1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CHRIS VAN HOLLEN, )

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, ) Civil Action No. 1:11-cv-00766 (ABJ)

)

Defendant, ) MEMORANDUM

)

HISPANIC LEADERSHIP FUND, )

)

Intervenor Defendant, )

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CENTER FOR INDIVIDUAL FREEDOM, )

)

Intervenor Defendant. )

____________________________________)

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND IN SUPPORT OF 

DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT AND IN 

OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

On August 1, 2011, the Court issued a Minute Order granting the motions of the Hispanic 

Leadership Fund and the Center For Individual Freedom to intervene as Defendants in this 

matter, and ordering each intervenor to submit a pleading that avoids duplication of arguments 

already made by Defendant Federal Election Commission. 

I. Plaintiff Representative Chris Van Hollen Lacks Standing To Challenge 11 C.F.R. § 

104.20(c)(9)

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Defendant Federal Election Commission does not address the issue of Plaintiff‘s standing 

to bring this lawsuit. Plaintiff‘s brief assertion of standing, however, fails to demonstrate that 

such standing exists. As the Supreme Court instructs:

The minimum constitutional requirements for standing were explained in Lujan v. 

Defenders of Wildlife, 504 U.S. 555 (1992). 

―First, the plaintiff must have suffered an  ̳injury in fact‘ -- an invasion of a legally 

protected interest which is (a) concrete and particularized, and (b)  ̳actual or imminent,

not ―conjectural‖ or ―hypothetical.‘‖ Second, there must be a causal connection between 

the injury and the conduct complained of -- the injury has to be  ̳fairly . . . trace[able] to 

the challenged action of the defendant, and not . . . th[e] result [of] the independent action 

of some third party not before the court.‘ Third, it must be  ̳likely,‘ as opposed to merely 

 ̳speculative,‘ that the injury will be  ̳redressed by a favorable decision.‘‖ Id., at 560-561

(citations and footnote omitted).

In requiring a particular injury, the Court meant ―that the injury must affect the plaintiff 

in a personal and individual way.‖ Id., at 560, n. 1.

Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 , 1445 (2011).

Plaintiff‘s assertion of injury is premised on the holdings in FEC v. Akins, 524 U.S. 11 

(1998) and Shays v. FEC, 340 F.Supp. 2d 39 (D.D.C. 2004). However, neither decision supports 

Plaintiff‘s standing in this matter.

A. Informational Injury

Plaintiff claims standing under FEC v. Akins ―because he is not receiving disclosure of 

information mandated by BCRA.‖ See Plaintiff‘s Motion For Summary Judgment at 16; 

Declaration of Representative Chris Van Hollen In Support Of Motion For Summary Judgment, 

¶ 5. The Supreme Court‘s holding in Akins was premised on the FEC‘s refusal to take a certain 

enforcement action in response to a filed complaint, and to the extent that Akins created any 

broad information-based standing right, it did so within the context of 2 U.S.C. § 437g, and not 

within the context of the FEC‘s rulemaking authority. See Citizens For Responsibility and 

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Ethics In Washington v. FEC, Civil Action No. 10-1350 (D.D.C. filed Aug. 1, 2011) (J. 

Boasberg) (―The Supreme Court in Akins recognized  ̳informational injury‘ as a basis for 

standing to challenge the FEC‘s dismissal of a complaint under § 437g(a)(8)(A).‖).

The Supreme Court‘s decision in Akins included discussion of both a statutory right to 

bring suit and traditional prudential standing doctrine. The respondents in that case had filed an 

administrative complaint with the FEC pursuant to 2 U.S.C. § 437g(a)(1)1against the American 

Israel Public Affair Committee (AIPAC), alleging that AIPAC qualified as a ―political 

committee‖ under the Federal Election Campaign Act (FECA), and was therefore subject to 

FECA‘s registration and reporting requirements. The FEC dismissed the respondents‘ 

complaint. The respondents then brought suit pursuant to 2 U.S.C. § 437g(a)(8), which provides 

that ―[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such 

party under paragraph (1) . . . may file a petition with the United States District Court for the 

District of Columbia.‖ While the Supreme Court‘s decision intermingled discussion of this

statutory provision with traditional ―injury in fact‖ considerations, it is clear that the Court‘s 

decision regarding standing was influenced by the statutory language: ―Given the language of 

the statute and the nature of the injury, we conclude that Congress, intending to protect voters 

such as respondents from suffering the kind of injury here at issue, intended to authorize this 

kind of suit.‖ FEC v. Akins, 524 U.S. at 20 (emphasis added). 

