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FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2018 Decided April 12, 2019

No. 18-5099

JOHN DOE, 1 AND JoHN DOE, 2,

APPELLANTs

V.

FEDERAL ELECTION COMIvIISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1: 17-cv-02694)

John P. Elwood argued the cause for appellants. With him

on the briefs were Michael S. Dry, Katherine Cooperstein,

William W Taylor Ill, Carlos T. Angulo, and Dermot Lynch.

Haven G. Ward, Attorney, Federal Election Commission,

argued the cause for appellee. With her on the briefwere Kevin

Deeley, Associate General Counsel, Charles Kitcher, Acting

Assistant General Counsel, and Robert W Bonham Ill Senior

Attorney.

Adav Noti, Mark?. Gaber, Stuart C. McPhail, and Adam I
Rappaport were on the brief for amid curiae Citizens for

Responsibility and Ethics in Washington and Anne Weismann

in support of Federal Election Commission and affirmance.

Before: GARLAND, Chief Judge, HENDERSON, Circuit

Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Opinion concurring in part and dissenting in part filed by

Circuit Judge HENDERSON.

RANDOLPH, Senior Circuit Judge:’ This is an appeal from

the decision of the district court reftising to enjoin the Federal

Election Commission from releasing information identifying a

trust and its trustee in connection with a misreported federal

campaign contribution. Doe v. FEC, 302 F. $upp. 3d 160

(D.D.C. 201$).

Plaintiffs — the trust and its trustee — appear incognita as

John Doe 2 and John Doe 1. They claim that the Commission’srelease of documents identifying them would violate the First

Amendment to the Constitution, the Federal Election Campaign

Act (FECA), and the Freedom of Information Act (FOLk).

Plaintiffs and the Commission have filed some ofthe documents

bearing on this case under seal.

The case began when an organization — Citizens for

Responsibility and Ethics in Washington (CREW), which

appears here as amicus curiae — filed a complaint with the

1 NOTE: Portions of this opinion contain Sealed Information,

which has been redacted.
Commission alleging that a $1.71 million contribution to a

political action committee in October 2012 was made and

reported in the name of someone other than the actual donor.

The Commission’s regulation, implementing 52 U.S.C. §

30 122,2 states that no person shall “{m]ake a contribution in the

name of another;” “[k]nowingly permit his or her name to be

used to effect that contribution;” “[k]nowingly help or assist any

person in making a contribution in the name of another;” or

“[k]nowingly accept a contribution made by one person in thename of another.” 11 C.F.R. § 110.4(b)(l)(i)—(iv).3

In this case the Commission, acting on CREW’s allegations,

voted 6-0 finding reason to believe that the American

Conservative Union violated § 30122 “by knowingly permittingits name to be used to effect a $1.71 million contribution in the

name of another to Now or Never PAC, an independent

expenditure-only political committee. The Commission alsofound reason to believe that [others implicated in CREW’s

complaint] violated 52 U.S.C. § 30122 by making the

contribution in the name of another.” Memorandum from Lisa

Stevenson, Acting Gen. Counsel, to FEC 1 (Aug. 4, 2017)

(footnote omitted), https://www.fec.gov/files/Iegal/murs/6920

2 52 U.S.C. § 30122 provides: “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, and no person shall

knowingly accept a contribution made by one person in the name of

another person.”

See also United States v. Boender, 649 F.3d 650, 660 (7th Cir.

2011); United States v. O’Donnell, 608 F.3d 546, 553—54 (9th Cir.

2010).
/17044435462.pdf. The Commission therefore authorized an

investigation. Id.; see also 52 U.S.C. § 30109(a)(2).

The investigation, conducted bythe General Counsel, traced

the $1.71 million contribution and revealed the following

undisputed facts. Government Integrity, LLC. a Delaware

limited liability corporation, was formed in Se tember 2012 for

the purpose ofmaking political contributions. I

On or about October 3 1, 2012, the

ust, presumably at the direction of its trustee, wired S2.5

million to Government Integrity. Minutes after receipt,

Government Integrity wired SI .8 million to the AmericanConservation Union, which then wired the $1 .71 millioncontribution to the political action committee, the Now or Never

While participating in these sequential transactions on

October 31, 2012, James C. Thomas, III served as the lawyer forGovernment Integrity and, at the same time, as the treasurer of

the Now or Never PAC. Thomas filed a report with the

Commission, on behalf of the PAC, listing the American

Conservative Union (ACU) as the source of the $1.71 million

even though ACU considered itself merely a “pass through” forthe contribution.

