JA-143). 

These representatives of millions of persons informed the agency that requiring 

disclosure of all donors who donated $1,000 or more annually would be more 

burdensome and costly than disclosing similar receipts to the Department of Labor 

for labor unions and the IRS for nonprofits. (JA-153 n.8) (JA-163) (JA-311).

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The FEC rightly contended that this standard for the electioneering 

communications disclosure regulation supported the policies of BCRA. (JA-311);

see, e.g., 147 Cong. Rec., S3005 at 3038 (Senator Snowe) (requiring disclosure of 

“[l]arge contributions designated for such ads”) (emphasis added); 144 Cong. Rec. at

S998; 144 Cong. Rec. at S973. An agency’s interpretation of a statute is reasonable

if it is compatible with Congress’s goals. See Continental Air Lines, Inc. v.

Department of Transp., 843 F.2d 1444, 1453 (D.C. Cir. 1988).

An agency’s interpretation of a statute is reasonable, even if the justification 

given is less than clear, so long as the agency can make a rational connection 

between the facts found and choice made. See Bowman Transp., Inc. v. ArkansasBest Freight System, Inc., 419 U.S. 281, 285-86 (1974). Here, the FEC referenced 

the evidence supplied from the labor union commenters and the nonprofit 

commenters—disclosure burdens greater than what the IRS and Department of Labor

require, and need for clarity as to what must be reported— and came to the 

conclusion that the independent expenditure disclosure provision provided the 

appropriate model. (JA-311; JA-311 n.22 ).

Furthermore, the judgments the Commission made, especially as applied to 

corporations and labor unions, were predictive judgments since, prior to WRTL II, 

Congress prohibited corporations and labor unions from using their general 

treasury funds to make independent expenditures or electioneering 

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communications. All that must be shown to uphold an agency’s predictive

judgment is that the judgment is logical and based on some evidence. See Nuvio

Corp. v. FCC, 473 F.3d 302, 306-07 (D.C. Cir. 2006) (“Predictive judgments about 

areas that are within the agency's field of discretion and expertise are entitled to 

particularly deferential treatment.”) (internal quotation marks omitted); See Sorenson 

Communications Inc. v. FCC, 755 F.3d 702, 708 (D.C. Cir. 2014). (stating that

agency predictive judgments are entitled to deference so long as that judgment is

based upon some evidence and logic and not sheer speculation).

The Commission relied on evidence the nonprofits and labor unions 

supplied, namely that disclosure of all donors who donated $1,000 or more 

annually constituted an “enormous” a burden greater than disclosures to the 

Department of Labor and the IRS. (JA-311). The Commission also relied on these 

comments for evidence that the proposed rule was not properly tailored. Id. In both 

cases, the evidence was uncontroverted. See Agape Church, Inc. v. FCC & United 

States, 738 F.3d 397, 410 (D.C. Cir. 2013) (no abuse of discretion where

petitioners did not submit evidence contradicting evidence in the record);

Finally, the Commission’s regulation is reasonable because it avoided a 

constitutional defect, namely, that the FEC, like Senator Snowe’s amendment, 

properly tailored the regulation so as to avoid mandating the disclosure of misleading

and remote information. See AFL-CIO v. FEC, 333 F.3d 168, 179 (D.C. Cir. 2003) 

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(striking down regulation requiring the disclosure of subpoenaed 

information at the conclusion of an investigation because regulation “[f]ailed to

undertake this [constitutional] tailoring.”); (JA-311); see Buckley, 424 U.S. at 79-

80.

The FEC had sufficient evidence to support its predictive judgment. See 

Sorenson Communications, 755 F.3d at 708. The FEC further provided a rational 

connection between the facts found and the choice it made. See Bowman Transp.,

419 U.S. at 285-86. Nothing further is required.

i. The District Court Wrongly Views The Holdings Of

McConnell And Citizens United.

