United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2015 Decided January 21, 2016

No. 15-5016

CHRISTOPHER VAN HOLLEN, JR.,

APPELLEE

v.

FEDERAL ELECTION COMMISSION,

APPELLEES

CENTER FOR INDIVIDUAL FREEDOM AND HISPANIC 

LEADERSHIP FUND,

INTERVENOR-APPELLANTS

Consolidated with 15-5017

Appeals from the United States District Court

for the District of Columbia

(No. 1:11-cv-00766)

Thomas W. Kirby argued the cause for appellant Center 

for Individual Freedom. With him on the briefs were Jan 

Witold Baran, Caleb P. Burns, and Samuel B. Gedge.

Jason Torchinsky was on the brief for appellant Hispanic 

Leadership Fund.

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Daniel Z. Epstein and Joshua N. Schopf were on the brief 

for amicus curiae Cause of Action in support of appellants.

Catherine M.A. Carroll argued the cause for appellee 

Christopher Van Hollen Jr. With her on the brief were Roger 

M. Witten, Donald J. Simon, Trevor Potter, J. Gerald Hebert, 

Fred Wertheimer, and Scott L. Nelson.

Kevin A. Deeley, Acting Associate General Counsel, 

Harry J. Summers, Assistant General Counsel, Holly J. Baker 

and Seth E. Nesin, Attorneys, Federal Election Commission, 

were on the brief for appellee Federal Election Commission. 

Before: BROWN, Circuit Judge, SENTELLE and 

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: The arc of campaign finance law 

has been ambivalent, bending toward speech and disclosure.

Indeed what has made this area of election law so challenging

is that these two values exist in unmistakable tension. 

Disclosure chills speech. Speech without disclosure risks

corruption. And the Supreme Court’s track record of 

expanding who may speak while simultaneously blessing 

robust disclosure rules has set these two values on an 

ineluctable collision course.

That tension is on full display in this appeal. At issue is 

whether to uphold the FEC’s rule requiring corporations and 

labor organizations to disclose only those donations “made for 

the purpose of furthering electioneering communications” or 

whether the Bipartisan Campaign Reform Act requires 

disclosure of all donations irrespective of donative purpose.

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Christopher Van Hollen, Jr.—a member of the United States 

House of Representatives—challenged this rule under the 

familiar Chevron and State Farm frameworks. In a previous 

judgment, we reversed the district court and held the rule 

survived Chevron Step One. We now consider whether the 

rule survives Step Two and State Farm’s “arbitrary and 

capricious” test. We hold that it does.

I

Congressman Van Hollen’s challenge to the FEC’s 

disclosure rules is best understood in its broader context, the 

century-long conflict over campaign finance reform. That 

context is a protean cascade of perspectives, supplied by each 

branch of government, on how best to safeguard democracy 

without unnecessarily sacrificing liberty. 

Throughout the twentieth and early twenty-first centuries, 

campaign finance reform efforts endeavored both to ban 

corporate contributions and to expand disclosure 

requirements. These efforts date as far back as President 

Theodore Roosevelt’s State of the Union address in 1905.

Nine years earlier, William McKinley defeated populist 

William Jennings Bryan with a war chest of $16 million, 

dwarfing Bryan’s paltry $600,000. Public opinion steadily 

galvanized in favor of campaign finance reform, prompting 

Roosevelt to champion the cause. Roosevelt urged Congress 

to forbid “[a]ll contributions by corporations . . . for any 

political purpose” and to “secure by law the full and verified 

publication in detail of all [political contributions].” President 

Theodore Roosevelt, State of the Union Address (Dec. 5, 

1905), available at http://www.presidency.ucsb.edu/ws/index.

php?pid=29546. Two years later, Congress heeded his call 

with the Tillman Act of 1907. See Ch. 420, 34 Stat. 864.

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The Tillman Act was just the beginning. Over the 

ensuing decades, Congress passed, in piecemeal fashion,

several reform measures. The Federal Corrupt Practices Act, 

the Hatch Act, the Smith-Connolly Act of 1943, and the TaftHartley Act of 1947 each contained provisions aimed at 

tackling political corruption in campaign finance, either 

through restricting speech or requiring disclosure. And in 

1974, Congress completed a massive campaign finance 

overhaul with passage of the Federal Election Campaign Act 

(FECA).

FECA confronted headlong the “who” and “how much” 

of campaign contributions. The Act established caps on

contributions and expenditures, restricted corporations and 

unions from making independent expenditures, and required 

that the identities of any individuals making a contribution or 

expenditure be disclosed to the newly created Federal 

Elections Commission. The Supreme Court blessed most of 

FECA’s reforms in Buckley v. Valeo, 424 U.S. 1 (1976), 

striking only the caps on individual, candidate, and campaign 

expenditures. But critically, while upholding FECA’s 

disclosure requirements, the Court construed them narrowly 

to reach only “contributions earmarked for political purposes” 

and “expenditures for communications that expressly 

advocate the election or defeat of a clearly identified 

candidate.” Id. at 80. 

The Court’s gloss on FECA’s disclosure requirements 

turned out to be a pyrrhic victory for campaign finance 

reformers. The “express advocacy” carve-out opened a 

gaping new loophole: advertising expenditures that eschewed

magic words like “elect Mary Smith” or “defeat John Brown” 

could now go undisclosed. Corporations, unions, and political 

parties took full advantage by sponsoring “issue ads,” which 

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were functionally equivalent to express advocacy but 

comfortably skirted FECA’s disclosure requirements.

