UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CHRIS VAN HOLLEN, ) 

 ) Civil Action No. 1:11-cv-00766 (ABJ) 

 Plaintiff, ) 

 v. ) MOTION 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

___________________________________ ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

The Federal Election Commission (“the Commission”) respectfully moves the Court for 

an order granting summary judgment to the Commission pursuant to Rule 56 of the Federal 

Rules of Civil Procedure. A Memorandum of Points and Authorities in support of the 

Commission’s motion and a Proposed Order are submitted herewith, as required by LCvR 7. 

Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Holly J. Baker 

Attorney 

 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 1 of 59
2 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

 Telephone: (202) 694-1650 

August 1, 2011 Fax: (202) 219-0260 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 2 of 59
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CHRIS VAN HOLLEN, ) 

 ) Civil Action No. 1:11-cv-00766 (ABJ) 

 Plaintiff, ) 

 v. ) MEMORANDUM 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

___________________________________ ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Holly J. Baker 

Attorney 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

August 1, 2011 Fax: (202) 219-0260 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 3 of 59
i 

TABLE OF CONTENTS 

 Page 

BACKGROUND .......................................................................................................................2 

I. THE PARTIES...............................................................................................................2 

II. STATUTORY AND REGULATORY PROVISIONS RELEVANT 

TO 11 C.F.R. § 104.20(c)(9)..........................................................................................2 

A. The Origin of “Electioneering Communications” .............................................2 

B. Regulations Implementing BCRA .....................................................................5 

C. The Supreme Court’s Partial Invalidation of BCRA’s Prohibition 

on the Use of Corporate and Union Funds to Finance Electioneering 

Communications ................................................................................................7 

D. Regulations Implementing WRTL ......................................................................7 

E. The Supreme Court’s Complete Invalidation of BCRA’s Prohibition 

on the Use of Corporate and Union Treasury Funds to Finance 

Electioneering Communications ......................................................................13 

ARGUMENT ...........................................................................................................................13 

I. THE STANDARD OF REVIEW IS HIGHLY DEFERENTIAL .............................. 13 

A. Review of Agency Action Under the APA and Chevron Is 

Highly Deferential ...........................................................................................13 

B. The Commission’s Interpretation of FECA Should Be 

Accorded Particular Deference ........................................................................16 

II. CONGRESS DID NOT SPEAK DIRECTLY TO THE DISCLOSURE 

ISSUE ADDRESSED IN THE CHALLENGED REGULATION .............................18 

A. Congress Could Not Have Spoken Directly to the Precise Issue 

Here Because BCRA Originally Prohibited Corporations and 

 Unions from Making Electioneering Communications from Their 

General Treasuries ...........................................................................................18 

B. BCRA’s Language as to Electioneering Communication 

Disclosure Is Ambiguous .................................................................................19 

C. An Inoperative Portion of the Snowe-Jeffords Amendment Does 

Not Establish Congressional Intent Regarding the Scope of 

Electioneering Communication Disclosure .....................................................23 

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ii 

D. Congress’s General Desire for Disclosure on Other Subjects 

Does Not Mean That It Intended to Mandate the Specific 

Disclosure Plaintiff Favors ..............................................................................26 

III. THE COMMISSION’S REGULATION PASSES THE SECOND 

STEP OF CHEVRON ANALYSIS BECAUSE IT REASONABLY 

BALANCES THE IMPORTANCE OF DISCLOSURE WITH 

POTENTIAL BURDENS ON FIRST AMENDMENT INTERESTS ........................28 

A. The Regulation Charts a Middle Course Between the 

NPRM’s Two Proposals and Reasonably Reconciles the 

Statute With WRTL ..........................................................................................28 

B. The Regulation Is Reasonable Because It Requires Disclosure 

of Critical Information About Electioneering Communications, 

Including Who Is Making the Communication and How 

Much Is Being Spent ........................................................................................32 

C. The Commission Reasonably Balanced the Interests in Disclosure 

and the Associated First Amendment Burdens ................................................33 

D. The Fact That Congress Has Not Overruled the Commission’s 

Regulation Is Further Evidence That It Is Consistent With 

Congressional Intent ........................................................................................36 

E. The Court Should Not Consider Evidence That Post-Dates 

the Commission’s 2007 Rulemaking, But Even If It Does, 

the FEC Could Not Reasonably Have Foreseen the 2010 

Decision in Citizens United .............................................................................38 

1. Review of the regulation is limited to the administrative 

record that existed at the time of the Commission’s 

decision, so plaintiff’s post-decisional evidence should 

not be considered .................................................................................38 

2. Plaintiff’s complaints here are largely the result of 

Citizens United, which made lawful corporate and 

union electoral activity the FEC could not reasonably 

have foreseen in 2007 ..........................................................................42 

IV. IF THE COURT WERE TO HOLD THAT THE REGULATION IS 

CONTRARY TO LAW, THE APPROPRIATE REMEDY WOULD BE 

TO REMAND TO THE COMMISSION WITHOUT VACATING THE 

REGULATION ............................................................................................................43 

CONCLUSION ........................................................................................................................45 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 5 of 59
iii 

TABLE OF AUTHORITIES 

 

Cases Page

*AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .................................................................17, 34 

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) .......43, 44 

Amfac Resorts, L.L.C. v. Dep’t. of Interior, 143 F. Supp. 2d 7 (D.D.C. 2001) .............................39 

Austin v. Mich. Chamber of Comm., 494 U.S. 652 (1990) ............................................................42 

Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 

462 U.S. 87 (1983) ...................................................................................................................14 

Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009) .....................................................................37

Blitz v. Donovan, 740 F.2d 1241 (D.C. Cir. 1984) ........................................................................34 

Bluewater Network v. EPA, 372 F.3d 404 (D.C. Cir. 2004) ..........................................................15 

Bob Jones University v. United States, 461 U.S. 574 (1983) ........................................................37 

Buckley v. Valeo, 424 U.S. 1 (1976) ..........................................................................................3, 30 

Camp v. Pitts, 411 U.S. 138 (1973) ...................................................................................38, 40, 44 

Cellco Partnership v. FCC, 357 F.3d 88 (D.C. Cir. 2004) ............................................................14 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..............................................................................13 

Ctr. For Individual Freedom, Inc. v. Tennant, No. 08-190, 2011 WL 291273 

(S.D.W.V. July 18, 2011) ........................................................................................................35 

Central Sales Motor Freight Bureau v. ICC, 924 F.2d 1099 (D.C. Cir. 1991) .............................15 

Chamber of Commerce of the U.S. v. FEC, 76 F.3d 1234 (D.C. Cir. 1996) .................................15 

*Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ... passim 

*Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ...............................14, 38 

Citizens United v. FEC, 588 U.S. ___, 130 S. Ct. 876 (2010) ...........................................13, 31, 42 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...............................................................18 

Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980) (three-judge court), 

aff’d mem., 455 U.S. 129 (1982) ..............................................................................................17 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 6 of 59
iv 

Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) ...........................................25 

Corel Corp. v. United States, 165 F. Supp. 2d 12 (D.D.C. 2001) .................................................39 

Delano v. Roche, 391 F. Supp. 2d 79 (D.D.C. 2005) ....................................................................38 

Deukmejian v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d in relevant parts sub. nom., 

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

(en banc) ...................................................................................................................................39 

Envtl. Defense Fund v. Costle, 657 F.2d 275 (D.C. Cir. 1981) .....................................................40

Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) .............................................................................40 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .............................................28 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ........................................16 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) .....................17 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ................................3, 6, 21, 30 

*FEC v. National Rifle Ass’n, 254 F.3d 173 (D.C. Cir. 2001) ..........................................16, 28, 31 

*FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) ................................................. passim

Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) .........................................................44 

Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995) .......................................................41 

Gen. Am. Transp. Co. v. ICC, 872 F.2d 1048 (D.C. Cir. 1989) ....................................................35 

Gen. Instrument Corp. v. FCC, 213 F.3d 724 (D.C. Cir. 2000) ....................................................15 

General Motors Corp. v. Romein, 503 U.S. 181 (1992) ................................................................25 

Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997) ......................................................................16 

Heartland Reg’l Med. Ctr. v. Sebelius, 566 F. 3d 193 (D.C. Cir. 2009) .......................................44 

Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232 (2004) ....................................................17 

IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) ....................................................................39 

In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538 (D.C. Cir. 1980) ............................18 

Int’l Union, United Mine Workers v. Fed. Mine Safety and Health Admin., 

920 F.2d 960 (D.C. Cir. 1990) .................................................................................................43 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 7 of 59
v 

Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) ...........................13 

McConnell v. FEC, 540 U.S. 93, 115-133 (2003) ................................................................ passim

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .................................................................3 

Meghani v. INS, 236 F.3d 843 (7th Cir. 2001) ..............................................................................41 

Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir. 1989) ..............15

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) .......................................................................................................14, 28, 34 

Mourning v. Family Publications Serv., Inc., 411 U.S. 356 (1973) ..............................................14 

Nat’l Ass’n of Mortgage Brokers v. Board of Governors of the Fed. Res. Sys., 

No. 11-00506, 2011 WL 1158432 (D.D.C. March 30, 2011)..................................................14 

Nat’l Park and Conservation Ass’n v. Stanton, 54 F. Supp. 2d 7 (D.D.C. 1999) .........................41 

Nat’l Treasury Employees Union v. Hove, 840 F. Supp. 165 (D.D.C. 1994) ...............................40 

Nat’l Wilderness Inst. v. U.S. Army Corps of Engineers, No. 01-0273 

2005 WL 691775 (D.D.C. March 23, 2005) ......................................................................38, 40 

NLRB v. Food & Commercial Workers, 484 U.S. 112 (1987) ......................................................16 

Oceana, Inc. v. Locke, 674 F. Supp. 2d 39 (D.D.C. 2009) ............................................................40 

Office of Workers Comp. v. Newport News, 514 U.S. 122 (1995).................................................27 

Pauley v BethEnergy Mines, Inc., 501 U.S. 680 (1991) ................................................................16 

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) .................................................16 

Public Citizen v. FTC, 869 F.2d 1541 (D.C. Cir. 1989) ................................................................35 

Qwest Communications Intern., Inc. v. FCC, 398 F.3d 1222 (10th Cir. 2005) ......................44, 45 

Rapanos v. United States, 547 U.S. 715 (2006) .............................................................................37

Reytblatt v. U.S. Nuclear Regulatory Comm’n, 105 F.3d 715 (D.C. Cir. 1997) ...........................41 

Rodriguez v. United States, 480 U.S. 522 (1987) ....................................................................26, 27 

Serono Labs, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) ................................................16, 28 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) .................................................................................35 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 8 of 59
vi 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) .........................................................................42 

Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) ......................................................................14 

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996) ....................................................................16 

Sociedad Anonima Vina Santa Reta v. U.S. Dept. of Treasury, 193 F. Supp. 2d 6 

(D.D.C. 2001) ..........................................................................................................................28 

Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397 (D.C. Cir. 1997) .........................................26, 27 

Tao v. Freeh, 27 F.3d 635 (D.C. Cir. 1994) ..................................................................................13 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .............................................17, 18 

Vermont Yankee Nuclear Power Corp. v. Nat’l Res. Defense Council, Inc., 

435 U.S. 519 (1978) .................................................................................................................39 

Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) ..............38, 39, 41, 42

Weaver v. U.S. Information Agency, 87 F.3d 1429 (D.C. Cir. 1996) ............................................34 

WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002) ...............................................................44 

Statutes and Regulations

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002) .........1, 4, 24 

Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-57 .........................................................2 

FECA Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 479 (1976) ..............3 

2 U.S.C. § 431(4)(A)......................................................................................................................30 

2 U.S.C. § 431(8) .....................................................................................................................20, 30 

2 U.S.C. § 431(8)(A)......................................................................................................................20 

2 U.S.C. § 431(8)(A)(i) ..............................................................................................................2, 22 

2 U.S.C. § 431(9)(A)(i) ....................................................................................................................3 

2 U.S.C. § 431(11) ...........................................................................................................................9

2 U.S.C. § 431(17) ...........................................................................................................................3 

2 U.S.C. § 431(20)(A)(iii)................................................................................................................8 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 9 of 59
vii 

2 U.S.C. § 434 ..............................................................................................................................2, 3 

2 U.S.C. § 434(a) ...........................................................................................................................30 

2 U.S.C. § 434(a)(2) .......................................................................................................................27 

2 U.S.C. § 434(a)(3) .......................................................................................................................27 

2 U.S.C. § 434(a)(4) .......................................................................................................................27 

2 U.S.C. § 434(b) ...........................................................................................................................30 

2 U.S.C. § 434(c)(1) .........................................................................................................................3 

2 U.S.C. § 434(c)(2) .......................................................................................................................27 

2 U.S.C. § 434(c)(2)(C) ...........................................................................................................11, 36 

2 U.S.C. § 434(f) ..................................................................................................................6, 23, 27 

2 U.S.C. § 434(f)(1) .............................................................................................................5, 26, 35 

2 U.S.C. § 434(f)(2) .......................................................................................................................20 