First, the district court seems to impose a requirement that since WRTL II

did not discuss disclosure, disclosure could not be an issue for rulemaking. (JA422). In fact, given the “complicated situation” facing the agency, it was 

impossible for the agency not to consider disclosure, and avoiding the subject 

would have violated the Commission’s duty “[t]o engage in informed rulemaking” 

which requires that an “[a]gency must consider varying interpretations and the 

wisdom of its policy on a continuing basis” if it had not acted. RNC, 76 F.3d at

406 (quoting Chevron, 467 U.S. at 863-64) (emphasis added). As the NPRM and 

subsequent comments made clear, disclosure as applied to the general treasury 

funds of labor unions and corporations was an issue requiring discussion.

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Second, although true that the electioneering communication disclosure 

statute was facially upheld in McConnell, 540 U.S. at 195-96, the disclosure statute

that the interveners presented to the McConnell district court differs significantly 

from the statute the Plaintiffs here presented to the district court.

Both the interveners and the congressional sponsors in McConnell described 

the electioneering communications disclosure statute as “just the types of rules that 

FECA has long imposed on ‘independent expenditures’ that ‘expressly 

advocat[e];’”2

see also Brief of Congressional Sponsors (adopting Defendants brief 

describing the disclosure statute as modest, imposing similar requirements 

previously upheld, and “merely impos[ing] the same type of disclosure obligations 

[as FECA’s] well established disclosure requirements for independent 

expenditures.”).

3

The interveners’ and sponsors’ briefs had their intended impact. The Supreme

Court described the electioneering communication disclosure statute as

‘comparable’ to the independent expenditure disclosure statue. McConnell, 540

U.S. at 197 n.81. The Court even explained that the electioneering communication

 2 Defendant-Intervenors’ Brief in McConnell Supra n.1at I-96

3 Final Brief of BCRA Congressional Sponsors at I-84-85 & n.320 (adopting brief 

of Defendants at 174, available at

http://www.democracy21.org/uploads/%7b61EA29B5-66EE-459C-A964-

EB55A54A316A%7d.PDF), McConnell v. FEC, Civ. No. 02-0582 (D.D.C.), 

available at http://www.democracy21.org/uploads/%7b127BB9C3-9D65-4A05-

B74B-821EDC4382BC%7d.PDF

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disclosure statute was “less intrusive” than the independent expenditure disclosure

provision because the electioneering communication reporting threshold is $1,000

whereas the independent expenditure reporting threshold is $200. Id.

Third, and for similar reasons, the district court confuses the Supreme 

Court’s holding in Citizens United concerning the constitutionality of the 

electioneering communications disclosure provision. The district court in Citizens 

United viewed the disclosure provision as requiring the disclosure of those donors 

who contribute $1,000 or more “[f]or the purpose of furthering electioneering 

communications.” See Citizens United v. FEC, 530 F. Supp. 2d 274, 280 (D.D.C.

2008) (three-judge court). The Solicitor General then advised the Supreme Court that

the electioneering disclosure provision required the disclosure of “[a]ny large 

contributions earmarked to underwrite it.” Brief for Appellee at 30, 39, Citizens 

United v. FEC, 558 U.S. 310 (2010), No. 08-205 (emphasis added). The Supreme 

Court viewed the donor disclosure requirement as similarly narrow, only requiring 

disclosure of “certain contributors.” Citizens United, 558 U.S. at 366. The Supreme 

Court appears to have upheld the very interpretation of the electioneering 

communication statute as expressed in the FEC’s regulation.

The district court is wrong in its contention that because the Supreme Court 

has upheld the constitutionality of the disclosure as that statute was represented to 

it, both before and after the FEC’s promulgation of the contested rule, the FEC

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could not seek comment on the statute’s application to entities that never before

could make electioneering communications. Consistent with its duty to consider its 

policies on a continuing basis, RNC, 76 F.3d at 406, and given the ‘complicated 

situation,’ Van Hollen, 694 F.3d at 111, the FEC rightly exercised its ‘broad’ 

rulemaking power and sought comment on how the donor disclosure requirements 

in the electioneering communication statute should apply to corporations and labor 

unions.

ii. The District Court Misapplies The State Farm Standard

And Improperly Analyzes The Record.

