ORAL ARGUMENT NOT YET SCHEDULED

No. 22-5336

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER AND CATHERINE HINKLEY KELLEY

Plaintiff-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellant, 

HILLARY FOR AMERICA AND CORRECT-THE-RECORD

Intervenor-Defendant Appellees.

On Appeal from the United States District Court

for the District of Columbia

(Hon. James E. Boasberg)

BRIEF AMICUS CURIAE OF LEE E. GOODMAN, FORMER FEC CHAIR 

AND COMMISSIONER, IN SUPPORT OF APPELLANT

MICHAEL A. COLUMBO

DHILLON LAW GROUP, INC. 

177 Post Street, Suite 700

San Francisco, CA 94108

MColumbo@dhillonlaw.com

May 31, 2023 Counsel for Amicus Curiae

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), amicus curiae submits this certificate 

as to parties, rulings, and related cases.

A. PARTIES AND AMICUS

Except for amicus curiae of Lee E. Goodman, the Former Chair and 

Commissioner of the Federal Election Commission, who files this amicus brief in 

support of Appellant, all parties, intervenors, and amici appearing before the district 

court and in this Court are listed in the Brief for Defendant-Appellant Federal 

Election Commission. 

B. RULINGS UNDER REVIEW

References to the rulings at issue appear in the Brief for Defendant-Appellant 

Federal Election Commission. 

C. RELATED CASES

Counsel for amicus curiae is unaware of any related cases within the meaning 

of Circuit Rule 28(a)(1)(C).

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CERTIFICATE OF COUNSEL REGARDING AUTHORITY TO FILE

Pursuant to FRAP 29(a)(2), all parties have consented to the filing of this

brief. Pursuant to D.C. Circuit Rule 29(d), counsel for amicus Lee E. Goodman, 

former Chair and Commissioner of the Federal Election Commission, certifies that 

he is not aware of any other non-government amicus brief addressing the subject of 

this brief, i.e., the erroneous interpretation of the Federal Election Campaign Act 

and the Federal Election Commission’s regulation by the District Court. As the 

former Chair and Commissioner of the Federal Election Commission, amicus 

curiae is particularly well-suited to provide the Court important context on these 

subjects that will assist it in resolving this case. 

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i

CERTIFICATE OF COUNSEL REGARDING AUTHORITY TO FILE .............. ii

TABLE OF AUTHORITIES................................................................................... iv

IDENTITY AND INTEREST OF AMICUS CURIAE............................................. 1

SUMMARY OF ARGUMENT................................................................................. 3

BACKGROUND ....................................................................................................... 4

A. Early Attempts at Regulation, the Leo Smith Opinion, and Shays. ................ 4

B. The FEC Regulates Only Ads Disseminated for a Fee. .................................. 7

ARGUMENT...........................................................................................................13

A. The District Court Exceeded an Arbitrary and Capricious Standard of 

Review by Substituting its Judgment for that of the FEC. ............................13

B. The District Court’s Re-Interpretation of the FEC’s Regulation Exceeded 

The Well-Established Arbitrary and Capricious Standard of Review and is 

Unworkable....................................................................................................16

C. This Court Should Correct the District Court’s Error Before it Sows 

Confusion and Chills Political Speech ..........................................................20

CONCLUSION........................................................................................................22

CERTIFICATE OF COMPLIANCE.......................................................................24

CERTIFICATE OF SERVICE ................................................................................25

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TABLE OF AUTHORITIES

Cases

Airmotive Eng’g Corp. v. FAA, 

882 F.3d 1157 (D.C. Cir. 2018)...........................................................................15

Campaign Legal Center v. Federal Election Commission, 

952 F.3d 352 (D.C. Circ. 2020)...........................................................................14

Federal Election Commission v. Democratic Senatorial Campaign Comm.,

454 U.S. 27 (1981)...............................................................................................14

Kisor v. Wilkie, 

139 S.Ct. 2400 (2019)..........................................................................................15

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983)...............................................................................................15

Shays v. Federal Election Commission, 

337 F.Supp.2d 28 (D.D.C. 2004), aff’d 414 F.3d 76 (D.C. Cir. 2005) ................. 7 

Statutes and Regulations

11 C.F.R. § 100.26 ............................................................ 1, 9, 15, 16, 17, 18, 19, 21

11 C.F.R. § 106.4 .....................................................................................................19

11 C.F.R. § 109.20 ...................................................................................................22

11 C.F.R. § 109.21 .............................................................................. 3, 9, 15, 18, 21

11 C.F.R. §§ 100.94(a)(1)......................................................................... 3, 9, 10, 21

11 C.F.R. §100.155(a)(1).............................................................. 3, 9, 10, 18, 19, 21

5 U.S.C. § 706(2)(A)................................................................................................14

52 U.S.C. § 30101(22)...........................................................................................3, 7

52 U.S.C. § 30104....................................................................................................16

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Other Authorities

Comment on Notice 2005-10 (Internet Communications) by Democracy 21

Campaign Legal Center, and Center for Responsive Politics (June 3, 2005)......10

FEC Advisory Opinion. 1998-22 (Leo Smith) ....................................................5, 11