2 U.S.C. § 434(f)(2)(A)..............................................................................................................5, 32 

2 U.S.C. § 434(f)(2)(B) ..................................................................................................................32 

2 U.S.C. § 434(f)(2)(C) ......................................................................................................26, 32, 35 

2 U.S.C. § 434(f)(2)(D)..................................................................................................................32 

2 U.S.C. § 434(f)(2)(E) ........................................................................................................5, 26, 35 

*2 U.S.C. § 434(f)(2)(F) ........................................................................................................ passim

2 U.S.C. § 434(f)(3)(A)....................................................................................................................4 

2 U.S.C. § 434(f)(3)(A)(i) ................................................................................................................5 

2 U.S.C. § 434(f)(3)(B)(iv) ..............................................................................................................8 

2 U.S.C. § 434(f)(3)(A)(i)(I) ..........................................................................................................20 

2 U.S.C. § 437c(b)(1) .......................................................................................................................2 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 10 of 59
viii 

2 U.S.C. § 437d(a) ...........................................................................................................................2 

2 U.S.C. § 437d(a)(8) ...............................................................................................................2, 14 

2 U.S.C. § 437g ................................................................................................................................2 

2 U.S.C. § 441a ................................................................................................................................2 

2 U.S.C. § 441a(a)............................................................................................................................2 

2 U.S.C. § 441b ...........................................................................................................................3, 6 

2 U.S.C. § 441b(a) ...................................................................................................................2, 3, 5 

2 U.S.C. § 441b(b)(2) ................................................................................................................5, 18 

2 U.S.C. § 441b(b)(2)(C) .................................................................................................................2 

2 U.S.C. § 441b(c)(2) ...............................................................................................................24, 25 

2 U.S.C. § 441b(c)(3) .....................................................................................................................24 

2 U.S.C. § 441b(c)(4) .....................................................................................................................24 

2 U.S.C. § 441b(c)(6) .....................................................................................................................24 

2 U.S.C. § 441d ..........................................................................................................................6, 10 

2 U.S.C. § 441d(a) .........................................................................................................................33 

5 U.S.C. § 706(2)(A)......................................................................................................................14 

5 U.S.C. § 706(2)(C) ......................................................................................................................14

5 U.S.C. § 801(g) ...........................................................................................................................37 

8 U.S.C. § 1101(a)(20) .....................................................................................................................6 

26 U.S.C. § 501(c)(4) ...............................................................................................................24, 26 

26 U.S.C. § 527 ..............................................................................................................................24 

26 U.S.C. § 527(e)(1) .....................................................................................................................26 

11 C.F.R. § 100.29 ...........................................................................................................................8 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 11 of 59
ix 

11 C.F.R. § 104.20(c).......................................................................................................................6 

11 C.F.R. § 104.20(c)(1) ................................................................................................................32 

11 C.F.R. § 104.20(c)(2) ................................................................................................................32 

11 C.F.R. § 104.20(c)(3) ................................................................................................................32 

11 C.F.R. § 104.20(c)(4) ................................................................................................................32 

11 C.F.R. § 104.20(c)(5) ................................................................................................................32 

11 C.F.R. § 104.20(c)(6) ................................................................................................................32 

11 C.F.R. §104.20(c)(7) .................................................................................................................11 

11 C.F.R. §104.20(c)(7)(i) .............................................................................................................11

11 C.F.R. §104.20(c)(7)(ii) ............................................................................................................11

11 C.F.R. § 104.20(c)(8) ..........................................................................................................11, 20 

*11 C.F.R. § 104.20(c)(9) ...................................................................................................... passim 

11 C.F.R. § 109.10(e)(1)(vi) ..........................................................................................................11 

11 C.F.R. § 110.11 ................................................................................................................... 32-33 

11 C.F.R. § 110.11(a)(4) ................................................................................................................10 

11 C.F.R. § 110.11(b)(3) ................................................................................................................10 

11 C.F.R. § 110.11(c)(1) ...............................................................................................................10 

11 C.F.R. § 110.11(c)(4)(i) ............................................................................................................10 

11 C.F.R. § 110.11(c)(4)(ii) ...........................................................................................................10 

11 C.F.R. § 110.11(c)(4)(iii) ..........................................................................................................10 

11 C.F.R. § 114.10 .......................................................................................................................6 

11 C.F.R. § 114.15 ...................................................................................................................10, 32 

 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 12 of 59
x 

Administrative Materials

67 Fed. Reg. 65,190 (Oct. 23, 2002) ............................................................................................5, 6 

68 Fed. Reg. 404 (Jan. 3, 2003) ...........................................................................................5, 6, 20 

72 Fed. Reg. 50,261 (Aug. 31, 2007)............................................................................... 7-8, 22, 29

*Final Rule and Explanation and Justification on Electioneering Communications, 

11 C.F.R. Part 104, 114, 72 Fed. Reg. 72,899 (Dec. 26, 2007) ............................................. passim 

FEC Notice of Availability, Rulemaking Petition: Independent Expenditures and 

Electioneering Communications by Corporations and Labor Organizations, 

76 Fed. Reg. 36,001 (June 21, 2011) .......................................................................................13, 41 

FEC Statement on the Supreme Court’s Decision in Citizens United v. FEC, 

Feb. 5, 2010, http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml. ....................13 

Political Committee Status: Supplemental Explanation and Justification, 

72 Fed. Reg. 5595, 5597, 5601 (Feb. 7, 2007) ..............................................................................30 

Miscellaneous

144 Cong. Rec. S938 (daily ed. Feb. 24, 1998) .............................................................................24 

145 Cong. Rec. S425 (daily ed. Jan. 19, 1999) ..............................................................................24 

147 Cong. Rec. S298 (daily ed. Jan. 22, 2001) ..............................................................................24 

147 Cong. Rec. S2845-2849, S2882-2884 (March 26, 2001) .......................................................24 

Fed. R. Civ. P. 56(c) ......................................................................................................................13 

Compl., Shays v. FEC, No. 02-cv-01984-CKK (D.D.C. Oct. 8, 2002) (Doc. #1) .........................42 

Cubbins, Noll & Weingast, Positive Canons: The Role of Legislative Bargains 

in Statutory Interpretation, 80 Geo. L.J. 705 (1992) .....................................................................25 

H.R. 5175, 111thCong. § 211(b)(1)(B) (2010) .............................................................................37 

Rodriguez & Weingast, The Positive Political Theory of Legislative History: 

New Perspectives on the 1964 Civil Rights Act and its Interpretation, 

151 U. Penn L. Rev. 1417 (2003) .................................................................................................25 

S. 26, 106th Cong.(1999) ..............................................................................................................24 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 13 of 59
xi 

S. 27, 107th Cong. (2001) ..............................................................................................................24 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 14 of 59
1 

 The Federal Election Commission (“Commission” or “FEC”) adopted a reasonable rule 

that reconciles the Federal Election Campaign Act with recent Supreme Court precedent and 

requires rigorous disclosure by corporations and labor unions that make “electioneering 

communications.” The Supreme Court’s decision in FEC v. Wisconsin Right To Life, Inc., 551 

U.S. 449 (2007) (“WRTL”), fundamentally changed the regulatory landscape by holding that 

corporations have a constitutional right to make certain electioneering communications, 

notwithstanding the pre-existing ban in the Bipartisan Campaign Reform Act of 2002, Pub. L. 

No. 107-155, 116 Stat. 81 (2002). The Commission conducted a comprehensive rulemaking, 

rejected a proposal that would have exempted the newly permissible communications from all 

disclosure, and required disclosure of critical information, including the identities of those who 

make electioneering communications and of persons who provide funds for that purpose. Under 

the highly deferential standard of review, this regulation satisfies the Administrative Procedure 

Act (“APA”) and the two-step analysis of Chevron, U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984). Congress had not spoken to the precise issue of the 

appropriate disclosures required of corporations and unions that make electioneering 

communications; prior to WRTL, these organizations were barred from financing such 

communications. Moreover, the most relevant statutory language at 2 U.S.C. § 434(f)(2)(F) is 

ambiguous. The Court must therefore analyze under Chevron step two whether the 

Commission’s regulation is reasonable. Because the rule is grounded in the administrative 

record and properly balances the interest in disclosure with the potential First Amendment 

burden on corporations and unions — as well as on their funders who may have nothing to do 

with the spenders’ electioneering — the Court should grant summary judgment to the 

Commission.

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 15 of 59
2 

BACKGROUND 

I. THE PARTIES 

 Plaintiff Chris Van Hollen is a Member of the United States House of Representatives. 

(Declaration of Rep. Chris Van Hollen ¶ 1 (Doc. #20-1).) 

 Defendant Federal Election Commission is the independent agency of the United States 

empowered with exclusive jurisdiction to administer, interpret, and civilly enforce the Federal 

Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-57 (“FECA” or “the Act”). 

See generally 2 U.S.C. §§ 437c(b)(1), 437d(a), and 437g. The Act imposes contribution 

restrictions and disclosure requirements in connection with campaigns for federal office. See, 

e.g., 2 U.S.C. §§ 434, 441a. FECA also authorizes the Commission to “formulate policy with 

respect to” the Act, 2 U.S.C. § 437c(b)(1), as well as to promulgate “such rules . . . as are 

necessary to carry out the provisions” of the Act, 2 U.S.C. § 437d(a)(8). 

II. STATUTORY AND REGULATORY PROVISIONS RELEVANT TO 

11 C.F.R. § 104.20(c)(9) 

A. The Origin of “Electioneering Communications” 

FECA places limits on the amount individuals can contribute to candidates, their 

campaigns, and other political committees and parties. See 2 U.S.C. § 441a(a). In addition, 

FECA prohibits corporations and labor organizations from making contributions, except through 

their separate segregated funds (also known as political action committees or PACs). Id.

§§ 441b(a), (b)(2)(C). FECA defines “contribution” as “any gift, subscription, loan, advance, or 

deposit of money or anything of value made . . . for the purpose of influencing any election for 

Federal office.” 2 U.S.C. § 431(8)(A)(i). Similarly, FECA by its terms prohibits corporations 

and unions from making any “expenditures,” defined as “any purchase, payment, distribution, 

loan, advance, deposit, or gift of money or anything of value, made . . . for the purpose of 

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3 

influencing any election for Federal office.” Id. § 431(9)(A)(i); see id. § 441b(a). FECA also 

requires periodic disclosure of contributions and certain expenditures and disbursements to the 

FEC, which then makes the information available to the public. See id. § 434.1

 In 1976, the Supreme Court generally upheld FECA’s contribution limits and disclosure 

requirements against a facial challenge, but the Court struck down limits on expenditures by 

individuals and candidates. See Buckley v. Valeo, 424 U.S. 1, 43-44 (1976) (per curiam). When 

the Court construed FECA’s then-$1,000 limit on expenditures by any person “relative to” a 

federal candidate, to avoid invalidating the provision on vagueness grounds the Court construed 

“expenditure” narrowly to apply “only to expenditures for communications that in express terms 

advocate the election or defeat of a clearly identified candidate for federal office.” Id. at 44 

(footnote omitted). Following Buckley, Congress amended the Act to provide that an 

“independent expenditure” is “an expenditure by a person . . . expressly advocating the election 

or defeat of a clearly identified candidate.” See FECA Amendments of 1976, Pub. L. No. 

94-283, § 102(g)(3), 90 Stat. 475, 479 (1976) (codified at 2 U.S.C. § 431(17)). The Act requires 

that all independent expenditures above $250 be timely reported to the Commission for 

disclosure to the public. 2 U.S.C. § 434(c)(1). However, a separate FECA provision prohibited 

corporations and labor organizations from making independent expenditures using their general 

treasury funds. 2 U.S.C. § 441b. 

In FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”), the 

Supreme Court held that incorporated advocacy organizations possessing certain characteristics 

cannot constitutionally be barred from using general treasury funds to make independent 

expenditures. This holding applied to corporations that were formed for the sole purpose of 

                                                           

1

 For a brief history of campaign finance legislation, see McConnell v. FEC, 540 U.S. 93, 

115-133 (2003); 251 F. Supp. 2d 176, 188-201 (D.D.C. 2003). 

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4 

promoting political ideas, that did not engage in business activities, and that did not accept 

contributions from for-profit corporations or unions. Id. at 263-64. Organizations with those 

characteristics became known as “MCFL corporations.” 