Plaintiff‘s purported informational injury is also based on a presumptuous legal 

conclusion, namely that ―Plaintiff is not receiving the full, accurate, and timely disclosures 

required under BCRA.‖ See Plaintiff‘s Motion For Summary Judgment at 17 (emphasis added). 

 

1

2 U.S.C. § 437g(a)(1) provides, in part: ―Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of title 26 has occurred, may file a complaint with the Commission.‖

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The question of whether these disclosures are ―required under BCRA,‖ however, is the 

substantive legal issue at the center of this lawsuit. 

Both Plaintiff‘s Motion For Summary Judgment and the Supreme Court in Akins

reference Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989). The Court in Public 

Citizen likened the request for information in that case to a denial of information under the 

Freedom of Information Act:

Appellant WLF has specifically requested, and been refused, the names of candidates 

under consideration by the ABA Committee, reports and minutes of the Committee‘s 

meetings, and advance notice of future meetings. As when an agency denies requests for 

information under the Freedom of Information Act, refusal to permit appellants to 

scrutinize the ABA Committee‘s activities to the extent FACA allows constitutes a 

sufficiently distinct injury to provide standing to sue. Our decisions interpreting the 

Freedom of Information Act have never suggested that those requesting information 

under it need show any more than that they sought and were denied specific agency 

records. . . . .There is no reason for a different rule here. 

Public Citizen v. U.S. Dept. of Justice, 491 U.S. at 449. No such agency denial of a specific 

request for information exists here.

In fact, Plaintiff does not claim to be deprived of any information that affects him ―in a 

personal and individual way.‖ See Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. at 1445. 

Rather, Plaintiff broadly asserts a right to the entire universe of ―contributor‖ information that 

potentially could be disclosed on electioneering communication reports that are filed with the 

FEC, were the Court were to interpret the relevant statutory language as broadly as possible and 

then order the FEC to do the same. To the extent that Plaintiff claims an injury in this regard, 

―the impact on‖ the Plaintiff by the FEC‘s current regulation ―is plainly undifferentiated and 

 ̳common to all members of the public.‘‖ U.S. v. Richardson, 418 U.S. 166, 176-177 (1974) 

quoting Ex parte Levitt, 302 U.S. 633, 634 (1937). 

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Plaintiff‘s alleged injury is also not ―concrete.‖ Plaintiff does not allege that the 

challenged regulations could be enforced against him or that any of his potential actions are 

―chilled‖ by the threat of enforcement of the challenged regulation. Nor does Plaintiff allege that 

anyone has actually distributed an electioneering communication in his congressional district, 

and subsequently filed a disclosure report lacking the additional element of disclosure that 

Plaintiff seeks from the Court. Plaintiff merely declares that ―I will also be the subject of 

 ̳electioneering communications‘ that are financed by donors whose names would have otherwise 

been disclosed‖ and that he will then not be able to ―draw attention‖ to these donors in personal 

terms, as opposed to simply responding to their substantive arguments. Declaration of 

Representative Chris Van Hollen In Support Of Motion For Summary Judgment, ¶ 4 (emphasis 

added). This is entirely speculative and does not demonstrate the occurrence, or the imminent 

occurrence, of any actual injury, if the purported lack of this information can even be regarded as 

an ―injury‖ to a recognized interest. FEC records indicate that Plaintiff has never been identified

in a reported electioneering communication. See FEC Database of Electioneering 

Communication Reports available at http://www.fec.gov/finance/disclosure/ec_table.shtml; see 

also Center For Responsive Politics aggregation of Outside Spending By Candidate available at

http://www.opensecrets.org/outsidespending/summ.php?disp=C. 

Finally, the fact that ―[t]his lawsuit appears to be a judicial effort to achieve what could 

not be done legislatively,‖ see Defendant Federal Election Commission‘s Motion For Summary 

Judgment at 38, coupled with the extraordinarily broad and non-particularized informational 

injury asserted by Plaintiff, very strongly suggests that ―the political process, rather than the 

judicial process, may provide the more appropriate remedy for a widely shared grievance.‖ See

FEC v. Akins, 524 U.S. at 23.