The General Counsel, in recommending that the

Commission take enforcement action, concluded that this nearly

simultaneous three-step transaction — from the trust to

Government Integrity, from Government integrity to ACU, and

from ACU to the PAC — “suggests that the parties went through

significant lengths to disguise the true source of the funds.”

Third General Counsel’s Report at 11, Am. Conservative
Union, No. MUR 6920 (FEC Sept. 15, 2017),

https://www.fec.gov/filcs/Iegal/murs/6920/1 7044435484.pdf.

In 2017, the Commission, rather than bringing an

enforcement action, entered into a “conciliation agreement” withGovernment Integrity, LLC, the American Conservative Union,the Now or Never PAC, and Thomas. Conciliation Agreement,Am. Conservative Union, No. MUR 6920 (FEC

Nov. 3, 2017), https://www.fec .gov/fl les/legallmurs/6920/l 70

44434756.pdf; see also 52 U.S.C. § 30109(a)(4)(A)(i). These

respondents to CREW’s complaint agreed not to contest theCommission’s determination that each ofthem violated § 301 22because the source of the $1.71 million contribution had been

disguised. The conciliation agreement imposed an overall civil

penalty of $350,000. The trust and the trustee were not parties

to the ‘ reement and, I

Because it accepted the conciliation agreement, the

Commission voted to close its file. Pursuant to its disclosure

policy, the Commission announced that it would release

documents from the investigation, some of which identified thetrust aid trustee. See generally Disclosure of Certain

Documents in Enforcement and Other Matters, 8 1 Fed. Reg.50,702, 50,702—03 (Aug. 2, 2016) [hereinafter Disclosure

Policy]. The Commission later issued those documents. It

removed the disputed identifying information before publicationpending the outcome of this lawsuit.

Plaintiffs’ complaint sought an injunction barring the

Commission from revealing their identities. They did not deny

the Commission’s assertion that the trust was the source of the

$1.71 million contribution. Distinguishing AFL-cIO v. FEC,

within it.

were not identitied
333 F.3d 168 (D.C. Cir. 2003), the district court held that the

First Amendment did not prevent the Commission from

disclosing the identity of the trust and trustee; that the

application of the Commission’s disclosure policy to plaintiffs

was reasonable; and that FECA’s provisions and the regulationsthereunder did not bar the disclosure and authorized the

Commission’s action. Doe, 302 F. Supp. 3d at 165—74.

I.

The basic claim of the trust and the trustee is that the

Commission had no statutory authority to disclose anydocuments identifying them.4 They point out that FECA“affirmatively and unambiguously provides for disclosure of

two — and only two — items: (1) ‘any conciliation agreement

signed by both the Commission and the respondent’ and(2) FEC

‘determination[s] that a person has not violated [FECA or other

federal election laws].’ 52 U.S.C. § 30109(a)(4)(B)(ii).” Does’Br. 32 (alterations in original). As to (1), the Commission hasmade the conciliation agreement public. As to (2), the

Commission did not decide whether plaintiffs violated FECA.

Plaintiffs’ theory must be that FECA’s specification ofwhat

the Commission is required to disclose deprives the Commission

The district court rejected plaintiffs’ argument that the

Commission would be violating 52 U.S.C. § 30109(a)(12)(A), whichforbids disclosure of an “investigation” unless the person beinginvestigated consents. Doe, 302 F. Supp. 3d at 166—68. On appeal,

plaintiffs have abandoned this argument. See fox v. Gov ‘t ofD.C.,

794 F.3d 25, 29 (D.C. Cir. 2015).
of authority to disclose anything else.5 And so they say that if

the Commission publicly releases the additional material itwould be acting “not in accordance with law” under theAdministrative Procedure Act. 5 U.S.C. § 706(2)(A).6

Plaintiffs’ argument presents an obvious question: “not in

accordance with” what “law”? The Commission has a longstanding regulation requiring it to make public its action

terminating a proceeding and “the basis therefor.” 11 C.f.R. §

111.20(a).