The district court erroneously concludes that the record does not support the 

regulation. Its conclusion—that the FEC acted unreasonably—is built upon this 

faulty premise.

First, the district court wrongly asserts that the Commission received no 

comments or heard testimony addressing or requesting the language the 

Commission ultimately adopted. See (JA-423-24). In fact, commenters across the 

political spectrum requested that the Commission adopt the same standard used for 

the independent expenditure disclosure statute. See (JA-152-54) (Alliance for 

Justice); (JA-163, 204) (labor unions); (JA-243-44). Even the district court’s own

opinion cited Ms. Robinson requesting that disclosure be limited to those who

earmark funds for electioneering communications. (JA-435).

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The FEC adopted the longtime standard used for disclosure under the 

independent expenditure statute. See (JA-311 n.22) (explicitly stating that the 

purpose requirement in the electioneering communications statute is derived from 

the independent expenditure disclosure statute). As the record demonstrates, several

commenters requested the standard the FEC adopted.

Second, the district court wrongly asserts that the Commission waited until 

after the notice and comment period to add a purpose requirement to the 

regulation. (JA-422). In fact, the NPRM explicitly seeks comment on whether the 

Commission should add a purpose requirement to the donor disclosure regulation. 

See (JA-37); see also American Federation of Labor, 757 F.2d at 338.

Third, the district court contends that after searching the comments there is 

no data or specific material in the transcripts to support the Commission’s finding 

that disclosure of persons who contributed $1,000 or more to corporations or labor 

unions would be both costly and burdensome. (JA-444) (citing JA-311).

Because BCRA prohibited labor unions and corporations from doing what 

the Supreme Court in WRTL II then permitted them to do—use general treasury 

funds to make electioneering communications—the FEC could not ascertain 

precisely how many labor unions would be burdened by compliance. The FEC was 

making an inherently predictive judgment, a judgment that is entitled to deference.

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See Nuvio Corp. 473 F.3d at 306-07; Sorenson Communications Inc., 755 F.3d at

708.

In fact, the joint labor union comment noted that if the Commission adopted 

Alternative 1, labor unions would have to, for the first time, file electioneering 

communication disclosure reports, reports that are far broader than what labor unions

are already required to report to the Department of Labor. (JA-163); (JA-204); see 

also (JA-311) (justifying its final rule on this basis). Similarly, the Alliance for 

Justice noted that the proposed regulations would require disclosure far more 

burdensome than the IRS’s 990 disclosure requirement. (JA-153); (JA-311). See

Citizens United, 558 U.S. at 337-38 (holding that it is burdensome and expensive to

establish and administer a PAC). Because there is nothing in the record that

contradicts the concerns of the labor unions and nonprofits, the FEC rightfully 

credited their concerns. See Agape Church, 738 F.3d at 410.

Furthermore, data on electioneering communication spending supports the

FEC’s prediction. See FEC Electioneering Communications Table 14 Between

January 1, 2012 and March 30, 2012—the date the district court issued its opinion

4 Available at 

http://www.fec.gov/press/summaries/2012/tables/ec/EC1_2012_24m.pdf; 

Although this is post promulgation data, courts permit it where the agency makes 

predictions and the subsequent data supports the prediction. See Amoco Oil Co. v. 

EPA, 501 F.2d 722, 731 n.10 (D.C. Cir. 1974)

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vacating the FEC’s electioneering communication disclosure rule—26 

electioneering communications were publicly distributed. Between March 30, 2012 

and September 18, 2012—the date this Court reversed and remanded the district 

court—only five electioneering communications were publicly distributed, two

were from the Mayors Against Illegal Guns Action fund.

5 Between September 18 

and December 31, 2012, 63 electioneering communications were publicly aired. 

For comparison, between March 30, 2010 and September 18, 2010, 90 

electioneering communications were publicly aired.