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B. Competitor Standing

Plaintiff also fails to demonstrate injury under the ―competitor standing‖ theory accepted 

by the Court in Shays v. FEC, 414 F.3d 76 (D.D.C. 2005). Plaintiff claims to suffer legal harm 

because the FEC‘s regulation ―illegally structures a competitive environment,‖ see Plaintiff‘s 

Motion For Summary Judgment at 17, but offers nothing other than a rote explanation of how 

this is so while failing to acknowledge that this phrase, as used in Shays v. FEC, had a specific 

meaning that is not applicable in this case. 

Plaintiff claims that ―[t]he challenged regulation infringes Plaintiff‘s interest in 

participating in elections untainted by BCRA-banned practices because it allows corporations 

and labor organizations to hide the sources of funds they use to pay for  ̳electioneering 

communications.‘‖ See Plaintiff‘s Motion For Summary Judgment at 17 citing Van Hollen Decl. 

¶ 4. As set forth in the succeeding section of this brief, BCRA, as it was initially conceived and 

passed into law, did not permit any corporate- or labor union-funded electioneering 

communications (or independent expenditures). Accordingly, BCRA cannot be understood to 

have contemplated the issue of contributor/donor disclosure in connection with corporate- and 

labor union-funded electioneering communications (or independent expenditures). Thus, it 

cannot be claimed that the FEC‘s current electioneering communication donor disclosure 

regulation causes elections to be ―tainted‖ by a ―BCRA-banned practice.‖

The theory underlying standing in Shays v. FEC was that the FEC regulations at issue in 

that litigation permitted that which BCRA prohibited, namely, the spending of ―soft money‖ in 

connection with Federal elections. The Court accepted the Plaintiffs‘ asserted particularized 

injury:

Particularizing this claim of injury, the Congressmen then identify consequences for their 

own campaigns flowing from FEC subversion of each key category of BCRA 

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restrictions. For example, as to BCRA‘s  ̳soft-money provisions,‘ Shays and Meehan 

state,  ̳If [FEC] regulations do not faithfully implement the soft-money ban, I face the 

strong risk that unregulated soft money contributions will again be used in an attempt to 

influence federal elections in which I am a candidate.‘ (Shays Decl. P5; Meehan Decl. 

P5.) As to the  ̳sham issue ad provisions,‘ they assert,  ̳If those regulations do not 

faithfully implement [BCRA], I will be open to attack, during critical time periods just 

before the primary and general elections, in broadcast advertising campaigns mounted by 

groups seeking to evade the contribution limits, source prohibitions, and disclosure 

requirements imposed by Congress.‘ (Shays Decl. P7; Meehan Decl. P7.)

Shays v. FEC, 414 F.3d at 84.

Of course, as a result of WRTL and Citizens United, the Plaintiff in this case cannot claim 

the Shays v. FEC-recognized interest in being protected from advertising funded with ―soft 

money,‘ as corporations and labor unions are now free to sponsor electioneering communications 

and independent expenditures and pay for those advertisements using so-called ―soft money‖ 

from their general treasury funds. Much of the election spending that the Shays Plaintiffs selfinterestedly disparaged as ―tainted‖ and ―corrupt‖ ―special-interest money,‖ has since been 

afforded constitutional protection by the Supreme Court. In the process, the Supreme Court 

rendered the incumbency-protection-based theory of ―competitor standing‖ found in Shays v. 

FEC irrelevant because the laws and FEC regulations that allegedly allowed for the ―illegal 

structuring of a competitive environment‖ that forced incumbent politicians to ―face intensified

competition‖ from ―additional campaign spending‖ have been held unconstitutional. 

In other words, standing existed in Shays v. FEC because the Plaintiffs might 

conceivably have faced additional election spending that was illegal under BCRA. No such 

claim can be made here – all of the spending at issue is an unquestionably permissible exercise 

of First Amendment rights. The additional element of disclosure that Plaintiff seeks, or the 

absence of such disclosure, does not impact the ―competitive environment‖ similar to the 

hypothetical scenarios described by the Court in Shays v. FEC. In fact, because the regulation at 

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issue in this matter does not allow any parties ―to engage in activities that otherwise would be 

barred,‖ it is very likely that the FEC‘s regulation has no cognizable impact whatsoever on the 

Plaintiff‘s ―competitive environment.‖ See Shays v. FEC, 414 F.3d at 87 quoting Shays v. FEC,

337 F.Supp.2d 28, 42-43 (D.D.C. 2004). 

II. Alternatively the Court Should Grant Defendant Federal Election Commission’s 

Motion for Summary Judgement

Except as otherwise set forth below, Intervenor Hispanic Leadership Fund adopts and 

incorporates herein the arguments made by Defendant Federal Election Commission in its 

Opposition and Motion For Summary Judgment. 

