IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JOHN DOE 1, et al., ) 

) 

Plaintiffs, ) 

) 

v. ) Civil Action No.: 17-cv-2694 (ABJ) 

) 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant. ) 

_______________________________________) 

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR A 

PRELIMINARY INJUNCTION 

William W. Taylor, III (D.C. Bar No. 84194) 

Adam L. Fotiades (D.C. Bar No. 1007961) 

Dermot W. Lynch (D.C. Bar No. 1047313) 

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW, Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 (fax) 

wtaylor@zuckerman.com 

afotiades@zuckerman.com 

dlynch@zuckerman.com 

Counsel for John Doe 1

Michael Dry (D.C. Bar No. 1048763) 

Craig Margolis (D.C. Bar No. 454783) 

Kathleen Cooperstein (D.C. Bar No. 1017553) 

VINSON & ELKINS 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, DC 20037 

202-639-6500 

202-879-8984 (fax) 

mdry@velaw.com 

cmargolis@velaw.com 

kcooperstein@velaw.com 

Counsel for John Doe 2 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 1 of 29
TABLE OF CONTENTS 

I. SUPPLEMENTAL BACKGROUND .................................................................................... 2

II. ARGUMENT .......................................................................................................................... 5

A. Subsection (a)(4)(B)(ii) and 11 C.F.R. § 111.20(a) Do Not Apply Because the 

 FEC Made No “Determination” and Neither Initiated Nor Terminated Proceedings 

Against Plaintiffs ................................................................................................................ 6

B. Subsection (a)(4)(B)(ii) Requires Disclosure of Decision-Making—Not Names—and 

Disclosure of Names Must Be Balanced Against Plaintiffs’ Privacy Interests as 

Outlined in Plaintiffs’ Memorandum in Support .............................................................. 10

C. The FEC Cannot Justify Disclosure under the First Amendment..................................... 15

1. First Amendment Precedent Urges Generally Against Disclosure ............................... 15

2. The FEC Has the Unique Mandate to Protect First Amendment Rights when it 

 Acts, Including by Protecting Parties from Unwarranted Compelled Disclosure ........ 17

3. The FEC’s Asserted Deterrence Interest is Unlawful ................................................... 18

D. To the Extent the FEC’s Disclosure Regulations Compel Disclosure of 

 Non-Respondent Plaintiffs’ Identities, They Are Invalid ................................................ 22

1. Section 111.20(a) Exceeds the Commission’s Authority ............................................. 23

2. Interpreting the Regulations to Provide for Blanket Disclosure is Unconstitutional.... 24

III. CONCLUSION ................................................................................................................. 25

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 2 of 29
At the telephonic hearing on December 18, 2017, the Court instructed Plaintiffs to file 

their Reply to Defendant Federal Election Commission’s (“FEC” or “the Commission”) 

Opposition on or before January 3, 2018, and to address certain issues of concern to the Court. 

Plaintiffs file this Memorandum in response to that order. We trust that the Reply responds to the 

Court’s questions, and we respectfully submit that, together with the Memorandum submitted in 

support of the request for a temporary restraining order and preliminary injunction, it amply 

demonstrates Plaintiffs’ entitlement to the relief they seek.1

Plaintiffs’ request for relief is simple. They ask that the Court enjoin the FEC from 

releasing Plaintiffs’ names contained in pleadings, correspondence, and memoranda created by 

FEC staff and others during an investigation of political contributions the FEC believed to be 

improper. Plaintiffs were neither targets of the FEC’s investigation nor respondents in the 

administrative proceedings before the FEC. The FEC never found that Plaintiffs engaged in any 

illegal conduct, and failed even to find a reason to believe that Plaintiffs had done so.2 Yet, 

notwithstanding the absence of any findings that Plaintiffs participated in an illegal act, the FEC 

proposes to release Plaintiffs’ names and smear them with untested innuendo in furtherance of 

the FEC’s stated purpose of deterring illegal conduct. Under these circumstances, federal statutes 

and decisions, the First Amendment, and the FEC’s own regulations require that Plaintiffs’ 

identities be protected from public disclosure. Disclosure of the information will do Plaintiffs 

irreparable harm and serves no public interest. 

Thus far the FEC has not demonstrated any deliberation on or consideration of the legal 

principles upon which Plaintiffs rely. Indeed, the FEC contends that it may disclose the names of 

1

 Throughout this Reply, Plaintiffs cite the Original Memorandum, ECF No. 13, as “Pl. Br.” and 

the FEC’s Response, ECF No. 16, as “Resp.” 

2

 There was not a majority of FEC Commissioners who voted to find a reason to believe that 

Plaintiffs engaged in illegal conduct. 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 3 of 29
2 

individuals and entities against whom it has made no finding merely because they received some 

attention in its investigation. 

The FEC’s decision to release Plaintiffs’ names and other identifying information is 

arbitrary and capricious because it relies on a demonstrably wrong interpretation of FECA, and it 

ignores controlling principles elsewhere in federal law. Its Response does not provide authority 

for its position. The FEC does not contest that its release of Plaintiffs’ names and other 

identifying information will cause Plaintiffs to be branded as lawbreakers or associated with 

lawbreakers. Indeed, the FEC trumpets this as the primary justification for disclosing Plaintiffs’ 

names. However, Plaintiffs are neither, and they are entitled not to be unfairly branded without 

due process by an agency whose fundamental responsibility is to protect the American political 

system and the right of all citizens to participate in it without fear. 

I. SUPPLEMENTAL BACKGROUND 

As we advised the Court during the hearing, Plaintiffs have learned additional facts since 

the filing of the complaint and motion for temporary restraining order. These facts come in 

substantial part from the FEC Opposition and the documents which it published. Mindful of the 

need to avoid repetition, we respectfully direct the Court to those additional important facts. 

The FEC proceeding at issue is MUR 6920, a proceeding that involved accusations 

against and investigation of four respondents. Plaintiffs were not at any point respondents in 

MUR 6920 and are not party to the conciliation agreement resolving MUR 6920. 

Throughout the course of the MUR, the FEC repeatedly advised Plaintiffs’ counsel that 

Plaintiffs were witnesses in the investigation and not subjects or respondents. See also Pl. Br. at 

1-2 (stating as much in the memorandum in support). Even after serving John Doe 2 (through 

John Doe 1 as Trustee of John Doe 2) with a subpoena seeking documents and written answers 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 4 of 29
3 

to questions, the FEC maintained its position that Plaintiffs were “witness[es] only.” Ex. B at 1 

(Aug. 10, 2017 letter to W. Taylor). 

Plaintiffs now know that, by September 15, 2017, without any notice to Plaintiffs or 

counsel, FEC staff unsuccessfully sought authority from the Commission to proceed against 

Plaintiffs. On that date, the Commission’s Office of General Counsel (“OGC”) submitted its 

Third General Counsel’s Report to the Commission, outlining allegations against Plaintiffs, Ex. 