Does an agency’s disclosure regulation constitute “law”

within the meaning of § 706 of the Administrative Procedure

Act? A similar question was presented in Chrysler Corp. v.

Brown, 441 U.S. 281 (1979). The Supreme Court answered:

“authorized by law” includes “properly promulgated,

substantive agency regulations.” 441 U.S. at 295. We gave thesame answer inBartholdi Cable Co. v. FCC, 114 F.3d 274, 281(D.C. Cir. 1997). Although these FOTA cases were interpreting

the Trade Secrets Act, 18 U.S.C. § 1905, their statements apply

Without saying as much, plaintiffs implicitly invoke the familiar

negative-implication canon — the “expression of one thing implies the

exclusion of others (expressio unius est exclusio atteriits).” Antonin

Scalia & Bryan A. Gamer, Reading Law: The Interpretation ofLegal

Texts 107 (2012). See Texas Rural Legal Aid, Inc. v. Legal Services

Corp., 940 f.2d 685, 694 (D.C. Cir. 1991), stating that the “expressio

maxim” may be “inappropriate in the administrative context” in light

of cases such as Mourning v. Family Publications Service, Inc., 411

U.S. 356, 372 (1973).

6 The trust and trustee dispute the release of their names and the

Commission’s planned removal of the redactions. They have not

contested the release of the documents in redacted form, which has

already occurred.
as well to the quoted language in the Administrative Procedure

Act.

Plaintiffs have not argued that § 111.20(a) is anything other

than a “properly promulgated” regulation.7 FECA empowers the

Commission to “prescribe[] forms and to make, amend, and

repeal such rules. . . as are necessary to carry out the provisions

ofthis Act,” 52 U.S.C. § 30107(a)(8), and to “formulate policy

with respect to” the Act, 52 U.S.C. § 30106(b)(1).8 When an

agency’s “empowering provision” contains such language, the

courts will sustain a regulation that is “reasonably related” to the

purposes ofthe legislation. Mourning, 411 U.S. at 369 (quoting

‘ See Bartholdi, 114 F.3d at 28 1—82:

Bartholdi argues that § 0.457 of the

Commission’s regulations does not meet the

definition of “authorized by law” under Chrysler. But

Bartholdi did not raise this challenge before the

Commission. Bartholdi ‘ s application for review madeno mention of Chrysler. Because Bartholdi failed to

challenge the validity of § 0.457 before the

Commission, we decline to consider the issue.

See also Carducci v. Regan, 714 f.2d 171, 177 (D.C. Cir. 1983)

(“[Ajppellate courts do not sit as self-directed boards of legal inquiry

and research, but essentially as arbiters of legal questions presentedand argued by the parties before them.”).

8 Congress gave the Commission the “primary and substantial

responsibility for administering and enforcing [FECA],” “extensiverulemaking and adjudicative powers,” and the authority to “formulate

general policy with respect to the administration of[FECA].” Buckley

v. Valeo, 424 U.S. 1, 109, 110 (1976) (per curiam) (citation omitted);

see also 52 U.S.C. § 30111(a)(8).
Thorpe v. Hous. Auth. ofDurham, 393 U.S. 268, 280 (1969)).

This regulation — like the regulation in Mourning — requiresmore disclosure than the governing statute, but that is no reason

for rejecting it. Id. at 371—73. The Supreme Court long has

recognized that “[gjrants of agency authority comparable in

scope” to FECA’s provisions at issue here “have been held to

authorize public disclosure of information . . ., as the agency

may determine to be proper upon a balancing of the public

interests involved.” FCC v. Schreiber, 381 U.S. 279, 29 1—92

(1965).

As to this particular regulation’s relationship to the

purposes of FECA, we have recognized that “deterring future

violations and promoting Commission accountability may well

justify releasing more information than the minimum disclosures

required by” the statute. AFL-CIO, 333 F.3d at 179. The

Commission’s 2016 Disclosure Policy, adopted in response to

AFL-CIO, considered the public and private interests involved

and reasonably concluded that disclosure of the contemplated

documents “tilts decidedly in favor of public disclosure, even if

the documents reveal some confidential information.”

Disclosure Policy, 81 Fed. Reg. at 50,703.