A. As Adopted, BCRA Prohibited All Corporate- And Labor-Funded 

Electioneering Communications

Plaintiff‘s Memorandum of Points and Authorities states that BCRA allowed so-called 

―MCFL corporations‖2to make electioneering communications, which, according to Plaintiff, 

indicates that Congress contemplated and provided for certain corporate-funded electioneering 

communications in BCRA. See Plaintiff‘s Memorandum of Points and Authorities, at 7 n.4. 

Defendant Federal Election Commission similarly asserts that ―BCRA prohibited corporations 

from making electioneering communications unless they met the strict criteria of  ̳MCFL

corporations,‘ . . ..‖ Defendant Federal Election Commission‘s Memorandum of Points and 

Authorities, at 6. See also id. at 18 (―BCRA prohibited all unions and virtually all corporations 

from making any electioneering communications‖) (emphasis added).

We disagree with this assessment. Both the Supreme Court and the special three-judge 

District Court panel that first considered McConnell v. FEC understood that lawmakers, when 

 

2 An ―MCFL corporation‖ is an incorporated, non-profit advocacy organization that satisfies certain criteria set forth 

in FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238 (1986). Prior to Citizens United v. FEC, these 

organizations were deemed to be entitled to an ―as applied‖ exemption from the Federal Election Campaign Act‘s 

prohibition on corporate independent expenditures at 2 U.S.C. § 441b.

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they adopted the Wellstone Amendment, intended to prohibit all corporate- and labor-funded 

electioneering communications. The Supreme Court explained in McConnell v. Federal Election 

Commission that ―[t]he parties and the judges on the District Court have assumed that amended 

FECA § 316(c)(6) completely canceled the exemption for nonprofit corporations set forth in § 

316(c)(2).‖ McConnell v. Federal Election Commission, 540 U.S. 93, 210 n.90. The Supreme 

Court referred to the lower court‘s consideration of the case, citing Judge Leon‘s opinion and 

quoting a portion of the following passage: 

As defendants acknowledge, Section 204 completely cancels out the exemption for all 

nonprofit corporations provided by Section 203. See Gov't Opening Br. at 164, n.115. 

Plaintiffs contend, and Judge Henderson agrees, that Section 204 is unconstitutional 

because, in essence, it contravenes the Supreme Court's decision in MCFL.

McConnell v. FEC, 251 F. Supp. 2d 176, 804 (D.D.C. 2003) (Leon, J.).

The Supreme Court agreed that BCRA itself did not include a MCFL exemption: ―That 

FECA § 316(c)(6) does not, on its face, exempt MCFL organizations from its prohibition is not a 

sufficient reason to invalidate the entire section.‖ Id. at 211. The Supreme Court then construed

the electioneering communications provisions to include the MCFL exception to avoid the

constitutional question raised. The FEC similarly read a MCFL exception into the electioneering 

communication prohibition when it adopted regulations. That the Supreme Court and the FEC 

incorporated the MCFL exception into the electioneering communication provision, however, 

does not mean that Congress actually intended for BCRA to include such an exception. 

When Senator Wellstone presented his amendment on the Senate floor, he explicitly 

stated that it did not include the MCFL exception:

The main argument that I think colleagues will hear advanced against the 

constitutionality of this amendment is based upon a 1986 Supreme Court case called the 

Federal Election Commission v. Massachusetts Citizens for Life. In that case, a 5-4 

decision, the Court found a flier produced by the group that urged voters to vote ―proCase 1:11-cv-00766-ABJ Document 31 Filed 08/22/11 Page 9 of 18
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life‖ and mentioned candidates could be paid for using the group‘s regular treasury funds. 