Determined to close this loop, Congress passed the 

Bipartisan Campaign Reform Act (BCRA) in 2002. BCRA 

recognized and regulated a new category of political 

advertising called “electioneering communications,” defined 

as communications that “refer[] to a clearly identified 

candidate” “made within” sixty days of a general election or 

thirty days of a primary election. 2 U.S.C. § 434(f)(3)(A)(i)

(2002). These communications were precisely the sort left 

unregulated by Buckley’s construction of FECA, and BCRA 

now subjected them to robust disclosure requirements. It 

required any person making an expenditure (referred to as a 

“disbursement”) totaling more than $10,000 to disclose “all 

persons sharing the costs of the disbursement.” Id. §§ 

434(f)(2)(A), (B), and (D). BCRA also went one step further: 

it altogether banned corporations and unions from using their 

general treasuries to fund electioneering communications. Id.

§ 441b(b)(2). These provisions were upheld by a sharply 

divided Court in McConnell v. FEC, 540 U.S. 93 (2003). 

In BCRA’s wake, the FEC promulgated several rules 

to enforce the various reforms, two of which are relevant 

to today’s appeal. First, the FEC promulgated a rule enforcing

BCRA’s ban on corporate and union expenditures 

for electioneering communications. Electioneering 

Communications, 67 Fed. Reg. 65190, 65190 (Oct. 23, 2002).

Second, the FEC promulgated a rule to enforce BCRA’s 

requirement for disclosure of “the names and addresses of all 

contributors who contributed an aggregate amount of $1,000 

or more to the person making the disbursement.” 52 U.S.C. 

434(f)(2)(E)–(F). The FEC’s rule mirrored this language 

almost identically but replaced the words “contributor” and 

“contributed” with “donor” and “donated.” Bipartisan 

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Campaign Reform Act of 2002 Reporting, 68 Fed. Reg. 404, 

420 (Jan. 3, 2003). Whatever the import of that choice, it is 

clear that as of 2003, (1) corporations and unions could not 

fund electioneering communications out of their general 

treasuries, and (2) with certain exceptions not relevant to this 

opinion, persons making disbursements for electioneering 

communications had to disclose the names of anyone who 

donated $1,000 or more to them.

But the Supreme Court would soon deliver a heavy 

blow to BCRA’s attempt to regulate electioneering 

communications. With its ruling in FEC v. Wisconsin Right to 

Life, Inc., 551 U.S. 449 (2007), another sharply divided 

decision, and this time without even a majority opinion, the 

Court held corporations and unions could not be barred from 

electioneering communications unless they are “the functional 

equivalent of express advocacy.” Id. at 465. And an ad is only 

the functional equivalent of express advocacy, the Court said,

when it “is susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific candidate.” 

Id. at 469–70. The three ads before the Court in Wisconsin 

Right to Life couldn’t satisfy this exacting test, and neither, it 

seems, could the vast majority of issue ads funded through 

independent expenditures. See Id. at 476. For restrictions on 

core political speech, the Court announced it would “give the 

benefit of the doubt to speech, not censorship.” Id. at 482.

BCRA’s prohibition on corporate- and union-funded 

electioneering communications, beaten and tattered by 

Wisconsin Right to Life, was left on life support.1

 1 The Court’s subsequent decision in Citizens United v. FEC pulled 

the plug on this ban once and for all, ruling unconstitutional the 

prohibition on corporate- and union-funded “express advocacy.” 

558 U.S. 310, 365 (2010). 

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The FEC was now left to decide how BCRA’s disclosure 

requirements should apply to a class of speakers Congress 

never expected would have anything to disclose. The FEC 

published a Notice of Proposed Rulemaking (NPRM) and 

requested comments on proposed rules that “would 

implement the Supreme Court’s decision in Wisconsin Right 

to Life.” 72 Fed. Reg. 50261, 50262 (Aug. 31, 2007). That

NPRM advanced two proposals for applying BCRA’s 

disclosure provisions to corporations and unions. Under the 

first, the FEC would simply apply the existing disclosure 

requirements for individuals and qualified nonprofit 

corporations (QNCs) to corporations and unions, which would 

require disclosure of all $1,000 contributors. Id. Under the 

second, the FEC proposed to exempt corporations and unions 

from the disclosure requirements altogether. Id.

The FEC received twenty-seven comments and held a 

two-day hearing. Rather than embracing either of the 

NPRM’s proposals, it adopted a middle path. See 

Electioneering Communications, 72 Fed. Reg. 72899, 72900

(Dec. 26, 2007). Corporations and unions would not be 

altogether exempted, but neither would they be required to 

disclose every donation totaling $1,000 or more. Id. Rather, 

corporations and unions would be required to disclose all 

donations totaling $1,000 or more that were “made for the 

purpose of furthering electioneering communications.” Id. at 

72911. This new “purpose requirement” set corporate and 

union electioneering communications apart from 

communications funded by other persons, who were still 

required to disclose all donations regardless of purpose.

Representative Christopher Van Hollen challenged the 

FEC’s new purpose requirement and persuaded the district 

court that it violated BCRA’s text. Van Hollen v. FEC, 851 

F.Supp.2d 69 (D.D.C. 2012); see Chevron, USA, Inc. v. Nat. 

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Res. Def. Council, Inc., 467 U.S. 837 (1984). That decision 

was appealed to and reversed by a panel of this court, which 

concluded BCRA’s disclosure provisions were ambiguous, 

and the FEC’s rule cleared Chevron Step One. Ctr. for 

Individual Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C. 

Cir. 2012). Congress’s use of the terms “contributors” and 

“contributed,” the panel said, is “anything but clear.” Id. The 

panel did “not agree with the District Court that the[se] words 

. . . cannot be construed to include a ‘purpose’ requirement.” 

