No. ______

In the

Supreme Court of the United States ________________

JOHN DOE, 1 and JOHN DOE, 2, 

Petitioners,

v.

FEDERAL ELECTION COMMISSION, 

Respondent. ________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the 

District of Columbia Circuit ________________

REDACTED PETITION FOR 

WRIT OF CERTIORARI ________________

WILLIAM W. TAYLOR, III

ZUCKERMAN

 SPAEDER LLP 

1800 M Street, NW

Suite 1000

Washington, DC 20036

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

MICHAEL DRY

VINSON & ELKINS

2200 Pennsylvania Ave., NW

Suite 500 West

Washington, DC 20037

Counsel for Petitioners

September 16, 2019
QUESTION PRESENTED

In recognition of the highly sensitive First 

Amendment realm in which it operates, the Federal 

Election Campaign Act (FECA) imposes strict limits 

on the disclosure of administrative enforcement 

proceedings conducted by the Federal Election 

Commission (FEC). The FEC is expressly prohibited 

from disclosing “[a]ny ... investigation” it conducts, or 

any information obtained in the course of attempting 

to negotiate a resolution to an investigation without 

the permission of the target, subject to the narrow 

exceptions for any “conciliation agreement” with a 

“respondent” and any “determination that a person 

has not violated” a federal election law. 52 U.S.C. 

§30109(a)(12), (a)(4)(B)(i)-(ii). 

Petitioners are a trust and trustee whose 

confidential election-related actions the FEC staff 

briefly investigated in the course of an investigation 

into four other entities. The FEC neither reached a 

conciliation agreement with petitioners nor reached a 

definitive no-violation determination with respect to 

them. Instead, three of the five voting commissioners 

voted not to pursue the investigation further given the 

novelty of the liability theory. Nonetheless, the 

Commission now seeks to disclose petitioners’ 

identities and link them to highly inflammatory 

accusations by the two commissioners who were 

outvoted, even though those accusations were never 

pursued, let alone found warranted. 

The question presented is: 

Whether, notwithstanding FECA’s express bar on 

prohibiting the disclosure of any investigation, and its 

careful constraints on the FEC’s disclosure powers, 
ii

the FEC may invoke its general rulemaking power to 

disclose records, including confidential identities, of 

an investigation that it ultimately declined to pursue.
iii

PARTIES TO THE PROCEEDING

Petitioners (John Doe 1) and 

(John Doe 2) were 

plaintiffs in the district court and appellants in the 

court of appeals. Respondent Federal 

Election Commission was defendant in the 

district court and appellee in the court of appeals. 
iv

CORPORATE DISCLOSURE STATEMENT

John Doe 2 is a closely held trust, and John Doe 1 

is John Doe 2’s trustee. John Doe 2 has no parent 

corporation, and no publicly held corporation has a 10 

percent or greater ownership interest in John Doe 2. 

John Doe 1 is an individual.
v 

STATEMENT OF RELATED PROCEEDINGS

United States District Court (D.D.C.):

Doe, 1 v. FEC, No. 17-2694 (Mar. 23, 2018)

Citizens for Responsibility & Ethics in 

Washington v. FEC, No. 17-2770 (Dec. 28, 

2018)

United States Court of Appeals (D.C. Cir.):

Doe, 1 v. FEC, No. 18-5099 (Apr. 12, 2019), pet’n 

for rehearing en banc denied, July 11, 2019
vi 

TABLE OF CONTENTS 

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING .......................... iii

CORPORATE DISCLOSURE STATEMENT ........... iv

STATEMENT OF RELATED PROCEEDINGS ........ v

TABLE OF AUTHORITIES .................................... viii

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 3

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED ...................................... 4

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

A. Legal Background ........................................ 4

B. Factual Background ..................................... 9

C. District Court Proceedings ......................... 12

D. The D.C. Circuit’s Divided Decision .......... 15

REASONS FOR GRANTING THE PETITION ....... 18

I. The Decision Below Empowers The FEC To 

Make Disclosures That FECA Does Not, In 

Plain Contravention Of Settled Principles Of 

Statutory Interpretation And The Canon Of 

Constitutional Avoidance .................................. 20

A. FECA Bars the FEC From Disclosing Its 

Investigatory Records Except in Two 

Circumstances Not Implicated Here ......... 20

B. The D.C. Circuit’s Contrary Conclusion 

Flouts the Plain Text of the Statute and 

Raises Grave Constitutional Concerns ...... 25
vii 

II. This Case Presents An Exceptionally 

Important Question That Warrants This 

Court’s Review ................................................... 32

CONCLUSION ......................................................... 36 

REDACTED APPENDIX 

Appendix A 

Opinion, United States Court of Appeals for 

the District of Columbia, Doe 1 v. FEC, No. 

18-5099 (Apr. 12, 2019) ............................... App-1 

Appendix B 

Order, United States Court of Appeals for the 

District of Columbia, Doe 1 v. FEC, 

No. 18-5099 (July 11, 2019) ...................... App-24 

Appendix C 

Amended Memorandum Opinion, United 

States District Court for the District of 

Columbia, Doe 1 v. FEC, No. 17-2694 (May 

29, 2018) ..................................................... App-26 

Appendix D 

Relevant Constitutional Provisions, 

Statutory Provisions, and Regulations ..... App-55 

U.S. Const. amend. I ........................... App-55 

52 U.S.C. §30106(b)(1) ........................ App-55 

52 U.S.C. §30107(a)(8) ........................ App-55 

52 U.S.C. §30109 ................................. App-56 

11 C.F.R. §111.20 ................................ App-68 

Disclosure of Certain Documents in 

Enforcement and Other Materials, 

81 Fed. Reg. 50,702, 50,702-03 

(Aug. 2, 2016) ...................................... App-69 
viii

TABLE OF AUTHORITIES

Cases

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003)........................ passim

Andrus v. Glover Const. Co., 

446 U.S. 608 (1980)................................................ 22

Beam v. Gonzales, 

548 F. Supp. 2d 596 (N.D. Ill. 2008)...................... 34

Citizens for Responsibility 

& Ethics in Wash. v. FEC, 

363 F. Supp. 3d 33 (D.D.C. 2018).......................... 23

Citizens United v. FEC, 

558 U.S. 310 (2010).......................................... 14, 20

Davis v. FEC, 

554 U.S. 724 (2008)................................................ 30

Edward J. DeBartolo Corp. v. Fla. Gulf Coast 

Bldg. & Const. Trades Council, 

485 U.S. 568 (1988)................................................ 28

FEC v. Machinists Non-Partisan 

Political League, 

655 F.2d 380 (D.C. Cir. 1981)...................... 5, 20, 21

FEC v. NRA Political Victory Fund, 

513 U.S. 88 (1994).................................................... 4 

Illinois v. Abbott & Assocs., Inc., 

460 U.S. 557 (1983)................................................ 24

In re Grand Jury 89-4-72, 

932 F.2d 481 (6th Cir. 1991).................................. 24

In re Sealed Case, 

237 F.3d 657 (D.C. Cir. 2001).......................... 23, 34
ix

Kisor v. Wilkie, 

139 S. Ct. 2400 (2019)............................................ 28

McCutcheon v. FEC, 

572 U.S. 185 (2014).......................................... 20, 35

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995).............................. 20, 29, 30, 31