But I think the five reasons why the Court would find this amendment, which is different 

constitutionally is: First, it is important to note tonight at the onset that this amendment –

and indeed the Snowe-Jeffords motion already in the bill – only covers broadcast 

communications. It does not cover print communications such as the one issue in the 

Massachusetts Citizens for Life. Indeed, the group argued that the flier should have been 

protected as a news editorial. Snowe-Jeffords specifically exempts editorial 

communications. Second, the Court based its decision in part on the logic that the 

regulation of election-related communications was overly burden [sic] to small grassroots 

organizations. Under our amendment – and under Snowe-Jeffords the group would have 

to raise $10,000 on broadcast ads that mention a candidate 60 days before the election 

before their provision would kick in. . . . Finally, and most importantly of all about this 

Court decision, the Court actually argued that the election communications of nonprofit 

corporations, such as the one covered in this amendment, could be regulated once it 

reached a certain level. . . . Since this decision, these groups have operated outside the 

law with impunity.

147 Cong. Rec. S2845, S2848 (Mar. 26, 2001)

The Wellstone Amendment was specifically and explicitly intended to overcome the 

Supreme Court‘s decision in Massachusetts Citizens For Life, Inc., to the extent that a MCFL

organization might otherwise produce and distribute an electioneering communication. BCRA, 

as it was originally adopted, did not provide for any corporation – even an MCFL organization –

to make or disclose electioneering communications. Plaintiff‘s obfuscations regarding the ―back 

up‖ Snowe-Jeffords provision, and his speculation about the Congressional intent behind a 

provision of BCRA that has never been, and was never intended to be, operative law, do not 

change this fact. See Plaintiff‘s Memorandum of Points and Authorities at 23-25.

Thus, for the reasons set forth herein, and in further support of the reasons set forth in 

Defendant Federal Election Commission‘s Memorandum of Points and Authorities In Support 

Of Its Motion For Summary Judgment, we agree that Congress did not speak to the issue raised 

by Plaintiff and that ―the Court must proceed to step two of the Chevron analysis.‖ 

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B.Center For Individual Freedom, Inc. v. Tennant Indicates That The FEC’s 

Regulation Is Constitutionally Required

In Center For Individual Freedom, Inc. v. Tennant, Civil Action No. 1:08-cv-00190, 

S.D.W.Va. July 18, 2011, the Court indicated that an electioneering communication disclosure 

requirement does not survive ―exacting scrutiny‖ unless it contains limitations similar to those 

present in the FEC‘s regulation. Specifically, the Court construed West Virginia‘s electioneering 

communication donor disclosure requirement ―to reach only contributions that are either (1) 

received by the organization or corporation in response to a solicitation specifically requesting 

funds to pay for an electioneering communication or (2) specifically designated for 

electioneering communications by the contributor.‖ Center For Individual Freedom, Inc. v. 

Tennant at *91. Otherwise, the required disclosures ―compel a flood of information . . . that is 

not necessarily relevant to the purpose the regulation purportedly services: to provide the 

electorate with information as to who is speaking.‖ Plaintiff‘s preferred reading of BCRA would 

similarly ―add so much information that it ultimately fails to further the government interest it 

was enacted to serve.‖ Id. at *90.

The Tennant Court also observed that ―requiring the disclosure of corporate or 

organizational contributors‘ personal information can be quite burdensome on those entities and 

may discourage general treasury contributors from associating with and giving to the entity as a 

consequence.‖ Center For Individual Freedom, Inc. v. Tennant at *90. The same is certainly 

true here, and there is no valid governmental interest in intentionally imposing burdens on 

speech either for the sake of discouraging that speech or out of simple curiosity in what might be 

disclosed. See FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 388 (D.C. Cir. 

1981) (―Plainly, mere  ̳official curiosity‘ will not suffice as the basis for FEC investigations....‖).

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C.Plaintiff Asks The Court To Set Aside FEC Regulations That Save The 

Constitutionality of BCRA’s Electioneering Communication Disclosure Provisions 

As the decision in Center For Individual Freedom, Inc. v. Tennant demonstrates, the 

electioneering communication donor disclosure requirements set forth at 2 U.S.C. § 434(f)(2)(F) 

are subject to constitutional challenge. However, those requirements can be read, interpreted, 

and implemented in a manner that avoids the constitutional problems identified in Center For 

Individual Freedom, Inc. v. Tennant. The FEC‘s regulations accomplish this necessary task. 