6 The district court’s 

interpretation imposes an unconstitutional burden on speech. See Virginia v. Hicks,

539 U.S. 113, 119 (2003) (holding that where many people prefer to avoid the 

burden of vindicating their free speech rights through litigation and choose to 

abstain from speaking, both the individual and society are harmed because the 

speech is missing from the public square).

Fourth, the district court objects that there is no evidence in the record about 

how many labor unions or corporations “[n]ow covered by the regulatory regime 

would be affected by the burdens involved with compliance...” (JA-444). This is

both legally nondispositive and factually inaccurate.

5 Id. 6 Id.

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The lack of evidence in the record as to the precise number of labor unions 

or corporations affected is not dispositive. See Inv. Co. Inst. v. CFTC, 720 F.3d

370, 379 (D.C. Cir. 2013) (rejecting challenge to agency alleging that agency 

“failed to put a precise number on the benefit of data collection in preventing 

future financial crises...” because an agency is not required to “measure the 

immeasurable.”). More fundamentally, as stated supra, the FEC made a predictive 

judgment, based on the evidence supplied to the FEC, as to how many entities the 

regulation would impact. All that must be shown to uphold an agency’s predictive 

judgment is that the judgment is logical and based on some evidence. See Sorenson 

Communications Inc. 755 F.3d at 708.

The district court’s comment is incorrect because the labor union 

commenters supplied such evidence of how many people the FEC’s regulation 

would impact. (JA156 n.1) (noting that the joint comment represented more than

15 million labor union members and approximately 60 labor organizations); (JA227-28) (stating that the American Federation of State, County, and Municipal 

Employees has members whose dues would require their disclosure on

electioneering communication reports). The labor union comment further adduced 

evidence concerning the burdens of reporting if disclosure included the 

reporting of membership dues. See, e.g., (JA-163, 206, 435). In this testimony, the 

representatives of the labor unions told the Commission that the burdens and costs

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of compliance “would be especially great” and would be the “literal price for 

undertaking [electioneering communications]” because the proposed 

electioneering communication disclosure provision was far broader than what labor 

unions report to the Department of Labor. (JA-163). This Court should credit these 

concerns because nothing in record contradicts them. Agape Church, 738 F.3d at

410. The FEC’s predictive judgment is based on logic and some evidence and 

should be accorded deference and upheld. Sorenson Communications Inc., 755 F.3d

at 708; Nuvio Corp. 473 F.3d at 306-07.

Fifth, the district court claims that the Commission did not supply data 

concerning what the costs of compliance would be. (JA-444). First, and most basic, 

Congress does not require that the agency conduct “rigorous, quantitative 

economic analysis” of the costs of its rules. See Inv. Co. Inst., 720 F.3d at 379 

(holding that where Congress wants rigorous economic analysis, it enacts the 

requirement in the agency’s enabling act).

Furthermore, “The scope and the degree of detail required...[in the 

Explanations and Justifications] should depend in part on the scope and degree of 

detail in the comments.” 1 Richard J. Pierce, Administrative Law Treatise, § 7.4 

(page 443) (4th ed. 2002). None of the comments provided the precise costs of 

compliance, nor could they since labor unions and corporations could not speak 

prior to WRTL II. Rather, both nonprofit groups (JA-153), and the labor unions

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(JA-163, 206) noted that a disclosure regime requiring the disclosure of all donors

who donated $1,000 or more annually would be far broader and burdensome than 

what the IRS requires of nonprofits or what is required on reports to the 

Department of Labor. The FEC is entitled to conclude from this uncontroverted 

evidence that promulgating its original rule would be costly and burdensome for 

labor unions and nonprofits. See Indus. Union Dep't, AFL-CIO v. API, 448 U.S.

607, 656 (1980) (permitting an agency, based on data available to it, to make 

conservative assumptions in formulating its policy); see also New York v. United 

States EPA, 413 F.3d 3, 31 (D.C. Cir. 2005) (ruling that incomplete data is not 

dispositive because the agency is then required to exercise its judgment in drawing 

a conclusion from the facts found to its policy choice and further ruling that “[t]he 

fact that the evidence in the record may also support other conclusions [does not] 

prevent us from concluding that [the agency's] decisions were rational and 

supported by the record.”); Agape Church, 738 F.3d at 410.