McKeever v. Barr, 

920 F.3d 842 (D.C. Cir. 2019)................................ 24

McKeever v. Barr, 

No. 19-307 

(U.S. pet. for cert. filed Sept. 5, 2019)................... 24

Pittsburgh Plate Glass Co. v. United States, 

360 U.S. 395 (1959)................................................ 24

Talley v. California, 

362 U.S. 60 (1960).................................................... 5 

United States v. Baggot, 

463 U.S. 476 (1983)................................................ 24

United States v. McDougal, 

559 F.3d 837 (8th Cir. 2009).................................. 24

United States v. Sells Eng’g, Inc., 

463 U.S. 418 (1983).......................................... 24, 35

United States v. Williams, 

504 U.S. 36 (1992).................................................. 24

Van Hollen, Jr. v. FEC, 

811 F.3d 486 (D.C. Cir. 2016).......................... 20, 29

Statutes

28 U.S.C. §1391(b).................................................... 35

5 U.S.C. §706(2)(A) ................................................... 12

52 U.S.C. §30106(a).................................................... 4 
x 

52 U.S.C. §30106(b)................................................ 4, 9

52 U.S.C. §30107(a).............................................. 7, 25

52 U.S.C. §30109(a).......................................... passim

52 U.S.C. §30122 .......................................... 10, 16, 30

Rules and Regulations

Fed. R. Crim. P. 6(e)(2)(B)........................................ 24

Fed. R. Crim. P. 6(e)(3)............................................. 24

11 C.F.R. §111.20(a) .......................................... passim

11 C.F.R. §5.4(a) ......................................................... 8 

Disclosure of Certain Documents in 

Enforcement and Other Matters, 

81 Fed. Reg. 50,702 (Aug. 2, 2016).......................... 9 

Other Authorities

Admin. Compl., In re of Am. Conservative 

Union, MUR 6920, (FEC Feb. 27, 2015), 

https://bit.ly/2OXoSuZ ........................................... 10

122 Cong. Rec. 8539 (Mar. 30, 1976) ....................... 31

H.R. Rep. No. 94-1057 (1976) (Conf. Rep.) .............. 31

H.R. Rep. No. 94-917 (1976)..................................... 31

Pet. for Rehearing En Banc, Doe 1 v. FEC, 

No. 18-5099 (D.C. Cir. filed May 28 2019)............ 27

Ellen L Weintraub (@EllenLWeintraub), 

Twitter (Apr. 12, 2019, 10:54 AM), 

https://bit.ly/2OS0Mlm .......................................... 33

 
PETITION FOR WRIT OF CERTIORARI

Unlike every other federal agency, or even a grand 

jury, everything the Federal Election Commission 

(FEC or Commission) investigates implicates 

activities that lie at the core of the First Amendment. 

That is particularly true when the Commission polices 

the line between constitutionally valid disclosure 

obligations and the constitutional right to anonymity 

when it comes to speech and elections. 

In light of the constitutional sensitivities 

associated with FEC investigations, Congress has 

carefully circumscribed the circumstances in which 

the Commission may publicly disclose investigatory 

records from administrative enforcement proceedings 

conducted by FEC staff. As a general matter, the 

Federal Election Campaign Act (FECA) precludes the 

disclosure of “any ... investigation.” 52 U.S.C. 

§30109(a)(12)(A). Thus, when the FEC investigates 

an alleged violation of the campaign finance laws, 

neither the staff nor the Commission is free to disclose 

the identities of those being investigated. A contrary 

rule would plainly chill core First Amendment 

activity. That prohibition is subject to only two 

exceptions: The Commission must disclose any 

“conciliation agreement” that it reaches with a 

respondent, and it must disclose a “determination that 

a person has not violated” FECA or other federal 

election laws. Id. §30109(a)(4)(b)(ii). Even in those 

circumstances, the exceptions are narrow and do not 

mandate disclosure of the FEC’s entire investigatory 

file. 

It is common ground that neither of those 

statutory exceptions is applicable here. By a 3-2 vote, 
2 

the Commission voted not to pursue further 

investigation of the novel allegations against 

petitioners, noting that they relied on an 

unprecedented legal theory. Throughout those 

proceedings, the Commission maintained the 

confidentiality of petitioners’ identities. Nonetheless, 

despite the statutory prohibition on disclosing 

investigations and the obvious chilling effect that such 

disclosures would have on First Amendment activity, 

the Commission has relied on its general rulemaking 

authority to assert the power to disclose its 

investigatory file, including the identities of 

petitioners, and link them to the inflammatory 

statements of the two dissenting commissioners, who 

champion that result as a victory for transparency. 

The court of appeals approved that anomalous 

result by applying a combination of Chevron deference 

to FEC regulations and a reading of FECA that 

provides zero protection for petitioners or First 

Amendment values once an FEC investigation is 

abandoned. That decision ignores the plain statutory 

text and the obvious constitutional values at stake 

when the FEC investigates activity that, if not 

prohibited by statute, is affirmatively constitutionally 

protected. When Congress prohibited the disclosure of 

FEC investigations subject to two narrow exceptions 

not applicable here, it plainly did not authorize the 

FEC to use its general rulemaking authority to 

mandate the disclosure of all manner of investigatory 

materials, including confidential identities. The D.C. 

Circuit’s decision sanctioning that regulatory regime 

is profoundly wrong.
3 

Because that decision arises out of the D.C. 

Circuit, it will govern all future FEC investigations 

unless reviewed by this Court. Moreover, the 

alternative here to this Court’s review is the 

immediate disclosure of petitioners’ identities, with an 

attendant chilling effect on First Amendment activity. 

While the First Amendment permits certain 

disclosure requirements, neither the First 

Amendment nor FECA tolerates the naming and 

shaming of individuals who have exercised their 

rights to anonymity in ways that implicate the federal 

election laws only under novel theories that the 

Commission was unwilling to pursue. When a 

majority of the voting commissioners decided not to 

pursue entirely novel theories implicating petitioners, 

that should have been the end of the matter. The 

Commission’s belated endeavor to shame petitioners 

and chill others by naming and linking petitioners to 

the dissenters’ criticisms is an effort unworthy of the 

Commission, but well worthy of this Court’s plenary 

review. 

OPINIONS BELOW

The D.C. Circuit’s opinion is reported at 920 F.3d 

866 and reproduced at App.1-23. The district court’s 

opinion is reported at 302 F. Supp. 3d 160 and 

reproduced at App.26-54. 

JURISDICTION

The D.C. Circuit issued its opinion on April 12, 

2019, and denied a timely petition for rehearing en 

banc on July 11, 2019. This Court has jurisdiction 

under 28 U.S.C. §1254(1).
4 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED

The First Amendment and pertinent provisions of 

FECA are reproduced at App.55-76. 

STATEMENT OF THE CASE

A. Legal Background

1. Congress established the FEC in 1974 as an 

independent agency and empowered it to enforce 

FECA and certain other federal election laws. See, 

e.g., FEC v. NRA Political Victory Fund, 513 U.S. 88, 

91 (1994). The FEC has six members, and “[n]o more 

than 3 members of the Commission appointed ... may 

be affiliated with the same political party.” 52 U.S.C.

§30106(a)(1). The Commission has “exclusive 

jurisdiction with respect to the civil enforcement” of 

FECA and other federal election laws, id. 

§30106(b)(1), and it is authorized to investigate 

violations of those laws alleged in administrative 

complaints filed by private citizens, id. §30109. 

The FEC is “[u]nique among federal 

administrative agencies,” in that it “has as its sole 

purpose the regulation of core constitutionally 

protected activity.” AFL-CIO v. FEC, 333 F.3d 168, 

170 (D.C. Cir. 2003). That raises particular concerns 

when it comes to the Commission’s investigatory 

powers, for FEC “‘investigations into alleged election 

law violations frequently involve subpoenaing 

materials of a delicate nature,’ materials regarding 

‘political expression and association’ that go to ‘the 

very heart of the’ First Amendment.” App.14 (quoting 

AFL-CIO, 333 F.3d at 170). Moreover, the mandated 

“release of such [sensitive] information to the [FEC] 

carries with it a real potential for chilling the free 
5 

exercise of political speech and association guarded by 

the first amendment.” FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 388 (D.C. Cir. 