Id. However, it concluded that it was “in no position to assess 

the parties’ arguments on whether § 104.20(c)(9) is 

reasonable, and thus entitled to deference under Chevron Step 

Two, or whether the regulation survives arbitrary and 

capricious review.” Id. at 112. The panel sent the case back to 

the district court to sort these questions out.

2

On remand, the district court concluded that the FEC’s 

rule failed at both the Chevron Step Two and arbitrary and 

capricious stages. The Center for Individual Freedom filed its 

notice of appeal shortly thereafter.3 We review the FEC’s 

action de novo, according no particular deference to the 

 2 Technically, the panel instructed that the matter be referred back 

to the FEC in order to give it a chance to revisit and clarify its rule. 

Ctr. for Individual Freedom, 694 F.3d at 112. But when the FEC 

declined to comment further, Van Hollen’s challenge in district 

court resumed.

3 Our previous ruling affirmed the Center for Individual Freedom’s 

and the Hispanic Leadership Fund’s standing to appeal the district 

court’s judgment. Ctr. for Individual Freedom, 694 F.3d at 110 

(“We are satisfied that the Intervenors have standing to pursue this 

appeal, for they have convincingly demonstrated that the District 

Court's decision . . . has caused them injury that will be redressed 

by a favorable decision from this court.”). As the posture of this 

appeal is identical to the previous, we have neither the occasion nor 

inclination to reconsider our prior determination. 

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district court’s judgment. Fox v. Clinton, 684 F.3d 67, 74 

(D.C. Cir. 2012).

II

Our analysis of Van Hollen’s challenge picks up where 

our prior judgment left off. Van Hollen argues the FEC’s 

disclosure rule is both an impermissible construction of 

BCRA and an arbitrary and capricious use of the FEC’s

regulatory authority, and the district court agreed on both 

scores. For the reasons outlined below, we do not. 

A

We are first asked to decide whether the FEC’s purpose 

requirement is “based on a permissible construction of 

[BCRA] in light of its language, structure, and purpose.” Nat’l 

Treasury Emp. Union v. FLRA, 754 F.3d 1031, 1042 (D.C. 

Cir. 2014). This inquiry, often called Chevron Step Two, 

“does not require the best interpretation, only a reasonable 

one.” Am. Forest and Paper Ass’n v. FERC, 550 F.3d 1179, 

1183 (D.C. Cir. 2008). “We are bound to uphold agency 

interpretations . . . regardless whether there may be other 

reasonable, or even more reasonable, views.” Gentiva 

Healthcare Corp. v. Sebelius, 723 F.3d 292, 296 (D.C. Cir. 

2013). In this case, BCRA is ambiguous, and the FEC’s 

construction of it is reasonable. We defer accordingly.

The starting place for any Chevron Step Two inquiry is 

the text of the statute. BCRA states, in relevant part: 

“Every person who makes a disbursement for 

the direct costs of producing and airing 

electioneering communications in an aggregate 

amount in excess of $10,000 during any 

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calendar year shall . . . file with the Commission 

a statement containing . . . the names and 

addresses of all contributors who contributed an 

aggregate amount of $1,000 or more to the 

person making the disbursement.”

52 U.S.C. § 30104(f) (emphasis added). This provision directs

the disclosure of “all contributors” and omits any explicit 

mention of a purpose requirement. By contrast, the

neighboring section governing express advocacy directs 

disclosure of “each person who made a contribution . . . for 

the purpose of furthering an independent expenditure.” Id. § 

30104(c)(2)(C). The nonparallel nature of these two related

provisions, Van Hollen contends, renders impermissible the 

FEC’s purpose requirement. At the same time, FECA 

elsewhere defines “contribution,” a term derived from the 

same root as the words in the challenged section, as a 

donation “by any person for the purpose of influencing any 

election for Federal office.” 52 U.S.C. § 30101(8)(A)(i)

(emphasis added). And the FEC intentionally drew upon the 

express advocacy purpose requirement as precedent for 

resolving the ambiguity in the electioneering communications 

provision. See 72 Fed. Reg. at 72911 n.22. Our question, then, 

is this: Does BCRA’s text permit the FEC’s purpose 

requirement?

To answer this, we must first remember what we’ve 

already settled. In our previous ruling, we concluded 

Congress did not have “an intention on the precise question” 

whether a purpose requirement is permissible as “it is 

doubtful that . . . Congress even anticipated the circumstances

that the FEC faced when it promulgated [this regulation].”

Ctr. for Individual Freedom, 694 F.3d at 111. We noted “it 

was due to the complicated situation that confronted the 

agency in 2007 and the absence of plain meaning in the 

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statute that the FEC acted . . . to fill ‘a gap’ in the statute.” Id.

But while we might have stopped there, our analysis went 

beyond merely highlighting BCRA’s ambiguity. We also 

weighed in on the precise interpretive question relevant to

Step Two. We disagreed with the district court “that the 

words ‘contributors’ and ‘contributed’ . . . cannot be 

construed to include a ‘purpose’ requirement” and cited 

multiple dictionaries that “define ‘contribute’ in a way that is 

consistent with the regulation.” Id. at 110–11. In other words, 

we held that whether corporations and unions should be

required to disclose every person who gave $1,000 or more or 

only those who gave for the purpose of influencing 

electioneering communications was an open policy question, 

one Congress left for the FEC to decide.

That decision largely foreordains our Chevron Step Two 

answer. In deciding the Step One question, we did not limit 

our analysis to whether BCRA is ambiguous; we specifically 

concluded the FEC’s interpretation of “contributors” was 

within the range of linguistically permissible constructions. 

Having thus already concluded section 30104(f) could be 

construed to include a purpose requirement, it would be odd 

for us to reverse course now and declare it could not.