The Supreme Court explained, ―an Act of Congress ought not be construed to violate the 

Constitution if any other possible construction remains available.‖ NLRB v. Catholic Bishop of 

Chicago, 440 U.S. 490, 500 (1979). Furthermore, ―[a]s was stated in Hooper v. California, 155 

U.S. 648, 657 (1895),  ̳the elementary rule is that every reasonable construction must be resorted 

to, in order to save a statute from unconstitutionality.‘‖ Edward J. DeBartolo Corp. v. Fla. Gulf 

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (U.S. 1988). ―The principle 

enunciated in Hooper v. California, supra, and subsequent cases, is a categorical one:  ̳as 

between two possible interpretations of a statute, by one of which it would be unconstitutional 

and by the other valid, our plain duty is to adopt that which will save the Act.‘ Blodgett v. 

Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.).‖ Rust v. Sullivan, 500 U.S. 173, 190 

(1991).

In its Explanation and Justification of the regulation at issue in this litigation, the FEC 

explained:

In the Commission‘s judgment, requiring disclosure of funds received only from those 

persons who donated specifically for the purpose of furthering ECs appropriately 

provides the public with information about those persons who actually support the 

message conveyed by the ECs 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 ECs.

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Final Rule on Electioneering Communications, 72 Fed. Reg. 72,899, 72,911 (Dec. 26, 2007).

While Plaintiff criticizes this explanation as resting on ―arbitrary and unreasonable 

assumptions,‖ these judgments are, in fact, precisely the ones that the District Court in Center 

For Individual Freedom, Inc. v. Tennant found must be made in order to ensure that the statute 

―bear[s] a sufficient relationship to the interest of providing the electorate with meaningful 

information as to who is speaking in electioneering communications.‖ Center For Individual 

Freedom, Inc. v. Tennant at *91. Furthermore, while Plaintiff argues that the FEC‘s findings 

regarding the potential burdens imposed on corporations and labor unions were ―irrational,‖ the 

District Court in Center For Individual Freedom, Inc. v. Tennant found those burdens to be selfevident. See Center For Individual Freedom, Inc. v. Tennant at *90 (―It is apparent to the Court 

that requiring the disclosure of corporate or organizational contributors‘ personal information 

can be quite burdensome on those entities and may discourage general treasury contributors from 

associating with and giving to the entity as a consequence.‖).

In this matter, the FEC‘s regulation reflects an interpretation of the statutory provision 

that avoids the constitutional issues – namely, severe overbreadth (i.e., an irrelevant ―flood of 

information‖) that undermines the legitimate governmental interests involved – raised in Center 

For Individual Freedom, Inc. v. Tennant. In 2005, the D.C. Circuit wrote, ―it is perfectly 

permissible for the Postal Service to change its enforcement policies or regulations in order to 

eliminate the basis for a constitutional challenge.‖ Initiative & Referendum Inst. v. United States 

Postal Serv., 417 F.3d 1299, 1317 (D.C. Cir. 2005). This is yet one more reason why the FEC‘s 

regulation should be upheld. 

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D.Plaintiff Asks The Court To Order The FEC To Implement Portions of 

Legislation That Was Not Enacted and Draft Regulations That Were Rejected For

Inclusion in a Notice of Proposed Rulemaking 

In filing this lawsuit, Plaintiff seeks an order from this Court effectively requiring the 

FEC to implement portions of the defeated Democracy is Strengthened by Casting Light on 

Spending in Elections Act (i.e., the DISCLOSE Act), which Plaintiff sponsored in the U.S. 

House of Representatives. As introduced by Plaintiff on April 26, 2010, H.R. 5175 required 

organizations submitting electioneering communications reports to disclose, among other things: 

The identification of each person who made unrestricted donor payments to the 

organization during the covered organization reporting period – (I) in an aggregate 

amount equal to or exceeding $1,000 during such period, if any of the disbursements 

made by the organization for any of the electioneering communications which are 

covered by the statement were not made from the organization‘s Campaign-Related 

Activity Account under section 326....