Following the Supreme Court’s narrowing construction of independent “expenditure,” all 

corporations and unions could use their general treasury funds to finance independent 

communications that discuss candidates as long as they stopped short of express advocacy. By 

the end of the 1990s, independent groups had begun to spend millions of dollars on so-called 

“issue ads” — ads that avoided express advocacy but, under the guise of advocating for or 

against an issue, actually supported or opposed the election of federal candidates. See 

McConnell, 540 U.S. at 126-128. Congress determined that because the express advocacy 

standard was easy to evade, entities were funding broadcast ads designed to influence federal 

elections “while concealing their identities from the public.” Id. at 196-97. To address this and 

other developments in federal campaign finance, Congress in 2002 enacted the Bipartisan 

Campaign Reform Act (“BCRA”). In particular, in response to what Congress identified as 

“sham issue ads” and the use of large amounts of “soft money” (funds not subject to FECA’s 

source and amount restrictions and reporting requirements) in federal elections, Congress 

imposed new financing and disclosure requirements on those making “electioneering 

communications” (“ECs”). BCRA §§ 201, 203, 204. See McConnell, 540 U.S. at 126. Under 

BCRA, an “electioneering communication” is any broadcast, cable, or satellite communication 

that refers to a clearly identified candidate for federal office, is publicly distributed within 60 

days before a general election or 30 days before a primary election, and is targeted to the relevant 

electorate. See 2 U.S.C. § 434(f)(3)(A). BCRA prohibited the financing of electioneering 

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5 

communications with corporate or union general treasury funds. 2 U.S.C. §§ 434(f)(3)(A)(i); 

441b(a), (b)(2). 

Congress also required disclosure concerning electioneering communications. Those 

making disbursements aggregating more than $10,000 per year for electioneering 

communications must file a report with the Commission that contains, inter alia, the 

“identification of the person making the disbursement, of any person sharing or exercising 

direction or control over the activities of such person, and of the custodian of the books and 

accounts of the person making the disbursement.” 2 U.S.C. §§ 434(f)(1), (2)(A). BCRA also 

requires disclosure of certain information about the funds used to finance electioneering 

communications, and provides two options: 

(E) If the disbursements were paid out of a segregated bank account which 

consists of funds contributed solely by individuals who are United States 

citizens or nationals or lawfully admitted for permanent residence . . . directly 

to this account for electioneering communications, the names and addresses of 

all contributors who contributed an aggregate amount of $1,000 or more to 

that account during the period beginning on the first day of the preceding 

calendar year and ending on the disclosure date. Nothing in this 

subparagraph is to be construed as a prohibition on the use of funds in such a 

segregated account for a purpose other than electioneering communications. 

(F) If the disbursements were paid out of funds not described in 

subparagraph (E), the names and addresses of all contributors who contributed 

an aggregate amount of $1,000 or more to the person making the 

disbursement during the period beginning on the first day of the preceding 

calendar year and ending on the disclosure date. 

2 U.S.C. §§ 434(f)(2)(E) & (F). 

B. Regulations Implementing BCRA 

 Shortly after Congress enacted BCRA, the Commission promulgated in 2002 and early 

2003 new regulations implementing the electioneering communications provision.2

 The original 

                                                           

2

 67 Fed. Reg. 65,190 (Oct. 23, 2002); 68 Fed. Reg. 404 (Jan. 3, 2003). 

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regulation provided two options for reporting the sources of funds used to make electioneering 

communications: 

(7) If the disbursements were paid exclusively from a segregated bank 

account consisting of funds provided solely by individuals who are United 

States citizens, United States nationals, or who are lawfully admitted for 

permanent residence under 8 U.S.C. 1101(a)(20), the name and address of 

each donor who donated an amount aggregating $1,000 or more to the 

segregated bank account, aggregating since the first day of the preceding 

calendar year; and 

(8) If the disbursements were not paid exclusively from a segregated bank 

account described in paragraph (c)(7) of this section, the name and address of 

each donor who donated an amount aggregating $1,000 or more to the person 

making the disbursement, aggregating since the first day of the preceding 

calendar year. 

11 C.F.R. § 104.20(c) (effective Feb. 3, 2003, to Dec. 25, 2007); 68 Fed. Reg. 404, 419 (Jan. 3, 

2003). Because BCRA prohibited corporations from making electioneering communications 

unless they met the strict criteria of “MCFL corporations,” the new regulation applied to very 

few corporations (and no unions). See MCFL, 479 U.S. at 263-64; McConnell, 540 U.S. 

at 209-12 (construing BCRA not to apply the electioneering communication financing 

requirements to MCFL corporations).3

 

When BCRA’s electioneering communication amendments were challenged as facially 

unconstitutional, the Supreme Court initially upheld the provisions at 2 U.S.C. §§ 434(f), 441b 

and 441d. See McConnell, 540 U.S. at 194, 201-02, 207-08. The Court held that the prohibition 

on the use of general treasury funds by corporations and labor organizations to pay for 

electioneering communications was not facially overbroad, because the “vast majority” of 

                                                           

3

 Commission regulations refer to MCFL corporations as “qualified nonprofit 

corporations” or “QNCs.” See 11 C.F.R. § 114.10. The Commission explained that “the 

legislative history indicates that the intent of BCRA was to treat electioneering communications 

in a similar manner as independent expenditures. Part of that treatment is the application of 

MCFL to electioneering communications made by the QNC’s.” 67 Fed. Reg. at 65,204. 

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communications that met the definition of electioneering communication were “intended to 

influence [] voters’ decisions” and were “the functional equivalent of express advocacy.” Id. at 

206. The Court also upheld the electioneering communication disclosure requirements, noting 

that they did not suppress speech and that important state interests support the requirements. See 

id. at 196-99, 201. 

C. The Supreme Court’s Partial Invalidation of BCRA’s Prohibition on the Use 

of Corporate and Union Funds to Finance Electioneering Communications 

 

Four years after McConnell, in WRTL, the Supreme Court partially invalidated BCRA’s 

general prohibition on the financing of electioneering communications with corporate and union 

treasury funds. The controlling opinion held that BCRA’s ban on corporate spending was 

unconstitutional as applied to a corporation’s advertisements that did not constitute express 

advocacy or “the functional equivalent of express advocacy.” Id. at 476, 478-79. Before WRTL, 

only MCFL corporations could make electioneering communications, but WRTL permitted all

corporations and unions to make electioneering communications as long as they did not contain 

express advocacy or the functional equivalent (“WRTL ads”). See id. at 480-81. Plaintiff WRTL 

had not challenged BCRA’s disclosure requirements and consequently the Supreme Court did 

not address them. 

 D. Regulations Implementing WRTL 

 Shortly after the decision in WRTL, the Commission received a request for rulemaking 

from the James Madison Center for Free Speech, asking the FEC to create an exemption for 

WRTL ads. (Administrative Record (“AR”) Tab 2 (Doc. #17-2).) In July 2007, the Commission 

announced that it intended to conduct a rulemaking to implement the WRTL decision,4

 and the 

following month the Commission issued a Notice of Proposed Rulemaking (“NPRM”). 72 Fed. 

                                                           

4

 Available at http://www.fec.gov/press/press2007/20070719rule.shtml. 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 21 of 59
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Reg. 50,261 (Aug. 31, 2007); AR Tab 6. The NPRM sought comment on WRTL’s overall 

impact and on a variety of issues implicated by the decision, including the disclosure 

requirements for electioneering communications. The Commission received more than 25 

comments and held two days of hearings in October 2007, with 15 witnesses testifying. AR 

Tabs 5, 7-30, 34-38, 40-42, 52. 

BCRA specifically authorizes the Commission to promulgate regulations exempting 

communications entirely from the definition of electioneering communication as long as they do 

not promote, support, attack or oppose a candidate, see 2 U.S.C. § 434(f)(3)(B)(iv), citing 

2 U.S.C. § 431(20)(A)(iii); such exempt communications are subject to neither the financing nor 

the disclosure requirements for electioneering communications. In the NPRM, the Commission 

proposed two basic alternatives. Alternative 1 would not have exempted the newly-permitted 

WRTL ads from the definition of electioneering communication, but it would have allowed 

corporations and unions to finance certain electioneering communications with general treasury 

funds; any such spending would still have had to comply with the disclosure requirements. 

Alternative 2 would have entirely exempted the ads from the definition of electioneering 

communication in 11 C.F.R. § 100.29 and would thus have eliminated both the disclosure 

requirements and financing restrictions for WRTL ads. See Final Rule and Explanation and 

Justification on Electioneering Communications, 11 C.F.R. Part 104, 114, 72 Fed. Reg. 72,899, 

72,900 (Dec. 26, 2007); AR Tab 54. 

 Rulemaking commenters disagreed. Generally, those who supported Alternative 1 noted 

that the plaintiffs in WRTL had not challenged the disclosure requirements, that the Supreme 

Court had not addressed the constitutionality of those requirements, and that the reporting 

requirements had been upheld by the Court in McConnell. See 72 Fed. Reg. at 72,900. 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 22 of 59
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Commenters that supported Alternative 2 generally argued that WRTL meant that such 

electioneering communications were protected from any FEC regulation, including disclosure 

rules, and that compliance with disclosure requirements would be too burdensome and would 

chill speech by some nonprofit organizations. See id. at 72,900-01. In the hearings, commenters 

observed that WRTL had placed the Commission in the difficult position of regulating conduct 

that Congress had not intended to be lawful. One noted: 

Basically the court has left you in a position where they have created a new 

category of speech which was not before Congress when it wrote its reporting 

requirements. That’s the fact. We don’t know and it’s really impossible to 

know for us how Congress would have decided this question. 

Trister, Alliance for Justice, Hearing Comments, Tab 36, VH0813. See id. at VH0846 (“I think 

you are between a rock and a hard place.”); Gold, AFL-CIO, Hearing Comments, Tab 35, 

VH0642-43 (“you obviously are acting in an unexpected situation.”). 

 In its final rule, the Commission adopted a revised version of Alternative 1. 72 Fed. Reg. 

at 72,899. The Commission explained that it agreed with commenters who argued that WRTL’s 

holding that the financing restrictions are unconstitutional as applied to certain advertisements 

does not extend to the disclosure requirements. 72 Fed. Reg. at 72,901. The Commission 

rejected the contention that BCRA did not contemplate any reporting by corporations and labor 

organizations, even though BCRA did not generally permit corporations and labor organizations 

to finance electioneering communications. The Commission noted that the statute requires every 

“person” that finances electioneering communications to file disclosure reports. See id.;

2 U.S.C. § 431(11). Finally, the Commission explained that “while understanding that some 

nonprofit organizations and their donors have privacy interests and that some donors request to 

remain anonymous, the Commission disagrees with the commenters who argue the only 

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constitutional way to protect those interests is to . . . allow[] all ECs that qualify for the [WRTL]

exemption to be run without any disclaimers or reporting.” 72 Fed. Reg. at 72,901. 

 The Commission thus decided: “[L]ike all persons making ECs that cost, in aggregate, 

more than $10,000, corporations and labor organizations must also disclose their identities as the 

persons making the ECs, the costs of the ECs, the clearly identified candidates appearing in the 

communications and the elections in which the candidates are participating, and the disclosure 

dates.” 72 Fed. Reg. at 72,911. In addition, these electioneering communications would have to 

contain a clear and conspicuous disclaimer, see 2 U.S.C. § 441d and 11 C.F.R. § 110.11(a)(4), 

providing the full name, permanent street address, and telephone number, or World Wide Web 

address, of the person who paid for the communication, as well as a statement that the 

communication was not authorized by any candidate or candidate’s committee. See 11 C.F.R. 

§§ 110.11(b)(3), 110.11(c)(1), and (c)(4)(i)-(iii); 72 Fed. Reg. at 72,910 n.20. 

The Commission explained that it was also promulgating a new regulation, 11 C.F.R. 

§ 104.20(c)(9), to cover disclosure of the sources of funds used to finance the electioneering 

communications now permitted by WRTL (those that did not include express advocacy or its 

functional equivalent). 72 Fed. Reg. at 72,911. The regulation provides: 

If the disbursements were made by a corporation or labor organization 

pursuant to 11 CFR 114.15, the name and address of each person who made a 

donation aggregating $1,000 or more to the corporation or labor organization, 

aggregating since the first day of the preceding calendar year, which was 

made for the purpose of furthering electioneering communications. 

11 C.F.R. § 104.20(c)(9). The Commission explained that it had added this new section to apply 

specifically to corporations and labor organizations and that it had added the phrase “for the 

purpose of furthering electioneering communications” to ensure that disclosure of the newlypermitted electioneering communications would be narrowly tailored, mindful of the concerns 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 24 of 59
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many commenters had expressed during the rulemaking about the potential burdens on the 

variety of organizations that could now make certain electioneering communications. Id. The 

Commission explained that the phrase was rooted in the reporting requirements that apply to 

independent expenditures made by persons other than political committees. See 2 U.S.C. 