FEC Advisory Opinion 1999-17 

(George W. Bush for President Exploratory Committee) ......................................6

FEC Advisory Opinion 2008-10 (VoterVoter.com)................................................11

FEC Corporate & Labor Guide Supplement (Aug. 2011).......................................11

FEC Non-Connected Supplement (Aug. 2011).......................................................11

Final Rules on Prohibited and Excessive Contributions: 

Non-Federal Funds or Soft Money,

67 Fed. Reg. 49064 (July 29, 2002).......................................................................6

Internet Communications,

70 Fed. Reg. 16,967 (Apr. 4, 2005).......................................................................7

Internet Communications,

71 Fed. Reg. 18,589 (Apr. 12, 2006).............................................. 7, 9, 10, 11, 22

Lee E. Goodman, “The Internet: The Promise of Democratization of

American Politics,” Law and Election Politics – The Rules of the Game

(ed. Matthew J. Streb) (2d ed. 2013).................................................................4, 6

Matter Under Review 6729 (Checks and Balances for Economic Growth, Inc.), 

First General Counsel’s Report, Aug. 6, 2014 .............................................. 11, 12

The FEC Record (Dec. 2008) ..................................................................................11

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IDENTITY AND INTEREST OF AMICUS CURIAE

Lee E. Goodman, former Chair and Commissioner of the Federal Election 

Commission (“Commission” or “FEC”), respectfully submits this brief in support of 

Appellant the Federal Election Commission.1 Amicus has extensive experience and 

expertise in implementing the Commission’s regulatory approach to internet 

communications. This includes the key regulation at issue here, 11 C.F.R. § 100.26, 

which exempts free online communications from regulation as a “public 

communication”—part of what is known as the “Internet Exemption.” 

When the District Court ruled against the Commission and remanded the 

matter to the “expert agency” to distinguish between exempt versus non-exempt 

“input costs” incurred by citizens to produce and disseminate online political 

content, See Campaign Legal Center v. Federal Election Commission, Civ. A. 19-

2336 (D.D.C. Memorandum Opinion dated December 8, 2022) (“Mem. Op.”), 

amicus became concerned that certain language in the opinion could be construed to 

disrupt nearly two decades of carefully calibrated regulations implementing a 

complex statute while ensuring free political speech on the internet. The arbitrary 

and capricious standard of review applicable to the Commission’s decision as well 

1 Pursuant to Fed. R. App. P. 29(a)(4)(E) & D.C. Circuit R. 29(b), amicus curiae 

states that no counsel for a party authored this brief in whole or in part, and no 

party or counsel for a party contributed money intended to fund the preparation or 

submission of this brief. No person other than amicus curiae or its counsel 

contributed money intended to fund the preparation or submission of this brief.

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as the deference courts are to afford an agency’s interpretation of its own regulations 

are safeguards against such errors, but they did not restrain the lower court here.

Amicus also was concerned that the District Court might have ruled without 

a full appreciation for the agency’s tortuous experience with trying to regulate 

political speech on the internet, the history underlying the Internet Exemption, and 

the reasons for exempting free online posts and the “input costs” incurred to produce 

them from the restrictions the Federal Election Campaign Act applies to paid 

“advertising.” The District Court was denied the benefit of a complete briefing on 

the historical rationale of the exemption, including “input costs,” because the 

Commission had defaulted. Because the District Court was not fully informed, 

imprecise language in its ruling effectively reversed a regulation firmly grounded in 

the text of the Act as well as years of rulemaking history, practical experience in 

regulating online political speech, and sound legal and policy foundations. 

After being reconstituted, the Commission re-engaged in this litigation, which 

is constructive. Amicus desires to provide additional explanation about the Internet 

Exemption and its importance for ordinary citizens to inform this Court’s analysis 

of the Commission’s decision and whether the District Court properly applied an 

arbitrary and capricious standard of review.

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SUMMARY OF ARGUMENT

When the District Court held that an undefined class of “input costs” related 

to free online communications should be regulated as contributions, it ignored 

decades of FEC experience, substituting the court in the place of the Commission in 

contravention of an arbitrary and capricious standard of review. And the lower court 

disregarded, instead of deferring to, the Commission’s reasonable and prudent 

interpretation of its own clear regulation.