But even setting aside that we all but answered the Step 

Two question last time around, the FEC’s purpose 

requirement is more than just a permissible construction of 

BCRA; it’s a persuasive one. For one, as suggested above, the

FEC’s purpose requirement is consistent with the purposeladen definition of “contribution” set forth in FECA’s very 

own definitional section. See 52 U.S.C. § 30101(8)(A)(i)

(defining “contribution” as “anything of value made . . . for 

the purpose of influencing [a federal] election”). ”

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Moreover, the FEC’s purpose requirement regulates 

electioneering communication disclosures in precisely the 

same way BCRA itself regulates express advocacy

disclosures. In a neighboring provision, BCRA requires a 

person making an express advocacy expenditure to disclose

only those “person[s] who made a contribution . . . for the 

purpose of furthering an independent expenditure.” Id. § 

30104(c)(2)(C). Thus, to resolve the ambiguity it faced in 

Wisconsin Right to Life’s wake, the FEC simply opted for an 

approach already endorsed by Congress in a related context. 

That “Congress codified the very approach” the FEC now

adopts in a similar context is “highly persuasive in 

demonstrating” the FEC’s construction of BCRA “does not 

reflect an unreasonable interpretation of the statute.” Public 

Citizen v. Carlin, 184 F.3d 900, 906 (D.C. Cir. 1999). 

Van Hollen counters this point, arguing Congress’s 

failure to include a purpose requirement in the electioneering 

communication context—which it included for express 

advocacy— textually precludes the FEC from later doing so.

This is a classic invocation of the expressio unius canon of 

construction, and if we were interpreting this statute directly 

rather than filtered through an agency’s construction, Van 

Hollen’s argument would have serious bite. However, as is 

usually the case, the procedural posture matters. The 

expressio unius canon operates differently in our review of 

agency action than it does when we are directly interpreting a 

statute. See Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 

940 F.2d 685, 694 (D.C. Cir. 1991) (“[T]his canon has little 

force in the administrative setting.”); Cheney R.R. Co. v. ICC, 

902 F.2d 66, 69 (D.C. Cir. 1990) (“Whatever [expressio 

unius’s] general force, we think it an especially feeble helper 

in an administrative setting, where Congress is presumed to 

have left to reasonable agency discretion questions that it has 

not directly resolved.”). In scenarios of precisely this ilk, “we 

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have consistently recognized that a congressional mandate in 

one section and silence in another often suggests not a 

prohibition but simply a decision not to mandate any solution 

in the second context, i.e., to leave the question to agency 

discretion.” Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 36 

(D.C. Cir. 2009). This approach dovetails appropriately with 

the wide latitude we afford agencies when interpreting 

statutes: we do not demand the best interpretation, only a 

reasonable one. 

Nor do Van Hollen’s other arguments persuade us that 

the FEC’s purpose requirement was an impermissible 

construction of BCRA. Van Hollen contends the requirement 

“frustrate[s] the policy that Congress sought to implement” 

and therefore must be rejected. See Shays v. FEC, 528 F.3d 

914, 919 (D.C. Cir. 2008). Specifically, he asserts the FEC’s 

rule violates BCRA’s primary purpose of “improv[ing] 

disclosure” and “curtail[ing] circumvention of campaign 

finance rules,” allowing contributors to “avoid reporting 

altogether” by simply “transmitting funds but remaining silent 

about their intended use.” Van Hollen Br. at 27–28. And here, 

his invocation of our Shays decision does lend a measure of

credibility. A panel of this court invalidated a regulation 

allowing “candidates to evade—almost completely—BCRA’s 

restrictions on the use of soft money” because it “frustrate[d] 

Congress’s goal of prohibiting soft money” in federal 

elections. 528 F.3d at 925. According to Van Hollen (and the 

district court), since “the legislative history of the BCRA 

makes it clear that the purpose behind the disclosure 

requirements was to enable voters to be informed about who 

was trying to influence their decisions,” the purpose 

requirement’s “limiting language” similarly frustrates BCRA. 

Van Hollen, 74 F.Supp.3d at 433–34.

But the art of statutory construction has moved beyond 

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this particularly results-oriented brand of purposivism. Just 

because one of BCRA’s purposes (even chief purposes) was 

broader disclosure does not mean that anything less than 

maximal disclosure is subversive.4 Statutes are hardly, if ever, 

singular in purpose. Rather, most laws seek to achieve a 

variety of ends in a way that reflects the give-and-take of the 

legislative process. See Patel v. USCIS, 732 F.3d 633, 636 

(6th Cir. 2013) (“[I]t is folly to talk about ‘the purpose’ of the 

statute when the statute reflects a compromise between 

multiple purposes.”). That BCRA seeks more robust

disclosure does not mean Congress wasn’t also concerned 

with, say, the conflicting privacy interests that hang in the 

balance. In fact, Congress “took great care in crafting . . . 

language to avoid violating the important p[]rinciples in the 

First Amendment.” 147 CONG. REC. S3033 (daily ed. Mar. 28, 

2001) (statement of Sen. Jeffords). Chevron demands our

deference when an agency’s interpretation is “a reasonable 

accommodation of conflicting policies that were committed to 

the agency’s care by the statute.” 467 U.S. at 845.

Moreover, the district court’s invocation of such a 

sweeping disclosure purpose contradicts the very statute 

whose purposes it purports to protect. BCRA does not require 

disclosure at all costs; it limits disclosure in a number of 

 4 At oral argument, Van Hollen’s counsel conceded that BCRA did 

not call for unbounded disclosure. The district court, however, was 

less sanguine, suggesting unbounded disclosure was BCRA’s aim:

[I]t was contrary to the policy goal that Congress intended 

to implement for the Commission to add limiting language 

to its regulations when the aim of that language was—as the 

FEC put it—‘to ensure that disclosure of the newlypermitted electioneering communications would be 

narrowly tailored.’ Congress did not call for narrow 

tailoring; it called for just the opposite.