When the Commission ended its investigation and closed the

file, it “terminate[d] its proceedings” within the meaning of 11 C.F.R.

§ 111.20(a), as the district court held. The “proceedings” included an

investigation of the plaintiffs and a Commission vote on whether totake action against them. The documents containing plaintiffs’ namesreveal the “basis” for the Commission’s actions. Doe v. FEC, 302 F.

Supp. 3d at 172—73.
II.

Plaintiffs claim that the First Amendment to the

Constitution barred the Commission from publicly identifying

them. We agree with the district court that Citizens United v.

FEC, 558 U.S. 310 (2010), forecloses their argument. The

Supreme Court there rejected the argument that FECA’s

disclosure provisions violated the First Amendment. 558 U.S.

at 366—71. The provision requiring contributions to be made in

the name ofthe source of the funding — 52 U.S.C. § 30122 — isthus plainly constitutional. Citizens United left open thepossibility ofan as-applied First Amendment challenge, but only

if the donor proved that revealing its identity would probably

bring about threats or reprisals. 55$ U.S. at 370. Plaintiffs

provided no such evidence and did not allege that they would be

subject to threats or reprisals. They did claim that disclosing

their identity would “chill” them from engaging in political

activity. But this does not distinguish them from others who

make campaign contributions. And in any event, the Supreme

Court rejected just such a claim of “chill” in Citizens United.

Id.; see also AFL-CIO, 333 F.3d at 176—178.

III.

This brings us to plaintiffs’ argument resting on the

Freedom of Information Act. Under FOLk, 5 U.S.C. § 552,

federal agencies must make their records available to the public.

There are several exceptions. One is for “records or information

compiled for law enforcement purposes, but only to the extent

that the production of such law enforcement records or

information. . . could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C. §

552(b)(7)(C). This exemption, plaintiffs claim, entitled them to
an injunction preventing the Commission from disclosing theiridentities.

This is not a mn-of-the-mill “reverse-fOIA” case. In the

typical “reverse-fOIA” case an entity submits information to an

agency and later “seeks to prevent the agency that collected the

information from revealing it to a third party in response to the

latter’s FOIA request.” CNA Fin. Corp. v. Donovan, 830 f.2d

1132, 1133 n.1 (D.C. Cir. 1987).

Here neither the trust nor the trustee provided any of the

information the Commission would release. hi fact, when theCommission served these plaintiffs with a subpoena seekinginformation, they refused to comply and provided no

information. For another thing, when the Commissionannounced its intention to disclose the documents containing

plaintiffs’ names, no FOJA request was pending.

In these circumstances, FOIA cannot be used to prevent the

Commission from publicly revealing plaintiffs’ identities. FOLkis a disclosure statute. If an agency wrongly withholdsinformation in the face of a proper FOIA request, it violates thatstatute. But if an agency discloses information pursuant to other

statutory provisions or regulations, the agency cannot possibly

violate FOIA. Chrysler Corp. v. Brown held that the FOIA

exemptions regime in § 5 52(b) on which the trust and the trustee

rely “demarcates the agency’s obligation to disclose; it does not

foreclose disclosure.” 441 U.S. at 292. Tn other words,

“Congress did not limit an agency’s discretion to disclose

information when it enacted the FOJA.” IcL at 294; see also

Bartholdi, 114 f.3d at 281.10

10 Many reverse-FOIA cases are explained in light of the Trade

Secrets Act, 18 U.S.C. § 1905, which can constrain an agency’s
In any event, there is nothing to plaintiffs’ complaint that

their privacy would be unduly compromised if their identities

were revealed. They emphasize that the Commission did not

determine whether they violated FECA. That is true but beside

the point. The conciliation agreement, the General Counsel’s

report, and other documents contained evidence that the trust

and its trustee “assist{ed] [a] person in making a contribution inthe name of another.” 11 C.F.R. § 1 10.4(b)(l)(iii).” Theconciliation agreement stated that Government Integrity, LLCagreed not to contest its violation of FECA’s bar against making

a contribution in the name of another.

We add that, under Exemption 7(C), the Commission would

not have had discretion to witlthold information identifying thetrust in response to a FOIA request. Revealing the name ofthetrust could not constitute an “unwarranted invasion of personal

privacy’ because “personal privacy” in Exemption 7(C) refersto “individuals,” not “corporations or other artificial entities.”