1981). That concern is at its zenith when speakers

pursue their First Amendment rights to participate in 

elections anonymously, a tradition that traces back to 

the Federalist Papers and beyond. See, e.g., Talley v. 

California, 362 U.S. 60, 64-65 (1960). In that context, 

disclosure of identities by the FEC can defeat the right 

to anonymous speech and chill vital First Amendment 

activity. 

2. To guard against those concerns, FECA 

carefully cabins the FEC’s investigatory and 

enforcement powers and limits disclosures. Upon 

receiving a sworn complaint alleging an election-law 

violation, the FEC must notify the alleged violator and 

provide that person with an opportunity to respond. 

See 52 U.S.C. §30109(a)(1). If four members of the 

Commission determine by an affirmative vote that 

there is “reason to believe that a person has 

committed, or is about to commit, a violation of” the 

election laws, the FEC must provide the person with 

the “factual basis for such alleged violation” and then

must conduct an investigation. Id. §30109(a)(2). After 

the investigation, the Commission may proceed to 

determine whether there is “probable cause” to believe 

that a violation has occurred. Id. §30109(a)(3)-

(4)(A)(i). 

The probable-cause stage is a critical dividing 

line. If, by an affirmative vote, four members of the 

Commission find probable cause to believe that a 

violation has occurred, the FEC must attempt to reach 

a “conciliation agreement” with the alleged violator 
6 

through “informal methods”; that process may last 90 

days. Id. §30109(a)(4)(A)(i). If the parties tentatively 

agree to a conciliation agreement, four members of the 

Commission must approve the agreement by an 

affirmative vote before it becomes final; once final, a 

conciliation agreement operates as “a complete bar to 

any further action by the Commission.” Id. If the 

parties do not reach a conciliation agreement after the 

Commission makes a probable-cause finding, the 

Commission—again upon the affirmative vote of four 

members—may “institute a civil action for relief” in 

federal district court. Id. §30109(a)(6). If the 

Commission elects to dismiss an administrative 

complaint at any stage of the proceedings, the party 

who filed the complaint may challenge that dismissal 

in federal district court. Id. §30109(a)(8).

Given the sensitivities surrounding FEC 

proceedings, FECA expressly addresses when the 

Commission may and may not publicly disclose 

investigatory records from those proceedings. As a 

default rule, “[n]o action by the Commission or any 

person, and no information derived, in connection with 

any conciliation attempt by the Commission ... may be 

made public by the Commission without the written 

consent of the respondent and the Commission.” Id. 

§30109(a)(4)(B)(i). Likewise, “[a]ny notification or 

investigation ... shall not be made public by the 

Commission or by any person without the written 

consent of the person receiving such notification or the 

person with respect to whom such investigation is 

made.” Id. §30109(a)(12)(A). 

The Commission may deviate from those 

prohibitions in only two instances: “If a conciliation 
7 

agreement is agreed upon by the Commission and the 

respondent, the Commission shall make public any 

conciliation agreement signed by both the Commission 

and the respondent.” Id. §30109(a)(4)(B)(ii). And “[i]f 

the Commission makes a determination that a person 

has not violated [the federal election laws], the 

Commission shall make public such determination.” 

Id. Even in those circumstances, FECA does not 

mandate disclosure of the entire investigatory file.1 

Moreover, when those two exceptions do not apply, 

such as when a conciliation attempt is not successful, 

or the FEC reaches no conclusion about whether 

someone violated the federal election laws, FECA 

prohibits the disclosure of information derived from 

those administrative proceedings.

3. Notwithstanding the detailed disclosure regime 

that Congress crafted for FEC administrative 

proceedings, the Commission—pursuant to its general 

power “to make ... such rules ... as are necessary to 

carry out the provisions of this Act,” id. §30107(a)(8)—

has promulgated regulations and adopted policies that 

empower it to make much broader disclosures. As 

relevant here, one FEC regulation provides that, “[i]f 

 

1 The statute expressly provides that the Commission shall 

make its no-violation determination public, but it does not 

expressly address whether that determination must disclose the 

otherwise-confidential identity of the subject in a case where the 

investigation concerned an alleged disclosure violation and the 

subject’s identity remained confidential throughout the 

proceedings. Forced disclosure of the identity in that 

circumstance would seem perverse. At a minimum, under the 

statute, respondents would have the option of preserving 

confidentiality by agreeing to a resolution short of a no-violation 

determination.
8 

the Commission makes a finding of no reason to 

believe or no probable cause to believe or otherwise 

terminates its proceedings, it shall make public such 

action and the basis therefor.” 11 C.F.R. §111.20(a)

(emphasis added). In other words, the FEC claims the 

power to disclose its investigatory files, including 

confidential identities, even when an investigation 

terminates with a decision by the Commission simply 

to drop and investigation and not to pursue a 

complaint any further. 

To complement this regulation, the Commission 

initially adopted another rule expansively declaring 

the “basis” for its action to include all of the 

investigatory records that pertained to a particular 

matter, except for the narrow category of materials 

exempt from disclosure under FECA or the Freedom 

of Information Act. See id. §5.4(a)(4). But the D.C. 

Circuit invalidated that rule for “fail[ure] to account 

for the substantial First Amendment interests” at 

stake. AFL-CIO, 333 F.3d at 170. In reaching that 

conclusion, the court found the statute’s express 

prohibition on making “[a]ny ... investigation” public 

without the permission of the target, 52 U.S.C. 

§30109(a)(12)(A), “ambiguous” as to whether it applies 

to materials derived from an investigation, or just to 

the bare existence of an investigation, and also found 

it ambiguous as to whether it applies once an 

investigation concludes. AFL-CIO, 333 F.3d at 173-

75. But the court nonetheless found the FEC’s rule 

mandating disclosure of all investigatory materials 

vastly overbroad given the constitutional concerns at 

issue. Id. at 179. 
9 

Well more than a decade after that decision, the 

FEC tried again. This time, invoking its general 

power to “formulate policy,” see 52 U.S.C. 

§30106(b)(1), the FEC issued a policy statement 

enshrining a new disclosure policy that is more 

limited, but only marginally so. See Disclosure of 

Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702 (Aug. 2, 2016). Under that new 

policy, while the Commission will not release all of its 

investigatory records, it will still release at least 21 

categories of investigatory records when it “otherwise 

terminates” a proceeding, and it reserves the power to 

“place on the public record other documents that edify 

public understanding of a closed matter.” Id. at 

50,703. 

Among the records subject to disclosure under 

this broad policy are “General Counsel’s Reports ... 

that recommend ... reason to believe” and “Statements 

of Reasons issued by one or more Commissioners,” 

even if those views are rejected by a majority of the 

Commission. Id. In other words, the Commission 

claims the power to disclose files related to 

investigations that it ultimately chose not to pursue, 

including the dissenting views of members who 

disagreed with the Commission’s decision not to

pursue them. In addition, the Commission asserts the 

power to make these disclosures without regard to 

whether doing so will destroy the anonymity of the 

subject of its investigation even when charges are not 

ultimately pursued. 