Additionally, and most importantly, the FEC could not have obtained data 

on the costs because, as is stated supra, this was an inherently predictive judgment 

about entities that were previously prohibited from speaking. Thus, the FEC could 

not precisely determine the compliance costs. But the labor unions and 

corporations predicted that their costs would be “enormous” and “burdensome” 

because of their other reporting obligations, to the IRS for nonprofits and the

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Department of Labor for labor unions. (JA-153, 163). The FEC concluded that

requiring labor unions and corporations, including some nonprofits to disclose all 

donors who donated $1,000 more annually would be costly and burdensome (JA311), must be given deference. American Pub. Communs. Council v. FCC, 215

F.3d 51, 56 (D.C. Cir. 2000) (holding that reviewing courts cannot “[r]equire an 

agency to enter precise predictive judgments on all questions as to which neither its 

staff nor interested commenters have been able to supply certainty[].”); Nuvio 

Corp. 473 F.3d at 306-07. Their predictions were, however, ratified after the

district court vacated the rule in 2012.

7

The FEC analyzed the comments it received, made a rational connection

between the facts found and the choice it made, and logically moved from those 

facts to its policy conclusion. The FEC clears Bowman’s low bar. See Inv. Co. 

Inst., 720 F.3d at 377.

Sixth, the district court claims that there was no evidence to support the 

Commission’s conclusion that “[i]ndividuals contributing more than $1,000 

[annually] to a non-profit” would not necessarily agree with the non-profit’s 

electioneering communications. (JA-444).

7 See supra n. 4.

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The Supreme Court in Buckley held that as a matter of law, contributions are

merely expressions of general support for a candidate or group and do “[n]ot

communicate the underlying basis for the support.” Buckley, 424 U.S. at 21. Thus, 

when the candidate or group uses those funds to speak, that speech is the speech of 

the candidate or group’s, not the contributor’s. Id. If a contribution constituted the 

contributor’s speech, it could not constitutionally be limited. Id. at 46-48 (declaring 

FECA’s expenditure limitations unconstitutional).

Additionally, the Commission received comments from nonprofit 

organizations informing the Commission that not all general supporters necessarily 

agree with the content of specific electioneering communications. (JA-153). It is 

misleading to require disclosure because the result depicts a connection between a 

financial supporter and specific speech where none exists. (Id.).

Given Buckley’s rule that contributions do not convey the underlying speech 

of the contributor; that nonprofits are informing the agency of this fact; that 

Congress only required the disclosure of those contributors who contributed for the 

purpose of funding the independent expenditure, 52 U.S.C. § 30104(c)(2)(C); and 

given the FEC’s expertise in this area, the agency can make a conservative 

assumption in interpreting that data that general donors to nonprofits may not 

necessarily agree with each and every specific electioneering communication the 

nonprofit makes. See Indus. Union Dep't, AFL-CIO, 448 U.S. at 656; see also New 

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York, 413 F.3d at 31.

The FEC satisfied its light burden. (JA-311); RNC, 76 F.3d at 407. The 

FEC made a rational connection between the facts found—Supreme Court 

pronouncements that general contributors do not necessarily agree with specific 

speech and nonprofit commenters informing the agency of this fact—and its policy 

judgment, namely requiring the disclosure of those donors who donated $1,000 

annually for the express purpose of funding electioneering communications. State 

Farm, 463 U.S. at 43. Nothing more is required. See Bowman Transp., Inc.. 419

U.S. at 285-86.