The Federal Election Campaign Act of 1971, as amended (the “Act”), in 

U.S.C. § 30101(22), defines “public communications” to include “general public 

political advertising.” Free online communications—communications a person does 

not pay to place on another person’s website—are not “general public political 

advertising” under 52 U.S.C. § 30101(22). As a result, they are not regulated as 

“coordinated communications” under 11 C.F.R. § 109.21. The Internet Exemption 

also exempts free online communications from the definitions of “expenditures” or 

“contributions” under 11 C.F.R. §§100.94(a)(1) and 100.155(a)(1). As originally 

adopted and implemented over decades, after the failure of a contrary interpretation

like the one the District Court adopted, the Commission determined that “input 

costs” incurred to produce free online communications are also exempt from 

regulation.

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This Court must properly apply the arbitrary and capricious standard of review 

to preserve the integrity of the Commission’s carefully calibrated regulation of

political speech disseminated for free on the internet and to prevent the speechchilling turmoil the District Court’s opinion would cause. 

BACKGROUND

Before discussing the errors in the District Court’s ruling and its impact on 

the regulation of internal production and publication costs for the free online

communications of individuals and organizations, it is necessary to understand the

deep foundations of the existing regulation.

A. Early Attempts at Regulation, the Leo Smith Opinion, and Shays. 

Throughout the 1990s, the Commission struggled to fit online 

communications and the use of new technologies into the regulatory scheme devised 

in the 1970s to address rising expenditures on high-cost television and radio 

advertising. See generally, Lee E. Goodman, “The Internet: The Promise of 

Democratization of American Politics,” Law and Election Politics – The Rules of 

the Game (ed. Matthew J. Streb) (2d ed. 2013) at 56. The Commission’s early 

regulatory treatments were ad hoc and unguided by a consistent rules or logic. Id. 

The confusion culminated in 1998 in an advisory opinion issued to a citizen 

named Leo Smith. Mr. Smith owned a small business that designed websites, and he 

used his computer and technology to design and post a website urging voters in 

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Connecticut to vote against incumbent Congresswoman Nancy Johnson. Mr. Smith 

then asked the Commission whether his anti-Johnson website constituted a regulated 

“expenditure.” See FEC Adv. Op. 1998-22 (Leo Smith).

The Commission responded in the affirmative, concluding that virtually all 

technological “inputs” to Mr. Smith’s website were indeed regulated:

The web site would be viewed as something of value under the [Federal 

Election Campaign Act of 1971, as amended (“Act”)] because it 

expressly advocates the election of a Federal candidate, and the defeat 

of another Federal candidate. Therefore, it meets the requirements of 2 

U.S.C. § 431(9) and 11 CFR 100.8(a)(1). The Commission concludes 

that the costs associated with the creation and maintaining of the 

web site, as described in your request, would be considered an 

expenditure under the Act and Commission regulations.

Id. at 3 (emphasis added).

The Commission concluded that Mr. Smith was required to calculate all his 

“overhead costs” incurred in creating, hosting, and maintaining the website, which 

“would include, for example, the fee to secure the registration of domain name, the 

amounts you invested in your hardware, and the utility costs to create the site.” Id. 

at 4. The Commission even instructed Mr. Smith to “apportion” the cost of his 

personal computer among all his varied uses and to report that cost to the agency as 

an “expenditure.” Id. The Commission further advised Mr. Smith that his website 

was subject to disclaimer, independent expenditure reporting obligations, and 

coordination and contribution limits.

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The breadth of costs regulated under the Leo Smith advisory opinion cast the 

use of websites, emails, blogs, links and emerging platforms into a regulatory 

bewilderment that persisted for several years. In addition to the practical problem it 

presented for ordinary citizens and organizations seeking to post political messages, 

the regulation of the “overhead costs” incurred to create and maintain a website 

appeared divorced from the only constitutionally-permissible purpose of regulating 

spending on political messages—i.e., the prevention of quid pro quo corruption of 

politicians. See Goodman at 52-56. 

Recognizing these problems, the Commission tried to walk back some of the 

Leo Smith opinion in subsequent advisory opinions, but the confusion remained. 

See, e.g., FEC Adv. Op. 1999-17 (George W. Bush for President Exploratory 

Committee) (allowing some uses of a home computer for campaign purposes 

without triggering an in-kind contribution). By 2002, however, the disadvantages of 

the case-by-case approach were unmistakable. Consequently, the agency 

promulgated a rule that exempted all internet communications from regulation. See 

Final Rules on Prohibited and Excessive Contributions: Non-Federal Funds or Soft 

Money, 67 Fed. Reg. 49064 (July 29, 2002). 

It was not long until the 2002 rule was challenged in federal court, with the 

plaintiffs arguing that a blanket exclusion of all internet communications was overly 

broad. In 2004, the U.S. District Court for the District of Columbia agreed and 

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remanded the rule back to the Commission to reconsider the breadth of the exclusion. 