H.R. 5175, 111th Cong. § 211(b)(1)(B) (2010). It is no coincidence that the interpretation of 2 

U.S.C. § 434(f)(2)(F) that Plaintiff urges the Court to adopt exactly mirrors the proposed 

provision set forth above. This provision however was part of a bill that was defeated twice in 

the U.S. Senate and did not become law. See 156 Cong. Rec. S6266, S6285 (July 27, 2010) 

(rejection of cloture motion, 57-41); 156 Cong. Rec. S7367, S7388 (Sept. 23, 2010) (rejection of 

cloture motion, 59-39). Plaintiff asks the Court to declare that this defeated legislative proposal 

has actually been the law all along.

Congress, including Plaintiff, was unquestionably aware of the FEC‘s regulation at 11 

C.F.R. § 104.20(c)(9) when it considered Plaintiff‘s proposed legislation (the ―DISCLOSE Act‖)

in 2010. That bill included a provision, quoted above, that would have forced the FEC to amend 

or repeal the challenged regulation. When the House of Representatives‘ and Senate‘s versions 

of the DISCLOSE Act were released on April 29, 2010, Plaintiff distributed a document entitled 

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―The Van Hollen  ̳DISCLOSE ACT,‘‖ a summary of the legislation, along with a press release. 

This summary document included the following explanation of the bill‘s impact on requirements 

pertaining to the disclosure of electioneering communication donors:

The legislation would require corporations, labor unions, and section 501(c)(4), or (6) 

organizations – as well as section 527 organizations – to report all donors who have given 

$1,000 or more if expenditures are made on electioneering communications or $600 or 

more if expenditures are made for independent expenditures, during the past 12 month 

period if the organization makes aggregate independent expenditures or electioneering 

communications of $10,000 or more.

See ―The Van Hollen ―DISCLOSE ACT,‘‖ available at 

http://vanhollen.house.gov/UploadedFiles/DISCLOSE_Summary_042910.pdf. 

The Senate sponsors distributed a nearly identical statement: 

The legislation would require corporations, labor unions, and section 501(c)(4), (5), or (6) 

organizations—as well as section 527 organizations—to report all donors who have given 

$1,000 or more to the organization during a 12-month period if the organization makes 

independent expenditures or electioneering communications in excess of $10,000.

See Press Release of Senators Schumer, Feingold, Wyden, Bayh, and Franken, ―Senate 

Democrats Unveil Legislation To Limit Fallout From Supreme Court Ruling That Allows 

Unlimited Special-Interest Spending on Elections – Announce Plan For Senate Passage By July 

4‖ (April 29, 2010) available at http://schumer.senate.gov/record.cfm?id=324343. 

Both the U.S. House of Representatives and the Senate considered specific legislation 

that addressed the FEC‘s regulation that is now the target of this litigation. The Senate, however, 

rejected the Schumer/Feingold/Wyden/Bayh/Franken version of the DISCLOSE Act, and the 

effort died. As the Supreme Court explained, ―[r]esolution of the pros and cons of whether a 

statute should sweep broadly or narrowly is for Congress.‖ U.S. v. Rodgers, 466 U.S. 475, 484

(1984). In 2010, Congress considered the substantive policy question that lurks just below the 

surface of Plaintiff‘s Administrative Procedure Act arguments. In rejecting Plaintiff‘s proposed 

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legislation, however, Congress opted to maintain the status quo, which includes the regulation at 

issue in this litigation.

During the Defendant FEC‘s ongoing regulatory proceedings to revise its regulations in 

light of Citizens United, certain Commissioners proposed or supported regulations that in many 

respects mirrored certain provisions of the defeated DISCLOSE Act, including its requirements 

for electioneering communication donor disclosure. For example, the first draft Notice of 

Proposed Rulemaking (Agenda Document No. 11-02) considered by the FEC on January 20, 

2011, included the following proposal:

Alternative B, in contrast, requires any corporation or labor organization that makes an 

electioneering communication with funds from an account other than a segregated bank 

account to report information (names and address) about all sources of funding to the 

organization over a certain amount, rather than only funding ―for the purpose of 

furthering electioneering communications.‖ Thus, Alternative B would require those 

making electioneering communications to choose either to make electioneering 

communications from a segregated bank account, with reporting of that account‘s 

funding, or to report all funds received by the corporation or labor organization generally.

Draft Notice of Proposed Rulemaking on Independent Expenditures and Electioneering 

Communications by Corporations and Labor Organizations (Draft A) at *73, Agenda Doc. No. 