§ 434(c)(2)(C), 11 C.F.R. § 109.10(e)(1)(vi); 72 Fed. Reg. at 72,911 n.22. As the Commission 

had noted in the rulemaking that led to the 2003 disclosure regulations, see supra pp. 5-6, the 

legislative history of BCRA indicated that Congress intended electioneering communications to 

be treated similarly to independent expenditures. And during the 2007 rulemaking, commenters 

had pointed to the independent expenditure provisions as a model for the electioneering 

communication requirements. (See Gold, AFL-CIO, Hearing Comments, Tab 35, VH0643; 

Trister, Alliance for Justice, Hearing Comments, Tab 36, VH0840-42.)5

 

During the hearings, some commenters emphasized that in many cases it would make 

little sense to require a corporation or union to disclose all those whose funds ended up in its 

general treasury simply because it decided to make a limited number of electioneering 

communications that were not the functional equivalent of express advocacy. See Gold, 

AFL-CIO, Hearing Comments, Tab 35, VH0660 (“There is no public policy value whatsoever in 

requiring any organization to reveal its members just because they engage in a single 

electioneering communication . . . .”); see also Sullivan, SEIU, Hearing Comments, Tab 36, 

VH0924 (“And it would be, if not counterproductive, at least serving no particular purpose to 

report or disclose the names of people who did in fact not contribute to the financing of a 

particular electioneering communication.”). One commenter suggested specifically that union 

                                                           

5

 After the decision in WRTL, the Commission divided 11 C.F.R. § 104.20(c)(7) into two 

sections, added paragraphs (c)(7)(ii) and (c)(9), and slightly revised paragraphs (c)(7)(i) and 

(c)(8), to implement WRTL. See 72 Fed. Reg. at 72,902 . 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 25 of 59
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dues, membership dues, investment income, or other commercial or business income should be 

excluded from reportable donations. 72 Fed. Reg. at 72,911. Another proposal argued that 

disclosure should be limited to funds that are designated for electioneering communications or 

received in response to a solicitation specifically requesting donations to make such 

communications. Id. at 72,910. And another commenter suggested that disclosure should be 

limited to the amounts listed on an organization’s IRS Form 990, line 1, which includes 

contributions, gifts, grants, and similar amounts received by a tax exempt organization. Id. 

 When it adopted the final rule, the Commission explained that 11 C.F.R. § 104.20(c)(9) 

balances important interests in the new regulatory environment: on the one hand, disclosing key 

information about electioneering communications, and on the other hand, limiting the potential 

burden on corporations and unions and protecting the interests of those who provide funds to 

those entities but who may not support their electioneering communications. “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.” 72 Fed. Reg. at 72,911. 

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 necessarily 

support the organization’s electioneering communications. 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 26 of 59
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Id. With regard to the potential burden on entities making newly-permitted electioneering 

communications, the FEC noted testimony that compliance would be “very costly and require an 

inordinate amount of effort.” Id. “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.” Id. 

E. The Supreme Court’s Complete Invalidation of BCRA’s Prohibition on the 

Use of Corporate and Union Treasury Funds to Finance Electioneering 

Communications 

 In 2010, the Supreme Court struck down the longstanding prohibition on corporations 

and unions using general treasury funds to finance independent expenditures and electioneering 

communications. Citizens United v. FEC, 588 U.S. ___, 130 S. Ct. 876, 913-16 (2010). 

However, the Supreme Court upheld BCRA’s electioneering communication disclosure 

requirements. Id. at 915-16. The Commission is considering changes to regulations implicated 

by Citizens United, including those that govern electioneering communication disclosure.6

ARGUMENT 

I. THE STANDARD OF REVIEW IS HIGHLY DEFERENTIAL 

A. Review of Agency Action Under the APA and Chevron Is Highly Deferential 

Summary judgment is appropriate when there is no genuine issue as to any material fact 

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). 

However, in an action challenging agency action under the APA, the “district court sits as an 

                                                           

6

 See FEC Notice of Availability, Rulemaking Petition: Independent Expenditures and 

Electioneering Communications by Corporations and Labor Organizations, 76 Fed. Reg. 36,001 

(June 21, 2011); FEC Statement on the Supreme Court’s Decision in Citizens United v. FEC, 

Feb. 5, 2010, http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml. 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 27 of 59
14 

appellate tribunal” and the “entire case on review is a question of law.” Marshall Cnty. Health 

Care Auth. v. Shalala, 988 F.2d 1221, 1225-26 (D.C. Cir. 1993). The Court has the limited role 

of reviewing the Commission’s decision-making based on the administrative record, so the 

Court’s review must be based upon the record that was before the agency during its rulemaking. 

See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). Under the APA, 

the Court may set aside 11 C.F.R. § 104.20(c)(9) only if it is “arbitrary, capricious, an abuse of 

discretion or otherwise not in accordance with law,” or “in excess of statutory jurisdiction, 

authority, or limitations.” 5 U.S.C. §§ 706(2)(A) & (C). 

The standard for judicial review in an APA challenge is “highly deferential,” Sierra Club 

v. EPA, 353 F.3d 976, 978 (D.C. Cir. 2004), and so the scope of review is narrow, see Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In 

fact, the arbitrary and capricious standard “presumes the validity of agency action.” Volpe, 401 

U.S. at 415; see Cellco Partnership v. FCC, 357 F.3d 88, 93-94 (D.C. Cir. 2004); Nat’l Ass’n of 

Mortgage Brokers v. Board of Governors of the Fed. Res.Sys., No. 11-00506, 2011 WL 

1158432, at *12 (D.D.C. March 30, 2011). The Court is “not to substitute its judgment for that 

of the agency,” but instead is to satisfy itself that the agency has “examined the relevant data and 

articulated a satisfactory explanation for its action including a rational connection between the 

facts found and the choice made.” State Farm, 463 U.S. at 43 (citation and internal quotation 

marks omitted). Where the empowering provision of a statute authorizes the agency to “make 

. . . such rules [. . .] as are necessary to carry out the provisions of this Act,” as FECA does in 

2 U.S.C. § 437d(a)(8), the “validity of a regulation promulgated thereunder will be sustained so 

long as it is ‘reasonably related to the purposes of the enabling legislation.’” Mourning v. Family 

Publications Serv., Inc., 411 U.S. 356, 369 (1973) (citation omitted). And when, as here, an 

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15 

agency has made a determination that falls within its area of special expertise, deference is at its 

zenith. See Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 

103 (1983). 

Because Van Hollen challenges a regulation that interprets a statute the Commission 

administers, the Court reviews the regulation not only under the APA but also under the familiar 

two-step Chevron framework. Under Chevron, the Court looks first to determine “whether 

Congress has directly spoken to the precise question at issue,” and if it has, “the [C]ourt, as well 

as the agency, must give effect to the unambiguously expressed intent of Congress.” 467 U.S. at 

842-43. In this step one analysis, “the term ‘precise question at issue’ [is] to be interpreted 

tightly.” See Central States Motor Freight Bureau v. ICC, 924 F.2d 1099, 1104 (D.C. Cir. 

1991). Only if “an accepted canon of construction illustrates that Congress had a specific intent 

on the issue in question” can the case “be disposed of under the first prong of Chevron.” 

Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292-93 (D.C. Cir. 1989) 

(emphasis in original). 

If Congress has not “directly spoken to the precise question at issue,” the Court proceeds 

to the second step of Chevron analysis and it “may not substitute its own construction of a 

statutory provision for a reasonable interpretation made by the administrator of an agency.” 

Chevron, 467 U.S. at 842, 844. This step overlaps with the arbitrary and capricious standard of 

the APA, Chamber of Commerce of the U.S. v. FEC, 76 F.3d 1234, 1235 (D.C. Cir. 1996), 

because the question of whether an agency’s interpretation of a statute is unreasonable is “close 

analytically to the issue whether an agency’s actions under a statute are unreasonable,” Gen. 

Instrument Corp. v. FCC., 213 F.3d 724, 732 (D.C. Cir. 2000). At Chevron step two, the Court 

is to “defer to the agency’s interpretation as long as it is ‘based on a permissible construction of 

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16 

the statute.’” Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting Chevron, 

467 U.S. at 843.) 

At Chevron step two, whether a competing interpretation of the statute might also be 

reasonable is irrelevant. The “interpretation need not be the best or most natural one by 

grammatical or other standards . . . . Rather[, it] need be only reasonable to warrant deference.” 

Pauley v BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991) (citations omitted). “[U]nder 

Chevron, courts are bound to uphold an agency interpretation as long as it is reasonable — 

regardless whether there may be other reasonable, or even more reasonable, views.” FEC v. 

National Rifle Ass’n of Am., 254 F.3d 173, 187 (D.C. Cir. 2001) (quoting Serono Labs, Inc. v. 

Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998)). Indeed, there is no requirement that an agency’s 

interpretation comport with one a court would have adopted; a “permissible” construction means 

only “a construction that is ‘rational and consistent with the statute.’” Pension Benefit Guar. 

Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quoting NLRB v. Food & Commercial Workers,

484 U.S. 112, 123 (1987)). If “the statute is ambiguous, then Chevron step two implicitly 

precludes courts picking and choosing among various canons of construction to reject reasonable 

agency interpretations.” Halverson v. Slater, 129 F.3d 180, 184 (D.C. Cir. 1997) (citation and 

internal quotation marks omitted; emphasis in original). 

B. The Commission’s Interpretation of FECA Should Be Accorded 

Particular Deference

The Supreme Court has explained that the Commission “is precisely the type of agency to 

which deference should presumptively be afforded.” FEC v. Democratic Senatorial Campaign 

Comm., 454 U.S. 27, 37 (1981). Judicial deference to agency decision-making is based upon 

Congress’s decision to delegate discretion to an agency to implement a statute. See Smiley v. 

Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996). Such deference is appropriate when 

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17 

“Congress has expressly delegated to [an agency] the authority to prescribe regulations 

containing such classifications, differentiations, or other provisions as, in the judgment of the 

[agency], are necessary or proper to effectuate the purposes of [the authorizing statute], to 

prevent circumvention or evasion thereof, or to facilitate compliance therewith.” Household 

Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 238-39, 242 (2004) (internal quotation marks 

omitted). And “Congress has legislated in no uncertain terms with respect to FEC dominion over 

the election law.” Common Cause v. Schmitt, 512 F. Supp. 489, 502 (D.D.C. 1980) (three-judge 

court), aff’d mem., 455 U.S. 129 (1982). Indeed, the Commission’s “express authorization to 

elucidate statutory policy in administering FECA ‘implies that Congress intended the FEC ... to 

resolve any ambiguities in statutory language,’” and so “‘the FEC’s interpretation of the Act 

should be accorded considerable deference.’” United States v. Kanchanalak, 192 F.3d 1037, 

1049 (D.C. Cir. 1999) (citation omitted). The Supreme Court explained the importance of this 

division of responsibilities in our balanced system of government: 

When a challenge to an agency construction of a statutory provision, fairly 

conceptualized, really centers on the wisdom of the agency’s policy, rather 

than whether it is a reasonable choice within a gap left open by Congress, the 

challenge must fail. In such a case, federal judges — who have no 

constituency — have a duty to respect legitimate policy choices made by 

those who do. The responsibilities for assessing the wisdom of such policy 

choices and resolving the struggle between competing views of the public 

interest are not judicial ones: “Our Constitution vests such responsibilities in 

the political branches.” 

Chevron, 467 U.S. at 866 (citation omitted). 

 The Commission’s decisions are particularly appropriate for judicial deference because 

the FEC is “[u]nique among federal administrative agencies” in that “its sole purpose [is] the 

regulation of core constitutionally protected activity — ‘the behavior of individuals and groups 

only insofar as they act, speak and associate for political purposes.’” AFL-CIO v. FEC, 333 F.3d 

168, 170 (D.C. Cir. 2003) (quoting FEC v. Machinists Non-Partisan Political League, 655 F.2d 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 31 of 59
18 

380, 387 (D.C. Cir. 1981)). “The [Federal Election] Commission has been vested with a wide 

discretion in order to guarantee that it will be sensitive to the great trust imposed in it to not 

overstep its authority by interfering unduly in the conduct of elections.” In re Carter-Mondale 

Reelection Comm., Inc., 642 F.2d 538, 545 (D.C. Cir. 1980). “Deference is particularly 

appropriate in the context of the FECA, which explicitly relies on the bipartisan Commission as 

its primary enforcer.” Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988). 

II. CONGRESS DID NOT SPEAK DIRECTLY TO THE DISCLOSURE ISSUE 

ADDRESSED IN THE CHALLENGED REGULATION 

Under the first step of Chevron analysis, “the court examines whether the statute speaks 

‘directly ... to the precise question at issue.’” Kanchanalak, 192 F.3d at 1047 (citation omitted). 

If so, the court must give effect to the unambiguously expressed intent of Congress. Chevron, 

467 U.S. at 842. However, as here, “[i]f the statute ‘has not directly addressed the precise 

question at issue,’ then the agency’s construction, if reasonable, should be honored.” 

Kanchanalak, 192 F.3d at 1047 (citation omitted); see generally supra pp. 15-16. 

A. Congress Could Not Have Spoken Directly to the Precise Issue Here Because 

BCRA Originally Prohibited Corporations and Unions from Making 

Electioneering Communications from Their General Treasuries 

Congress could not possibly have spoken to the precise issue plaintiff raises in his 

challenge to 11 C.F.R. § 104.20(c)(9) because BCRA prohibited all unions and virtually all 

corporations from making any electioneering communications at all (the sole exception being the 

small group of MCFL corporations). See 2 U.S.C. § 441b(b)(2). The precise issue here — the 

required disclosures for corporate and union electioneering communications that BCRA banned 

— was never contemplated by Congress. As explained supra p. 7, corporations and unions only 

gained the ability to make certain electioneering communications with general treasury funds in 

2007, five years after BCRA was passed, as a result of the Supreme Court’s holding in WRTL. 