A at 0028-33, recommending that the Commission find reason to believe that they violated 52 

U.S.C. § 30122, id. at 0040, and requesting authorization to file an action in the district court to 

enforce a subpoena against them, id. at 0039. Despite repeated interactions with Plaintiffs’ 

counsel over the three months following the FEC’s first letter to counsel in August 2017, the 

FEC never informed Plaintiffs of OGC’s allegations and recommendations, and thus Plaintiffs 

were never offered an opportunity to respond to the allegations. It was not until December 18, 

2017, when the FEC submitted its Response to this Court, that Plaintiffs first learned of the 

FEC’s allegations against them. Plaintiffs first saw the Third General Counsel’s Report on 

December 20, when the FEC published materials related to MUR 6920 on its website. 

What Plaintiffs also learned for the first time in December was that OGC’s effort to 

obtain necessary authority was turned aside by the Commission at the earliest possible stage. On 

September 20, 2017, the Commission failed to accept OGC’s recommendations as to Plaintiffs. 

Ex. A at 0042-43. By this vote, the Commission thus failed to find “reason to believe” that 

Plaintiffs violated FECA, and neither the OGC nor the Commission added Plaintiffs to the MUR 

as respondents. The Commission then voted 5-0 to take no action “at this time” on the remaining 

OGC recommendations then pending. Id. Plaintiffs were not advised of these votes and remained 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 5 of 29
4 

unaware that they occurred until after the initiation of this litigation. To Plaintiffs’ knowledge, 

the FEC has taken no other action with respect to Plaintiffs. 

After the FEC entered into a conciliation agreement with the four respondents, counsel 

for Plaintiffs sought to redact Plaintiffs’ names from the FEC’s public release of information 

related to the MUR. At no point during any of these conversations did the FEC advise Plaintiffs 

of the Third General Counsel’s Report or the Commission’s votes relating to Plaintiffs. On 

December 14, 2017, the FEC belatedly advised counsel for Plaintiffs that documents naming 

Plaintiffs would be released without redactions. Plaintiffs then immediately brought this action to 

prevent their identities from being disclosed in materials they had no reason to believe contained 

any accusations against them. 

Following the commencement of this litigation, but before the Commission released the 

FEC’s materials to the public, a Commissioner published, via Twitter, her redacted Statement of 

Reasons in connection with this matter. In her tweet, she accused Plaintiffs of being “money 

launder[ers],” Ex. C, and highlighted her view—which was not adopted by a majority of 

Commissioners—that Plaintiffs had violated FECA, Ex. A at 0110. The Commissioner’s tweet 

ignored that the Commission failed to find even reason to believe such conduct occurred and 

instead focused on the unproven accusations against Plaintiffs, which they never had an 

opportunity to address. On December 21, 2017, two other commissioners issued their own 

Statement of Reasons in which they advised that they had voted against naming Plaintiffs as 

respondents in the matter because OGC’s legal theory of responsibility was “unclear” and based 

on a “novel theor[y] of violation” in a case “of first impression” that lacked any “direct 

evidence” of a violation. Ex. A at 0115-16. These commissioners’ statement further indicated 

that the Commission did not determine whether a violation occurred, but instead did not make 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 6 of 29
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Plaintiffs respondents in the matter at all. The statement also acknowledged the lack of due 

process provided to Plaintiffs, stating that OGC’s actions were “irregular” in seeking a reason to 

believe finding without recommending that the Commission first add Plaintiffs as respondents. 

Moreover, the statement advised that the Commissioner who published the tweet had “prejudged 

[Plaintiffs’] guilt” through her characterizations of Plaintiffs’ conduct in the matter. In this 

regard, they stated that “[o]ur colleague has presupposed facts and intent without investigation or 

consideration of a response,” which raises “serious due process concerns . . . .” Id. at 0116. 

The FEC has published documents relating to MUR 6920 on its website with redactions 

agreed to in this litigation, including in relevant part:3

• The three-page certification of a vote, in which the FEC failed to find reason to believe that 

Plaintiffs had violated FECA. Ex. A at 0042-44. 

• The Third General Counsel’s Report. Id. at 0025-40. 

• Correspondence and related pleadings submitted by the FEC or Respondents in MUR 6920 

that reference Plaintiffs. Id. at 0002-07, 0012-24, 0045-108. 

• The two statements of reasons issued in MUR 6920. Id. at 0109-13, 0114-18. 

• Administrative forms signed by either John Doe 1 or 2. Id. at 0001, 0008-11. 

II. ARGUMENT4

Plaintiffs bring this action under the Administrative Procedure Act (“APA”). Under 

§ 706(2) of the APA, this Court is empowered to “hold unlawful and set aside agency action, 

3

 The FEC filed a notice with this Court, see ECF No. 20, that erroneously failed to list some of 

these documents, including the General Counsel’s Report. The full record related to MUR 6920 

is available at https://www.fec.gov/data/legal/matter-under-review/6920/. 

4

 As the Court indicated at the telephonic hearing, it intends to consolidate Plaintiffs’ motion for 

a preliminary injunction with the merits. Plaintiffs addressed the preliminary injunction standard 

in their original memorandum and therefore do not repeat it here. Because the FEC’s Response 

does not contest three of the four elements of obtaining preliminary injunctive relief, this Reply 

addresses the only contested element: why Plaintiffs are likely to succeed on the merits. 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 7 of 29
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findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion or otherwise not 

in accordance with law,” or “contrary to constitutional right, power, privilege, or immunity.” The 

FEC’s final decision to disclose Plaintiffs’ identities in connection with MUR 6920 is arbitrary 

and capricious and must be set aside for all those reasons.

The FEC’s position would thwart the carefully calibrated enforcement scheme created by 

Congress and trample privacy and free speech rights in this most sensitive area. First, neither the 

FEC’s regulations nor FECA authorize the disclosure of materials with respect to Plaintiffs, 

because there was no “determination” made with respect to Plaintiffs. Second, disclosure of 

Plaintiffs’ names is forbidden by FECA, FOIA, and the categorical rule against disclosure of the 

identities of witnesses, subjects, and others in law enforcement files. Third, the FEC cannot 

justify disclosure of Plaintiffs’ identities under the First Amendment, and its proposed 

enforcement program is unlawful. Fourth, the regulation upon which the FEC relies to justify 

disclosure is inapplicable—but if read to require the blanket disclosure of names of parties who 

are not respondents and who were not found to have engaged in wrongdoing, also is unlawful. 