B. Factual Background 

1. In February 2015, two private persons—

Citizens for Responsibility and Ethics in Washington 
10

(CREW) and Anne L. Weismann—filed an 

administrative complaint with the FEC alleging that, 

during the 2012 election cycle, a $1.71 million 

contribution had been made to a political action 

committee (Now or Never PAC) in the name of 

someone other than the true donor, in violation of 

FECA. App.2, 28; see 52 U.S.C. §30122 (“No person 

shall make a contribution in the name of another 

person or knowingly permit his name to be used to 

effect such a contribution[.]”). That complaint named 

as respondents the American Conservative Union, 

Now or Never PAC, James C. Thomas, III, and an 

“Unknown Respondent.” See Admin. Compl., In re of 

Am. Conservative Union, MUR 6920, (FEC Feb. 27, 

2015), https://bit.ly/2OXoSuZ. The FEC later 

identified the “Unknown Respondent” as Government 

Integrity, LLC. JA47.2 

Acting on the allegations in the complaint, the 

Commission (by an affirmative 6-0 vote) found reason 

to believe that a violation of FECA had occurred, and 

it authorized an investigation under the file name 

Matter Under Review 6920 (MUR 6920). App.3. The 

Commission’s general counsel conducted the 

investigation, which purportedly revealed that the 

contribution to Now or Never PAC passed through 

various entities in October 2012. App.3-4. More 

specifically, the general counsel found that while 

Thomas simultaneously served as the lawyer for 

Government Integrity and the treasurer for Now or 

Never PAC, Government Integrity wired $1.8 million 

to the American Conservative Union; and the 

American Conservative Union then wired $1.71 

 

2 “JA” refers to the Joint Appendix filed with the D.C. Circuit.
11

million to Now or Never PAC. App.3. After Now or 

Never PAC received the $1.71 million contribution, 

Thomas filed a report with the FEC stating that the 

American Conservative Union (as opposed to 

Government Integrity) had been the source of the 

funds. App.4. 

Although John Doe 2 was not named as a 

respondent to the complaint, the general counsel 

identified it as an entity allegedly involved in the 

sequential transaction, in that it allegedly wired $2.5 

million to Government Integrity before the latter 

wired the $1.8 million to the American Conservative 

Union. In August 2017, the general counsel served a 

subpoena on both John Doe 2 and its trustee, John Doe 

1, App.29, but the subpoena stated that “the

Commission does not consider [either petitioner] a 

respondent in this matter, but rather a witness only.” 

JA213. Petitioners did not respond to the subpoena, 

but soon thereafter, the general counsel recommended 

that the Commission find reason to believe that 

petitioners had violated FECA and that it authorize a 

civil action to enforce the subpoena. App.29-30. The 

Commission rejected those recommendations in 

September 2017 by a 3-2 vote. App.30; JA135-36. 

Accordingly, petitioners were never respondents in 

MUR 6920. 

At the same time, the Commission voted to move 

forward with respect to the four parties that were 

respondents to the complaint. By an affirmative vote 

of 5-0, the Commission found probable cause to believe 

that the American Conservative Union had violated 

FECA, and it invited the general counsel to file briefs 

addressing whether probable cause existed with 
12

respect to Government Integrity, Now or Never PAC, 

and Thomas. JA136-37. The Commission also 

authorized the general counsel to pursue conciliation 

with the American Conservative Union and “preprobable cause” conciliation with the other 

respondents. JA136-37.

2. In October 2017, the Commission entered into 

a conciliation agreement with all four respondents. 

App.4. The respondents agreed not to contest the 

Commission’s allegations that they violated FECA, 

and they paid a collective civil penalty of $350,000. 

App.4-5. The Commission therefore closed the 

investigation. Upon doing so, it made clear that, in 

December 2017 and pursuant to its disclosure policy, 

it intended to publicly disclose without redaction 

numerous records from MUR 6920, including records 

such as the general counsel’s recommendation 

identifying petitioners by name and accusing them of 

violations that the Commission declined to pursue. 

App.5. Petitioners objected to the proposed disclosure, 

but the Commission nonetheless concluded that it 

would release its investigatory records in unredacted 

form on December 18, 2017. App.32. 

C. District Court Proceedings

1. Petitioners filed suit against the Commission 

in the U.S. District Court for the District of Columbia 

just before the release of the unredacted records, 

seeking an injunction barring the Commission from 

revealing their identities. App.32. Among other 

things, petitioners asserted that “[t]he release of 

[their] identities is contrary to law under the Federal 

Election Campaign Act.” JA12; 5 U.S.C. §706(2)(A). 

The Commission agreed to redact petitioners’ names 
13

from its publicly available investigatory records 

pending the outcome of the litigation. JA4. 

Petitioners’ lawsuit generated backlash from 

some members of the Commission. Although the 

Commission had declined to advance the investigation 

of petitioners beyond the first step of the investigatory 

process, and therefore never added them as 

respondents to MUR 6920, one member of the 

Commission—now the FEC Chair—posted a “tweet” 

almost immediately after petitioners filed suit with a 

link to her redacted “Statement of Reasons” in this 

matter. See JA215. Among other things, her 

Statement of Reasons accused petitioners of 

“engineering an intricate plot to defeat the public’s 

interest in knowing who was actually behind a $1.7 

million political contribution.” JA202. The tweet 

itself added: “BREAKING New #campaignfinance 

scandal: How far will dark-money donors go to stay in 

the shadows? These guys laundered their millions 

through 4 orgs, got away with keeping the name of the 

true donor secret, & are STILL suing @FEC to censor 

our reports. I’ve *never* seen this before.” JA215. 

Two other commissioners responded to these 

incendiary charges with their own Statement of 

Reasons, which asserted, inter alia, that proceeding 

with an investigation against petitioners would have 

required reliance on an “unprecedented” and “novel 

theor[y],” and took their colleague to task for “publicly 

prejudg[ing] [petitioners’] guilt.” JA208-09 & n.8. 

They further explained that “[s]uch prejudgment 

raises serious due process concerns, heightened in this 

matter where the non-respondent has challenged 

Commission action in a pending lawsuit.” JA209 n.8. 
14

2. The district court held that the Commission 

may proceed with the disclosure of petitioners’ names. 

App.27. In reaching that conclusion, the court 

acknowledged that the disclosure falls within neither 

of FECA’s two categories of mandatory disclosure. As 

to the first, the conciliation agreement “involved 

Government Integrity, American Conservative Union, 

Now or Never PAC, and James C. Thomas III”—but 

not petitioners. App.30. As to the second, “the 

Commission did not make any ‘determination’ that 

plaintiffs had not violated the Act; it simply did not 

vote to find reason to believe that they had.” App.36. 

The court also acknowledged that FECA prohibits

the disclosure of any “notification or investigation,” 

and in light of that provision, admitted that the 

question whether disclosure of petitioners’ names 

would violate FECA “is not an easy one to resolve.” 

App.37. Nonetheless, the court deemed itself bound 

by the D.C. Circuit’s decision in AFL-CIO to treat 

FECA as ambiguous as to the scope of the FEC’s power 

to disclose investigatory materials after an 

investigation has terminated, and therefore 

“concluded that the issue cannot be resolved at the 

Chevron step one stage.” App.35. Invoking Citizens 

United v. FEC, 558 U.S. 310, 371 (2010), the court 

further concluded that disclosing petitioners’ 

identities as part of an effort to accuse them of 

unsubstantiated violations of federal election law 

implicates “no constitutional issues” because there is 

no First Amendment “right to contribute 

anonymously.” App.48, 51. The court therefore 

concluded that “Chevron deference applies.” App.51. 
15

The court then deferred to the FEC’s regulation 

stating that “[i]f the Commission makes a finding of 

no reason to believe or no probable cause to believe or 

otherwise terminates its proceedings, it shall make 

public such action and the basis therefor.” App.50

(citing 11 C.F.R. §111.20(a)). In the district court’s 

view, because “[t]he investigation as a whole was 

otherwise terminated, including the aspect of the 

matter that involved [petitioners],” the FEC could 

lawfully disclose records identifying petitioners and 

accusing them of campaign finance violations, even 

though petitioners were not named or added as 

respondents in the administrative complaint and FEC 

did not pursue any action against them. App.51. 

3. Recognizing the serious interests at stake and 

that disclosure of petitioners’ identities would work an 

immediate and irreparable injury, the district court 

granted a stay pending appeal. JA9-10.

D. The D.C. Circuit’s Divided Decision 

1. The D.C. Circuit affirmed in a divided decision. 

The majority framed the question before it as whether 

the FEC “would be acting ‘not in accordance with law’ 

under the Administrative Procedure Act” by “publicly 

releas[ing]” the “material” from the MUR 6920 

investigatory file identifying petitioners. App.6-7. 