See Shays v. Federal Election Commission, 337 F.Supp.2d 28 (D.D.C. 2004), aff’d 

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

B. The FEC Regulates Only Ads Disseminated for a Fee.

In 2005, the Commission initiated another rulemaking in accord with the 

federal court’s decision. See Internet Communications, 70 Fed. Reg. 16,967 (Apr. 4, 

2005). The Commission received over 800 comments and held two public hearings. 

Id. The result, in April 2006, was unanimous adoption of the Internet Exemption that 

has protected free political speech by American citizens for nearly two decades. See 

Internet Communications, 71 Fed. Reg. 18,589 (Apr. 12, 2006). At the heart of the 

rulemaking was the definition of “public communication” and the application of that 

term to political messages disseminated via the internet. 

The Commission grounded its analysis in the statute. Congress, the 

Commission observed, had defined a “public communication” to mean 

communications disseminated via “broadcast, cable, or satellite communication, 

newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank 

to the general public, or any other form of general public political advertising.” 52 

U.S.C. § 30101(22). Notably, despite the internet existing for more than 40 years, 

it is still not included on this list. This makes sense given that the internet is a unique 

medium because of the degree of autonomy, control, and ease in disseminating 

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electronic messages from a personal computer, as well as the autonomy of the 

recipients of such messages to ignore or amplify them. Outside of paid online 

advertising, virtually any citizen can disseminate her political speech on the internet 

without a filter in ways, and to audiences, that are fundamentally different from the 

mass media enumerated in the Act. Mass media, by contrast, generally require 

payment of a fee for the dissemination of messages to reach a third-party’s 

established audience. 

Because Congress did not include the internet in the definition of “public 

communication,” and expressly defined the term with reference to fee-based 

dissemination services rather than free, soapbox-type advocacy, the Commission 

rightly concluded that free communications via the internet did not fit within the 

Act’s definition of “advertising” regulated as “public communications.” Based on 

those principles, the Commission’s post-Shays rule distinguished between paid

internet advertising, which should be regulated like paid newspaper or television 

advertising, and unpaid internet dissemination, which would not be regulated. As 

the Commission’s Explanation and Justification underscored:

Communications placed for a fee on another person’s website . . . are 

analogous to the forms of ‘public communication’ enumerated by 

Congress in [52 U.S.C. § 30101(22)] . . . . [B]ecause Congress did not 

include the Internet in the list of media enumerated in the statutory 

definition of ‘public communication,’ an Internet communication can 

qualify as a ‘public communication’ only if it is a form of advertising . 

. . . By definition, the word ‘advertising’ connotes a communication for 

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which a payment is required, particularly in the context of campaign 

messages.

71 Fed. Reg. at 18,594.

To implement this approach, the Commission adopted a set of rules in three 

complementary regulations: 11 C.F.R. §§ 100.26, 100.94(e)(1), and 100.155(e)(1). 

First, the Commission excluded from the definition of “contribution” and 

“expenditure” any internet activities by individuals and groups, acting independently 

or in coordination with candidates, if the individuals or groups are not compensated 

by another party for their internet activities. 11 C.F.R. §§ 100.94(a)(1); 

100.155(a)(1). Second, the Commission excluded communications disseminated 

online without payment of a fee to a third party from the definition of “public 

communication” under 11 C.F.R. § 100.26. And because so many other regulations 

hinge on the existence of an expenditure for a “public communication,” those 

exclusions ripple throughout the regulatory scheme, including the definition of 

“coordinated communications” under 11 C.F.R. § 109.21. 

During its deliberations, the Commission fully considered whether the costs 

incurred to create or produce content later disseminated online for free should count 

as a regulated expenditure. For example, a public comment submitted to the 

Commission observed that “[t]ypically, the Commission treats the costs of 

producing campaign-related materials the same as the costs of distributing the 

materials” and proposed that the Commission establish a threshold (e.g., $25,000) 

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over which the costs of preparing content for distribution via the internet would lose 

the exemption and be regulated. See Comment on Notice 2005-10 (Internet 

Communications) by Democracy 21 Campaign Legal Center, and Center for 

Responsive Politics at 12 n.10, 16 (June 3, 2005). The Commission rejected that 

idea in the final rule.

Instead, the Commission keyed exclusively on the payment for public display 

and dissemination on a third-party’s website, in order to purchase access to that 

third-party’s established audience, as the thing of value being purchased and 

therefore regulated. See 71 Fed. Reg. at 18,594-95 (pointing out the distinction 

between an “advertiser [that] is paying for access to an established audience using a 

forum controlled by another person, rather than using a forum that he or she controls 

to establish his or her own audience.”).