FCC v. AT&T Inc., 562 U.S. 397, 403 (2011). To state the

obvious, a trust is an artificial entity. The Commission thus notonly had the authority to release the trust’s identity, it may well

have had the legal duty to do so had that information beenrequested.disc [osure discretion, see, e.g., Canadian om,nercial Coip. v. Dep ‘toftheAit Force, 514 F.3d 37, 39 (D.C. Cir. 2008).

“ This regulation applies to those who “initiate or instigate or

have some significant participation” in the making of a contribution

in the name of another. See Affiliated Committees, Transfers,

Prohibited Contributions, Annual Contribution Limitations and

Earmarked Contributions, 54 Fed. Reg. 34,098, 34,1 05 (Aug. 17,

1989).
As to the trustee, plaintiffs insist that if and when the

Commission makes the name of the trust public — as it must — this would be tantamount to revealing the name ofthe trustee as

well. Does’ Br. 26—27. Even if this were so, the trustee’sprivacy interest in his representational capacity is minimal. In

addition “[t]he disclosures with which the statute is concernedare those of ‘an intimate personal nature’ such as marital status,

legitimacy of children, identity of fathers of children, medicalcondition, welfare payments, alcoholic consumption, familyfights, and reputation. Sims v. CIA, 642 F.2d 562, 574 (D.C. Cir.

1980). Information relating to business judgments and

relationships does not qualify for exemption. See Id. at 575. This

is so even if disclosure might tarnish someone’s professional

reputation. See Cohen v. EPA, 575 F. $upp. 425, 429 (D.D.C.

1983).” Wash. Post Co. v. US. Dep ‘t ofJustice, 863 F.2d 96,

100 (D.C. Cir. 1988).12 While the Commission may

nevertheless have had discretion to withhold the trustee’s name,

it was not required to do so.

We therefore affirm the judgment ofthe district court, and

remand for proceedings consistent with this opinion.

So ordered.

12 SafeCard Services, Inc. v. SEC, 926 f.2d 1197 (D.C. Cir.

1991), decided only that an agency may — not must — withhold “the

names and addresses ofthird parties mentioned in witness interviews,

of customers listed in stock transaction records obtained from

investment companies, and of persons in correspondence with the”

agency. Id. at 1205.
KAREN LECRAFT HENDERsoN, Circuit Judge, concurring

in part and dissenting in part: I agree with much ofthe Court’sopinion which ably disposes of the plaintiffs’ Freedom of

Information Act and First Amendment arguments.’ But Ibelieve my colleagues err in concluding that the Federal

Election Commission (Commission) has authority under the

Federal Election Campaign Act of 1971, Pub. L. No. 92-225,

86 Stat. 3, as amended (codified at 52 U.S.C. § 30101 et seq)

(FECA or Act), to disclose documents from MUR 6920 that

reveal the plaintiffs’ identities. The Commission “has as its

sole purpose the regulation of core constitutionally protectedactivity.” AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir.

2003). Its “investigations into alleged election law violations

frequently involve subpoenaing materials of a ‘delicatenature,” materials regarding “political expression andassociation” that go to “the very heart of the” FirstAmendment. Id. (quoting FEC v. Machinists Non-PartisanPolitical League, 655 F.2d 380, 388 (D.C. Cir. 1981)). These

serious privacy and First Amendment interests make holding

the statutory line even more critical. I would preserve the

delicate balance that the Congress struck and, accordingly,

limit the Commission to making only those disclosuresexpressly authorized by FECA. The disclosures at issue, I

submit, are not among them.

The plaintiffs—a trust and a trustee—gave money to

Government Integrity, LLC. Government Integrity

immediately transferred the money to the American

Conservative Union, which, in turn, made a large contribution

to a political action committee, Now or Never PAC. The

Commission opened an investigation into the transfers and the

contribution, naming as respondents, inter alia, Government

1 Accordingly, I concur in Parts II and III of the majority

opinion.
Integrity, the American Conservative Union and Now or NeverPAC. See 52 U.S.C. § 30109(a)(1)—(2) (granting authority to

commence investigation upon receiving complaint). Actingunder authority given him by 11 C.F.R. § 111.8(a), the

Commission General Counsel asked the Commission to “find

reason to believe” that the trust and trustee plaintiffs “ha[ve]

committed... a violation” and should be added asrespondents. In a 2-3 vote, the Commission declined therequest; the three Commissioners voting “no” explained thattheir decision was based on prosecutorial discretion—namely,

a rapidly approaching statute of limitations and a novel theory

supporting the trust/trustee plaintiffs’ culpability under FECA.