A. Subsection (a)(4)(B)(ii) and 11 C.F.R. § 111.20(a) Do Not Apply Because the FEC 

Made No “Determination” and Neither Initiated Nor Terminated Proceedings 

Against Plaintiffs 

To avoid the conclusion that it acted arbitrarily and capriciously, the FEC must identify a 

source of authority that permits it to disclose each element of its investigative file. See Paralyzed 

Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998) (“It is axiomatic that an agency 

must act in accordance with applicable statutes and its regulations.”). But the FEC has not 

identified any authority justifying disclosure of Plaintiffs’ identities. Because the FEC never 

initiated administrative enforcement proceedings against Plaintiffs, none of the provisions in 

FECA or the FEC’s regulations that provide for disclosure upon the conclusion of such 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 8 of 29
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proceedings apply. Accordingly, there is no basis in law for the FEC’s refusal to protect 

Plaintiffs’ anonymity. 

The general rule regarding information obtained by the FEC during the course of its 

investigations is one of non-disclosure. For example, disclosure is prohibited absent consent 

during the pendency of the investigation by 52 U.S.C. § 30109(a)(12)(A), a prohibition enforced 

with the threat of a fine. Id. § 30109(a)(12)(B). FECA itself provides for disclosure in only two 

instances, both set out in § 30109(a)(4)(B)(ii). That subsection provides that the Commission 

shall publicize (1) conciliation agreements, and (2) any “determination” that a person has not 

violated FECA. Id. Here, Plaintiffs are party to no conciliation agreement and their identities are 

not mentioned in the only conciliation agreement to come out of this matter. Nor did the FEC 

make a “determination” that Plaintiffs did not violate FECA. Indeed, it would be strange for the 

FEC to argue that at this juncture, in light of the lengths to which it now is going to insinuate that 

Plaintiffs might, by virtue of their association with respondents, have done so. 

The pairing of conciliation agreements and determinations of no violation in this 

disclosure provision is likely no accident. It suggests application only after a determination has 

been made as to guilt or innocence. In either situation, it is likely that the respondents’ names 

already would have been publicized. That certainly was the case here, where CREW published 

its complaint against the MUR 6920 respondents on the same day it was filed.5 It follows, then, 

that the publication of a respondent’s capitulation or exoneration serves to provide resolution for 

respondents whose conduct already has been publicly scrutinized. The FEC here attempts to 

5

See CREW Requests FEC and DOJ Investigate American Conservative Union’s Illegal Conduit 

Contribution (Feb. 27, 2015), https://www.citizensforethics.org/legal-filing/crew-fec-dojinvestigate-american-conservative-union-cpac-illegal/. 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 9 of 29
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convert this provision designed to “clear” a name already sullied into a vehicle for casting 

suspicion on a person who has not been accused of any violation. 

No determination was made by the FEC with respect to Plaintiffs. The certification of the 

relevant vote in this case states that the Commission failed to find “reason to believe” because an 

insufficient number of commissioners voted for such a finding. All “decisions” of the 

Commission must be made by a majority of the Commission (i.e., at least four votes), which did 

not occur here. 52 U.S.C. § 30106(c); see Common Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. 

Cir. 1988) (“The statute clearly requires that for any official Commission decision there must be 

at least a 4-2 majority vote.”). Accordingly, in the absence of the votes of at least four 

Commissioners, there was no “determination” that Plaintiffs had not violated FECA. 

FEC regulations also provide no support for the disclosure of Plaintiffs’ names. 

Specifically, 11 C.F.R. § 111.20(a) only provides for disclosure of findings of no reason to 

believe, no probable cause, or where the FEC “otherwise terminates its proceedings,” along with 

“the basis therefor.” But the FEC did not make a finding of no reason to believe with respect to 

Plaintiffs; rather, its only action with respect to Plaintiffs was a failure to adopt OGC’s 

recommendation to find reason to believe. Ex. A. at 0042-43. Nor did the FEC commence—let 

alone “terminate”—any proceedings against Plaintiffs. Plaintiffs are not parties to the 

conciliation agreement in MUR 6920 (in fact they are not even mentioned in that agreement). 

Counsel for Plaintiffs were never told that Plaintiffs were respondents or targets of the 

investigation; in fact, they were told just the opposite. At bottom, Plaintiffs’ only involvement in 

MUR 6920 was as potential sources of information—that is, as third party witnesses.6

6

 Section 111.20(a) does not in itself require disclosure of names and the FEC offers no reason 

why Plaintiffs’ names are an essential part of its basis for failing to find reason to believe they 

violated the FECA. 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 10 of 29
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The FEC’s argument that there were “proceedings” against Plaintiffs because they were 

“subjects of a split Commission vote regarding whether there was reason to believe they had 

committed a violation,” Resp. at 6, is meritless. The Commission’s September 20, 2017 vote is a 

vote on whether to initiate proceedings against Plaintiffs—a vote that failed—not one to 

terminate proceedings already in progress, and later votes could not terminate proceedings that 

had never begun. The FEC tacitly acknowledged this with its own behavior when it did not 

follow its own basic rules about how to initiate, conduct, or terminate “proceedings.” 

First, the FEC never notified Plaintiffs that it had initiated proceedings against them and 

did not provide them an opportunity to respond to the allegations in the complaint, belying its 

post hoc contention that proceedings had actually been initiated. As required by FECA and by its 

own rules, the Commission cannot make a “reason to believe” finding without providing notice 

to the subject that they have a right to respond to the complaint. See 52 U.S.C. § 30109(a)(1); 11 

C.F.R. § 111.6(a)-(b); see also Ex. A at 116 n.2 (statement by two FEC commissioners 

explaining that the FEC’s practice is to vote to add a person or organization as a respondent, 

afford them a right to respond, and vote to find reason to believe). As such, the Commission here 

did not even have the power to make a reason to believe finding. As one Commissioner observed 

in another matter, it is “patently unfair” for the Commission to make reason to believe findings 

against parties “who have not been given the opportunity to answer the charges, particularly 

where the file is simultaneously closed so that there is never an opportunity to respond.” 

Statement of Commissioner Weintraub, In the Matter of Democratic Party of Hawaii, MUR 

5659 (July 14, 2005), available at https://www.fec.gov/files/legal/murs/current/61204.pdf.7

7

 The identities of the respondents were disclosed in MUR 5659 because the Commission found 

reason to believe they violated FECA. 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 11 of 29
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Second, the FEC did not provide Plaintiffs the necessary post-vote notifications that a 

vote triggering § 111.20(a) would have generated. Pursuant to 11 C.F.R. § 111.9(b), when the 

Commission “finds no reason to believe, or otherwise terminates its proceedings, the General 

Counsel shall so advise both complainant and respondent by letter.” The “otherwise terminates” 

language in § 111.9(b) is identical to the language in § 111.20(a). Here, OGC never advised 

Plaintiffs that any proceeding against them had been terminated. It is inconsistent for the FEC to 

argue now that the actions it took would trigger disclosure under § 111.20(a) but not trigger 

notification under § 111.9(b). 