The exemption, therefore, extended to uncompensated “internet activities” 

that included “blogging; creating, maintaining, or hosting a Web site; paying a 

nominal fee for the use of another person’s website; and any other form of 

communication distributed over the internet,” (11 C.F.R. §§ 100.94(b); 100.155(b)), 

all of which could entail costs in the creation of the exempted content. The 

Commission also expressly vacated and superseded the Leo Smith advisory opinion 

that required counting input and overhead costs as regulated expenditures. See 71 

Fed. Reg. at 18,605 n.49 (“Advisory Opinion 1998-22 is superseded to the extent 

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that it treated as an ‘expenditure’ an individual’s use of computer systems and 

services for uncompensated Internet activity.”); see also FEC Adv. Op. 1998-22

(Advisory Opinion 1998-22 was “Superseded in part by the 2006 Internet 

Communication Regulations, 71 FR 18,589, 18,605 n. 49 (April 12, 2006)”).

Thereafter, it was widely accepted within and outside the Commission that 

production costs associated with free online communications are unregulated. In 

Advisory Opinion 2008-10 (VoterVoter.com), for example, the Commission 

recognized that “[t]he costs incurred by an individual in creating an ad [are] covered 

by the Internet exemption from the definition of ‘expenditure’ so long as the creator 

is not also purchasing TV airtime for the ad he or she created.” FEC Adv. Op.

2008-10 (VoterVoter.com) at 7 (emphasis added). The Commission publicly has 

reaffirmed this rule many times since the VoterVoter.com advisory opinion. See, 

e.g., The FEC Record (Dec. 2008) (quoting the exemption of creation costs in 

Advisory Opinion 2008-10); FEC Corporate & Labor Guide Supplement (Aug. 

2011) at 36 (same); FEC Non-Connected Supplement (Aug. 2011) at 22 (same).

So settled was the principle by 2014 that it was unremarkable when the 

Commission’s Office of General Counsel advised that a non-profit organization’s 

costs to produce a political video disseminated for free on YouTube.com were 

exempt from regulation. See Matter Under Review (“MUR”) 6729 (Checks and 

Balances for Economic Growth, Inc.), First General Counsel’s Report, Aug. 6, 2014. 

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If no fee is paid for dissemination, the General Counsel advised, then the production 

costs are not regulated expenditures. Id. at 6 (“any production costs [that an 

incorporated non-profit advocacy organization] may have incurred would not 

constitute contributions or expenditures and, accordingly, would not give rise to an 

obligation to report those costs as independent expenditures.”).

Given the ease with which anyone on the internet can effortlessly and 

independently copy and re-disseminate another person’s content without their 

knowledge or permission, leading to “viral” messages beyond the originator’s intent 

or ability, regulation of the input costs of one person’s free internet communication 

would be meaningless, arbitrary, and not in furtherance of the Act’s objectives. 

Indeed, given the lack of a person’s control over the reach of their internet content 

(if they are not paying to disseminate it), the disconnect between cost and influence 

would render regulation of input costs both needlessly chilling and irrelevant.

The Internet Exemption thus embodies thoughtful statutory interpretation, 

consistent with the canons of construction, and fulfills the balance Congress struck 

to achieve the Act’s objectives without unnecessarily infringing First Amendment 

rights. Under this careful approach that balances the practicalities of online 

communications, political speech on the internet has flourished. The American 

people have been able to disseminate and access millions of political messages in a 

realm of speech free from government-imposed regulatory burdens and 

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complexities. The democratic and individual benefits made possible by this freedom 

cannot be seriously questioned. Meanwhile, there is no documented case of 

corruption of a public official arising from free posts on the internet. 

ARGUMENT

A. The District Court Exceeded an Arbitrary and Capricious Standard of 

Review by Substituting its Judgment for that of the FEC. 

A narrow question before the District Court was whether certain costs 

incurred by Correct the Record (“CTR”) were merely “input costs” for exempt 

internet communications or whether they were not “input costs” in the first instance.

As the District Court noted: “Plaintiffs argue that CTR’s expenditures were not on 

communications at all. They were instead on things like polling, computers, and staff 

time—which ultimately became ‘inputs’ to communications but were not 

themselves communications or sufficiently direct components of communications to 

be exempt.” Mem. Op. at 10. Therefore, the District Court should have reviewed 

whether the Commission permissibly determined the particular expenses in this case 

were, in fact, bona fide “input costs” of the exempt communications. 

Instead, the District Court’s analysis ventured too far into questioning the 

Internet Exemption itself, unnecessarily injecting quasi-legislative observations and 

directions that would create an ill-defined and unworkable rule impossible for the 

public to understand and the Commission practically to administer. The inevitable 

consequence of the unclear rule established by the District Court would be to

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regulate free internet communications by virtue of the costs incurred to create them, 

and chill otherwise free dissemination of core protected political speech. This Court 

should therefore reverse or limit the District Court’s reasoning and preserve the 

Internet Exemption for both communications and their bona fide input costs. 