Van Hollen, 74 F.Supp.3d at 434. 

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ways. For example, for electioneering communications under 

$10,000, no disclosures are necessary, see 52 U.S.C. § 

30104(f)(1), and for those over $10,000, BCRA does not 

require disclosure of those who contribute $999 or less, see id.

§ 30104(f)(2)(E). These disclosure limitations suggest 

Congress’s purposes were far more nuanced than the district 

court’s characterization concedes.

To be sure, a statute’s purpose is relevant to Chevron’s

Step Two inquiry. See UC Health v. NLRB, 803 F.3d 669, 

675 (D.C. Cir. 2015) (requiring deference so long as an 

agency construction is “reasonable and consistent with the 

statute’s purpose”). But we are judges, not legislators, and it 

behooves us to maintain a healthy sense of modesty regarding 

our ability to discern the scope and priority of purposes the 

BCRA Congress pursued. “What judges believe Congress 

‘meant’ (apart from the text) has a disturbing but entirely 

unsurprising tendency to be whatever judges think Congress 

must have meant, i.e., should have meant.” Zuni Pub. Sch.

Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 117 (2007) 

(Scalia, J., dissenting). What matters here is that Congress left 

the meaning of “contributor” ambiguous. Congressional 

silence of this sort is, in Chevron terms, “an implicit 

delegation from Congress to the agency to fill in the statutory 

gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 159 (2000) (emphasis added). It is a transfer of authority 

to the FEC, whose task it then became “not to find the best 

meaning of the text, but to formulate legally binding rules to 

fill in gaps based on policy judgments made by the agency 

rather than Congress.” Michigan v. EPA, 135 S. Ct. 2699, 

2713 (2015) (Thomas, J., concurring) (emphasis added). The 

FEC did precisely that, deciding to fill the gap left in BCRA 

with the same purpose-requirement Congress adopted in 

related contexts. We are loathe to upset such a policy 

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judgment based on nothing more than highly generalized 

overtures to BCRA’s “primary purpose.”

Because the FEC’s purpose requirement is consistent 

with BCRA’s text, history, and purposes, it easily clears the 

Chevron Step Two hurdle.

B

We are next asked to decide whether the FEC’s purpose 

requirement is “arbitrary and capricious.” The Administrative 

Procedure Act deems unlawful any agency action found to be 

“arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law,” 5 U.S.C. § 706(2), but to invalidate a 

regulation under State Farm review, see Motor Vehicle Mfrs. 

Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 

(1983), a challenger must show the agency action is not a

product of reasoned decisionmaking, see Fox, 684 F.3d at 74–

75. This is “a heavy burden,” since State Farm entails a “very 

deferential scope of review” that forbids a court from 

“substitut[ing] its judgment for that of the agency.” 

Transmission Access Policy Study Grp. v. FERC, 225 F.3d 

667, 714 (D.C. Cir. 2000). The APA’s arbitrary and 

capricious standard requires, inter alia, that an agency 

adequately explain its action so that a reviewing court can

“evaluate the agency’s rationale at the time of decision.” 

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 

(1990).

This appeal presents two State Farm challenges. First, the 

district court held the FEC acted unreasonably in revisiting its 

original 2003 rule, concluding the FEC’s subsequent action

was unnecessary because the Supreme Court’s Wisconsin 

Right to Life decision left existing disclosure provisions 

“untouched.” Van Hollen, 74 F.Supp.3d at 419. Second, Van 

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Hollen contends the FEC failed to adequately explain its 

decision to adopt the purpose requirement. 

1

The district court held “it was unreasonable for the FEC 

to alter the statutory reporting requirements on the stated 

grounds that it was implementing the Supreme Court’s 

decision in [Wisconsin Right to Life]” as “nothing” in that 

decision “required narrowing the disclosure requirements.”

Van Hollen, 74 F. Supp. 3d at 419.5

But in focusing on the opinion’s silence regarding 

disclosure, id. at 418–19, the district court downplays 

Wisconsin Right to Life’s disruptive import. Before 2007, the 

modus operandi of campaign finance law had always been 

that Congress could restrict corporate and union speech in the 

interest of deterring “corruption” or “the appearance of 

corruption.” See Buckley, 424 U.S. at 26. But Wisconsin Right 

to Life marked the first chink in that conventional wisdom’s 

armor, an onslaught that would ultimately culminate in the 

most expansive, speech-protective campaign finance decision 

in American history, Citizens United. After Wisconsin Right 

to Life, corporations and unions suddenly could expend 

general treasury funds for issue ads, a result Congress had 

explicitly prohibited under BCRA. An entirely new class of 

 5 The court apparently proceeds under Chevron Step Two, but 

curiously concludes “[t]he starting point of the second step of the 

Chevron analysis must be the stated reason behind the regulation,” 

and attempts to assess the adequacy of that explanation. See Van 

Hollen, 74 F. Supp. 3d at 415. This seems more like State Farm

than Chevron. So, while the district court speaks of the FEC’s 

“unreasonable” action, we think it more appropriate to consider 

whether its decision to revisit its previous regulation was 

“arbitrary.”

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previously silenced speakers was now subject to BCRA’s 

disclosure requirements. And just as the FEC was authorized 

to decide how to implement BCRA’s disclosure provisions for 

qualified speakers in 2003, it was authorized to decide how to

implement BCRA’s disclosure provisions for these newly 

qualified speakers in 2007, too.