Seventh, the district court claims that the FEC lacked evidence that 

nonprofits receive donations that exceed $1,000 annually. From the comments 

received, however, the Commission knew that nonprofits are required to disclose 

to the IRS on its 990 contributions of $5,000 or more in a calendar year, (JA-153); 

that if the FEC adopted its proposed rule, the accounting burdens would be 

enormous, which could only be true if the Alliance for Justice, or one of its affiliates

had donors who donated $1,000 annually, (Id.); and that donors would cease 

donating $1,000 or more annually if the FEC adopted its proposed disclosure

regulation (JA-139). From this information, the FEC knew that there were donors

who donated $1,000 or more annually. Furthermore, because of the FEC’s expertise, 

it is a basic assumption, based upon the evidence before the FEC, that 

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nonprofits receive donations of $1,000 annually from single donors. See Indus.

Union Dep't, AFL- CIO, 448 U.S. at 656; see also New York, 413 F.3d at 31.

Eighth, the district court claims that the record lacked an explanation for 

“[w]hy the segregated bank account was not a suitable solution for any of the 

problems that were identified.” (JA-445). In fact, the labor unions provided this 

very obvious explanation. To require labor unions and corporations to speak through

a separate segregated fund would “[u]ndermine the very holding of WRTL II

itself...” (JA-163), which held that corporations and labor unions could use their 

general treasury funds to make electioneering communications. WRTL II, 551 U.S. at

481. Furthermore, it is also constitutionally deficient for the district court to say that

the burdens and costs of reporting could be avoided by assuming the costs and 

burdens of establishing a separate segregated fund. See MCFL, 479 U.S. at 252-54; 

Citizens United, 558 U.S. at 337-38. The FEC understood that the separate 

segregated fund option was not a “[m]eaningful alternative” (JA-163). Instead the

‘alternative’ merely traded the burdens and costs of having to disclose all donors 

who donated $1,000 or more annually for the burdens and costs of establishing and 

administrating a separate segregated fund.

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iii. The FEC’s Regulation Does Not Frustrate The Purpose

Of Congress.

An agency’s regulation is not arbitrary and capricious so long as the 

agency’s regulation is “[r]ationally related to the goals of the statute.” AT&T Corp. 

v. Iowa Utils. Bd., 525 U.S. 366, 388 (1999) (emphasis added). This means that the 

agency need not adopt a regulation that best promotes the goals of Congress, a 

statute is reasonable simply so long as it is compatible with the goals of Congress. 

See Continental Air Lines, 843 F.2d at 1453. Rather, a regulation frustrates the 

policy of Congress where the regulation contravenes the unambiguous intent of 

Congress. See Shays, 414 F.3d at 99 (“Insofar as such statements may relate to 

political or legislative goals independent from any electoral race--goals like 

influencing legislators' votes or increasing public awareness--we cannot conclude 

that Congress unambiguously intended to count them as expenditures (and thus as

‘contributions’ when coordinated).” (internal quotation marks omitted). Furthermore,

Chevron Step Two by definition means that Congress’s intent on the precise issue

has eluded the reviewing court. See Continental Air Lines, 843 F.2d at 1449.

First, the district court cites comments from the legislative history for the 

proposition that Congress somehow intended the broad disclosure the district court 

prefers, namely the disclosure of all members of labor unions who contribute

$1,000 or more annually. (JA-446). But the comments the district court cites are 

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general and merely exhort the virtues of disclosure. (Id.) (citing Sen. Jeffords 

wanting to “shine sunlight on undisclosed expenditures” and Senator Feinstein 

lamenting that attack ads “[c]ome and no one knows who is actually paying for 

them.”). See Continental Air Lines, 843 F.2d at 1451 (“[W]e are persuaded that the

‘compatibility with Congressional purposes’ prong of Chevron analysis must be 

carried out with assiduous care [to avoid] judicial unwinding of deals struck in 

Congress.”).

HLF nevertheless highlighted specific comments, demonstrating that Congress

merely sought the disclosure of “[l]arge contributions designated for such ads.”

147 Cong., Rec. S3005 at 3038 (emphasis added). The district court adduced no

citations from the legislative history that contradicted these statements. At the very

least, the legislative history is ambiguous on what precisely must be disclosed. 