The complexities and challenges of administering the Act without violating 

the First Amendment warrant the kind of restraint that courts must exercise when 

reviewing FEC decisions. As the District Court initially acknowledged, its task was 

“not to interpret the statute as it th[inks] best,” but rather to ask whether the 

Commission’s interpretation is “sufficiently reasonable to be accepted by a 

reviewing court.” Mem. Op. at 9 (citing Federal Election Commission v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) (internal 

quotations omitted) and Campaign Legal Center v. Federal Election Commission, 

952 F.3d 352, 357 (D.C. Cir. 2020). The District Court stated that its role was to 

apply the arbitrary-and-capricious standard of review provided by the 

Administrative Procedure Act. Id.; 5 U.S.C. § 706(2)(A). The District Court further 

noted that the Commission’s decision would only be “arbitrary and capricious if the 

Commission ‘entirely failed to consider an important aspect of the problem, offered 

an explanation for its decision that runs counter to the evidence before the agency, 

or is so implausible that it could not be ascribed to a difference in view or the product 

of agency expertise.’” Mem. Op. at 9 (citing Motor Vehicle Mfrs. Ass’n v. State 

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Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (emphasis added). “‘The scope of 

review [in an APA case] is narrow and a court is not to substitute its judgment for 

that of the agency,’ provided the agency has ‘examine[d] the relevant data and 

articulate[d] a satisfactory explanation for its action including a rational connection 

between the facts found and the choice made.’” Id. (citing and quoting Airmotive 

Eng’g Corp. v. FAA, 882 F.3d 1157, 1159 (D.C. Cir. 2018) and Motor Vehicle Mfrs. 

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Furthermore, when a regulation is clear, “the court must give it effect, as the 

court would any law.” Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019). Even if 11 

C.F.R. § 100.26 or § 109.21 were ambiguous (they are not ambiguous), the District 

Court was bound to defer to the Commission’s controlling interpretation of its own 

regulations so long as its interpretation was well reasoned and based upon the 

agency’s expertise. Kisor, 139 S.Ct. at 2415. 

The Commission’s regulation at 11 C.F.R. § 109.21(c) is clear. It provides in 

relevant part that there can be no “coordinated communication” unless the 

communication at issue is either a “public communication,” 11 C.F.R. § 

109.21(c)(2), (3), (4), or an “electioneering communication,” 11 C.F.R. § 

109.21(c)(1). A free online post is neither a “public communication” nor an 

“electioneering communication.” A free online post is not an “electioneering 

communication” because that term encompasses only advertisements disseminated 

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via broadcast media. 52 U.S.C. § 30104(f)(3)(A)(i); 11 C.F.R. § 100.29. And a free 

online post is not a “public communication” because “[t]he term general public 

political advertising shall not include communications over the Internet, except for 

communications placed for a fee on another person’s Web site.” 11 C.F.R. § 100.26. 

That definition is not an accident. It reflects the Commission’s conscientious 

consideration of the Internet Exemption in 2006, based on its prior experience.

B. The District Court’s Re-Interpretation of the FEC’s Regulation

Exceeded The Well-Established Arbitrary and Capricious Standard of 

Review and is Unworkable.

The District Court’s reasoning was errant in some aspects and 

incomprehensible in others, and in any event would dramatically undermine the 

Internet Exemption. The District Court’s remand order begins with the 

oversimplification, if not mischaracterization, of the Commission’s Internet 

Exemption as merely “a narrow exemption from the ‘coordinated communications’ 

definition for unpaid internet communications.” Mem. Op. at 3. The opinion asserts 

that it restores a “commonsense” interpretation of the Commission’s regulation, but 

acknowledges this new interpretation throws the Commission’s other precedents 

into doubt. Mem. Op. at 13. After venturing into the agency’s regulatory role, like 

a judicial bull in an administrative china shop, the District Court’s opinion then 

proceeds to break delicate regulatory principles and effectively re-write the Internet 

Exemption. This is more than an arbitrary and capricious standard of review.

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For example, the District Court wrote that “the internet exemption covers only 

unpaid internet communications themselves, and not all offline inputs to those 

communications.” Mem. Op. at 4 (emphasis added). However, as the Commission 

learned over decades of grappling with internet political speech, one cannot 

distinguish—practically or legally—between the “communication” (i.e., video, 

editorial, blogpost, podcast, tweet) versus the “inputs to those communications.” The 

“inputs,” assuming the court meant the graphics, hardware and software, research, 

videos, script, content, and similar components of an internet communication, are 

part and parcel the communication. No communication can exist without its 

production “inputs.” 

Later, the District Court attempted to distinguish between the “kind” of 

“inputs” that are exempt versus those that are not exempt, but ran into a quagmire. 

Among the “inputs” the District Court indicated it would exempt are “email list 

rentals and donation-processing software purchased to enable email blasts.” Mem. 