It is true Wisconsin Right to Life “said absolutely 

nothing” about the challenged disclosure provisions, but that 

does not mean the FEC was barred from promulgating a new 

regulation. An agency “must consider varying interpretations 

and the wisdom of its policy on a continuing basis . . . in 

response to changed factual circumstances.” See Nat’l Cable 

& Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 

981 (2005). The Supreme Court’s decision brought an entirely 

new class of speakers within reach of BCRA’s disclosure 

requirements, a class altogether different from those already 

subjected to them. Constitutional decisions of this magnitude 

unquestionably justify an agency in updating its existing 

regulations to appropriately compensate for changed 

circumstances.

2

Van Hollen also argues, and the district court agreed, that 

the FEC failed to adequately explain its decision to adopt the 

purpose requirement. While an agency is required to 

adequately explain its decision, this does not mean that its 

explanation “must be a model of analytical precision.” 

Dickson v. Sec. of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 

1995). It is enough that a reviewing court can reasonably 

discern the agency’s analytical path. Bowman Transp. Inc. v. 

Ark.-Best Freight Sys. Inc., 419 U.S. 281, 286 (1974). That 

low hurdle is cleared where the agency “examine[d] the 

relevant data and articulate[d] a satisfactory explanation for 

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its action including a rational connection between the facts 

found and the choice made.” State Farm, 463 U.S. at 43. 

Here, we acknowledge the FEC’s explanation was not

one of “ideal clarity,” but, again, ideal clarity is not the 

standard. The FEC advanced three explanations for its 

purpose requirement, which we refer to as the “support,” 

“burden,” and “privacy” rationales. 72 Fed. Reg. at 72901, 

72911. Because we can reasonably discern the FEC’s 

analytical path from these three rationales, we uphold its 

purpose requirement against Van Hollen’s challenge. 

1. The Support Rationale

The FEC was concerned that some individuals who 

contribute to a union or corporation’s general treasury may 

not support that entity’s electioneering communications, and a 

robust disclosure rule would thus mislead voters as to who 

really supports the communications. The agency explained, 

A corporation’s general treasury funds are often 

largely comprised of funds received from 

investors such as shareholders who have 

acquired stock in the corporation and customers 

who have purchased the corporation’s products 

or services, or in the case of a non-profit 

corporation, donations from persons who 

support the corporation’s mission. These 

investors, customers, and donors do not 

necessarily support the corporation’s 

electioneering communications. Likewise, the 

general treasury funds of labor organizations and 

incorporated membership organizations are 

composed of member dues obtained from 

individuals and other members who may not 

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necessarily support the organization's 

electioneering communications.

72 Fed. Reg. at 72911 (emphases added). It’s hard to escape 

the intuitive logic behind this rationale. Imagine the following 

not unlikely scenario. A Republican donates $5,000 to the 

American Cancer Society (ACS), eager to fund the ongoing 

search for a cure. Meanwhile, Republicans in Congress, aware 

of a growth in private donations to ACS, push for fewer 

federal grants to scientists studying cancer in order to reduce 

the deficit. In response to their push, the ACS runs targeted 

advertisements against those Republicans, leading to the 

defeat of several candidates in the upcoming election. 

Wouldn’t a rule requiring disclosure of ACS’s Republican 

donor, who did not support issue ads against her own party,

convey some misinformation to the public about who 

supported the advertisements?

Granted, as Van Hollen is quick to point out, the FEC’s 

assertions here were not corroborated with any hard evidence 

showing contributors who disagree with their chosen

corporation’s electioneering communications. But these 

assertions “are, at the very least, speculation based firmly in 

common sense and economic reality.” Verizon v. FCC., 740 

F.3d 623, 646 (D.C. Cir. 2014); see also San Luis Obispo 

Mothers for Peace v. NRC, 789 F.2d 26, 44 (D.C. Cir. 1986) 

(“[T]he Commission is not required to hold a hearing to prove 

what common sense shows.”). Here, the FEC’s assertion that 

some number of a corporation’s investors, a nonprofit’s 

donors, or a union’s members may generally support the 

entity but not its electioneering communications seems fairly 

intuitive, at least enough to pass State Farm’s “very 

deferential scope of review.” Transmission Access, 225 F.3d 

at 714.

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2. The Burden Rationale

This second rationale displayed the FEC’s concern not 

for the interests of contributors or the public, but with the

onus placed on the disclosing entity to curate an exhaustive 

list of every individual who provided more than $1,000. The 

FEC explained, 

Furthermore, witnesses at the Commission’s 

hearing testified that the effort necessary to 

identify those persons who provided funds 

totaling $1,000 or more to a corporation or labor 

organization would be very costly and require an 

inordinate amount of effort. Indeed, one witness 

noted that labor organizations would have to 

disclose more persons to the Commission under 

the ECs rules than they would disclose to the 

Department of Labor under the Labor 

Management Report and Disclosure Act.

72 Fed. Reg. at 72911. As further support for its explanation, 

the FEC noted that “all commenters who addressed disclosure 

of electioneering communications stated that corporations and 

labor organizations should not be required to report the 

sources of funds that made up their general treasury funds.” 

Id. And one commenter urged an exemption for nonprofits, 

stating that “nonprofit corporations have a wide variety of 

sources of income, and unlimited disclosure would create a 

heavy burden for them.” Id.

