UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CHRISTOPHER SHAYS and ) 

MARTIN MEEHAN, ) 

 ) 

 Plaintiffs, ) 

 ) Civil Action No. 06-CV-1247 (CKK) 

 v. ) 

 ) FEC MEMORANDUM 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

) 

____________________________________________ 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND IN 

OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

____________________________________________ 

Lawrence H. Norton 

General Counsel 

Richard B. Bader 

Associate General Counsel 

David Kolker 

Assistant General Counsel 

Vivien Clair 

Attorney 

Greg J. Mueller 

Attorney 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

January 19, 2007 (202) 694-1650 
i

TABLE OF CONTENTS 

 Page 

BACKGROUND ............................................................................................................1 

A. The Parties ..............................................................................................1 

B. Substantive and Procedural Background.................................................2 

 

1. The Definitions of “Voter Registration Activity” and 

“Get-Out-The-Vote Activity” (11 C.F.R. 100.24(a)(2), (3)) ......2 

2. Attendance by Federal Candidates and Officeholders 

 at State, District, and Local Party Fundraisers 

 (11 C.F.R. 300.64) ......................................................................5 

3. The Coordinated Communication Provision 

 (11 C.F.R. 109.21) ......................................................................7 

a. “Content” Element (11 C.F.R. 109.21(c)) ............................7 

b. “Conduct” elements (11 C.F.R. 109.21(d)(4), (5) 

 (common vendor/former employee) and 109.21(h) 

 (firewall safe harbor)) .........................................................10 

ARGUMENT................................................................................................................12 

I. STANDARD OF REVIEW ..............................................................................12 

 A. Summary Judgment ..............................................................................12 

B. The Commission’s Construction of the Act Is Entitled 

 to Deference under Chevron ................................................................12 

C. Review of the Regulations under the APA Is Deferential ....................13 

II. THIS COURT SHOULD NOT REVISIT ITS RULINGS IN SHAYS I 

 THAT 11 C.F.R. 100.24(a)(2), 100.24(a)(3), AND 300.64 SATISFY 

PART OR ALL OF CHEVRON REVIEW ...................................... 14 

 

III. THE REGULATORY DEFINITIONS OF “VOTER REGISTRATION 

ACTIVITY” AND “GET-OUT-THE-VOTE ACTIVITY” PASS 

 CHEVRON REVIEW AND SATISFY APA REQUIREMENTS...................15 
ii

A. 11 C.F.R. 100.24(a)(2): Defining the Term 

“Voter Registration Activity” ...............................................................16 

B. 11 C.F.R. 100.24(a)(3): Defining the Term 

“Get-Out-the-Vote Activity” ................................................................20 

IV. THE REVISED EXPLANATION AND JUSTIFICATION FOR 

 11 C.F.R. 300.64 SATISFIES THE APA’S REASONED 

 ANALYSIS REQUIREMENT .........................................................................23 

V. THE COORDINATED COMMUNICATION REGULATIONS 

 ARE LAWFUL.................................................................................................31 

A. Background ...........................................................................................32 

B. The Revised Coordination Content Standard Is Not Arbitrary 

 and Capricious and Has Been Comprehensively Explained.................34 

1. The Timing of an Advertisement May Indicate Its Purpose, 

 and the Regulation’s Content Timeframes Are Supported 

 By Reliable Empirical Data ............................................................34 

2. The Commission’s Line Drawing Accommodates Core First 

Amendment Concerns and Does Not Compromise the Act...........42 

C. The Commission’s Reliance on the CMAG Data Is Not Arbitrary 

 and Capricious and Did Not Violate the APA.....................................49 

1. The CMAG Data Are Comprehensive and Reliable......................49 

2. The Commission’s Use of the CMAG Data Did Not Violate 

 the Procedural Requirements of the APA......................................52 

D. The “Common Vendor” and “Former Employee” Conduct 

 Standards Are Not Arbitrary and Capricious........................................53 

E. The Firewall Conduct Regulation Is Not Arbitrary 

 and Capricious ......................................................................................56 

CONCLUSION.............................................................................................................60
iii

TABLE OF AUTHORITIES 

Page

CASES 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003)........................................................32 

American Public Communications Council v. Federal Communications 

 Commission, 215 F.3d 51 (D.C. Cir. 2000).......................................................42, 56 

Arkansas v. Oklahoma, 503 U.S. 91 (1992) .................................................................46 

Ash v. Cort, 496 F.2d 416 (3d Cir. 1974).....................................................................22 

Association of American R.R. v. Surface Transp. Bd., 306 F.3d 1108 

 (D.C. Cir. 2002) ......................................................................................................14 

Assn’n of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 200) ..........................53 

 

AT&T Corp. v. FCC, 349 F.3d 692 (D.C. Cir. 2003)...................................................13 