According to the majority, this question turned not on 

whether FECA itself authorizes that disclosure, but 

rather on whether the FEC’s regulation authorizing 

more disclosure than the statute authorizes 

“constitute[s] ‘law.’” App.7. While petitioners had 

never disputed that the FEC’s regulation qualifies as 

“law” for APA purposes, the court nonetheless 

proceeded to analyze that issue, finding (as no one 
16

disputed) that the regulation was “properly 

promulgated” and therefore, if valid, carries the force 

of law. App.7. 

Rather than then turn to the question whether 

the regulation is consistent with FECA’s disclosure 

provisions, especially given the First Amendment 

concerns at stake in this delicate area, the court next 

asked only whether the regulation is “reasonably 

related” to FECA’s “purposes.” App.8. While the court 

acknowledged that the regulation “requires more 

disclosure than the governing statute,” it summarily 

declared that “no reason for rejecting it,” citing as 

authority cases that do not involve disclosures in the 

highly sensitive realm of core political activities. 

App.8. The court also found that conclusion supported 

by its earlier decision in AFL-CIO, which had 

embraced the proposition that FECA is ambiguous on 

the extent to which the FEC may disclose materials 

from an investigatory file. App.9. The court further 

agreed with the district court that the proposed 

disclosures do not even implicate the First 

Amendment, citing as authority for that proposition 

the constitutionality of FECA’s “provision requiring 

contributions to be made in the name of the source of 

the funding.” App.9 (citing 52 U.S.C. §30122). The 

court made no mention of the problems that: (1) the 

FEC never concluded that petitioners were the 

“source” of the contribution within the meaning of the 

statute, and (2) anonymous participation in electoral 

activities to the extent permitted by existing 

disclosure provisions is protected First Amendment 

activity. 
17

2. Judge Henderson dissented in relevant part. At 

the outset, Judge Henderson emphasized that the 

FEC “has as its sole purpose the regulation of core 

constitutionally protected activity,” and that “[i]ts 

investigations ... go to the very heart of the First 

Amendment.” App.14. “These serious privacy and 

First Amendment interests,” she explained, “make 

holding the statutory line even more critical.” App.14. 

Turning to that statutory line, Judge Henderson 

faulted the majority for concluding that FECA 

authorizes the disclosure of petitioners’ identities 

“without discussing FECA’s disclosure provisions.” 

App.20. As she explained, “FECA’s disclosure scheme 

is comprehensive and sets forth precisely when the 

Commission can and cannot make its records public” 

in the context of administrative proceedings. App.19. 

While “[t]he Commission must make limited 

disclosures in two ... cases,” “the Commission must 

keep its investigatory information confidential” “[i]n 

all other cases.” App.19. And in this instance, Judge 

Henderson explained, all agree that the two categories 

of mandated disclosure are not implicated: The FEC 

entered into a conciliation agreement with parties 

other than petitioners, and “the Commission declined 

to pursue enforcement against the two [petitioners] as 

a matter of prosecutorial discretion.” App.20. 

On the flip side, she explained, FECA “includes 

confidentiality provisions that expressly forbid the 

Commission from making its investigative files public 

unless disclosure is otherwise authorized.” App.18

(emphasis added). For example, FECA generally 

prohibits the disclosure of any “investigation,” and 

“nearly any disclosure of an investigatory file will 
18

reveal the existence of an investigation.” App.18. As 

a result, she found “no textual basis for concluding that 

additional discretionary disclosure authority exists.” 

App.18. 

3. Petitioners filed a petition for rehearing en 

banc, which the court denied. App.24-25. Soon 

thereafter, however, the court granted a stay of the 

mandate provided that petitioners file a petition for 

certiorari by September 16, 2019. 

REASONS FOR GRANTING THE PETITION

The decision below allows the Commission to chill 

vital First Amendment activity by naming and 

shaming individuals whom it declines to prosecute. 

Such agency action is antithetical to constitutional 

values and wholly unauthorized by Congress. Rather 

than authorizing an agency empowered to investigate 

sensitive First Amendment activity to employ this 

bull-in-a-china-shop approach, Congress prohibited 

the disclosure of investigatory files and the identities 

of those investigated by the FEC. Congress created 

only two exceptions—neither applicable here—and 

those exceptions provide for only limited disclosure 

when the FEC reaches a conciliation agreement or an 

exoneration. The agency’s effort to rely on its general 

rulemaking authority to dictate far broader disclosure 

is ultra vires and unconstitutional.

The decision below authorized these massively 

chilling disclosures by ignoring the default statutory 

prohibition on disclosing investigations and 

downplaying the First Amendment concerns with 

disclosure. But just because some statutory disclosure 

obligations survive First Amendment scrutiny does 

not mean that forcing the disclosure of confidential 
19

identities of individuals whose actions implicate 

FECA, if at all, only under novel theories is free from 

First Amendment consequences. To the contrary, 

absent valid disclosure requirements, the First 

Amendment positively protects the rights of 

individuals to engage in speech and election-related 

activities anonymously. By ignoring those First 

Amendment interests and bedrock principles of 

statutory construction, the decision below erred.

The consequences of that error are dramatic, both 

for petitioners and for First Amendment values. 

Unless this Court grants review, the confidential 

identities of petitioners will be immediately disclosed, 

notwithstanding the decision of a majority of voting 

commissioners that bringing charges under a wholly 

novel theory would be inappropriate. Worse still, 

petitioners will be linked immediately to the highly 

critical views of the two dissenting commissioners. 

The chilling effect on petitioners and others whose 

conduct complies with existing non-novel election laws 

will be immediate. This is no way for an agency tasked 

with the sensitive mission of investigating conduct 

that, if not unlawful, is constitutionally protected to 

proceed. Congress did not authorize such name-andshame tactics, and neither should this Court. 
20

I. The Decision Below Empowers The FEC To 

Make Disclosures That FECA Does Not, In 

Plain Contravention Of Settled Principles 

Of Statutory Interpretation And The Canon 

Of Constitutional Avoidance. 

A. FECA Bars the FEC From Disclosing Its 

Investigatory Records Except in Two 

Circumstances Not Implicated Here.

“Unique among federal administrative agencies, 

the Federal Election Commission has as its sole 

purpose the regulation of core constitutionally 

protected activity.” AFL-CIO, 333 F.3d at 170; see 

also, e.g., Van Hollen, Jr. v. FEC, 811 F.3d 486, 499 

(D.C. Cir. 2016) (“more than other agencies whose 

primary task may be limited to administering a 

particular statute, every action the FEC takes 

implicates fundamental rights”). Indeed, “[t]here is no 

right more basic in our democracy than the right to 

participate in electing our political leaders”—

including by contributing to candidates and political 

action committees. McCutcheon v. FEC, 572 U.S. 185, 

191 (2014) (plurality op.). And, subject to the metes 

and bounds of constitutionally valid disclosure 

provisions, the vital right to participate in elections

includes the right to do so anonymously. See, e.g., 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 343

(1995); see also Citizens United, 558 U.S. at 366-71. 

Yet the FEC’s core charge is to regulate “the behavior 

of individuals and groups only insofar as they act, 

speak and associate for political purposes.” 

Machinists, 655 F.2d at 387. 

The concerns that arise as a result of that 

constitutionally sensitive mandate are nowhere more 
21

acute than when it comes to the Commission’s 

investigatory powers. The FEC’s “‘investigations into 

alleged election law violations frequently involve 

subpoenaing materials of a “delicate nature,”’ 

materials regarding ‘political expression and 

association’ that go to ‘the very heart of the’ First 

Amendment.” App.14 (quoting AFL-CIO, 333 F.3d at 

170). And the mandated “release of such [sensitive] 

information to the [FEC] carries with it a real 

potential for chilling the free exercise of political 

speech and association guarded by the first 

amendment.” Machinists, 655 F.2d at 388. Such 

concerns are at their zenith when it comes to the 

disclosure of the names of individuals or entities who 

intended to keep their political participation

nonpublic and are permitted by disclosure obligations

to do so. 