Compare Comments of Michael Trister (JA-243-44) (Congress intended to

impose same disclosure regime on electioneering communications as it did for 

independent expenditures); and the Alliance for Justice Comment (JA-153) (noting

that a purpose requirement “[i]s more consistent with the purposes of statute.); with

(JA-446). The FEC’s interpretation is, at the very least, compatible with

Congress’s goals and is certainly rationally related to the goals of Congress.

Continental Air Lines, 843 F.2d at 1453; AT&T Corp., 525 U.S. at 388.

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Third, the district court erroneously contends that the FEC’s regulation

“[h]as the potential to swallow the rule entirely.” (JA-447). If HLF receives no 

donations designated for electioneering communications, and HLF makes more 

than $10,000 worth of electioneering communications, HLF is still required to report

the following to the FEC:

1. That HLF aired the electioneering communication in question;

2. The person or persons who shared direction or control over the activities of

HLF, or the person who executed a contract to make the electioneering 

communication;

3. The identification of the person who has custody of HLF’s books and 

accounts;

4. The identification of each person who received a disbursement of $200 or 

more during the reporting period in connection with the electioneering 

communication;

5. All clearly identified candidates referenced in the electioneering

communication; and

6. The disclosure date.

11 C.F.R. §104.20(c)(1-6).

In this hypothetical, the public still discovers who “actually paid” for the 

advertisement and much more.

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Fourth, since 2007, four separate sessions of Congress have met and Congress

has not amended the electioneering communications statute. See Bob Jones

University v. United States, 461 U.S. 574, 600-01 (1983) (holding that legislative 

acquiescence is appropriate where the issue is one that Congress is familiar—tax law 

there, campaign finance law here—and Congress has since attempted to amend the 

statute and has failed). Congressman Van Hollen attempted to amend the disclosure

requirements, and failed. See H.R. 5175, 111th Cong. § 211(b)(1)(B) (2010).

Fifth, to agree with the district court would mean that Congress both 

intended to specify the disclosure required for communications that it prohibited 

and that the disclosure should be broader than the disclosure required for 

independent expenditures. Congress could not have intended broader disclosure for 

speech that is by definition, not express advocacy, 52 U.S.C. § 30104(f)(3)(A), 

than the disclosure required for independent expenditures. Id. § 30101(17)(A); id.

§ 30104(c)(2)(C). Interpreting the electioneering communications disclosure 

statute in this manner produces absurd results. See Halbig v. Burwell, 758 F.3d

390, 402 (D.C. Cir. 2014) (“Our obligation to avoid adopting statutory 

constructions with absurd results is well-established.”). This is especially true here 

where the FEC has established a reasonable interpretation of the disclosure statute

providing meaning to the term contribution, a term of art containing a purpose 

element. See 52 U.S.C. § 30101(8)(A).

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II. THE FEC WAS REQUIRED TO ADD A PURPOSE 

REQUIREMENT TO AVOID CONSTITUTIONAL 

INFIRMITIES.

The FEC has a duty to “[a]ttempt to avoid unnecessarily infringing First 

Amendment interests.” AFL-CIO, 333 F.3d at 179; see also Ctr. for Individual 

Freedom, Inc. v. Tennant, 849 F. Supp. 2d 659, 665-66 (S.D. W. Va. 2011) 

(holding that West Virginia’s electioneering communications statute was 

constitutional only if interpreted to mandate disclosure of those supporters who 

gave $5,000 or more annually for the purpose of funding the funds for the 

electioneering communication).

The labor unions and the Alliance for Justice noted that the FEC’s proposed

disclosure rule would mislead the public and disserve First Amendment interests.

(JA-153, 160 and 163). In the final rule, the Commission noted that requiring

disclosure of all donors who donated would require the reporting of information

that is not related to the electioneering communication. (JA-311). American 

Taxpayers Alliance, Americans for Limited Government, and Independent Sector

also warned that donors would cease donating $1,000 or more annually and entities

may cease speaking if the proposed regulation were implemented (JA-99, 139).