Van Hollen suggests this explanation is inadequate for a 

couple of reasons. First, he argues the FEC did not support its 

assertion that identifying contributors would be “very costly 

and require an inordinate amount of effort” with anything 

more than “conclusory assertions.” Van Hollen Br. at 39. But 

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this isn’t entirely accurate. The Commission cited to one 

commenter who testified “that labor organizations would have 

to disclose more persons to the Commission under the 

[electioneering communications] rules than they would 

disclose to the Department of Labor,” and another commenter 

who testified that the “reporting requirements would far 

exceed all other reporting requirements that currently apply to 

nonprofit organizations, such as reporting to the Internal 

Revenue Service.” 72 Fed. Reg. at 72911. These assertions,

relied upon by the FEC, are uncontradicted in the record, and 

“[w]ithout any contrary evidence to disprove these findings,” 

Van Hollen has “not shown any arbitrary and capricious 

action.” Agape Church v. FCC, 738 F.3d 397, 410 (D.C. Cir. 

2013). 

Second, Van Hollen suggests the FEC could have 

mitigated the cost of compliance by clarifying that business 

income (such as from customers or shareholders) and union 

dues do not entail “truly donative acts” and are therefore 

exempt from disclosure. Van Hollen Br. at 43. He points out 

that the FEC took a similar approach in promulgating the 

2003 version of the disclosure rules, clarifying that

“individuals are required to disclose donations received, 

which does not include salary, wages, or other compensation 

for employment.” 68 Fed. Reg. at 414. By exempting these 

sources of revenue, which are less relevant to voters anyway, 

the overall compliance costs of the regulation would drop. 

But this alternative would only reduce the disclosure burdens 

borne by for-profit corporations and unions. Nonprofit 

corporations, which, as we’ve already noted, faced reporting 

requirements that “would far exceed all other reporting 

requirements that currently apply to nonprofit[s],” obtain no 

benefit from this alternative, and the FEC was justifiably 

concerned about their compliance costs, too. Accordingly, this 

was not a viable alternative. Since agencies are only required 

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to consider “significant and viable” alternatives, Nat’l 

Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 215 

(D.C. Cir. 2013) (emphasis added), we find no error in the 

FEC’s decision not to adopt this only partially mitigating 

alternative. 

To be sure, the FEC’s explanation was far from ideal, and 

it is more difficult to discern its analytical path on this point. 

For instance, what are the Department of Labor’s disclosure 

requirements, and how much more burdensome was the 

existing rule? The IRS’s? Would different rules for nonprofits 

solve most concerns? What is actually more burdensome 

about disclosing all donations as opposed to only a subset of 

donations? And does that justify a change in policy that will 

have a markedly decreased effect on the amount of 

disclosures? The answers to these questions may exist and 

may likely support the rule, but the FEC’s explanation did not 

provide them. Ultimately, however, State Farm’s standard is 

“[n]ot particularly demanding,” and the FEC’s burden 

rationale leaves just enough detail for us to see “what major 

issues of policy were ventilated and why the agency reacted to 

them as it did.” Republican Nat’l Cmte v. FEC, 76 F.3d 400, 

407 (D.C. Cir. 1996). 

3. The Privacy Rationale

The FEC’s final explanation centered on its effort to 

tailor the regulations such that they both effectuate BCRA’s 

purpose in disclosure while also minding carefully the 

constitutional interests in privacy also at stake. The FEC 

reasoned that the revised purpose requirement is “narrowly 

tailored to address many of the commenters’ concerns 

regarding individual donor privacy.” 72 Fed. Reg. at 72901.

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This explanation is significant. The FEC is “[u]nique 

among federal administrative agencies,” having “as its sole 

purpose the regulation of core constitutionally protected 

activity—the behavior of individuals and groups only insofar 

as they act, speak and associate for political purposes.” AFLCIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003). Thus, more 

than other agencies whose primary task may be limited to 

administering a particular statute, every action the FEC takes 

implicates fundamental rights. By tailoring the disclosure 

requirements to satisfy constitutional interests in privacy, the 

FEC fulfilled its unique mandate. 

And the FEC’s concerns about the competing interests in 

privacy and disclosure were legitimate. We began this opinion 

by acknowledging the unmistakable tension that exists in 

campaign finance law between speech rights and disclosure 

rules. The Supreme Court has vigorously protected the 

public’s right to speak anonymously, even recognizing that 

anonymous speech has “played an important role in the 

progress of mankind.” Talley v. California, 362 U.S. 60, 64 

(1960). “Anonymity,” the Court elsewhere observed, “is a 

shield from the tyranny of the majority” and “exemplifies the 

purpose behind the Bill of Rights and of the First Amendment 

in particular: to protect unpopular individuals from 

retaliation—and their ideas from suppression—at the hand of 

an intolerant society.” McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334, 357 (1995). This is not to say the Court is naïve 

to the potential downsides that may accompany this right to 

anonymity. Much to the contrary, the McIntyre Court 

acknowledged “political speech by its nature will sometimes 

have unpalatable consequences,” but, vindicating the right to 

speak anonymously, declared “our society accords greater 

weight to the value of free speech than to the dangers of its 

misuse.” Id.

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And yet, the Court has sanctioned startling intrusions on 

this right to anonymity by upholding mandatory disclosure 

requirements. The Court held in Buckley that such 

requirements “appear to be the least restrictive means of 

curbing the evils of campaign ignorance and corruption that 

Congress found to exist,” all the while recognizing “public 

disclosure of contributions to candidates and political parties 

will deter some individuals who otherwise might contribute” 

and “expose contributors to harassment or retaliation.” 424 

U.S. at 68. Ironically, these two values the Buckley Court 

acknowledged would be harmed by the disclosure 

requirements were the very same values the McIntyre Court 

later believed “exemplifie[d] the purpose behind the Bill of 

Rights and of the First Amendment in particular”—namely, 

“protect[ing] unpopular . . . ideas from suppression” and 

“individuals from retaliation.” McIntyre, 514 U.S. at 357. But 

even after McIntyre, the Court upheld the disclosure 

requirements in McConnell, and again in Citizens United, 

without much more than a passing citation to McIntyre or any 

of the Court’s other precedents establishing the right to speak 

anonymously.6 As one dissenting justice observed in 

McConnell, “The Court now backs away from [McIntyre], 

allowing the established right to anonymous speech to be 

stripped away based on the flimsiest of justifications.” 540 

U.S. at 276 (Thomas, J. dissenting). 