The Commission later entered a conciliation agreement withthe respondents, who admitted violating FECA.

In closing MUR 6920, the Commission plans to make

public its investigative files, invoking as authority a FECA

regulation and a policy statement. The disclosure regulation

provides: “[ijf a conciliation agreement is finalized, the

Commission shall make public such conciliation agreement

forthwith.” 11 C.F.R. § 111.20(b). It also declares: “[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.” Id § 111.20(a) (emphasis added). The disclosure

regulation does not specify which documents are included inthe “basis” for the Commission’s action. Id The Commission

fills the gap with a policy statement, which identifies twentyone “categories of documents integral to its decisionmaking

process that will be disclosed upon termination of an

enforcement matter.” Disclosure of Certain Documents inEnforcement and Other Matters, 81 Fed. Reg. 50,702 (Aug. 2,2016). The plaintiffs began this litigation pursuant to the

Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq,
to stop the Commission from revealing their identities in its

MUR 6920 disclosures.

The APA requires a reviewing court to “set aside agency

action” that is “not in accordance with law.” 5 U.S.C.

§ 706(2)(A). The plaintiffs assert that FECA’s plain text

prohibits the Commission from making public the documents

revealing their identities and thus any such disclosure is “not

in accordance with law.”2 Id It is hornbook law that an agencycannot grant itselfpower via regulation that conflicts with plain

statutory text. Orion Reserves Ltd P ‘ship v. Salazar, 553 F.3d697, 703 (D.C. Cir. 2009) (“[Rjegulation contrary to a statute

is void.”); Murphy v. IRS, 493 F.3d 170, 176 n. (D.C. Cir.2007) (if “the regulation conflicts with the plain text,. . . the

statute clearly controls”). As a result, the Commission cannot

use a regulation or policy statement to contravene the plain

limits that FECA sets on its disclosure authority. This case,

then, turns on whether FECA prohibits—by necessary

implication—the disclosure of records containing the

plaintiffs’ identities. If so, the Commission’s intended

disclosures are unlawful and in violation of the APA. 1A

Sutherland Statutory Construction § 31.02, at 521 (4th ed.

1985) (“The legislative act is the charter of the administrative

agency and administrative action beyond the authorityconferred by the statute is ultra vires.”). If not, the plaintiffs’challenge fails.

2 Although the plaintiffs’ argument focuses on the

Commission’s lack of authority to release certain documents under

FECA, the plaintiffs request as relief only redaction of their own

identities, not withholding of the documents in toto. The

Commission does not argue—nor do my colleagues suggest—that

the plaintiffs’ failure to ask for more expansive relief in any way

affects their merits argument.
Section 30109 of FECA sets forth the Commission’s

disclosure authority. 52 U.S.C. § 30109. It requires disclosure

under two circumstances. First, “[i]f 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). Second, “[i]f the Commission makes a

determination that a person has not violated this Act or chapter95 or chapter 96 of Title 26, the Commission shall make public

such determination.” Id These are the only two situations in

which FECA affirmatively requires the Commission to make

disclosures.

But does FECA permit additional non-required

disclosures? I think not. First, section 30109 does notexpressly grant the Commission discretion to make additional

disclosures. An “agency literally has no power to act.. . unlessand until Congress confers power upon it.” La. Pub. Serv.

Comm ‘n v. FCC, 476 U.S. 355, 357 (1986). We have held, as

a corollary to that principle, “[t]he duty to act under certaincarefully defined circumstances simply does not subsume thediscretion to act under other, wholly different, circumstances,unless the statute bears such a reading.” Ry. Labor Execs.’

Ass’nv. Nat’l Mediation Bd,29 F.3d655, 671 (D.C. Cir. 1994)

(en banc). The Congress has charged the Commission with

making limited disclosures in two carefully defined

circumstances and there is no textual basis for concluding thatadditional discretionary disclosure authority exists.