Their predictions proved prescient because during the time the FEC’s rule was

vacated, electioneering communications nearly ceased. As was stated supra at

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32-33, only five electioneering reports were filed between March 30, 2012 and 

September 18, 2012. By contrast, during that same time period in 2010, 90 such 

reports were filed.

8 The district court’s interpretation imposes an unconstitutional 

burden. Cf. Hicks, 539 U.S. at 119.

Disclosure statutes are upheld where the government provides a sufficiently 

important interest and the information sought is substantially related to the interest.

Buckley, 424 U.S. at 64. Despite Congress’s intent to achieve “full disclosure”, id. at

76, Buckley narrowly construed the challenged disclosure statute when applied to 

groups like HLF whose major purpose is not the election or defeat of candidates

requiring only that they disclose their contributors who contributed $200 or more

annually to further the entity’s independent expenditures. Id. at 79- 80; MCFL, 479

U.S. at 252-53, 264; Buckley v. Am. Constitutional Law Found.,525 U.S. 182,

201-04 (1999) (holding that Colorado’s disclosure requirement of paid petition

circulators is unconstitutional because it is not substantially related to the interests

advanced by Colorado); Minnesota Citizens Concerned for Life, Inc. v. Swanson,

692 F.3d 864, 872-74 (8th Cir. 2012) (en banc) (declaring unconstitutional

Minnesota’s registration and reporting requirements for entities that make only

independent expenditures).

8 See supra n.4.

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Here, it is unconstitutional to require the disclosure of information that is not 

substantially related to the electioneering communication. First, electioneering 

communications by labor unions and non-profit and for-profit corporations cannot be 

coordinated with the candidate because that would constitute an in-kind contribution

to the candidate, an illegal contribution. See 52 U.S.C. § 30118 (prohibiting

corporate and labor union contributions); 11 C.F.R. § 109.21(b) (treating coordinated

expenditures as in-kind contributions). This situation is more analogous to the

petition circulators in American Constitutional Law Foundation, 525 U.S. at 203-

04, where there the risk of quid pro quo corruption was remote. Similarly, here, there 

is no risk of corruption or the appearance thereof because no money is flowing to the 

candidate. See McCutcheon v. FEC, 134 S. Ct. 1434, 1441-1442 (2014).

Second, disclosing all donors who donated $1,000 annually to an entity is 

not substantially related to the interests of discovering who is paying for the 

electioneering communication. Buckley, 424 U.S. at 79-80, 158-60.

Similarly, to prevent the electioneering communications statute from capturing

information that is too remote from the interests sought, the FEC interpreted the

statute to only require disclosure of those donors who donated $1,000 or more 

annually for the purpose of furthering the electioneering communications. 

(JA-311).

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Dated: April 21, 2015 Respectfully submitted,

/s/_Jason Torchinsky 

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjlaw.com

Michael Bayes (D.C. Bar No. 501845)

jmbayes@hvjlaw.com

Shawn Toomey Sheehy 

ssheehy@hvjlaw.com

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

Tel: (540) 341-8808

Fax: (540) 341-8809

Counsel for Hispanic Leadership Fund

CONCLUSION

For the foregoing reasons, and the reasons articulated in CFIF’s brief, 

incorporated into this brief by reference, this Court should reverse the district court’s

judgment.

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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following:

This brief complies with the type-volume limitations set forth in this Court’s 

February 26, 2015 order because it contains 9,898 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has 

been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 

Times New Roman 14-point font.

/s/ Jason Torchinsky

Jason Torchinsky

USCA Case #15-5017 Document #1548356 Filed: 04/21/2015 Page 61 of 62
50

CERTIFICATE OF SERVICE

I hereby certify that on April 21, 2015, I electronically filed the foregoing 

document with the Clerk of Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system, thereby 

serving all persons required to be served.

Dated: April 21, 2015 Respectfully submitted,

/s/ Jason Torchinsky

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjlaw.com

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

Tel: (540) 341-8808

Fax: (540) 341-8809

Counsel for Hispanic Leadership Fund

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