 

Barnhart v. Thomas, 540 U.S. 20 (2003)......................................................................46 

BellSouth Corp. v. FCC, 162 F.3d 1215 (D.C. Cir. 1999) ...........................................52 

 

Boyce Motor Lines v. United States, 342 U.S. 337 (1952) ..........................................56 

Buckley v. Valeo, 424 U.S. 1 (1976)............................................................................19 

Casey v. Planned Parenthood, 14 F.3d 848 (3d Cir. 1994)...........................................15 

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

Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993) .................................................24 

Chen v. Ashcroft, 381 F.3d 221 (3rd Cir. 2004)............................................................45 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

 837 (1984).........................................................................................................passim 

Chrysler Corp. v. U.S. EPA, 631 F.2d 865 (D.C. Cir. 1980)........................................46 

Colorado Repub. Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996) .....................57 
iv

Core Communications, Inc. v. Level 3 Communications, 455 F.3d 267 

 (D.C. Cir 2006) .........................................................................................................41 

Covad Communications Co. v. FCC, 450 F.3d 528 (D.C. Cir. 2006)........13, 45, 53, 56 

 

Donnelly v. F.A.A., 411 F.3d 267 (D.C. Cir. 2005) .....................................................26 

Duncan v. Walker, 533 U.S. 167 (2001).......................................................................26 

 

Earthlink, Inc. v. FCC, 462 F.3d 1 (D.C. Cir. 2006) ..............................................41, 42 

 

Edenfield v. Fane, 507 U.S. 761 (1993) .................................................................18, 42 

Envtl. Action, Inc. v. FERC, 939 F.2d 1057 (D.C. Cir. 1991) .....................................41 

FCC v. Nat’l Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) ........................41 

FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981) .................................................41 

 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) .......................13 

FEC v. National Conservative PAC, 647 F.Supp. 987 (S.D.N.Y. 1986)......................23 

FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001) ...............................................................13 

Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457 (11th Cir. 1996) ...47 

Flynn v. Commissioner of IRS, 269 F.3d 1064 (D.C. Cir. 2001).................................44 

GCI Health Care Centers, Inc. v. Thompson, 209 F.Supp.2d 63 (D.D.C. 2002) .........12 

 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005)...........................................................46 

Hercules, Inc. v. EPA, 598 F.2d 91 (D.C. Cir. 1978) ...................................................52 

Industrial Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) ....42, 51 

KCST-TV, Inc. v. FCC, 699 F.2d 1185 (D.C. Cir. 1983) ............................................52 

LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc)..................................15 

Lignite Energy Council v. EPA, 198 F.3d 930 (D.C. Cir. 1999)..................................51 

McConnell v. FEC, 540 U.S. 93 (2003) .................................................2, 19, 35, 36, 48 
v

Milk Industry Foundation v. Glickman, 132 F.3d 1467 (D.C. Cir. 1998)....................40 

Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm 

 Mutual Automobile Ins. Co., 463 U.S. 29 (1983)..............................................13, 56 

National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 

 125 S.Ct. 2699 (2005)..............................................................................................13 

New York v. United States EPA, 413 F.3d 3 (D.C. Cir. 2005) ....................................14 

 

Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990).........................47 

 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)..................................................3, 43, 44 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ................................................................59 

Personal Watercraft Industry Ass’n v. Department of Commerce, 48 F.3d 540 

 (D.C. Cir. 1995) .......................................................................................................53 

Pharmaceutical Research and Mfrs. v. Thompson, 362 F.3d 817 (D.C. Cir. 2004) ....33 

Process Gas Consumers Group v. FERC, 292 F.3d 831 (D.C. Cir. 2002) ...................41 

Public Citizen, Inc. v. National Hwy. Traffic Safety Admin., 374 F.3d 1251 

 (D.C. Cir. 2004) ......................................................................................................13 

San Luis Obispo Mothers For Peace v. Nuclear Regulatory Comm’n, 789 F.2d 26 

 (D.C. Cir. 1986) (en banc) ......................................................................................14 

Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998).......46 

 

Sec’y of Labor, Mine Safety and Health Admin. v. Federal Mine Safety

 and Health Review Comm’n, 111 F.3d 913 (D.C. Cir. 1997) .................................45 

 

Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981)......................................................50 

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) ..........................................................50 

Shays v. FEC (“Shays I”), 337 F.Supp.2d 28 (D.D.C. 2004)................................passim 

Shays v. FEC (“Shays I Appeal”), 414 F.3d 76 (D.C. Cir. 2005) .........................1, 8, 9 

Terry v. Reno, 101 F.3d 1412 (D.C. Cir. 1996)......................................................20, 48 

 