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551 U.S. at 469-70. Commenters in the FEC’s rulemaking from across the ideological spectrum 

agreed that WRTL was a fundamental change that Congress could not have foreseen.7

 

B. BCRA’s Language as to Electioneering Communication Disclosure 

Is Ambiguous 

The Court should stop its inquiry at the first step of Chevron analysis only if Congress’s 

intent was “unambiguously expressed.” Chevron, 467 U.S. at 843. Here, even if BCRA’s 

disclosure requirements for electioneering communications are applied to corporations and 

unions in a way never foreseen by Congress, the relevant statutory language is ambiguous. The 

primary provision upon which plaintiff relies, 2 U.S.C. § 434(f)(2)(F), requires disclosure of 

certain persons who provide funds to those who make electioneering communications, but this 

provision employs the undefined terms “contributors” and “contributed.” As explained below, 

these terms are susceptible of multiple meanings in different contexts. 

Under BCRA as enacted in 2002, persons making electioneering communications out of 

a non-segregated bank account must disclose “the names and addresses of all contributors who 

contributed an aggregate amount of $1,000 or more to the person making the disbursement ....” 

2 U.S.C. § 434(f)(2)(F). In the 2003 rulemaking that led to the Commission’s original 

electioneering communication disclosure regulation, the Commission noted that, although 

Congress defined the term “contribution” long ago in FECA, neither “contributor” nor 

                                                           

7

 See, e.g., Gold, AFL-CIO, Hearing Comments, Tab 35, VH0642-43 (“You obviously are 

acting in an unexpected situation. Congress did not foresee a class of electioneering 

communications that unions and corporations couldn’t undertake and what the consequence of 

that would be.”); Trister, Alliance for Justice, Hearing Comments, Tab 36, VH0813 (“Basically 

the court has left you in a position where they have created a new category of speech which was 

not before Congress when it wrote its reporting requirements.... We don’t know and it’s really 

impossible to know for us how Congress would have decided this question.”); Hoersting, Center 

for Competitive Politics, Hearing Comments, Tab 36, VH0966 (“At the end of the day do I think 

Congress foresaw the snafu that would happen in WRTL? No.”); Bopp, James Madison Center 

for Free Speech, Hearing Comments, Tab 35, VH0505 (“[P]eople need to recognize that we have 

a radical change in approach from the McConnell decision to the [WRTL] decision.”). 

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20 

“contributed” was defined in the statute. See 68 Fed. Reg. at 413; compare 2 U.S.C. § 431(8) 

(defining “contribution”) with 2 U.S.C. § 434(f)(2) (using “contributor” and “contributed”). Of 

course, “contributor” and “contributed” share the same root as the defined term “contribution.” 

Under FECA, a “contribution” is a transfer of something of value made “for the purpose of 

influencing any election for Federal office.” 2 U.S.C. § 431(8)(A). Yet as the Commission 

noted, 68 Fed. Reg. at 413, it did not seem appropriate to interpret “contributor” in this context 

precisely as one who has made a “contribution” as defined by FECA because the definition of 

“electioneering communication” could include speech not made for the purpose of influencing an 

election: The mere reference to a clearly identified candidate in a targeted broadcast 

communication suffices to bring an ad within the statutory definition. See 2 U.S.C. § 

434(f)(3)(A)(i)(I). Thus, from the start — and well before the WRTL decision — the terms 

“contributors” and “contributed” were ambiguous in this context. 

To resolve the statutory ambiguity, the Commission chose not to use the terms 

“contributor” or “contributed” in its original 2003 regulation, which did not apply to corporations 

or unions. The Commission instead required the disclosure of the “name and address of each 

donor who donated an amount aggregating $1,000 or more to the person making the 

disbursement ... .” 11 C.F.R. § 104.20(c)(8) (emphasis added). The Commission had notified 

the public during the rulemaking comment period of its plan to use the broader terms “donor” 

and “donations.” 68 Fed. Reg. at 413. No commenters objected to this approach, nor did any 

suggest that this was the only possible interpretation of the statutory language. 

After the 2007 WRTL decision, the appropriate interpretation of “contributor” and 

“contributed” in this context became even more ambiguous. As discussed previously, the 

question of what constituted “all contributors” to a corporation or union had not before been 

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21 

contemplated because of the general prohibition on corporations and unions using general 

treasury funds for electioneering communications. But in the 2007 rulemaking, the Commission 

had to grapple with this question for the first time. Plaintiff suggests that the Commission had 

already considered the issue in 2002 because it had supposedly “promulgated the ‘segregated 

bank account’ disclosure provision at subparagraph (7) with corporations in mind.” 

(Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment 

(“Pl. Br.”) at 5; see also id. at 6.) (Doc. #20). But of course, the 2003 regulation was not 

intended to apply to ordinary corporations or to any unions, but solely to MCFL corporations, 

which the Supreme Court had previously held have a constitutional right to engage in such 

disbursements. MCFL, 479 U.S. at 263-64; McConnell, 540 U.S. at 209-12. Indeed, the reason 

that the Court had held in MCFL that this small subset of corporations had that constitutional 

right was precisely because they were so different from ordinary corporations: formed for the 

sole purpose of promoting political ideas, they did not engage in business activities or accept 

contributions from for-profit corporations or unions. Id. The 2007 rulemaking, therefore, for the 

first time had to address the vast majority of corporate organizations and unions which, unlike 

MCFL corporations, may have customers, investors, or comparable sources of revenue that 

might have little or no connection to political activity. 

In addressing disclosure for the first time in the post-WRTL world, the Commission again 

had to construe the ambiguous terms “contributor” and “contributed” in 2 U.S.C. § 434(f)(2)(F). 

Under the controlling opinion in WRTL, corporations and unions were now allowed to make 

electioneering communications as long as they were neither “express advocacy” nor its 

“functional equivalent”; therefore, money donated to finance this category of newly permissible 

communications was not congruent with the statutory definition of “contribution,” which 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 35 of 59
22 

includes all transfers made “for the purpose of influencing any election for Federal office.” 

2 U.S.C. § 431(8)(A)(i). Moreover, defining who had “contributed” to a corporation or union 

within the meaning of BCRA’s disclosure rules presented a range of novel issues because of the 

complex finances of these organizations. 

The Commission therefore sought comments about how to “determine which receipts 

qualify as [reportable] donations,” 72 Fed. Reg. at 50,271, using the broader term “donations” 

from the 2003 regulation. In light of the statutory ambiguity, commenters suggested a variety of 

approaches, including (1) requiring no disclosure at all for the judicially permitted electioneering 

communications; (2) restricting disclosure to only funds designated for electioneering 

communications or in response to solicitations for electioneering communications; (3) 

specifically excluding “membership dues, investment income, or other commercial or business 

income”; (4) limiting disclosure by non-profit corporations to funds reported to the IRS on a 

particular line; and (5) requiring disclosure for everyone that donated over $1,000 to the 

corporation or labor organization. 72 Fed. Reg. at 72,910-11. The Commission ultimately 

decided not to interpret the statutory language to require corporations and unions to disclose 

“customers, investors, or members, who have provided funds for purposes entirely unrelated to 

the making of ECs,” and chose instead to limit disclosure to those funds donated for the purpose 

of furthering electioneering communications. 72 Fed. Reg. at 72,911. 

Plaintiff asserts that “[t]he term ‘contributors’ ... is not ambiguous” (Pl. Br. at 20), but 

his own brief belies that claim. Plaintiff himself proposes multiple ways that the Commission 

might have distinguished between contributors and non-contributors in drafting its disclosure 

regulation. (See Pl. Br. at 31-32 (suggesting either a regulation that excludes certain sources of 

funds from its coverage or one that affirmatively defines the specific sources of funds that must 

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23 

be disclosed).) The alternatives proposed by Van Hollen, which are not found in the statute, may 

be reasonable approaches to defining the scope of electioneering communication disclosure. But 

they amount to a concession that the statute is ambiguous, and it is the Commission’s reasonable 

interpretation, not Van Hollen’s, that merits deference. See supra pp. 16-18.8

 

C. An Inoperative Portion of the Snowe-Jeffords Amendment Does Not 

Establish Congressional Intent Regarding the Scope of Electioneering 

Communication Disclosure 

BCRA could not have both prohibited electioneering communications by corporations 

and unions and also spoken directly to the precise issue of the appropriate level of disclosure for 

these activities. Plaintiff tries to overcome this obvious source of ambiguity with an appeal to 

legislative history, in particular a part of the Snowe-Jeffords Amendment that would have 

permitted more corporate electioneering communications but that never actually took effect. 

(See Pl. Br. at 23.) The relevant legislative history, however, underlines the fact that Congress 

did not speak directly to the precise issue here. BCRA failed to become law until it was 

amended to prohibit electioneering communications by corporations and labor organizations. 

The campaign finance reform bill that eventually passed as BCRA was debated and 

amended over a period of many years prior to 2002. In 1998, during the 105th Congress, 

Senators Olympia Snowe and James Jeffords offered an amendment to a predecessor to BCRA 

                                                           

8

 Because Congress has never spoken directly to the precise question at issue here, 

plaintiff’s criticism that the Commission failed to “identify any statutory text” when 

promulgating the regulation makes little sense. (Pl. Br. at 12.) The regulation obviously 

implements 2 U.S.C. § 434(f), but there is no statutory text directly applicable to this particular 

situation, as the Commission noted when it promulgated the regulation. See 72 Fed. Reg. at 

72,901 (“Congress did not expressly address the consequences for the reporting provisions in the 

event of a successful as applied challenge to the funding restrictions. Thus, the Commission 

cannot conclude that Congress has spoken directly to this issue.”) Plaintiff’s claim that the 

Commission made an “abrupt about-face” (Pl. Br. at 12) is similarly incorrect, because the 

Commission had never before been required to face this issue. 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 37 of 59
24 

that included language similar to the electioneering communication disclosure provisions at issue 

in this case. See 144 Cong. Rec. S938 (daily ed. Feb. 24, 1998). The Snowe-Jeffords 

amendment also would have created an exception to the ban on electioneering communications 

by corporations and unions to allow 26 U.S.C. § 501(c)(4) non-profit corporations and 26 U.S.C. 

§ 527 political organizations to make electioneering communications, so long as they were “paid 

for exclusively by funds provided directly by individuals.” See BCRA § 203(b), adding 2 U.S.C. 

§ 441b(c)(2) and 2 U.S.C. §§ 441b(c)(3), (4). That bill did not pass, but similar language was 

included when bills were re-introduced in the 106th Congress and again in the 107th Congress. 

See S.26 (106th Congress), 145 Cong. Rec. S425 (daily ed. Jan. 19, 1999); S.27 (107th 

Congress), 147 Cong. Rec. S298 (daily ed. Jan. 22, 2001). 

In the 107th Congress, Senator Wellstone, worried that the Snowe-Jeffords exception 

would create a loophole, introduced his amendment, which was added to the bill. See 147 Cong. 

Rec. S2845-2849, S2882-2884 (March 26, 2001). The Wellstone Amendment in effect 

eliminated the exception made for section 501(c)(4) and 527 organizations in Snowe-Jeffords 

and thus barred all corporations and unions from making electioneering communications. See 

BCRA § 204, adding 2 U.S.C. § 441b(c)(6); McConnell, 540 U.S. 93, 338-39 (“[T]here is no 

ambiguity regarding what § 204 is intended to accomplish. Enacted to supersede the SnoweJeffords Amendment . . . , § 204 was written to broaden BCRA’s scope to include [prohibitions 

on electioneering communications for] issue-advocacy groups.” ) (Kennedy, J., concurring and 

dissenting)).

The portion of the Snowe-Jeffords provision on which plaintiff relies never actually had 

any effect, and it is impossible to accurately judge congressional intent using language in that 

inoperative provision. It was not even added to the legislation in the same session of Congress 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 38 of 59
25 

that enacted BCRA. And because the Wellstone Amendment superseded the language on which 

plaintiff relies, there is no reason to think that Members actually agreed with that language at the 

time they voted for BCRA, and no way to know what the disclosure provisions might have 

looked like if the Wellstone Amendment had never been added — or for that matter, whether 

BCRA would have passed at all. BCRA was the result of a series of negotiations and 

compromises among legislators with a wide variety of views. Those bargains must be respected 

in the interpretive process. See, e.g., General Motors Corp. v. Romein, 503 U.S. 181, 191 (1992) 

(court must “preserve the delicate legislative compromise that had been struck”); Community for 

Creative Non-Violence v. Reid, 490 U.S. 730, 748 n.14 (1989) (“Strict adherence to the language 

and structure of [an] Act is particularly appropriate where, as here, a statute is the result of a 

series of carefully crafted compromises.”).9

Moreover, the only entities addressed by Snowe-Jeffords were certain non-profit 

corporations and political organizations. It is not apparent that Congress would have treated 

other corporations, or the unions that were not addressed at all, in the same way had it considered 

the issue. See supra p. 21. The exception created by WRTL differed radically from the one 

contemplated by the superseded portion of Snowe-Jeffords. Compare WRTL, 551 U.S. at 469-70 

(all corporations have a right to engage in electioneering communications that do not contain 

“express advocacy” or its “functional equivalent”) with 2 U.S.C. § 441b(c)(2) (allowing section 

                                                           

9

 See also Rodriguez & Weingast, The Positive Political Theory of Legislative History: 

New Perspectives on the 1964 Civil Rights Act and its Interpretation, 151 U. Penn. L. Rev. 1417, 

1422 (2003) (“By virtue of transforming legislation from a proposal that would not pass into a 

bill that did pass, the changes as well as the resulting text are part of the law and should be 

considered such by the courts.”); Cubbins, Noll & Weingast, Positive Canons: The Role of 

Legislative Bargains in Statutory Interpretation, 80 Geo. L.J. 705, 711-12 (1992) (“[I]f statutory 

interpretation is guided by the principle of honouring the spirit of the legislative bargain, it must 

not focus only on the preference of the ardent supporters, but also on the accommodations that 

were necessary to gain the support of the moderates.”). 