Second, section 30109 includes confidentiality provisions

that expressly forbid the Commission from making its

investigative files public unless disclosure is otherwise

authorized. The first provision states: “[a]ny notification orinvestigation.., shall not be made public by the Commissionor 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).

The prohibition against revealing “any investigation”

includes—at a minimum—information that would confirm theexistence of an investigation. See AFL-CIO, 333 f.3d at 174

(“[T]he commission may well be correct... that congress

merely intended to prevent disclosure of the fact that an

investigation is pending.”). The second provision provides:“[n]o action by the Commission or any person, and noinformation derived, in connection with any conciliation

attempt by the Commission... may be made public by theCommission without the written consent ofthe respondent and

the Commission.” Id § 30109(a)(4)(B)(i). The section 30109

confidentiality provisions are robust: nearly any disclosure of

an investigatory file will reveal the existence of aninvestigation and thereby violate section 30109(a)(12)(A). See

In re Sealed Case, 237 F.3d 657, 666—67 (D.C. Cir. 2001)

(section 30109(a)(12)(A) “plainly prohibit[sJ the FEC from

disclosing information concerning ongoing investigationsunder any circumstances without the written consent of the

subject of the investigation”). Moreover, the section 30109confidentiality provisions do not have expiration dates: theycontinue to bind the Commission unless and until another

provision of section 30109 authorizes disclosure. See 52

U.S.C. § 301 09(a)(4)(B)(i), (a)( 1 2)(A).

In my view, FECA’s disclosure scheme is comprehensive

and sets forth precisely when the Commission can and cannot

make its records public. The Commission must make limited

disclosures in two—and only two—cases: (1) upon entering a

signed conciliation agreement and (2) after determining that a

person did not violate FECA. See Id. § 30109(a)(4)(B)(ii). In

all other cases, the Commission must keep its investigatory

information confidential. See Id. § 30109(a)(4)(B)(i),
(a)(12)(A). The statute does not authorize any discretionarydisclosure.3

Neither mandated disclosure under FECA authorizes the

Commission to release documents containing the plaintiffs’

identities. Regarding the first, the Commission entered a

conciliation agreement in MUR 6920 and the plaintiffs do not

take issue with the Commission making that agreement public.See id. § 30109(a)(4)(B)(ii). But the Commission’s power to

release the signed conciliation agreement plainly does not

include the remainder of its investigative file. Id. (“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 therespondent.”). Regarding the second mandated disclosure—ano violation determination—the Commission concedes that not

every enforcement matter ends with a determination ofliability

vel non. Indeed, the Commission sometimes decides againstpursuing an investigation as a matter of prosecutorial

discretion. See, e.g., Citizens for Responsibility & Ethics in

Washington v. fEC, 892 F.3d 434, 438 (D.C. Cir. 2018). That

is what happened here. The Commission declined to pursue

Contrary to the majority’s suggestion, my reading of FECA

does not rely on the canon of construction expressio unius estexclusio alterius, Maj. Op. at 6 n.4, a so-called “feeble helper” in theadministrative law context, Adirondack MecL Ctr. v. Sebelius, 740

f.3d 692, 697 (D.C. Cir. 2014). Expressio unius, like other canons

of construction, sheds light on the meaning of statutory text. See

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992)

(“[C]anons of construction are no more than rules ofthctmb that help

courts determine the meaning of legislation. . . .“). But we do notuse statutory construction canons if the statutory text is plain. Ici at253—54. FECA’s disclosure provisions are plain as day and the

expressio unius canon is therefore inapplicable.
enforcement against the two plaintiffs as a matter of

prosecutorial discretion, citing a rapidly approaching statute of

limitations and a novel theory of liability. Because neither

basis of disclosure under FECA applies, I believe the

Commission’s decision to release its documents containing the

plaintiffs’ identities is contrary to law and should be enjoined.

Cf In re Sealed Case, 237 F.3d at 666—67.

The majority reaches a different conclusion without

discussing FECA’s disclosure provisions. See Maj. Op. at 6—

9. It instead upholds the Commission’s position as a

permissible exercise of its general power to make rules “as arenecessary to carry out the provisions of’ FECA, 52 U.S.C.