Accordingly, in light of the circumstances where Plaintiffs were never respondents, and 

the FEC did not treat Plaintiffs as a party against whom proceedings were initiated or terminated, 

the only permissible conclusion is that there were no “proceedings” ever commenced for 

purposes of § 111.20(a). In the absence of any determination concerning Plaintiffs, or even any 

proceedings against Plaintiffs, the FEC’s reliance on Subsection (a)(4)(B) is foreclosed.8

B. Subsection (a)(4)(B)(ii) Requires Disclosure of Decision-Making—Not Names—and 

Disclosure of Names Must Be Balanced Against Plaintiffs’ Privacy Interests as 

Outlined in Plaintiffs’ Memorandum in Support 

Even if the FEC did, in fact, “make[] a determination that [Plaintiffs] ha[ve] not violated” 

FECA, Subsection (a)(4)(B)(ii) does not create an exception to the FEC’s unflagging duty to 

comply with FOIA, and there is nothing in that provision that requires the FEC to release 

8

 The FEC contends that Plaintiffs’ position would frustrate lawsuits against the Commission 

pursuant to 52 U.S.C. § 30109(a)(8). Plaintiffs do not contend, however, that the Commission 

may not disclose the names of actual respondents who were named in complaints that the 

Commission ultimately dismissed. Section 30109(a)(8), which provides a cause of action against 

the FEC for complainants to assert that the dismissal of their complaint was contrary to law, is 

inapposite in this case. There was no “dismissal” of any complaint that actually named Plaintiffs 

as respondents. Redacting Plaintiffs’ names thus cannot frustrate the operation of § 30109(a)(8). 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 12 of 29
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Plaintiffs’ names.

9

 To the contrary, FOIA prohibits the FEC from disclosing Plaintiffs’ 

identities, even if the agency has an affirmative obligation to release the basis for its decisionmaking. Pl. Br. at 6-8. The agency cannot use this affirmative obligation as an end run around 

privacy-related mandates enshrined in law. 

Balancing the disclosure of agency decision-making while respecting the privacy rights 

in FOIA is a part of the disclosure regime the FEC enacted after Judge Tatel’s decision in AFLCIO v. FEC, 333 F.3d 174 (D.C. Cir. 2003). The FEC’s post-AFL-CIO Guidance states that 

publication of what the FEC calls a “‘final determination’ . . . is required under 52 U.S.C. 

30109(a)(4)(B)(ii) and section (a)(2)(A) of the FOIA.” Disclosure of Certain Documents in 

Enforcement and Other Matters, 81 Fed. Reg. 50,702, 50,702 (Aug. 2, 2016) (emphasis added) 

(hereinafter, the “Guidance”). 

In turn, the FOIA provision the Guidance relies upon, 5 U.S.C. § 552(a)(2)(A), requires 

an agency to balance its affirmative obligations against the need to protect privacy, allowing an 

agency to delete “identifying details” if necessary to “prevent a clearly unwarranted invasion of 

personal privacy.” 5 U.S.C. § 552(a)(2) (accompanying note). This provision is read in concert 

with 5 U.S.C. § 552(b), which allows the disclosure of “[a]ny reasonably segregable portion of a 

9

 Plaintiffs recognize that the Supreme Court held in FCC v. AT&T, 562 U.S. 397 (2011), that 

Exemption 7(C) does not protect corporate privacy interests. Neither the Supreme Court nor this 

district, however, has extended that holding to trusts like John Doe 2. Trusts are different from 

corporations, and the trust form can implicate the privacy interests of its settlor, trustee, and 

beneficiaries. See, e.g., Restatement (Third) of the Law of Trusts, § 5 cmt. G (noting similarities 

and differences between trustees and corporate officers or directors). For example, disclosing a 

trust’s identity could lead to the identification of the individuals associated with it. Indeed, the 

government in AT&T conceded that even corporate records can implicate individual privacy 

interests and thus warrant protection from disclosure under Exemption 7(C). Pet’r Br. at 36 n.11, 

FCC v. AT&T, No. 09-1279, 2010 WL 4496009 (U.S. Nov. 9, 2010). Moreover, the FEC here 

failed to argue in its Response that Exemption 7(C) does not apply to trusts, instead taking the 

much broader position that Exemption 7(C) does not apply to disclosures under § (a)(4)(B)(ii) at 

all. Accordingly, the FEC has forfeited any argument that the Exemption does not apply to John 

Doe 2 on the ground that it is a trust. 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 13 of 29
12 

record . . . to any person requesting such record after deletion of the portions which are exempt,” 

id. § 552(b) (accompanying note). 

Together, “[t]hese provisions, for deletion of identifying references and disclosure of 

segregable portions of records with exempt information deleted, reflect a congressional 

understanding that disclosure of records containing personal details about private citizens can 

infringe significant privacy interests.” Dep’t of Justice v. Reporters Comm. for Freedom of 

Press, 489 U.S. 749, 766 (1989). The operation of these FOIA provisions together “bolster[s] the 

conclusion that disclosure of records regarding private citizens, identifiable by name, is not what 

the framers of the FOIA had in mind,” when they enacted § 552(a)(2). Id. at 765. 

In applying these principles, it is common ground that “[t]he public has a need to know, 

for example, the details of an agency opinion or statement of policy on an income tax matter, but 

there is no need to identify the individuals involved in a tax matter if the identification has no 

bearing or effect on the general public.” Id. at 766 n.18 (quoting FOIA’s legislative history). 

There is no reason this principle does not extend from tax determinations to FEC determinations. 

And the same reasoning broadly applies with particular force to the public’s 

understanding of law enforcement: “just as the identity of the individuals . . . involved in tax 

matters is irrelevant to the public’s understanding of the Government’s operation, so too is the 

identity of individuals who are the subjects of rap sheets irrelevant to the public’s understanding 

of the system of law enforcement.” Id. The identity of these persons “tell[s] us nothing about 

matters of substantive law enforcement policy that are properly the subject of public concern.” 

Id. This same reasoning should apply a fortiori here as the FEC failed to find sufficient reason to 

investigate Plaintiffs at the earliest possible stage of an FEC proceeding. 