That chilling effect would become all the more 

pronounced if the FEC had sweeping power to release 

to the public all the information it obtains during the

course of an investigation into an allegation that an 

exercise of First Amendment rights was prohibited by 

federal law. It is one thing for the FEC to reveal such 

information when it finds that someone in fact 

violated the law. But it is another thing entirely for 

the FEC to gather First Amendment-sensitive 

information as part of its process of deciding whether 

a violation of the campaign finance laws has occurred,

and then release information accusing parties of 

wrongdoing even if it ultimately declines to pursue 

any kind of enforcement action. Such name-andshame tactics would serve no apparent purpose other 

than to chill First Amendment activity that the 

Commission has not found ran afoul of the law. 
22

To guard against those concerns, Congress 

carefully circumscribed the FEC’s power to disclose its 

investigatory and conciliatory acts. FECA expressly 

commands that “[a]ny notification or investigation 

[may] not be made public by the Commission or by any 

person without the written consent of the person 

receiving such notification or the person with respect 

to whom such investigation is made.” 52 U.S.C. 

§30109(a)(12)(A). And it further provides that “[n]o 

action by the Commission or any person, and no 

information derived, in connection with any 

conciliation attempt by the Commission ... may be 

made public by the Commission without the written 

consent of the respondent and the Commission.” Id.

§30109(a)(4)(B)(i). 

The Commission may deviate from those 

prohibitions in only two instances: “If a conciliation 

agreement is agreed upon by the Commission and the 

respondent, the Commission shall make public any 

conciliation agreement signed by both the Commission 

and the respondent.” Id. §30109(a)(4)(B)(ii). And “[i]f 

the Commission makes a determination that a person 

has not violated [the federal election laws], the 

Commission shall make public such determination.” 

Id. In short, FECA generally prohibits disclosure of 

investigations and attempts to resolve them, subject 

to the caveat that “[t]he Commission must make 

limited disclosures in two—and only two—cases,” and 

it “does not authorize any discretionary disclosure” in 

other circumstances. App.19; see Andrus v. Glover 

Const. Co., 446 U.S. 608, 616-17 (1980) (“Where 

Congress explicitly enumerates certain exceptions to a 

general prohibition, additional exceptions are not to be 
23

implied, in the absence of evidence of a contrary 

legislative intent.”). 

Taken together, all of these provisions compel the 

conclusion that the FEC lacks the authority to 

supplement Congress’ carefully circumscribed 

disclosure regime with broad rules or policies that 

purport to authorize disclosures that the statute does 

not.3 Indeed, “[t]he plain language of these provisions 

and the overall purpose and structure of the statutory 

scheme create a strong confidentiality interest 

analogous to that protected by Federal Rule of 

Criminal Procedure 6(e)(6).” In re Sealed Case, 237 

F.3d 657, 667 (D.C. Cir. 2001). “[I]n both contexts, 

secrecy is vital” to ensure that those involved in a 

government investigation are not dragged into the 

public spotlight in a prejudicial—and potentially 

unconstitutional—manner. Id.

That makes the rule governing disclosure of grand 

jury information a helpful guide in interpreting 

 

3 FECA separately authorizes the Commission to bring a civil 

action in federal court after a failed conciliation attempt, see 52 

U.S.C. §30109(a)(6), and the private party that files an 

administrative complaint with the FEC may seek judicial review 

if the Commission “dismiss[es]” the complaint or fails to act on it 

in a timely manner, id. §30109(a)(8). This case does not concern 

what may or may not be disclosed in the context of such judicial 

proceedings, for the complainants did not name petitioners as 

respondents, and the Commission voted against pursuing any 

enforcement action against petitioners. Notably, when the 

complainants attempted to seek judicial review of the 

Commission’s decision not to pursue any action against 

petitioners, their complaint was dismissed for lack of jurisdiction 

(at the FEC’s urging) because they never filed a complaint 

against petitioners. See Citizens for Responsibility & Ethics in 

Wash. v. FEC, 363 F. Supp. 3d 33 (D.D.C. 2018). 
24

FECA’s disclosure provisions. Similar to FECA 

§30109, Federal Rule of Criminal Procedure 6(e) 

provides a general rule of nondisclosure with respect 

to grand jury information, and then lists certain 

exceptions to that rule. Compare Fed. R. Crim. P. 

6(e)(2)(B) (“Unless these rules provide otherwise, the 

following persons must not disclose a matter occurring 

before the grand jury ....”), and Fed. R. Crim. P. 6(e)(3)

(listing “[e]xceptions”), with App.18 (explaining that 

FECA prohibits disclosure of investigatory materials

“unless disclosure is otherwise authorized”). 

In cases interpreting Rule 6, this Court has 

repeatedly indicated that the rule creates an exclusive 

list of exceptions, and that courts may not recognize 

other exceptions absent “a clear indication” from 

“Congress [or] this Court.” United States v. Sells 

Eng’g, Inc., 463 U.S. 418, 425 (1983); see also United 

States v. Williams, 504 U.S. 36, 46 (1992); Illinois v. 

Abbott & Assocs., Inc., 460 U.S. 557, 567 (1983); 

United States v. Baggot, 463 U.S. 476, 479-80 (1983); 

Pittsburgh Plate Glass Co. v. United States, 360 U.S. 

395, 398-99 (1959).4 The same concerns underlying 

 

4 Several courts of appeals have been even more direct, 

explicitly concluding—in some instances at the federal 

government’s urging, no less—that the exceptions to grand jury 

secrecy are only those enumerated in Rule 6(e). See, e.g., 

McKeever v. Barr, 920 F.3d 842, 843 (D.C. Cir. 2019); United 

States v. McDougal, 559 F.3d 837, 840 (8th Cir. 2009); In re 

Grand Jury 89-4-72, 932 F.2d 481, 488 (6th Cir. 1991). Some 

other courts have reached the opposite conclusion, and in light of 

that circuit conflict, there is a pending petition for certiorari 

asking this Court to resolve the issue. See McKeever v. Barr, No. 

19-307 (U.S. pet. for cert. filed Sept. 5, 2019). This Court 

therefore may wish to consider this case on the merits alongside 

McKeever. 
25

that narrow-construction approach to grand jury 

investigations apply a fortiori to FEC investigations, 

given that everything that the FEC investigates 

implicates the First Amendment. In short, any 

suggestion that the FEC is free to supplement the two 

narrow disclosure exceptions created by Congress in 

this sensitive context is not just mistaken, but 

profoundly troubling given the First Amendment 

interests at stake.

B. The D.C. Circuit’s Contrary Conclusion 

Flouts the Plain Text of the Statute and 

Raises Grave Constitutional Concerns.

Notwithstanding the serious constitutional 

concerns that FEC disclosure implicates, especially 

where otherwise undisclosed identities are at stake, 

the majority below blithely concluded that the FEC 

may utilize its generic power “to make ... such rules ... 

as are necessary to carry out the provisions of this 

Act,” 52 U.S.C. §30107(a)(8), to authorize disclosures 

that not only sweep far beyond what the statute 

expressly permits, but fall squarely within what the 

statute expressly forbids. According to the majority, 

the FEC may disclose all manner of information in an 

investigatory file, including otherwise-nonpublic 

identities, whenever an investigation “terminates,” 

with or without the permission of the individuals or 

entities it investigated. 11 C.F.R. §111.20(a). In the 

majority’s view, the FEC may rely on that sweeping 

claim of authority to disclose its investigation of 

petitioners, for no apparent reason other than to make 

public the fact that the general counsel and two 

commissioners accused petitioners of claims that the 
26

majority of the Commission declined to pursue.5 Such 

name-and-shame tactics cannot be reconciled with 

Congress’ careful efforts to cabin the Commission’s 

disclosure powers in light of the constitutionally 

sensitive domain in which it operates. 