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501(c)(4) non-profit corporations and 527(e)(1) political organizations to make any kind of 

electioneering communication). 

The inoperative portion of the Snowe-Jeffords provision sheds no light on what 

electioneering communication disclosure Congress would have required had it known how the 

Supreme Court would alter the scope of BCRA in WRTL. In this regard, the statute remains 

ambiguous. 

D. Congress’s General Desire for Disclosure on Other Subjects Does Not Mean 

That It Intended to Mandate the Specific Disclosure Plaintiff Favors 

The variety of disclosure requirements in FECA only adds to the ambiguity regarding 

what Congress would have intended had it known that all corporations and unions would 

someday be able to make electioneering communications. Despite plaintiff’s arguments (Pl. Br. 

at 21-23) that the statute’s general purpose establishes congressional intent on this specific issue, 

BCRA’s disclosure requirements are themselves constrained. For example, the statute does not 

require disclosure from persons that engage in electioneering communications of less than 

$10,000 in a calendar year. 2 U.S.C. § 434(f)(1). It does not require the disclosure of 

electioneering disbursements of less than $200. 2 U.S.C. § 434(f)(2)(C). And it does not require 

the disclosure of contributors, to either segregated bank accounts or general treasuries, who 

contributed less than $1,000 in a year to a person that makes electioneering communications. 

2 U.S.C. §§ 434(f)(2)(E) & (F). 

Congress’s desire for some electioneering communication disclosure does not mean that 

BCRA single-mindedly pursues disclosure to the greatest extent possible. It is wrong to 

“assume[] that Congress’s primary goal was ipso facto its only goal,” because ‘“no legislation 

pursues its purposes at all costs.’” Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397, 408 (D.C. 

Cir. 1997) (quoting Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (emphasis added)). 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 40 of 59
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“Deciding what competing values will or will not be sacrificed to the achievement of a particular 

objective is the very essence of legislative choice — and it frustrates rather than effectuates 

legislative intent simplistically to assume that whatever furthers the statute’s primary objective 

must be the law.” Rodriguez, 480 U.S. at 526 (emphasis in original). Here, as in Riley, 104 F.3d 

at 408, there is “no evidence that [BCRA] was the product of monomaniacs.” See also Office of 

Workers Comp. v. Newport News, 514 U.S. 122, 135 (1995) (Supreme Court has dismissed “the 

proposition that the statute at hand should be liberally construed to achieve its purposes” as the 

“last redoubt of losing causes.”) 

FECA creates distinct reporting requirements for different campaign activities and 

entities. For example, different types of political committees are subject to varying disclosure 

requirements. Compare 2 U.S.C. § 434(a)(2) (Congressional campaign committees) with 

2 U.S.C. § 434(a)(3) (Presidential campaign committees) with 2 U.S.C. § 434(a)(4) (other 

political committees). The pre-existing reporting requirements for independent expenditures by 

persons other than political committees differ from the reporting requirements for electioneering 

communications added by BCRA. Compare 2 U.S.C. § 434(c)(2) (independent expenditures) 

with 2 U.S.C. § 434(f) (electioneering communications). This lack of uniformity of disclosure 

undermines any suggestion that, after WRTL, it was clear what disclosure Congress would want 

for these new, judicially permitted electioneering communications. 

In fact, plaintiff seizes upon the lack of identical statutory language in the independent 

expenditure and electioneering communication disclosure provisions to argue that Congress’s 

intent on this issue is clear. (See Pl. Br. at 22.) But again, when the statutory language in BCRA 

was passed prior to WRTL, Congress never intended to apply the electioneering communication 

disclosure requirements to corporations or unions in the first place. Thus, it makes no sense to 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 41 of 59
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suggest that Congress had any intention regarding those entities’ electioneering communication 

disclosure requirements. 

In sum, because Congress did not design the electioneering communication disclosure 

requirements for corporations and unions, and because the most relevant language applicable to 

such disclosure is ambiguous, the Court must proceed to step two of the Chevron analysis. 

III. THE COMMISSION’S REGULATION PASSES THE SECOND STEP OF 

CHEVRON ANALYSIS BECAUSE IT REASONABLY BALANCES THE 

IMPORTANCE OF DISCLOSURE WITH POTENTIAL BURDENS ON FIRST 

AMENDMENT INTERESTS 

Under Chevron step two, “courts are bound to uphold an agency interpretation as long as 

it is reasonable — regardless whether there may be other reasonable, or even more reasonable, 

views.” Nat’l Rifle Ass’n, 254 F.3d at 187; see also Sociedad Anonima Vina Santa Reta v. U.S. 

Dept. of Treasury, 193 F. Supp. 2d 6, 16 (D.D.C. 2001). Agencies “must be given ample latitude 

to ‘adapt their rules and policies to the demands of changing circumstances.’” FDA v. Brown & 

Williamson Tobacco Corp., 529 U.S. 120, 157 (2000) (quoting State Farm, 463 U.S. at 42). 

A. The Regulation Charts a Middle Course Between the NPRM’s Two 

Proposals and Reasonably Reconciles the Statute With WRTL

The challenged regulation was a result of the “changing circumstances,” Brown & 

Williamson, 529 U.S. at 157, brought about by the holding in WRTL. See supra p. 7. Even 

though WRTL did not address disclosure and Congress had not envisioned that the vast majority 

of corporations or any unions could make electioneering communications, the Commission had 

to promulgate a regulation that both implemented WRTL’s constitutional holding and was consistent with Congress’s intent in BCRA. The agency thus solicited comment about “the effect of 

the [WRTL] decision on the Commission’s rules governing corporate and labor organization 

funding of electioneering communications, the definition of ‘electioneering communication,’ and 

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the rules governing reporting of electioneering communications.” 72 Fed. Reg. at 50,262. 

The agency proposed two alternatives in its NPRM. See supra p. 8. Plaintiff Van 

Hollen, first elected to Congress in 2002, did not submit comments in the Commission’s 2007 

rulemaking. Those who did comment split on the issue of which proposed alternative was more 

consistent with congressional intent and the WRTL opinion. See supra pp. 8-9. Commenters 

supporting Alternative 1 generally argued that WRTL did not address reporting requirements, but 

that BCRA favored electioneering communication disclosure and McConnell had upheld those 

disclosure requirements. 72 Fed. Reg. at 72,900. Those supporting Alternative 2 argued that 

WRTL implied that WRTL “issue ads” were exempt from any regulation, including disclosure, 

and that disclosure would be burdensome when imposed in a way Congress never envisioned and 

would potentially chill speech. Id. Some commenters offered competing disclosure alternatives, 

including disclosure exempting specific types of sources of revenue and disclosure that would 

track certain Internal Revenue Service rules. See supra pp. 11-13. What the commenters largely 

agreed upon, however, was that the Commission lacked clear guidance on the disclosure issue.10

Balancing legitimate concerns, the Commission ultimately decided on a middle course 

that it characterized as a “revised version of Alternative 1.” 72 Fed. Reg. at 72,901. Declining 

to adopt Alternative 2, the Commission stated that it would be inconsistent with the statute to 

have no disclosure at all for electioneering communications made pursuant to WRTL, in part 

                                                           

10 (See, e.g., Gold, AFL-CIO, Hearing Comments, Tab 35, VH0697 (“It is very easy for 

Congress to throw things at you and it is very easy for the court to come down with great phrases 

as Chief Justice Roberts did. We are mindful that your task is to really deal with it at a micro 

level, but a service you can perform is to make as much sense as you can with what has been 

provided to you. And you may be criticized by some, but you can hardly be faulted in a 

defensible way if you do that.”); Hayward, George Mason University School of Law, Hearing 

Comments, Tab 35, VH0594 (“[the ambiguity] is not [the FEC’s] fault. It is partly the fault of 

Congress and partly the development of the law through the years where it has come across very 

inconsistently and very deferential to Congress in terms of disclosure.”).) 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 43 of 59
30 

because it would remove public disclosure of some electioneering communications that were 

contemplated in the statute (i.e., non-“functional equivalent” electioneering communications 

made by individuals, MCFL corporations, and unincorporated entities). Id. at 72,900. 

The Commission therefore chose to require full disclosure of the identities of persons 

making electioneering communications, the cost of the new electioneering communications, and 

the candidates referenced in those communications. But the Commission also determined that it 

would be unreasonable to subject all corporations and unions to precisely the same disclosure 

requirements as other entities, because of the burden such a regulation would impose on both 

such organizations and on donors to corporations and unions who may “not necessarily support 

the corporation’s electioneering communications.” 72 Fed. Reg. at 72,911.11 Thus, regarding 

the sources of funds used by corporations and unions that make electioneering communications, 

the Commission limited disclosure to those whose donations were made “for the purpose of 

furthering” electioneering communications. 11 C.F.R. § 104.20(c)(9). This interpretation is 

consistent with the definition of “contribution,” which is basically defined as a transfer made 

“for the purpose of influencing” a federal election. 2 U.S.C. § 431(8). As explained supra pp. 

19-23, although the specific provision the Commission was interpreting (§ 434(f)(2)(F)) uses the 

undefined terms “contributors” and “contributed,” not “contribution,” it was reasonable for the 

Commission to adopt language analogous to the statutory definition of “contribution” and 

                                                           

11 If the “major purpose” of a corporation is campaign activity and it meets certain statutory 

criteria, 2 U.S.C. § 431(4)(A), then it is treated as a “political committee.” See, e.g., Buckley, 

424 U.S. at 79 (establishing “major purpose” standard); MCFL, 479 U.S. at 262 (“[S]hould 

MCFL’s independent spending become so extensive that the organization’s major purpose may 

be regarded as campaign activity, the corporation would be classified as a political committee.”) 

(citing Buckley, 424 U.S. at 79)); Political Committee Status: Supplemental Explanation and 

Justification, 72 Fed. Reg. 5595, 5597, 5601 (Feb. 7, 2007). Political committees must 

periodically disclose all of their receipts and disbursements, including the contributions they 

have received. 2 U.S.C. §§ 434(a)-(b).

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include “for the purpose of furthering” electioneering communications in its new disclosure 

regulation. As explained infra pp. 33-36, the Commission’s approach also properly takes into 

account the sensitive First Amendment environment in which it regulates and avoids 

unnecessarily infringing on First Amendment rights. 

Plaintiff argues that the Commission’s choice of this middle ground was unreasonable in 

part because the agency could have chosen an alternative method by which corporations could 

distinguish between contributors and non-contributors, rather than one based upon the purpose of 

the contribution (Pl. Br. at 31-32), but the existence of reasonable alternatives does not make the 

Commission’s choice “unreasonable.” Nat’l Rifle Ass’n, 254 F.3d at 187. Van Hollen also 

argues that the regulation is unreasonable because “people do not pay dues to organizations 

whose mission or purpose they do not endorse, and organizations are not likely to make 

‘electioneering communications’ that undermine their mission and purpose.” (Pl. Br. at 32.) But 

individuals may have varying reasons for joining or donating to the large and diverse kinds of 

organizations that can now finance electioneering communications after WRTL.

12 For example, a 

person might join the National Rifle Association for gun training classes or a union for the legal 

services provided, not because they agree with such organizations’ electioneering activity. Van 

Hollen also suggests that “most union dues are under $1,000 and thus do not need to be 

disclosed” (Pl. Br. at 29 n.24), but there was evidence before the Commission that in fact, some 

union dues exceed $1,000. (See Robinson, AFSCME, Hearing Comments, Tab 35, VH0766-767

(discussing with Commissioners that the dues of physicians, dentists, college professors, airline 

pilots, and screen actors all might exceed $1,000).) 

                                                           

12 Although the challenged regulation was promulgated to implement WRTL, not Citizens 

United, the latter decision further expands the universe of independent campaign spending that 

corporations and unions can make with their general treasury funds. 

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32 

In the absence of a clear statutory directive, and with multiple potential ways to reconcile 

the statute with WRTL, the Commission chose a reasonable middle ground that merits deference. 