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In fact, as this Court held only two months ago, the same FOIA exemption invoked by 

Plaintiffs justifies the withholding of names and identifying information of “third parties of 

investigative interest” who “ha[ve] a ‘strong interest in not being associated unwarrantedly with 

alleged criminal activity’” that can only be overcome by the public’s interest in knowing “what 

their government is up to.” Sandoval v. Dep’t of Justice, Civ. Action No. 16-1013, 2017 WL 

5075821, at *11, *12 (D.D.C. Nov. 2, 2017) (Jackson, J.) (citations to D.C. Circuit authority 

omitted). Like the individuals in Sandoval, Plaintiffs are third parties to an enforcement 

proceeding with a strong interest in not being publicly associated with actions that were found to 

have violated the law. Indeed, Exemption 7(C) is widely applied under circumstances similar to 

this case, where an agency might release documents that reveal its decision-making related to an 

investigation, while still guarding the identifying information of those investigated.10

10 See, e.g., Judicial Watch, Inc. v. Nat’l Archives and Records Admin., 876 F.3d 346, 350 (D.C. 

Cir. 2017) (affirming the withholding of a draft indictment under 7(C) and reasoning that 

“[h]aving never been formally accused of criminal conduct . . . [the target of an investigation], no 

less than an individual who has been charged but not convicted, is entitled to move on with her 

life without having the public reminded of her alleged but never proven transgressions” (internal 

quotation marks omitted)); Comput. Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 

897, 904 (D.C. Cir. 1996) (holding that suspects had a 7(C) privacy interest in not having their 

names exposed and that this interest does not dissipate if cleared of wrongdoing given that “their 

public identification with a meeting that had reportedly attracted the attention of law 

enforcement officials would subject them to a degree of interest that would impinge upon their 

privacy”); Cooper Cameron Corp. v. OSHA, 280 F.3d 539 (5th Cir. 2002) (holding that 

information identifying each witness in an OSHA investigation of an explosion and fire at a 

petrochemical plant was exempt from disclosure under 7(C)); Neely v. FBI, 208 F.3d 461, 463-

64 (4th Cir. 2000) (similar); Sakamoto v. EPA, 443 F. Supp. 2d 1182 (N.D. Cal. 2006) (denying 

disclosure of identities of manager accused of discrimination and witnesses); Envtl. Prot. Servs. 

v. EPA, 364 F. Supp. 2d 575 (N.D. W.Va. 2005) (denying disclosure of EPA records, including 

names of individuals); Ayuda Inc. v. FTC, 70 F. Supp. 3d 247 (D.D.C. 2014) (denying release of 

identifying information from FTC online repository of consumer complaints); Atkinson v. FDIC, 

No. Civ. A. 79-1113, 1980 WL 355660 (D.D.C. Feb. 13, 1980) (denying under 7(C) the release 

of examination reports from investigation where no formal charges made); see also Am. 

Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 

2016) (recognizing privacy interest of immigration judges subject to complaints under FOIA), on 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 15 of 29
14 

In a similar vein, the FEC has failed to refute the FOIA arguments presented in the 

original memorandum by connecting Plaintiffs’ names to the basis for any decision in MUR 

6920. This Court acknowledged that the names themselves are not necessary in service of the 

public’s interest in understanding the FEC’s decision-making when it determined during the 

December 18 telephonic hearing that the redacted record was sufficient for any interested parties 

to determine whether they wanted to file suit objecting to the FEC’s decision pursuant to 52 

U.S.C. § 30109(a)(8)(A). 

Here, the FEC must comply with both Exemption 7(C) and the language of § 552(a)(2) 

by redacting Plaintiffs’ identifying information. The D.C. Circuit’s opinion in SafeCard 

categorically precludes disclosing the identities of targets or witnesses in law enforcement 

proceedings such as these, SafeCard Servs. v. SEC, 926 F.2d 1197, 1205-06 (D.C. Cir. 1991), 

and two opinions from this Court recognize that this categorical prohibition allows a party that 

would be aggrieved by the release of their identifying information to enjoin its disclosure, see 

AFL-CIO v. FEC, 177 F. Supp. 2d 48, 61-63 (D.D.C. 2001); Tripp v. Dep’t of Defense, 193 F. 

Supp. 2d 229, 239 (D.D.C. 2002); see also Pl. Br. at 6-8 (outlining this argument). Indeed, in 

AFL-CIO, the district court applied Exemption 7(C) to prohibit disclosure of names of 

individuals in an FEC investigative file. 177 F. Supp. 2d at 61-63. This case is materially 

indistinguishable from AFL-CIO. 

The Commission’s only other retort is to suggest that its FOIA-compliant regulatory 

disclosure regime was “struck down” by the D.C. Circuit’s decision in AFL-CIO. See Resp. at 7. 

The FEC misreads AFL-CIO: Judge Tatel’s opinion recognized the mandatory nature of the 

FEC’s FOIA compliance but found that complying with FOIA was insufficient to save the FEC’s 

remand, No. 13-CV-00840 (CRC), 2017 WL 5564548, at *4 (D.D.C. Nov. 17, 2017) (allowing 

redaction of reprimanded judges’ names under FOIA Exemption 6). 

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15 

disclosure policy from separate First Amendment problems. AFL-CIO, 333 F.3d at 178 

(recognizing the disclosure regime allowed the release of materials “not expressly exempted by 

FOIA” and holding that the Commission’s redaction of information under one or more FOIA 

exemptions was insufficient). And the plain language of the Guidance similarly incorporates the 

FOIA compliance regime that predated AFL-CIO into the policy the FEC adopted after that 

decision. See Guidance, 81 Fed. Reg. at 50,704 (stating the new Guidance “does not alter” any 

existing regulation or policy requiring compliance with FOIA). Finally, the Guidance itself 

recognizes that the FEC, in undefined “appropriate cases implicating the law enforcement 

privilege” under FOIA Exemption 7(C), might withhold the entirety of a document. Id. 

In sum, the FEC cannot use the requirement to release certain records under Subsection 

(a)(4)(B)(ii) as an excuse to ignore its obligations under FOIA, the Guidance, and its own 

regulations to protect Plaintiffs’ privacy interests. For the reasons explained above and in 

Plaintiffs’ Motion, Plaintiffs’ privacy interests preclude the release of their names. 

C. The FEC Cannot Justify Disclosure under the First Amendment 

The FEC’s articulated justification for releasing Plaintiffs’ names disregards the agency’s 

obligation to safeguard First Amendment rights in the political arena and exceeds the agency’s 

enforcement powers under the carefully delineated regime that Congress enacted. 

1. First Amendment Precedent Urges Generally Against Disclosure 

“Disclosure chills speech,” and the values of disclosure and speech “exist in 

unmistakable tension.” Van Hollen v. FEC, 811 F.3d 486, 488 (D.C. Cir. 2016). Judge Tatel’s 

opinion for the D.C. Circuit in AFL-CIO reinforces this proposition, stating that “disclosure of 

campaign contributions would chill political activity and therefore place ‘not insignificant 

burdens’ on First Amendment rights.” 333 F.3d at 176. Over the course of time, Congress and 

the courts have struggled to strike the appropriate balance between the exercise of speech and 

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disclosure of enforcement proceedings, a process that has resulted in the present campaign 

finance regime. Whatever the wisdom of the present balance, the FEC does not have the 

authority to upset it by disclosing information bearing on political activity outside of the 

channels that Congress and the courts have carved for that disclosure. 