11-02 available at http://sers.nictusa.com/fosers/. This proposal failed to gain approval by a vote 

of 3-3. See Certification of Vote on Agenda Doc. No. 11-02 (Jan. 20, 2011) available at

http://sers.nictusa.com/fosers/. 

The FEC voted on additional proposals on June 15, 2011. One of those proposals, still 

cast as ―Alternative B,‖ similarly suggested deleting current 11 C.F.R. § 104.20(c)(9), and 

provided:

[I]f the disbursements [for electioneering communications] are not made from a 

segregated account, the person reports all contributors of $1,000 or more to the person 

making the electioneering communication.

Case 1:11-cv-00766-ABJ Document 31 Filed 08/22/11 Page 16 of 18
17

Draft Notice of Proposed Rulemaking on Independent Expenditures and Electioneering 

Communications by Corporations and Labor Organizations at *72, Agenda Doc. No. 11-33 

available at http://sers.nictusa.com/fosers/. This proposal also failed, this time on a 2-4 vote. 

See Certification of Vote on Agenda Doc. No. 11-33 (June 15, 2011) available at

http://sers.nictusa.com/fosers/.

Thus, after failing two cloture votes in the Senate, and two more votes at the FEC, 

Plaintiff now makes a last-resort appeal to the Judicial Branch for an order that would implement 

a policy change that very recently failed to be adopted by the other two branches of government. 

III. Conclusion

In light of the foregoing, Defendant-Intervenor Hispanic Leadership Fund respectfully 

requests that this court enter an order dismissing this case as a result of Plaintiff's lack of 

standing to bring this proceeding. In the alternative, should this Motion to Dismiss not be 

granted, Defendant Intervenor Hispanic Leadership Fund requests that this Court enter an order 

granting Defendant Federal Election Commission‘s motion for summary judgment for the 

reasons contained herein and in the filings of Defendant Federal Election Commission.

Dated: August 22, 2011

Respectfully submitted,

Holtzman Vogel PLLC

By: /s/ Jason Torchinsky

Jason Torchinsky (Bar No. 976033)

jtorchinsky@holtzmanlaw.net

Scott S. Ward (Bar No. 477030)

Case 1:11-cv-00766-ABJ Document 31 Filed 08/22/11 Page 17 of 18
18

sward@holtzmanlaw.net

Michael Bayes (Bar No. 501845)

mbayes@holtzman.law.net

Karen Blackistone

kblackistone@holtzmanlaw.net

HOLTZMAN VOGEL PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel: (540) 341-8808

Fax: (540) 341-8809

Counsel for Hispanic Leadership Fund

Case 1:11-cv-00766-ABJ Document 31 Filed 08/22/11 Page 18 of 18
1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CHRIS VAN HOLLEN, )

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, ) Civil Action No. 1:11-cv-00766 (ABJ)

)

Defendant, ) MOTION

)

HISPANIC LEADERSHIP FUND, )

)

Intervenor Defendant, )

)

CENTER FOR INDIVIDUAL FREEDOM, )

)

Intervenor Defendant. )

____________________________________)

DEFENDANT-INTERVENOR HISPANIC LEADERSHIP FUND’S MOTION TO DISMISS 

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Defendant-Intervenor 

Hispanic Leadership Fund (“HLF”) respectfully moves this Court for an order dismissing the 

Complaint for Plaintiff’s lack of standing to bring this lawsuit. A Memorandum in Support of the 

HLF’s Motion is submitted as required by LCvR 7. 

Dated: August 22, 2011

Respectfully submitted,

Holtzman Vogel PLLC

Case 1:11-cv-00766-ABJ Document 30 Filed 08/22/11 Page 1 of 2
2

By: /s/ Jason Torchinsky

Jason Torchinsky (Bar No. 976033)

jtorchinsky@holtzmanlaw.net

Scott S. Ward (Bar No. 477030)

sward@holtzmanlaw.net

Michael Bayes (Bar No. 501845)

mbayes@holtzmanlaw.net

Karen Blackistone

kblackistone@holtzmanlaw.net

HOLTZMAN VOGEL PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel: (540) 341-8808

Fax: (540) 341-8809

Counsel for Hispanic Leadership Fund

Case 1:11-cv-00766-ABJ Document 30 Filed 08/22/11 Page 2 of 2