Both an individual’s right to speak anonymously and the 

public’s interest in contribution disclosures are now firmly 

entrenched in the Supreme Court’s First Amendment 

jurisprudence. And yet they are also fiercely antagonistic. The 

 6 Judge Easterbrook, dubitante in Majors v. Abell, 361 F.3d 349, 

356 (7th Cir. 2004), also noted “the Justices’ failure to discuss 

McIntyre” and concluded it was therefore “impossible for courts at 

our level to make an informed decision—for the Supreme Court has 

not told us what principle to apply.” 

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deleterious effects of disclosure on speech have been ably 

catalogued. “Disclaimer and disclosure requirements enable 

private citizens and elected officials to implement political 

strategies specifically calculated to curtail campaign-related 

activity and prevent the lawful, peaceful exercise of First 

Amendment rights.” Citizens United, 558 U.S. at 483 

(Thomas, J., dissenting) (highlighting how mandatory 

disclosure of contributors to California’s controversial “Yes 

on Proposition 8” campaign led to their being singled out for 

ruthless retaliation and intimidation). “[T]he advent of the 

Internet enables prompt disclosure of expenditures, which 

provides political opponents with the information needed to 

intimidate and retaliate against their foes.” Id. at 484 (internal 

quotation marks omitted). “Disclosure also makes it easier to 

see who has not done his bit for the incumbents, so that arms 

may be twisted and pockets tapped.” Majors v. Abell, 361 

F.3d 349, 356 (7th Cir. 2004) (Easterbrook, J., dubitante).

In addition to these general burdens, the specific 

disclosure requirement Van Hollen advocates here would 

present its own unique harms. For instance, an American 

Cancer Society donor who supports cancer research but not 

ACS’s political communications must decide whether a 

cancer cure or her associational rights are more important to 

her. This is categorically distinct from deciding whether a 

political issue, such as tax reform, is as important as one’s 

associational right. Cancer research isn’t a political issue, but 

disclosure rules of this sort would undeniably transform it into 

one. These disclosure rules also burden privacy rights in 

another crucial way: modest individuals who’d prefer the 

amount of their charitable donations remain private lose that 

privilege the minute their nonprofit of choice decides to run 

an issue ad. The Supreme Court routinely invalidates laws 

that chill speech far less than a disclosure rule that might 

scare away charitable donors. See Watchtower Bible and 

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Tract Soc’y of New York, Inc. v. Stratton, 536 U.S. 150 (2002) 

(striking a law requiring religious canvassers to obtain a 

permit before advocating door-to-door on private property).

The ones who would truly bear the burden of Van 

Hollen’s preferred rule would not be the wealthy corporations 

or the extraordinarily rich private donors that likely motivated 

Congress to compel disclosure in the first place. Such 

individuals would have “little difficulty complying” with 

these laws, as they can readily hire “legal counsel who 

specialize in election matters,” who “not only will assure 

compliance but also will exploit the inevitable loopholes.” 

Majors, 361 F.3d at 357–58 (Easterbrook, J., dubitante). 

Instead, such requirements “have their real bite when flushing 

small groups, political clubs, or solitary speakers into the 

limelight, or reducing them to silence.” Id. at 358. 

By affixing a purpose requirement to BCRA’s disclosure 

provision, the FEC exercised its unique prerogative to 

safeguard the First Amendment when implementing its

congressional directives. See AFL-CIO, 333 F.3d at 170. Its 

tailoring was an able attempt to balance the competing values 

that lie at the heart of campaign finance law. We therefore do 

not find this rationale inadequate.

 

* * *

At the close of its explanation, the FEC succinctly 

defended its decision to adopt a purpose requirement for 

corporate and union electioneering communications: 

In the Commission’s judgment, requiring 

disclosure of funds received only from those 

persons who donated specifically for the purpose 

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of furthering [electioneering communications]

appropriately provides the public with 

information about those persons who actually 

support the message conveyed by the 

[electioneering communications] without 

imposing on corporations and labor organizations 

the significant burden of disclosing the identities 

of the vast numbers of customers, investors, or 

members, who have provided funds for purposes 

entirely unrelated to the making of 

[electioneering communications].

72 Fed. Reg. at 72911. In light of its three rationales—the 

support, burden, and privacy rationales—we conclude the 

FEC’s purpose requirement is neither arbitrary nor capricious.

III

Holding, as we do here, that the FEC’s purpose 

requirement satisfies both Chevron Step Two and State Farm

review has the benefit both of being a correct application of 

black letter administrative law and of forestalling to some 

other time an answer to the important constitutional questions 

bubbling beneath the surface of this case. As our discussion of 

the FEC’s rule has shown, the Supreme Court's campaign 

finance jurisprudence subsists, for now, on a fragile 

arrangement that treats speech, a constitutional right, and 

transparency, an extra-constitutional value, as equivalents. 

But “the centre cannot hold.” William Butler Yeats, The 

Second Coming (1919). Until then, however, the FEC’s 

purpose requirement survives, and the judgment of the district 

court is therefore

Reversed.

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