The Supreme Court’s seminal opinion in Buckley v. Valeo observed that “[t]he First 

Amendment affords the broadest protection to such political expression in order ‘to assure (the) 

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

the people.’” 424 U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). 

The Court held that “compelled disclosure [of the names of contributors], in itself, can seriously 

infringe on privacy of association and belief guaranteed by the First Amendment.” Id. at 64. 

Accordingly, infringement is justified only by compelling government interests, id. at 66-68, and 

disclosure of political activity and affiliations cannot be undertaken as a matter of course. 

In McConnell v. FEC, the high-water mark for campaign finance reform efforts, the 

Supreme Court echoed the observation in Buckley “that compelled disclosure [of contributors] 

may impose an unconstitutional burden on the freedom to associate in support of a particular 

cause.” 540 U.S. 93, 198 (2003).11 The Court in Citizens United and in subsequent cases has 

adhered to the Buckley reasoning: “Disclaimer and disclosure requirements may burden the 

11 Since McConnell, the Supreme Court has continued to emphasize the importance of speech 

and associational rights. “The right of citizens to inquire, to hear, to speak, and to use 

information to reach consensus is a precondition to enlightened self-government and a necessary 

means to protect it. The First Amendment ‘has its fullest and most urgent application to speech 

uttered during a campaign for political office.’” Citizens United v. FEC, 558 U.S. 310, 339 

(2010) (quoting Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)) 

(quotation marks omitted). Notably, Citizens United expanded speech protections to encompass 

all potential speakers: “Prohibited, too, are restrictions distinguishing among different speakers, 

allowing speech by some but not others.” Id. at 340-41. Thus, “political speech does not lose 

First Amendment protection ‘simply because its source is a corporation.’” Id. at 342 (quoting 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978)). 

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ability to speak,” and the government must provide a compelling basis to justify disclosure. 558 

U.S. 310, 366-67 (2010); McCutcheon v. FEC, 134 S. Ct. 1434, 1459 (2014). 

2. The FEC Has the Unique Mandate to Protect First Amendment Rights when 

it Acts, Including by Protecting Parties from Unwarranted Compelled 

Disclosure 

The FEC is “[u]nique among federal administrative agencies” because its sole purpose is 

the regulation of core constitutionally protected activity. AFL-CIO, 333 F.3d at 170 (quoting 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981)) 

(quotation marks omitted). “Thus, more than other agencies whose primary task may be limited 

to administering a particular statute, every action the FEC takes implicates fundamental rights.” 

Van Hollen, 811 F.3d at 499. Accordingly, the FEC has an obligation when carrying out its 

statutory functions to tailor “disclosure requirements to satisfy constitutional interests in 

privacy.” Id.; see AFL-CIO, 333 F.3d at 178 (faulting FEC for failing to “tailor its [disclosure] 

policy to avoid unnecessarily burdening . . . First Amendment rights . . .”). The disclosure regime 

proposed by the FEC here lacks the requisite tailoring entirely, positing instead an arrangement 

whereby mere tangential connections to an investigation results in a complete yielding of one’s 

privacy interests. 

The First Amendment interests inherent in an FEC investigation into political activity are 

themselves sufficient to trigger scrutiny under AFL-CIO. When determining whether to release 

investigative material, the FEC must provide a “separate First Amendment justification for 

publicly disclosing” information “relating to speech or political activity for law enforcement 

purposes.” AFL-CIO, 333 F.3d at 179. Even a “marginal interest in preventing the chilling of 

political participation,” which is inherent in all compelled disclosures, is sufficient to require the 

FEC to provide a compelling justification when it discloses the identity of a person of 

investigative interest. Id. at 178. That is precisely the situation here, where the FEC seeks to 

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disclose Plaintiffs’ identities to show that they had “some involvement” in violations of FECA 

committed by others. Resp. at 8. 

Accordingly, the FEC must demonstrate that its justification for disclosing Plaintiffs’ 

names “serves a compelling state interest.” Id. at 176; see FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238, 263 (1986) (holding that “compelling state interest necessary to justify any 

infringement on First Amendment freedom”) (emphasis added). This, the FEC has not done. The 

D.C. Circuit identified two such interests: “deter[ring] FECA violations, and . . . promot[ing] the 

agency’s own public accountability.” AFL-CIO, 333 F.3d at 178. The same interests appear in 

the FEC’s current disclosure policy. See Guidance, 81 Fed. Reg. at 50,703. 

The disclosure of Plaintiffs’ names here would not further either of these interests. As 

noted above, this Court already has acknowledged that disclosure of names is unnecessary for 

the public to understand the basis of the FEC’s decision making.12 Furthermore, any purported 

“deterrence” interest would be unlawful, as explained below. 

3. The FEC’s Asserted Deterrence Interest is Unlawful

Plaintiffs were never respondents to MUR 6920, and the FEC never found reason to 

believe that they violated the FECA, raising the question of how Plaintiffs’ conduct is relevant to 

deterrence at all. Cf. AFL-CIO, 333 F.3d at 178 (expressing skepticism that information related 

12 The FEC tries to distinguish AFL-CIO on the basis that the materials here are its own reports 

and not material obtained in the course of an investigation. See Resp. at 8. The FEC attempted a 

similar argument in AFL-CIO, contending that it was merely disclosing its own records, which 

the court rejected. AFL-CIO, 333 F.3d at 178-79. It bears repeating that the only thing that 

Plaintiffs are asking that the FEC withhold is their names. One of the items at issue in AFL-CIO

was “personal information concerning hundreds of employees, volunteers and members of the 

Plaintiff organizations.” AFL-CIO v. FEC, 177 F. Supp. 2d at 51. The FEC obtained those 

names in the course of its investigation. Similarly, the FEC obtained Plaintiffs’ names in the 

course of the investigation in MUR 6920. Compelled disclosure does not lose its First 

Amendment protection if an FEC staffer places a name that was discovered in an investigation in 

a report or if a Commissioner does the same. Otherwise, there would be no protection at all. It is 

the information, not the type of document, that the First Amendment protects. 

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19 

to those cleared of wrongdoing has any deterrence value). Nevertheless, the Commission asserts 

that it is entitled to release Plaintiffs’ names because they “feature prominently in the agencies’ 

examination of the underlying facts.” Resp. at 5. The FEC never explains why disclosure of 

Plaintiffs’ identities, as opposed to their factual circumstances, is necessary to understand its 

reasons for finding that the actual respondents in MUR 6920 violated FECA. Instead, the FEC 

asserts that disclosure of Plaintiffs’ names is required for deterrence purposes. The FEC contends 

that “publicity of plaintiffs’ names 

” by the FEC for their connections to other people who have violated FECA. Id. at 6. In 

other words, the Commission asserts that it is important to instill fear in others that they, too, 

may be unofficially labeled violators of FECA without the benefit of the due process, even if 

they were never respondents before the FEC, even if there has been no finding of a reason to 

believe they violated FECA (let alone a violation) against them, and even where they had no 

opportunity to respond to any allegations against them, if they even associate with alleged 

violators of the FECA. 