B. The Regulation Is Reasonable Because It Requires Disclosure of Critical 

Information About Electioneering Communications, Including Who Is 

Making the Communication and How Much Is Being Spent 

The Commission’s regulation requires disclosure of critical information about who is 

making disbursements for electioneering communications, how much those persons are 

spending, and who is providing the funds to be used for the communications. As the FEC noted: 

The Commission emphasizes that all the other reporting requirements that 

apply to any person making ECs ... apply also to corporations and labor 

organizations making ECs permissible under section 114.15. Thus, like all 

persons making ECs that cost, in aggregate, more than $10,000, corporations 

and labor organizations must also disclose their identities as the persons 

making the ECs, the costs of the ECs, the clearly identified candidates 

appearing in the communications and the elections in which the candidates are 

participating, and the disclosure dates. 

72 Fed. Reg. at 72,911. The regulation requires, for example, that the U.S. Chamber of 

Commerce and Crossroads GPS report how much each respectively spent on electioneering 

communications in 2010. (See Pl. Br. at 15.) The public can also learn in what races and for 

what electioneering communications these entities are spending money. Perhaps most critically, 

the regulation makes public the identities of these spenders — key information McConnell noted 

as missing prior to the passage of BCRA. See 540 U.S. at 196-97 (describing groups funding ads 

to influence federal elections while “concealing their identities from the public”). Thus, all 

corporations and unions making electioneering communications above the statutory threshold 

must file reports with the FEC, along with the amounts they are spending and what they are 

spending the money on. 2 U.S.C. §§ 434(f)(2)(A)-(D); 11 C.F.R. §§ 104.20(c)(1)-(6). The 

names of these groups must also appear on ad disclaimers. 2 U.S.C. § 441d(a); 11 C.F.R. 

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33 

§ 110.11. Thus, plaintiff’s broad assertion (Pl. Br. at 23) that “virtually all disclosure ceased” 

after the Commission’s 2007 regulation went into effect is wrong. 

Corporations and unions must also disclose the identities of all persons that donated for 

the purpose of furthering these spenders’ electioneering communications. 11 C.F.R. 

§ 104.20(c)(9). Plaintiff repeatedly mischaracterizes this requirement as limiting disclosure to 

those who “have announced ‘a purpose of furthering electioneering communications’” (see Pl. 

Br. at 1, 17, 19, 23, 32 (emphasis added)), but there is no “announcement” requirement in the 

regulation. The regulation does not rely solely on statements (public or private) by donors, but 

applies objective standards to determine which donations meet the regulatory standard. Indeed, 

the Commission noted in the E&J that the regulation covers, for example, donations “received in 

response to solicitations specifically requesting funds” for electioneering communications. 72 

Fed. Reg. at 72,911. Thus, the Commission’s regulatory structure requires disclosure of the 

critical information about electioneering communications by corporations and unions. 

C. The Commission Reasonably Balanced the Interests in Disclosure and the 

Associated First Amendment Burdens 

The Commission reasonably limited disclosure of donors to corporations and unions 

partly because of the significant burden that these entities and those who provide them funds 

might face if the entities were forced to disclose all of their “customers, investors, or members, 

who have provided funds for purposes entirely unrelated to the making of ECs.” Id. The 

Commission recognized that it could be costly and a significant administrative challenge for the 

large and diverse entities covered by the regulation to report every person that paid them $1,000 

or more in a year. Id. Furthermore, such a broad sweep of information would be misleading and 

could implicate the privacy interests of those identified despite having no connection at all to the 

electioneering communications. Plaintiff argues that the Commission overstates these burdens 

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34 

and that it lacked the authority to even consider them (Pl. Br. at 29-33), but it was well within the 

Commission’s rulemaking discretion to consider burdens on the regulated community, and the 

Commission carefully considered the rulemaking evidence, mindful that its decision would affect 

First Amendment activity. Indeed, construing the statute to avoid unnecessary interference with 

constitutionally protected political speech is a policy choice well within the Commission’s 

discretion. See AFL-CIO, 333 F.3d at 179 (in drafting regulations the “Commission must 

attempt to avoid unnecessarily infringing on First Amendment interests”). See also Weaver v. 

U.S. Information Agency, 87 F.3d 1429, 1436 (D.C. Cir. 1996); Blitz v. Donovan, 740 F.2d 1241, 

1244-145 (D.C. Cir. 1984). 

Many of the burdens associated with the disclosure that plaintiff favors are readily 

apparent. Plaintiff does not dispute that many corporations and unions receive significant 

money, often exceeding $1,000 a year, from a wide variety of sources. But the Commission also 

carefully considered the evidence from the more than 25 comments submitted and two days of 

hearings. Witnesses testified that for many organizations, identifying all persons that provided 

funds of over $1,000 “would be very costly and require an inordinate amount of effort.” 72 Fed. 

Reg. at 72,911. See also supra pp. 12-13. Van Hollen dismisses this testimony as “self-serving, 

factually unsupported, and conclusory” (Pl. Br. at 29), but it was not unreasonable for the 

Commission to rely upon testimony from the parties that would be affected by a new regulation. 

The Court’s role is only to ensure that the Commission “examine[d] the relevant data and 

articulate[d] a satisfactory explanation for its action including a rational connection between the 

facts found and the choice made.” State Farm, 463 U.S. at 43 (citation and internal quotation 

marks omitted). 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 48 of 59
35 

Recently, a federal court reviewed a state law partly modeled on BCRA’s disclosure 

provisions and held that it was unconstitutional to require disclosure of all those providing more 

than $1,000 to those making electioneering communications; the court thus adopted a limiting 

construction remarkably similar to the FEC regulation challenged in this case. See Ctr. For 

Individual Freedom, Inc. v. Tennant, No. 08-190, 2011 WL 2912735 (S.D.W.V. July 18, 2011). 

The court held that the state could require the identification of funding sources only to the extent 

the funds were solicited or earmarked for use in electioneering communications, noting that 

“requiring the disclosure of corporate or organizational contributor’s personal information can be 

quite burdensome on those entities” and that “[t]he practical effect of requiring such expansive 

disclosure [of all contributors] is not only to compel a flood of information, but a flood of 

information that is not necessarily relevant to the purpose the regulation purportedly serves: to 

provide the electorate with information as to who is speaking.” Id. at *49. 

Plaintiff also argues (Pl. Br. at 25-27) that the Commission cannot take burden into 

account at all, relying on Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005), and Public Citizen v. FTC, 

869 F.2d 1541, 1557 (D.C. Cir. 1989), but in neither of those cases had an intervening court 

decision created a statutory gap never envisioned by Congress. And as plaintiff points out, 

whether the Commission reasonably interpreted the statute depends in part upon whether the 

agency “rationally considered the factors deemed relevant by the Act.” Shays, 414 F.3d at 96-97 

(quoting Gen. Am. Transp. Co. v. ICC, 872 F.2d 1048, 1053 (D.C. Cir. 1989)). But Congress 

quite clearly believed that burden was relevant in determining the proper level of disclosure: 

BCRA does not require disclosure from persons that engage in electioneering communications of 

less than $10,000 in a calendar year, for electioneering disbursements of less than $200, or for 

contributors who contribute less than $1,000 in a year. 2 U.S.C. §§ 434(f)(1), (2)(C), (E) & 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 49 of 59
36 

(F).13 Each of these limits shows congressional balancing of the potential burden against the 

other purposes of the statute, as plaintiff concedes; indeed, plaintiff argues that these statutory 

limits to alleviate burden mean that the Commission can do no more. (Pl. Br. at 26.) But that 

claim lacks merit when an agency must decide, as the result of a later Supreme Court decision, 

how to regulate entities that Congress never envisioned could even undertake the conduct in 

question. 

In fact, it is quite possible that Congress would have adopted a standard for disclosure of 

corporate and union electioneering communications that is similar to the standard the 

Commission chose, which was “drawn from the [statutory] reporting requirements that apply to 

independent expenditures made by persons other than political committees.” See 72 Fed. Reg. at 

72,911 (citing 2 U.S.C. § 434(c)(2)(C)). That standard had been part of FECA for more than 30 

years and BCRA did not amend it, despite changing many other parts of the statute. In sum, the 

Commission reasonably balanced potential burdens with the interest in disclosure of 

electioneering communications in this sensitive constitutional area. 

D. The Fact That Congress Has Not Overruled the Commission’s Regulation Is 

Further Evidence That It Is Consistent With Congressional Intent 

Congress has had ample opportunity to overturn 11 C.F.R. § 104.20(c)(9) since its 

promulgation in 2007, and plaintiff Van Hollen has sponsored efforts to do so. Indeed, Congress 

has tried but failed to enact legislation to change the disclosure requirements for electioneering 

communications. It is appropriate to consider this inaction as an indication of tacit approval by 

                                                           

13 Indeed, BCRA also recognized the potential disclosure burdens by providing the option 

of using a segregated bank account containing only funds from individuals, an option that 

plaintiff argues (Pl. Br. at 30) corporations and unions could use to alleviate any burdens here. 

But the organizations that WRTL permitted to make electioneering communications are not 

limited to using individual funds, so that option would be insufficient to relieve the potential 

burden on them. 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 50 of 59
37 

Congress.14 In Bob Jones University v. United States, 461 U.S. 574, 600-01 (1983), the Supreme 

Court upheld an IRS interpretation of the charitable deduction allowance, in large part due to 

such legislative acquiescence. The Court cautioned that application of this principle was 

appropriate only in certain circumstances, but two factors made it appropriate in Bob Jones: 

(1) the subject matter was one with which Congress was intimately familiar, and (2) Congress 

made many attempts to override the IRS interpretation, but did not succeed. Id. at 600-01.15 

These two factors are both present here. It is hard to imagine an area of the law with 

which Members of Congress are more familiar than campaign finance law; it governs their own 

election campaigns and access to office.16 In addition, there have been unsuccessful efforts in 

Congress to overrule the Commission’s regulatory interpretation. In 2010, Van Hollen was a 

sponsor of a bill called the “Democracy is Strengthened by Casting Light on Spending in 

Elections Act,” or “DISCLOSE Act,” that would have required corporations that make 

electioneering communications from treasury funds to disclose all their donors, without regard to 

the purpose of their donation. See H.R. 5175, 111th Cong. § 211(b)(1)(B) (2010). But the 111th 

Congress did not enact the “DISCLOSE Act”; the bill passed in the House of Representatives, 

but failed to overcome a filibuster in the Senate. To date, the bill has not been reintroduced in 

                                                           

14 This general acquiescence canon has not been statutorily overruled by 5 U.S.C. § 801(g), 

which states only that the intent of Congress cannot be inferred by “any action or inaction” 

during the 60-day Congressional review period after an agency submits a regulation. 

15 Cf. Bismullah v. Gates, 551 F.3d 1068, 1074 (D.C. Cir. 2009) (“Legislative inaction is 

not probative here because it is neither long-standing nor is there ‘overwhelming evidence’ that 

Congress considered and failed to act upon the ‘precise issue’ before the [c]ourt.” (quoting 

Rapanos v. United States, 547 U.S. 715, 750 (2006)). 

16 Van Hollen himself alleges that, as a result of the challenged regulation, he “likely will 

be subjected to attack ads or other ‘electioneering communications’ financed by anonymous 

donors, and will not be able to respond by, inter alia, drawing to the attention of the voters in his 

district the identity of persons who fund such ads.” (Compl. ¶ 11 (Doc. #1)). It is reasonable to 

assume that all Members of Congress are well aware of any such potential activity. 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 51 of 59
38 

the 112th Congress. This lawsuit appears to be a judicial effort to achieve what could not be 

done legislatively. 

E. The Court Should Not Consider Evidence That Post-Dates the Commission’s 

2007 Rulemaking, But Even If It Does, the FEC Could Not Reasonably Have 

Foreseen the 2010 Decision in Citizens United 

1. Review of the regulation is limited to the administrative record that 

existed at the time of the Commission’s decision, so plaintiff’s postdecisional evidence should not be considered 

Plaintiff relies on evidence about electioneering communication disclosure that post-dates 

the Commission’s 2007 rulemaking (see, e.g., Pl. Br. at 14-16), but the Court should not consider 

this material because the “focal point of judicial review” of a federal agency’s decision in a 

rulemaking challenged under the APA “should be the administrative record already in existence, 

not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 141-

142 (1973) (per curiam). See also, e.g., Volpe, 401 U.S. at 420 (“review is to be based on the full 

administrative record that was before the [agency] at the time [it] made [its] decision” (footnote 

omitted)). “‘[S]upplementation of the administrative record is the exception, not the norm.’” 

Delano v. Roche, 391 F. Supp. 2d 79, 88 (D.D.C. 2005) (quoting Nat’l Wilderness Inst. v. U.S. 

Army Corps of Engineers, No. 01-0273, 2005 WL 691775, at *10 (D.D.C. March 23, 2005)). “If 

a court is to review an agency’s action fairly, it should have before it neither more nor less 

information than did the agency when it made its decision.” Walter O. Boswell Mem’l Hosp. v. 

Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984). 