§ 30107(a)(8), and to “formulate policy with respect to”

FECA, id § 30106(b)(1). The key to the majority’s reading is

the United States Supreme Court’s holding in Mourning v.

family Publications Service, Inc., which declared that

“[w]here the empowering provision of a statute states simply

that the agency may ‘make. . . such rules and regulations as

may be necessary to carry out the provisions of this Act,’

the validity of a regulation promulgated thereunder will be

sustained so long as it is ‘reasonably related to the purposes of

the enabling legislation.” 411 U.S. 356, 369 (1973) (alteration

in original) (quoting Thorpe v. Housing Auth. of City ofDurham, 393 U.S. 268, 280—81 (1969)). Applying Mourning,my colleagues conclude that the Commission may use its

general power to promulgate regulations to authorizedisclosures in addition to those carefully limited by

section 30109. Maj. Op. at 7—8. In their view, “[t]he

Commission’s 2016 Disclosure Policy.., considered the

public and private interests involved and reasonably concludedthat disclosure of the contemplated documents ‘tilts decidedly

in favor of public disclosure, even if the documents reveal

some confidential information.” Maj. Op. at 8—9 (quoting
Disclosure of Certain Documents in Enforcement and OtherMatters, $1 Fed. Reg. at 50,703)).

But Circuit precedent rejects this generous reading of

Mourning. In Colorado River Indian Tribes v. National Indian

Gaming Commission, we were called upon to decide whether

the Indian Gaming Regulatory Act gives the National Indian

Gaming Commission “authority to promulgate regulations

establishing mandatory operating procedures for certain kinds

of gambling in tribal casinos.” 466 F.3d 134, 135 (D.C. Cir.2006). Unable to find a statutory hook for its regulation, the

Gaming Commission, invoking Mourning, rested on its general

authority to promulgate rules carrying out the Indian GamingRegulatory Act and the Act’s underlying policy goals. Id. at

139. We rejected its defense: “[a]n agency’s general

rulemaking authority does not mean that the specific rule the

agency promulgates is a valid exercise of that authority.” Id.To the contrary, “[a]ll questions of government are ultimatelyquestions of ends and means” so “[ajgencies are therefore

‘bound, not only by the ultimate purposes Congress has

selected, but by the means it has deemed appropriate, and

prescribed, for the pursuit of those purposes.” Id. (first

alteration in original) (first quoting Nat ‘1 Fed ‘n offed Emps.v. Greenberg, 983 F.2d 286, 290 (D.C. Cir. 1993); then quotingMCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 n.4

(1994)). Under Mourning, then, we focus both on the goals the

Congress seeks to achieve and the mechanism it uses to achieve

them. Id. at 140 (Congress sought to protect gaming business

integrity not generally but instead “through the ‘statutory basisfor the regulation of gambling’ provided in the Act” (quoting25 U.S.C. § 2702(2))). “This le[d] us back to the opening

question—what is the statutory basis empowering the

Commission to regulate” the gaming at issue? Id. “Finding

none,” we held that the regulation was invalid. Id.
Mourning does not resolve this case. See NetCoalition v.

SEC, 615 F.3d 525, 533—34 (D.C. Cir. 2010) (“[Al statute’s

‘general declaration of policy’ does not protect agency action

that is otherwise inconsistent with the congressional delegation

of authority for ‘[a]gencies are. . . “bound, not only by the

ultimate purposes Congress has selected, but by the means it

has deemed appropriate, and prescribed, for the pursuit ofthosepurposes.” (second and third alterations in original) (quoting

Colorado River Indian Tribes, 466 F.3d at 139)). It instead

“leads us back to the opening question”—what disclosuremechanism did the Congress use to further FECA’s underlyingpolicy goals of deterring election law violations and promoting

Commission accountability? Colorado River Indian Tribes,

466 F.3d at 140; see also AfL-CIO, 333 F.3d at 179 (listing

FECA policy goals related to disclosure). I have already givenmy answer: FECA allows disclosure in two—and only two—

circumstances. Because neither circumstance exists here, I

believe the Commission is without authority to release the

documents containing the plaintiffs’ identities and would

therefore reverse the district court.

Accordingly, I respectfully dissent from Part I of the

majority opinion.