This practice transforms the carefully delineated disclosure requirements of FECA into a 

weapon to shame and expose individuals against whom the FEC has made no finding of 

wrongdoing. This is contrary to FECA, which lays out the requirements that must be met prior to 

such a finding, and which Congress designed to ensure such findings are “the product of a 

mature and considered judgment.” H.R. Rep. No. 94-917, at 3 (1976). Indeed, here, two 

Commissioners have now observed that the FEC’s proposed course of action “raises serious due 

process concerns.” Ex. A at 0116. This same concern is echoed in the relevant precedent in this 

district. See, e.g., Fund for Const. Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 865 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 21 of 29
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(D.C. Cir. 1981) (“The disclosure of [the fact that individuals were investigated] would produce 

the unwarranted result of placing the named individuals in the position of having to defend their 

conduct in the public forum outside of the procedural protections normally afforded the accused 

in [investigative] proceedings.”). The FEC’s contention that it can release Plaintiffs’ names 

based solely on the mere suspicion of certain members, without Plaintiffs ever having had a 

chance to address the allegations against them, and without any finding by the Commission itself 

of even reason to believe that the person has engaged in misconduct, grants individuals within 

the agency the unfettered discretion to disregard Congress’s mandated process and trample key 

privacy interests to achieve their personal goals. 

The peril of the FEC’s position is on full display in this case. After Plaintiffs were forced 

to bring this action by the FEC’s intransigence, delay, and lack of transparency, a Commissioner 

published a statement of reasons expressing her frustration that the FEC was unable to carry out 

her preferred enforcement program in MUR 6920. She acknowledged that the fact the FEC 

delayed in prosecuting MUR 6920 hampered its ability to investigate to her satisfaction. That 

Commissioner thus took it upon herself to explain “what happened,” insinuating that Plaintiffs 

were just as guilty of violating FECA as the four respondents. The dangers of such an approach 

did not escape the notice of two other Commissioners who, in a separate Statement of Reasons, 

suggested that the other Commissioner had “prejudged [Plaintiffs’] guilt” and adopted an 

approach that raises “serious due process concerns” given that the FEC never informed Plaintiffs 

that it had even considered levelling charges against them, let alone offered them an opportunity 

to respond. Ex. A at 0116. 

The human consequences of the FEC’s misbegotten campaign are particularly acute for 

Plaintiff John Doe 1, especially in light of the Commissioner’s tweet, which has been retweeted 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 22 of 29
21 

over seven hundred times. See Ex. C. The full record now reveals that the FEC accused John Doe 

1 of a violation in his official capacity as a trustee only. Even assuming FECA permits the FEC 

to insinuate guilt-by-association, the FEC provides no explanation for why John Doe 1 should 

have his reputation smeared because he was the agent of John Doe 2 during a period when John 

Doe 2 was subject to regulatory scrutiny. Tellingly, as the Court also observed, the FEC hardly 

references John Doe 1 in its Response. 

Regardless of what a single Commissioner believes should have happened, what did 

happen is that the FEC did not name Plaintiffs as respondents and failed to make any finding of 

wrongdoing against them—indeed, failed even to find reason to believe they had engaged in 

wrongdoing. The purpose of FECA’s enforcement process, which painstakingly prescribes the 

steps that the Commission must take to find a party liable (a process that, ultimately, requires the 

imprimatur of a United States District Court if the party is unwilling to reach a settlement with 

the Commission), is wholly defeated if a single Commissioner, acting on his or her own view of 

the law and the facts, is permitted to disclose the identity of any witness or person of interest that 

they suspect was involved in a violation of FECA. It cannot be the case that, having failed to 

complete or even engage in the enforcement processes delineated under FECA, the FEC staff, or 

a single Commissioner, may brand any individual or entity they please as a violator of FECA. 

Such an arbitrary and abusive exercise of power cannot be sanctioned in light of the wellrecognized First Amendment principles that undergird FECA. 

Moreover, the FEC’s claim that it may name non-respondents suspected by OGC or one 

Commissioner of having committed an offense is out of step with the practice of other federal 

agencies. Those agencies, which investigate predominantly economic areas, do not disclose the 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 23 of 29
22 

sensitive information that the FEC seeks to disclose here.13 In contrast to these agencies, which 

essentially “oversee fair dealings in commerce,” the conduct that the “FEC oversees . . . relates 

to the behavior of individuals and groups only insofar as they act, speak and associate for 

political purposes.” Machinists Non-Partisan Political League, 655 F.2d at 387. In view of how 

its work regulates activity protected by the First Amendment, the FEC should be held to a higher 

standard than these other agencies, and not be permitted to evade Congress’s careful protections 

to assign blame where its enforcement staff or a minority of Commissioners sees fit.

D. To the Extent the FEC’s Disclosure Regulations Compel Disclosure of NonRespondent Plaintiffs’ Identities, They Are Invalid 

If the Court determines that disclosure of Plaintiffs’ identities is required by 11 C.F.R. 

§ 111.20(a), Plaintiffs contend that this regulation is unlawful because it exceeds the scope of the 

FEC’s authority and the FEC’s practice of requiring blanket disclosure of documents by type is 

unconstitutional. The FEC lacks the authority under FECA to enact rules compelling the 

disclosure of the identities of non-respondent witnesses. Plaintiffs make these arguments in the 

alternative to those above, such that the Court need not reach the question of the legality of 

§ 111.20(a) if it already has determined that disclosure of Plaintiffs’ identities is not warranted. 

13 See, e.g., 17 C.F.R § 200.80(b); 17 C.F.R. § 203.2; 17 C.F.R. § 203.5 (providing that 

investigatory materials compiled in SEC investigations, including internal reports, are nonpublic 

and not subject to disclosure); 12 C.F.R. § 1070.41(c) (providing that, when it discloses 

information, the Consumer Financial Protection Bureau may not “identify, directly or indirectly, 

any particular person to whom the confidential information pertains”); 12 C.F.R. § 308.147 

(providing that information obtained in Federal Deposit Insurance Corporation investigations 

should not be disclosed without good cause); 18 C.F.R. § 1b.9, Enforcement of Statutes, 

Regulations and Orders, 123 FERC ¶ 61,156 ¶ 23-32 (2008), Enforcement of Statutes, 

Regulations, and Orders, 134 FERC ¶ 61,054 (2011) (providing for confidentiality of 

investigations by the Federal Energy Regulatory Commission); 15 U.S.C. § 57b-2(b), 2(f) 

(providing for confidentiality of investigations by the Federal Trade Commission). 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 24 of 29
23 

1. Section 111.20(a) Exceeds the Commission’s Authority 

As noted, Subsection (a)(4)(B)(ii) requires disclosure in only two instances, one of which 

is when “the Commission makes a determination that a person has not violated” FECA. In that 

event, FECA provides that the Commission disclose only the “determination.” Id. By contrast, 

11 C.F.R. § 111.20(a) calls for disclosure of not only the determination, but “the basis therefor,” 

and expands the triggering events to include any event that “otherwise terminates” Commission 

proceedings. 