Op. at 14 (citing Matter Under Review 6657 (Akin for Senate)). But the court could 

not identify which “inputs” are not exempt under the definition of “public 

communication” in 11 C.F.R. § 100.26. The one “input” the court identified as not 

exempt—the purchase of computers—would vitiate the entire rule because all free 

internet communications require the purchase of a computer. Mem. Op. at 3-4. Why 

USCA Case #22-5336 Document #2001980 Filed: 06/02/2023 Page 23 of 31
18

the costs of hardware would not be exempt but the costs of software would be exempt 

is not clear, rational, or defensible. 

No internet communication would ever be exempted from the definition of 

“public communication,” and thus from federal regulation of online political speech, 

if the cost of the computer on which the communication was created is not exempt. 

And if a person’s computer costs must be counted, then why not their rent or 

mortgage, or a camera or scanner? That reasoning would return regulation to the 

Commission’s early struggles in the Leo Smith opinion under which free internet 

communications were regulated and the cost of computers and other inputs and 

overhead expenses were fully regulated as contributions and expenditures.

Having effectively ventured into the role of agency rulemaking itself, the 

District Court became confused about which parts of the Internet Exemption applied 

to the coordination allegations at issue in this case. For example, the court’s opinion 

latched onto a very brief passage from the Commission’s 25-page Explanation & 

Justification qualifying 11 C.F.R. §§ 100.94 and 100.155. See Mem. Op. at 3-4. But 

that passage expressly applies only to those two regulations. It does not qualify the 

definition of “public communication” under 11 C.F.R. § 100.26, which controls the 

regulation of “coordinated communications” under 11 C.F.R. § 109.21(c). There is 

also no indication in the opinion that the District Court understood the distinction 

between the various prongs of the Internet Exemption or that the definition of “public

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communication” in § 100.26 is not dependent upon the provisions in §§ 100.94 and 

100.155. The lower court appears to have missed these distinctions entirely (or 

cherry picked the one statement in the E&J conveniently). 

The lower court also seemed preoccupied with the sharing of polling data. 

That issue could have been resolved by reference to an entirely different regulation, 

11 C.F.R. § 106.4(c), which provides that polling data publicized on the internet and 

made available to the public are not “contributions.” Id. But the District Court erred 

by suggesting that polling data might be regulated as a coordinated expenditure 

because some “input costs” to internet communications are regulated expenditures 

while some are not.

The District Court recognized the problem it created and disavowed 

responsibility for the consequences. It reopened the same issues the Commission 

grappled with for decades, but was at a loss to resolve the critical regulatory question 

before it, announcing that it “leaves the task of defining the exemption’s precise 

parameters to the expert agency, so long as it is consistent with the principles 

expressed” by the court, Mem. Op. at 14. Ironically, the Commission already had 

applied its expertise when it adopted the Internet Exemption two decades ago and 

arrived at the answer to this case: “input costs” to free online posts are not 

regulated as “public communications.”

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The Internet Exemption in its current form, and in its multiple parts, already 

was considered in a direct challenge before the U.S. District Court and the U.S. Court 

of Appeals in Shays, and the Commission long ago conformed the rule to the 

directives of the federal courts in the 2006 rulemaking. The Internet Exemption has 

become well-established in the 17 years since its adoption and should not be eroded 

in light of one court’s obvious struggle with the exemption’s application in a case 

where it was not directly challenged and the Commission did not participate. 

Resolution of this case does not require a reinterpretation of the Internet Exemption 

or curtailment of broad freedom to speak freely on the internet.

C. This Court Should Correct the District Court’s Error Before it Sows 

Confusion and Chills Political Speech

This Court must properly apply the arbitrary and capricious standard of review 

to preserve the integrity of the FEC’s careful regulation of online political speech 

and prevent the regulatory and speech-chilling turmoil the District Court’s opinion 

would potentially cause if left undisturbed. 

The Internet Exemption of 2006 reflects decades of Commission experience 

and expertise, as well as hundreds of public comments during a formal rulemaking 

process. The Commission prudently determined that, as a legal, policy, and practical 

matter, a person’s free online communication is not a “public communication” 

within the meaning of the Act, and therefore avoids the Act’s burdensome regulation 

of “advertising.” The regulation likewise exempts the costs of “inputs” into those 

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21

free internet communications—overhead, technology, production, research, staff 

and content. 