Indeed, far from empowering the FEC to make 

such a disclosure, FECA expressly prohibits the FEC 

from disclosing “[a]ny ... investigation” unless the 

person under investigation consents. 52 U.S.C. 

§30109(a)(12)(A). And the statute expressly prohibits 

the FEC from disclosing any “information derived[] in 

connection with any conciliation attempt by the 

Commission ... without the written consent of the 

respondent and the Commission.” Id.

§30109(a)(4)(B)(i). The notion that the FEC can 

disclose anything it wants, including otherwisenonpublic identities, once it closes an investigation 

because a majority of the Commission was not 

persuaded to proceed beggars belief. These carefully 

circumscribed limits on disclosure foreclose any claim 

that the FEC may rely on its generic rulemaking 

power to empower itself to release information 

obtained (let alone inflammatory accusations made) in 

the course of an investigation. Instead, the FEC may 

disclose two—and only two—things: a conciliation 

agreement, and no-violation determination. Id.

§30109(a)(4)(B)(ii). The FEC concedes that its 

 

5 Indeed, revealing petitioners’ identities does nothing 

whatsoever to edify the public’s understanding of the sort of 

conduct that violates the federal election laws. 
27

intended disclosure is covered by neither of those 

provisions. That should be the end of the matter.6 

The majority concluded otherwise only because, 

as the dissent emphasized, it analyzed the question 

“without discussing FECA’s disclosure provisions” at 

all. App.20. The majority literally did not even 

mention §30109(a)(4)(B)(i), and it addressed 

§30109(a)(12)(A) only to drop a footnote misleadingly 

claiming that petitioners “abandoned” any argument 

that the FEC’s proposed disclosure would violate that 

provision. App.6 n.4.7 Instead, the majority focused 

only on the undisputed and irrelevant point that the 

FEC has the power to promulgate regulations that 

carry the force of law, and the fact that the D.C. 

Circuit had previously embraced the untenable 

proposition that FECA is somehow “ambiguous” as to 

 

6 That the FEC has attempted to disclose its supposed 

investigation into petitioners as part of the disclosure of its files 

from its broader investigation into other entities and individuals 

makes no difference. As the majority acknowledged, the FEC 

seeks to disclose that petitioners themselves were under 

investigation. App.9 n.9. Setting aside the problem that the FEC 

did not have the power to disclose files from the investigation that 

led it to investigate petitioners, it obviously cannot circumvent 

the bar on disclosing an investigation without the target’s 

permission by burying that investigation inside the files of a 

separate investigation. 

7 While petitioners were bound before the panel by the D.C. 

Circuit’s highly suspect past interpretation of that provision as 

unambiguously prohibiting disclosure only while an 

investigation is ongoing, see AFL-CIO, 333 F.3d at 174, 

petitioners challenged that decision at the first opportunity in 

their petition for rehearing en banc, see Pet. for Rehearing En 

Banc at 10, Doe 1 v. FEC, No. 18-5099 (D.C. Cir. filed May 28 

2019). 
28

whether its express prohibitions continue to apply 

once an investigation has concluded. See App.9 (citing 

AFL-CIO, 330 F.3d at 179). 

That mistaken conclusion may have bound the 

panel, but it certainly does not bind this Court. As this 

Court just reiterated, “a court must exhaust all the 

‘traditional tools’ of construction” before throwing up 

its hands and declaring legal text ambiguous. Kisor v. 

Wilkie, 139 S. Ct. 2400, 2415 (2019). “[O]nly when 

that legal toolkit is empty and the interpretive 

question still has no single right answer can a judge 

conclude that it” has been left to the agency to decide. 

Id. It does not take a deep dive into that toolkit to 

conclude that Congress meant what it said when it 

prohibited the FEC from disclosing “[a]ny ... 

investigation ... without the written consent of ... the 

person with respect to whom such investigation is 

made.” Id. §30109(a)(12)(A). That prohibition 

contains no “expiration date[].” App.19. The FEC 

thus cannot decline to abide by it and vitiate the 

congressional policies underlying it, by releasing 

whatever investigatory files it chooses (which, as 

Judge Henderson noted, will obviously “reveal the 

existence of an investigation,” App.18), just because 

its investigation has “terminate[d].” 11 C.F.R. 

§111.20(a). 

That conclusion is plain enough on the face of the 

statute, but is reinforced by the constitutional 

backdrop against which FECA operates. See, e.g., 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & 

Const. Trades Council, 485 U.S. 568, 575 (1988). As 

the D.C. Circuit itself has acknowledged, “every action 

the FEC takes implicates fundamental rights.” Van 
29

Hollen, 811 F.3d at 499. And those fundamental 

rights include the right to anonymity subject to the 

limits of constitutionally valid disclosure limits. See, 

e.g., McIntyre, 514 U.S. at 348, 357. That impact on 

fundamental rights does not disappear simply because 

the agency has concluded an investigation without 

bringing charges. To be sure, when the investigation 

concludes with a finding that someone did violate the 

campaign finance laws, then the First Amendment 

calculus alters dramatically. Moreover, when an 

investigation definitively concludes that there was not 

a violation, Congress has authorized the disclosure of 

that determination, without disclosure of the 

underlying investigatory files or the views of 

dissenting commissioners. See 52 U.S.C. 

§30109(a)(4)(B)(ii). But in a case where someone is 

merely accused of a violation, the Commission may not 

disclose the identity of the accused or the fact of the 

investigation when it does not even pursue the

investigation.

Having concluded its investigation without a 

conciliation agreement with petitioners or a definitive 

no-violation determination, the Commission was not 

free to vitiate petitioners’ right to confidentiality or

smear them with the views of dissenting 

commissioners. To do so under any circumstances 

would be ultra vires and would raise serious due 

process concerns. But to do so in this sensitive context

of anonymous political participation where allegations 

of disclosure violations were not pursued, let alone 

substantiated, would chill election-related activity 

that is not just lawful but constitutionally protected by 

the First Amendment. 
30

The majority’s effort to deny those First 

Amendment concerns is unavailing. According to the 

majority, the First Amendment has no role to play 

here because, under Citizens United, the provision of 

FECA “requiring contributions to be made in the name 

of the source of the funding—52 U.S.C. §30122—is ... 

plainly constitutional.” App.9. But while that 

observation may explain why disclosure is appropriate 

when the Commission pursues an enforcement action, 

it does nothing to justify the disclosure of identities 

where the Commission does not pursue a disclosure 

violation. Certainly nothing in Citizens United 

suggested that disclosure obligations do not even 

implicate the First Amendment. To the contrary, 

disclosure obligations plainly trigger First 

Amendment analysis, see, e.g., Davis v. FEC, 554 U.S. 

724, 744 (2008), and the disclosure of nonpublic 

identities where the Commission declines to find and 

pursue a disclosure violation plainly threatens First 

Amendment values, cf. McIntyre, 514 U.S. at 357.