Although the Act authorizes the FEC to develop rules and regulations “as are necessary 

to carry out the provisions of” FECA, 52 U.S.C. § 30107(a)(8), the FEC cannot depart from its 

clear statutory mandate. Subsection (a)(4)(B)(ii) is unambiguous: the Commission must disclose 

only conciliation agreements and the determination that a person has not violated FECA, nothing 

more. Thus, § 111.20(a) is not an interpretation of Subsection (a)(4)(B)(ii), but rather represents 

the Commission’s own decision to expand the scope of disclosure beyond that required. 

“Agencies owe their capacity to act to the delegation of authority, either express or 

implied, from the legislature.” Ry. Labor Exec. Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 670 

(D.C. Cir. 1994). As such, an agency does not possess “plenary authority to act within a given 

area simply because Congress has endowed it with some authority to act in that area.” Id. 

Recently, the Tenth Circuit invalidated a Department of Labor regulation purporting to regulate 

tip pooling, even though the statute already contained a provision regarding when employers 

were required to share tips among employees. See Marlow v. New Food Guy, Inc., 861 F.3d 

1157, 1164 (10th Cir. 2017). The Tenth Circuit acknowledged that the authorizing statute 

granted the Department of Labor broad rulemaking authority, but held that it did not permit the 

Department to regulate in an area simply because the statute was “silent” on that particular issue. 

Id. at 1162-63. Thus, where the statute did not direct “the DOL to regulate the ownership of tips 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 25 of 29
24 

when the employer is not taking the tip credit,” the government could not rely “on the absence of 

any statutory directive to the contrary.” Id. at 1164. In other words, just because Congress is 

silent on an issue does not mean that there is a “gap” or “ambiguity” in the statute for the agency 

to fill. See Chevron, U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 (1984). 

Section 111.20(a) cannot stand for the same reasons that the Department of Labor rule 

was invalidated in Marlow. There is already a provision of FECA that informs the FEC what 

information to disclose upon the conclusion of its administrative enforcement proceedings. 

Simply because FECA is silent as to what other disclosure might be made does not confer on the 

FEC plenary authority to determine what disclosure is required, particularly when that disclosure 

contravenes other law. Accordingly, § 111.20(a) exceeds the scope of the FEC’s authority and 

there is thus no authority that compels the disclosure of Plaintiffs’ identities here. 

2. Interpreting the Regulations to Provide for Blanket Disclosure is 

Unconstitutional 

The D.C. Circuit in AFL-CIO invalidated the FEC’s old disclosure policy under 

Subsection (a)(12)(A) because its “blanket nature,” calling for disclosure of “all information,” 

resulted in the release of information without attention to First Amendment principles. Id.

(emphasis in original). To the extent that the FEC asserts that it may release all information 

contained in various categories of documents that it slates for release under Subsection 

(a)(4)(B)(ii), this interpretation is similarly unconstitutional because it does not tailor the 

disclosure decisions to the First Amendment. It does no good for the FEC to provide lip service 

to these concerns in its regulations or guidance if in practice the disclosures are made without 

regard to them. Yet that is the case here, where the FEC’s disclosure policy calls for redactions 

consistent with “the principles set forth by the court of appeals in AFL-CIO,” Guidance, 81 Fed. 

Reg. at 50,704, but its proposed implementation amounts to a blanket disclosure of the MUR 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 26 of 29
25 

6920 file with no consideration for Plaintiffs’ First Amendment rights. As such, this Court 

should compel the FEC to amend its practice and avoid any constitutional issues that may rise 

from the disclosure policy.

III. CONCLUSION 

Plaintiffs will be harmed if their names are published in the context of MUR 6920, an 

inescapable truth that becomes ever more evident with every re-tweet or bit of news coverage 

disparaging those involved. Denying Plaintiffs’ requested relief will permit the FEC to sully 

Plaintiffs’ reputations publicly, not because the Commission determined Plaintiffs did anything 

wrong, but in spite of the fact that it has not. For the foregoing reasons, Plaintiffs respectfully 

request that this Court grant their motion for preliminary injunction.14

Dated: January 3, 2018 Respectfully submitted, 

/s/ William W. Taylor, III________ 

William W. Taylor, III (D.C. Bar # 84194) 

Adam L. Fotiades (D.C. Bar # 1007961) 

Dermot W. Lynch (D.C. Bar # 1047313) 

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW, Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 (fax) 

wtaylor@zuckerman.com 

afotiades@zuckerman.com 

dlynch@zuckerman.com 

Counsel for John Doe 1

14 If the Court denies Plaintiffs the relief they seek, they ask the Court, pursuant to Federal Rule 

of Civil Procedure 62(c), to grant a stay of the denial pending an appeal to the D.C. Circuit. Even 

if the Court disagrees with Plaintiffs on the merits of their claim, Plaintiffs “have demonstrated 

‘a substantial case on the merits’ and irreparable harm in the absence of a stay.” Ctr. for Int'l 

Envtl. Law v. Office of U.S. Trade Representative, 240 F. Supp. 2d 21, 22 (D.D.C. 2003). The 

irreparable harm to Plaintiffs’ is undisputed. This case also presents a “substantial case on the 

merits”—namely, a question of first impression in this Court related to the FEC’s application of 

a disclosure regime that was previously struck down by the D.C. Circuit, and a novel legal 

question related to the intersection of the FEC’s obligations under FOIA and FECA. See id. 

(holding that these types of questions satisfied the substantial case on the merits standard). 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 27 of 29
26 

/s/ Michael Dry________________ 

Michael Dry (D.C. Bar # 1048763) 

Craig Margolis (D.C. Bar # 454783) 

Kathleen Cooperstein (D.C. Bar # 1017553) 

Vinson & Elkins 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, D.C., 20037 

202-639-6500 

202-879-8984 (fax) 

mdry@velaw.com 

cmargolis@velaw.com 

kcooperstein@velaw.com 

Counsel for John Doe 2

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 28 of 29
CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of January, 2018, I filed the foregoing papers using 

the Court’s CM/ECF system, which served the following: 

Charles Kitcher 

Kevin Deeley 

Federal Election Commission 

999 E Street N.W. 

Washington, D.C. 20463 

ckitcher@fec.gov 

kdeeley@fec.gov 

Counsel for Defendant Federal Election Commission

/s/ William W. Taylor, III 

William W. Taylor, III 

Case 1:17-cv-02694-ABJ Document 25 Filed 01/03/18 Page 29 of 29