Mindful of this history, this Court should be faithful to the following wellestablished principles: First, when Congress wrote the relevant clause of the 

definition of a “public communication” in the Act, it used the specific term 

“advertising,” not the general term “communication.” Second, the “inputs” to 

produce communications disseminated via the internet without paying an advertising 

fee to a third-party website are exempt from the definition of “public 

communication” under 11 C.F.R. § 100.26, and therefore are exempt from the 

definition of a “coordinated communication” under 11 C.F.R. § 109.21 (which 

regulates “public communications” coordinated with a candidate campaign); third, 

such “inputs” may also be independently exempt from regulation as contributions 

and expenditures under 11 C.F.R. §§ 100.94 and 155, if they meet the requirements 

of those provisions; fourth, disbursements for other political activities that are not 

“inputs” to produce such internet communications are not necessarily exempt under 

11 C.F.R. §§ 100.26, or 100.94, or 100.155, and such disbursements may indeed be 

subject to regulation as “expenditures” or “contributions” if they otherwise meet the 

definition of those terms; and fifth, if such “expenditures” or “contributions” are 

provided to or coordinated with a candidate committee, constitute cognizable “things 

of value,” and are not otherwise exempt, they can be regulated as “contributions” 

USCA Case #22-5336 Document #2001980 Filed: 06/02/2023 Page 27 of 31
22 

under 11 C.F.R. § 109.20. However, the Court should not confuse bona fide “input 

costs” to free internet communications as regulated expenditures, contributions, 

public communications, or coordinated expenditures. 

CONCLUSION

This Court should reverse the lower court’s failure to properly review of the 

Commission’s decision under an arbitrary and capricious standard of review and 

defer to the Commission’s interpretation of its own clear regulation—a regulation 

and interpretation based on decades of regulatory experience, an extensive formal 

rulemaking, and prior litigation. The regulatory consequences of the District Court’s 

opinion—expanding the definition of “public communication” to include “input 

costs” such as the price of a computer—would be broad and severe. It would return 

the agency and American citizens to the 1998 Leo Smith paradigm and subject all 

costs incurred to produce internet content to potential regulation, chilling noncorruptive online speech and likely violating the First Amendment.

Nearly two decades ago the Commission unanimously acknowledged that 

“[t]he Internet has changed the way in which individuals engage in political activity 

by expanding the opportunities for them to participate in campaigns and grassroots 

activities.” 71 Fed. Reg. at 18,603. The Commission declared it would take a 

“restrained regulatory approach” with respect to online political activity. Id. at 

18,589. In this spirit, the Commission promulgated the Internet Exemption to 

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23 

“remove any potential restrictions” on the ability of citizens to engage in civic and 

democratic life in unpaid communications over the internet. Id. The Internet 

Exemption has been successful in allowing millions of Americans to speak freely 

online about politics and their government without the kind of encumbrances once 

imposed on Leo Smith. Because the District Court’s opinion would take regulation 

of online political speech back decades to an old and unworkable regulatory 

paradigm, this Court should reverse the judgment of the District Court. 

Respectfully submitted,

Dated: May 31, 2023

/s/ Michael A. Columbo_______________

Michael A. Columbo

mcolumbo@dhillonlaw.com

DHILLON LAW GROUP, INC. 

177 Post Street, Suite 700

San Francisco, CA 94108

T: (415) 433-1700

Attorney for Amicus Lee E. Goodman, 

former Chair and Commissioner of the 

Federal Election Commission

USCA Case #22-5336 Document #2001980 Filed: 06/02/2023 Page 29 of 31
24 

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

29(d), because this brief contains 5124 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(f) and D.C. Cir. R. 32(e)(1). 

2. 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 this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

in Times New Roman 14-point font.

Dated: May 31, 2023

/s/ Michael A. Columbo_______________

Michael A. Columbo

mcolumbo@dhillonlaw.com

DHILLON LAW GROUP, INC. 

177 Post Street, Suite 700

San Francisco, CA 94108

T: (415) 433-1700

Attorney for Lee E. Goodman, former Chair 

and Commissioner of the Federal Election 

Commission 

USCA Case #22-5336 Document #2001980 Filed: 06/02/2023 Page 30 of 31
25 

CERTIFICATE OF SERVICE

Pursuant to Rule 25 of the Federal Rules of Appellate Procedure, I hereby

certify that, on May 31, 2023, I electronically filed the foregoing Brief Amicus

Curiae of Lee E. Goodman, Former FEC Chair and Commissioner, in Support of 

Appellant with the Clerk of the Court for the U.S. Court of Appeals for the District

of Columbia Circuit by using the appellate CM/ECF system, and served copies of

the foregoing via the Court’s CM/ECF system on all ECF-registered counsel.

Dated: May 31, 2023

/s/ Michael A. Columbo_______________

Michael A. Columbo

mcolumbo@dhillonlaw.com

DHILLON LAW GROUP, INC. 

177 Post Street, Suite 700

San Francisco, CA 94108

T: (415) 433-1700

Attorney for Amicus Lee E. Goodman, 

former Chair and Commissioner of the 

Federal Election Commission 

 

USCA Case #22-5336 Document #2001980 Filed: 06/02/2023 Page 31 of 31