Van Hollen’s effort to introduce post-decisional evidence violates the principles of 

finality and deference underlying the general rule barring such evidence in judicial review of 

administrative decisions. “To review more than the information before the [decision-maker] at 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 52 of 59
39 

the time she made her decision risks our requiring administrators to be prescient ... .” Boswell, 

749 F.2d at 793. As the Supreme Court has observed, 

[i]f upon the coming down of the order litigants might demand rehearings as a 

matter of law because some new circumstance has arisen, some new trend has 

been observed, or some new fact discovered, there would be little hope that 

the administrative process could ever be consummated in an order that would 

not be subject to reopening. 

Vermont Yankee Nuclear Power Corp. v. Nat’l Res. Defense Council, Inc., 435 U.S. 519, 554-55 

(1978) (internal quotation marks and citation omitted). “‘Were courts cavalierly to supplement 

the record, they would be tempted to second-guess agency decisions in the belief that they were 

better informed than the administrators empowered by Congress and appointed by the 

President.’” Amfac Resorts, L.L.C. v. Dep’t. of Interior, 143 F. Supp. 2d 7, 11 (D.D.C. 2001) 

(quoting Deukmejian v. NRC, 751 F.2d 1287, 1325-26 (D.C. Cir. 1984), aff’d in relevant parts 

sub. nom. San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) (en banc)). 

In this challenge to a regulation promulgated in 2007, Van Hollen attempts to rely on 

disclosure reports from the 2010 election cycle, a study based on electioneering reporting in 

2010, and newspaper articles from as late as June 2011. (Pl. Exhs. A-O (Doc. #20-3)). Van 

Hollen uses these exhibits to argue broadly that the Commission should have foreseen that the 

challenged regulation would lead to “widespread evasion” of the disclosure statute. (See Pl. Br. 

at 1, 14-15, 14 n.14, 32.) But this use of later evidence is precisely what is prohibited in a 

challenge of this type. See IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997); Boswell, 

749 F.2d at 793. Post-decisional evidence may be submitted for the limited purpose of 

explaining an unclear administrative record, see Corel Corp. v. United States, 165 F. Supp. 2d 

12, 31-32 (D.D.C. 2001), but Van Hollen’s exhibits are “offered primarily to attack the propriety 

of the [Commission’s decision],” id. at 32. A “judicial venture outside the record . . . can never, 

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40 

under Camp v. Pitts, examine the propriety of the decision itself.” Envtl. Def. Fund, Inc. v. 

Costle, 657 F.2d 275, 286 (D.C. Cir. 1981) (footnote omitted); see also Nat’l Treasury 

Employees Union v. Hove, 840 F. Supp. 165, 169 (D.D.C. 1994) (“consideration of outside 

evidence to determine the correctness or wisdom of the agency’s decisions is not permitted”) 

(citation and internal quotation marks omitted). 

In trying to avoid the general bar on judicial supplementation of the administrative 

record, Van Hollen relies on Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), but plaintiff 

stretches that case beyond its breaking point. First, later cases have clarified that Esch’s 

discussion of situations in which extra-record evidence may be considered as “dicta” that should 

be read narrowly to be consistent with IMS, 129 F.3d at 623-24. See Oceana, Inc. v. Locke, 674 

F. Supp. 2d 39, 44-45 (D.D.C. 2009); see also Nat’l Wilderness Institute, 2005 WL 691775, at 

*10. Second, Esch itself emphasized that a limited “resort to extra-record information” “may 

sometimes be appropriate” when the “procedural validity” of an agency’s action is at issue, 876 

F.2d at 991 (emphasis added) — a claim that Van Hollen has not alleged here. Third, plaintiff 

reads Esch broadly to permit courts to consider post-decisional evidence to decide “whether the 

decision was correct or not” (Pl. Br. at 14 n.14), but plaintiff’s expansive interpretation would 

allow the exception to swallow the rule: All judicial review of agency action, applying the 

appropriate standard of review, asks whether the agency’s decision was sufficiently correct to be 

upheld. Fourth, the only Esch situation that plaintiff claims applies here is that in which an 

agency fails to examine all “factors” relevant to its decision, but of course the Commission could 

not have considered evidence that did not yet exist. Finally, Van Hollen wrongly asserts that the 

Commission failed to consider “whether or not the regulation would undermine BCRA” by 

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41 

permitting evasion (Pl. Br. at 14 n.14), but the extent of disclosure that BCRA requires was a key 

focus of the Commission’s rulemaking. 72 Fed. Reg. at 72,901-02, 10-11. 

Courts have repeatedly refused to consider the kind of post-decisional evidence on which 

plaintiff relies when submitted to show that agency decision-making was incorrect. See, e.g., 

Boswell, 749 F.2d at 793-94 & n.7 (striking amicus affidavits summarizing post-decisional study 

and disregarding portions of all briefs referencing them); Nat’l Park and Conservation Ass’n v. 

Stanton, 54 F. Supp. 2d 7, 11 n.2 (D.D.C. 1999) (refusing to consider extra-record and postdecisional evidence); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 n.2 (D.D.C. 1995) 

(refusing to consider newspaper article and study that post-dated agency decision submitted to 

show that agency had not considered all relevant factors). 

If Van Hollen believes that subsequent events require revisiting the challenged 

regulation, the proper recourse is to submit a rulemaking petition. See Reytblatt v. U.S. Nuclear 

Regulatory Comm’n, 105 F.3d 715, 723 (D.C. Cir. 1997) (“We note that [plaintiffs] are free to 

petition the [agency] . . . to conduct a new rulemaking ... .”); cf. Meghani v. INS, 236 F.3d 843, 

848 (7th Cir. 2001) (declining to consider post-decisional report as support for immigration 

application, because “we view our review as generally limited to the administrative record,” and 

noting that the “appropriate recourse for [plaintiff] is to file a motion to reopen” the 

administrative proceedings).17 In sum, “to review [the] agency’s action fairly,” Boswell, 749 

F.2d at 792, the Court should disregard plaintiff’s post-decisional evidence and arguments based 

on it. 

                                                           

17 Indeed, as plaintiff notes (Pl. Br. at 12 n.13), he submitted a rulemaking petition in April 

2011 asking the Commission to revise its current regulation regarding disclosure of independent 

expenditures. Plaintiff asserts that the Commission has “not yet acted” upon the petition, but in 

fact the Commission issued a Notice of Availability in June 2011. 76 Fed. Reg. 36,000-01 

(June 21, 2011). 

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2. Plaintiff’s complaints here are largely the result of Citizens United, 

which made lawful corporate and union electoral activity the FEC 

could not reasonably have foreseen in 2007 

Plaintiff asserts that the FEC “should have considered and foreseen” that corporations 

might “exploit” 11 C.F.R. § 104.20(c)(9) by running “attack ads ... financed by anonymous 

donors” (Pl. Br. at 1; Complaint at ¶ 11 (Doc.#1)), but to the extent that disclosure of such 

activity under the regulation is less robust than plaintiff wishes, that is largely a result of Citizens 

United, a change in the law that took place after the rulemaking, and the Commission is not 

required to be “prescient.” Boswell, 749 F.2d at 792. When the Commission promulgated its 

regulation, corporations and unions were prohibited from making any independent expenditures 

or electioneering communications that contained express advocacy or its functional equivalent. 

See WRTL, 551 U.S. at 469-70. The constitutionality of the ban on such disbursements had been 

upheld for 20 years. Austin v. Mich. Chamber of Comm., 494 U.S. 652, 668-69 (1990); 

McConnell, 540 U.S. at 203-209. But Citizens United held that corporations had a constitutional 

right to finance such communications with their general treasury funds, and the FEC’s regulation 

now applies to conduct that the agency could not have anticipated. Indeed, despite plaintiff’s 

claim that this was foreseeable, this lawsuit was not brought until 2011, well after Citizens 

United greatly altered the landscape.18

The Commission’s failure to anticipate the Citizens United decision or its effects does not 

make its rulemaking decision contrary to law. The regulation is a reasonable interpretation of the 

statute Congress passed, as the law and binding precedent existed in 2007. 

                                                           

18 By contrast, the original BCRA regulations were challenged even before they became 

effective. See Shays v. FEC, 337 F. Supp. 2d 28, 37 (D.D.C. 2004) (noting that regulations at 

issue became effective in November 2002 and February 2003); Compl., Shays v. FEC, No. 

02-cv-01984-CKK (D.D.C. Oct. 8, 2002) (Doc. #1). 

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IV. IF THE COURT WERE TO HOLD THAT THE REGULATION IS CONTRARY 

TO LAW, THE APPROPRIATE REMEDY WOULD BE TO REMAND TO THE 

COMMISSION WITHOUT VACATING THE REGULATION 

In the event that the Court determines that 11 C.F.R. § 104.20(c)(9) is unlawful, the 

appropriate remedy would be a remand to the Commission, not the unusual remedy of vacating 

the regulation or imposing a draconian regulatory timetable, as plaintiff urges. (Pl. Br. at 34-35.) 

“The decision whether to vacate depends on [1] ‘the seriousness of the order’s deficiencies (and 

thus the extent of doubt whether the agency chose correctly) and [2] the disruptive consequences 

of an interim change that may itself be changed.’” Allied-Signal, Inc. v. U.S. Nuclear Regulatory 

Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) (quoting Int’l Union, United Mine Workers v. 

Fed. Mine Safety and Health Admin., 920 F.2d 960, 967 (D.C. Cir. 1990)). 

Both Allied-Signal factors make vacatur inappropriate here. As the FEC has shown, there 

can be little doubt that the Commission’s regulation was a serious effort to balance competing 

interests in the wholly unforeseen situation the agency confronted in 2007, and even if the 

regulation were ultimately found to be defective, vacatur would be inappropriate. Moreover, 

many of plaintiff’s arguments involve alleged inadequacies in the administrative record. (See, 

e.g., Pl. Br. at 12 (arguing that Commission failed to articulate adequately the justifications for 

the regulation); id. at 29 (arguing that Commission “failed to make any fact-based findings” and 

“did not present any data or facts in its E&J” regarding burdens of disclosure).) Remand without 

vacatur is the appropriate remedy to such a deficiency. 

If the record before the agency does not support the agency action, if the 

agency has not considered all relevant factors, or if the reviewing court simply 

cannot evaluate the challenged agency action on the basis of the record before 

it, the proper course, except in rare circumstances, is to remand to the agency 

for additional investigation or explanation. 

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44 

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also, e.g., Camp, 411 U.S. 

at 142-143 (proper remedy is remand, not de novo hearing, to obtain from agency additional 

explanation of its reasons when there is “such failure to explain administrative action as to 

frustrate effective judicial review”). If an inadequate explanation is found here, remand without 

vacatur would permit the Commission to more fully explain the existing regulation.19 

 The second Allied-Signal factor also supports remand without vacatur here. The 2012 

elections are quickly approaching and, if there were no regulation for any significant time, 

corporations, unions, contributors, and other interested persons — including Members of 

Congress like plaintiff — might have inadequate guidance about what disclosure the law 

requires. Corporations and unions might be uncertain about how to solicit or collect funds and 

how to treat information about funders who might prefer to remain anonymous, while potential 

contributors might be uncertain about whether their identities would be disclosed if they did 

contribute. 

Plaintiff also asks the Court to “retain jurisdiction” following any remand and set a strict 

timetable for the Commission, but a “court-imposed deadline for agency action constitutes an 

extraordinary remedy.” Qwest Commc’ns Int’l, Inc. v. FCC, 398 F.3d 1222, 1238-39 (10th Cir. 

2005) (“While we recognize that nearly nine years have passed since the passage of the 

Telecommunications Act and over three years since our decision in Qwest I, we decline the 

                                                           

19 See Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (“When 

an agency may be able readily to cure a defect in its explanation of a decision, the first factor in 

Allied-Signal counsels remand without vacatur.”); accord WorldCom, Inc. v. FCC, 288 F.3d 429, 

434 (D.C. Cir. 2002) (remand without vacatur appropriate where “non-trivial likelihood” that 

agency would be able to justify rule on remand). 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 58 of 59
45 

invitation to retain jurisdiction or impose an arbitrary deadline.”).20 The regulation at issue here 

was promulgated about six months after WRTL, and there is no reason to doubt that, in the event 

of a remand, the Commission would proceed in a timely way. 

CONCLUSION 

Because 11 C.F.R. § 104.20(c)(9) is not contrary to law, the Court should grant summary 

judgment to the Commission and deny plaintiff’s motion for relief. 

Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Holly J. Baker 

Attorney 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

August 1, 2011 Fax: (202) 219-0260 

                                                           

20 A court’s consideration of this serious intrusion upon an agency’s jurisdiction is guided 

by “(1) the extent of the delay, (2) the reasonableness of the delay in the context of the 

legislation authorizing agency action, (3) the consequences of the delay, ... (4) administrative 

difficulties bearing on the agency’s ability to resolve an issue ... [and 5] consideration of the 

complexity of the task envisioned by a court’s remand order.” Qwest, 398 F.3d at 1239. 

Case 1:11-cv-00766-ABJ Document 25 Filed 08/01/11 Page 59 of 59