Indeed, the idea that disclosing otherwisenonpublic identities and the critical views of 

dissenting commissioners and staffers when the full 

Commission never finds a violation does not implicate 

the First Amendment is profoundly misguided. But 

make no mistake; that is what is at issue here. What 

FEC wants to disclose here is the fact that certain 

commissioners accused petitioners of making a 

contribution in the name of another in violation of 52 

U.S.C. §30122—even though the Commission voted 

not to pursue that accusation because to do so would 

have required reliance on “unprecedented” and “novel 

theor[y].” JA208-09 & n.8. Having declined to pursue 

that accusation, the FEC cannot now escape the 
31

obvious First Amendment implications of its proposed 

disclosure by invoking interests that might have 

outweighed petitioners’ constitutional interest in 

maintaining confidentiality had the FEC actually 

found a violation of 52 U.S.C. §30122. See, e.g., 

McIntyre, 514 U.S. at 357 (“Anonymity is a shield from 

the tyranny of the majority.”). The First Amendment 

concerns are even more palpable given that the FEC 

is trying to disclose petitioners’ identities for no other 

apparent reason than to connect their constitutionally 

protected activity to accusations of wrongdoing. The 

notion that empowering the FEC to engage in such 

name-and-shame tactics would have no chilling effect 

on First Amendment activity is dumbfounding. 

FECA’s legislative history confirms that Congress 

never intended to grant the FEC such a 

constitutionally suspect power. When introducing the 

1976 House bill that contained FECA’s original 

disclosure provisions, the Chairman of the House 

committee reporting the bill explained that the point 

of the prohibition on disclosing any “notification or 

investigation” was to prevent the “bad publicity which 

is attendant” to allegations of election-law violations 

that may ultimately be rejected by the Commission. 

122 Cong. Rec. 8539, 8566 (Mar. 30, 1976) (remarks of 

Rep. Hays). Consistent with that understanding, the 

House Conference Report discusses the need to shield 

investigated persons from unfair “publicity,” H.R. Rep. 

No. 94-1057, at 50 (1976) (Conf. Rep.), and the House 

Committee Report explained that the proposed 

amendments to FECA imposed penalties on “any ... 

person who reveals the identity of any person under 

investigation,” H.R. Rep. No. 94-917, at 66 (1976). 

Those concerns plainly do not evaporate simply 
32

because an investigation has “terminate[d].” 11 

C.F.R. §111.20(a). 

In sum, particularly when employed against 

FECA’s unique backdrop of constitutionally protected 

activity, the traditional tools of statutory construction 

all confirm the same conclusion: FECA prohibits the 

FEC from disclosing investigatory materials relating 

to an administrative enforcement matter that does not 

culminate in the finding of a violation unless it has the 

permission of the entity that it investigated. Indeed, 

taken as a whole, FECA plainly denies the FEC the 

power to make “discretionary” disclosures beyond 

those expressly authorized by FECA at all, and 

certainly does not empower the FEC to disclose what 

FECA expressly prohibits. Because “the Commission 

cannot use a regulation or policy statement to 

contravene the plain limits that FECA sets on its 

disclosure authority,” App.16, its effort to disclose 

petitioners’ identities is plainly contrary to law. 

II. This Case Presents An Exceptionally 

Important Question That Warrants This 

Court’s Review.

The decision below not only is plainly wrong, but 

will have untenable consequences, both for petitioners 

and for the exercise of First Amendment rights more 

broadly. The only alternative to this Court’s review is 

the immediate disclosure of petitioners’ identities in 

conjunction with the dissenting commissioners’ highly 

critical view. The disclosure of their identities in these 

circumstances plainly violates the statute, and just as 

plainly threatens constitutional values.

The impact on petitioners is undeniable: 

Invoking an exceedingly “novel theory” of liability, 
33

App.15, certain commissioners and FEC staff accused 

petitioners of election-law violations. A majority of the 

Commission was unwilling to endorse those efforts. 

Yet those who lost the battle may now be able to claim 

the spoils of victory by tarring petitioners with the 

taint of allegedly illegal activity that the Commission 

itself did not pursue.

Indeed, there is no mystery as to what will happen 

next if the Court denies review: Petitioners will be 

publicly reprimanded by federal officials—including 

the Chair of the FEC—even though the FEC declined 

to charge petitioners with any misconduct. See, e.g., 

Ellen L Weintraub (@EllenLWeintraub), Twitter (Apr. 

12, 2019, 10:54 AM), https://bit.ly/2OS0Mlm (tweet 

from FEC Chair within hours of the D.C. Circuit’s 

decision: “Great news from the D.C. Circuit this 

morning in Doe v. @FEC. The court upheld the 

Commission’s right to release the names of key players 

in a straw-donor scheme. Big win for transparency! 

Congrats to our litigators for winning this one! I’ll be 

unredacting my statement from last December ... as 

soon as we know this decision won’t be reviewed.”); 

JA215 (tweet from FEC Chair on December 19, 2017, 

almost immediately after petitioners filed suit in 

district court: “BREAKING New #campaignfinance 

scandal: How far will dark-money donors go to stay in 

the shadows? These guys laundered their millions 

through 4 orgs, got away with keeping the name of the 

true donor secrete, & are STILL suing @FEC to censor 

our reports. I’ve *never* seen this before.”). Far from 

representing a “win for transparency,” given the 

absence of a finding of a disclosure violation by a 

majority of the Commission, that result will force 

disclosure where it is not required by law and will chill 
34

the exercise of First Amendment rights. It is no more 

a “win for transparency” than if Commission staff had 

leaked petitioners’ identities in the middle of the 

investigation, a course that all agree would have been

wholly unlawful. 

Making matters worse, the decision below stands 

as a threat to everyone who exercises their core First 

Amendment rights to participate in the political 

process by contributing to organizations and 

candidates they seek to support, for it enables the FEC 

to disclose accusations of wrongdoing anytime the 

Commission reviews anyone’s conduct, even if it finds 

those allegations not worth pursuing. The potential 

for abuse in such a regime is palpable, for nothing save 

the FEC’s own grace would prevent it from revealing 

politically motivated investigations that the full 

Commission terminated at the first opportunity, even 

if they were initiated with the sole goal of smearing 

their targets with accusations of wrongdoing. None of 

that could possibly be what Congress envisioned, and 

none of it is in fact permitted under FECA. To the 

contrary, FECA flatly precludes such results—not 

only because of the First Amendment chill they would 

cause, but because, as some members of the 

Commission have acknowledged, such a regime would 

“raise[] serious due process concerns.” JA209 n.8. 

Indeed, as Judge Sentelle and others have 

observed, the release of FEC investigatory records 

raises many of the same concerns as the release of 

grand jury records. See, e.g., AFL-CIO, 333 F.3d at 

175; In re Sealed Case, 237 F.3d at 667; Beam v. 

Gonzales, 548 F. Supp. 2d 596, 612 (N.D. Ill. 2008). 

This Court has already recognized the importance of 
35

the latter issue, see, e.g., Sells Eng’g, 463 U.S. at 424, 

and the issue here is at least as important, because 

unlike a typical grand jury, everything the FEC 

investigates implicates activities that are “basic in our 

democracy,” McCutcheon, 572 U.S. at 191 (plurality 

op.). Moreover, nothing would be gained from 

allowing the question presented to percolate further. 

Not only will the imminent disclosure of petitioners’ 

names cause an immediate chilling effect, but the 

question here is one that, by its nature, is likely to 

arise only within the D.C. Circuit. See, e.g., 28 U.S.C. 

§1391(b)(1)-(2); JA12-13; AFL-CIO, 333 F.3d 168. 

Accordingly, absent this Court’s review, the decision 

below will effectively govern every FEC investigation. 

If it really is to be the law that the FEC may disclose 

allegations of wrongdoing that it did not find any basis 

to pursue, then petitioners and all other parties who 

may find themselves swept into such investigations at 

least deserve to have this Court render that 

extraordinary judgment.
36

CONCLUSION

For the foregoing reasons, the Court should grant 

the petition for certiorari.

Respectfully submitted,

WILLIAM W. TAYLOR, III

ZUCKERMAN

 SPAEDER LLP

1800 M Street, NW

Suite 1000

Washington, DC 20036

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

MICHAEL DRY

VINSON & ELKINS

2200 Pennsylvania Ave., NW

Suite 500 West

Washington, DC 20037

Counsel for Petitioners

September 16, 2019