Trout v. Lehman, 702 F.2d 1094 (D.C. Cir. 1983), vacated on other grounds, 

 465 U.S. 1056 (1984)...............................................................................................50 
vi

United States v. Alaw, 327 F.3d 1217 (D.C. Cir. 2003)...............................................34 

 

United States v. American College of Physicians, 475 U.S. 834 (1986)......................17 

 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999)...................................13 

United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515 (1946)........................52 

United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004)......43 

Verizon Communications, Inc. v. FCC, 535 U.S. 467, 539 (2002)..............................13 

West Virginia v. EPA, 362 F.3d 861 (D.C. Cir. 2004).................................................53 

STATUTES AND REGULATIONS 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 

 116 Stat. 81 (2002)............................................................................................passim 

Federal Election Campaign Act of 1971, Pub. L. No. 92-225, Title II, § 205, 

 86 Stat. 10 (1972)........................................................................... 21 

Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431-55.............. passim 

Help America Vote Act of 2002, 42 U.S.C. 15483 ......................................................20 

National Voter Registration Act of 1993, 42 U.S.C. 1973gg(b)(1)..............................20 

Voting Rights Act of 1965, 42 U.S.C. 1973b(a)(1)(F)(iii) ...........................................20 

2 U.S.C. 431(9)(A)(i)....................................................................................................32 

2 U.S.C. 431(9)(B)(ii).............................................................................................20, 22 

2 U.S.C. 431(17)(A) .....................................................................................................48 

2 U.S.C. 431(17)(B)......................................................................................................48 

2 U.S.C. 431(20) .............................................................................................................2 

2 U.S.C. 431(20)(A)(i)....................................................................................................2 

2 U.S.C. 431(20)(A)(ii)...................................................................................................2 

2 U.S.C. 431(20)(A)(iii)................................................................................................19 
vii

2 U.S.C. 434(f)(3) .........................................................................................................48 

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

2 U.S.C. 437d(a) .............................................................................................................1 

2 U.S.C. 437d(a)(8).........................................................................................................2 

2 U.S.C. 437d (e) ............................................................................................................1 

2 U.S.C. 437f(c)(1) .......................................................................................................23 

2 U.S.C. 437g..................................................................................................................1 

2 U.S.C. 437g(a)(2).......................................................................................................58 

2 U.S.C. 441a(a)............................................................................................................57 

2 U.S.C. 441a(a)(7)(B)(i)..........................................................................................7, 32 

2 U.S.C. 441a(a)(7)(C)....................................................................................................7 

2 U.S.C. 441a(d) ...........................................................................................................57 

2 U.S.C. 441b................................................................................................................22

2 U.S.C. 441b(b)(2)(B) .................................................................................................22 

2 U.S.C. 441i(a) ............................................................................................................30

2 U.S.C. 441i(b)........................................................................................................2, 22 

2 U.S.C. 441i(b)(1) ...................................................................................................2, 19

2 U.S.C. 441i(b)(2) .......................................................................................................19 

2 U.S.C. 441i(b)(2)(C)....................................................................................................6 

2 U.S.C. 441i(d)(4) .......................................................................................................17

2 U.S.C. 441i(e) ....................................................................................................5, 6, 26 

2 U.S.C. 441i(e)(1)..........................................................................................................6 

2 U.S.C. 441i(e)(1)(A)..............................................................................................5, 30 

2 U.S.C. 441i(e)(1)(B) ......................................................................................24, 25, 26 
viii

2 U.S.C. 441i(e)(2)........................................................................................................25 

2 U.S.C. 441i(e)(3)........................................................................................6, 24, 25, 27 

2 U.S.C. 441i(e)(4)..................................................................................................17, 25 

2 U.S.C. 441i(e)(4)(A)..............................................................................................6, 24 

2 U.S.C. 441i(e)(4)(B) ..................................................................................................24 

5 U.S.C. 553..................................................................................................................24 

5 U.S.C. 553(b)(3) ........................................................................................................14 

5 U.S.C. 553(c) .............................................................................................................14 

5 U.S.C. 706(2)(A)........................................................................................................13 

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

5 U.S.C. 7323................................................................................................................31

5 U.S.C. 7323(a)(2).......................................................................................................31 

5 U.S.C. 7323(a)(4).......................................................................................................31 

18 U.S.C. 607(a)(1) (2000 & Supp. II)........................................................................ 30 

18 U.S.C. 602(a)(4).......................................................................................................31 

26 U.S.C. 501(c) ............................................................................................................6 

28 U.S.C., Fed. R. Civ. P. 56 ........................................................................................12 

5 C.F.R. 734.101...........................................................................................................31 

11 C.F.R. 100.22.............................................................................................................8 

11 C.F.R. 100.22(b) ......................................................................................................41 

11 C.F.R. 100.23...........................................................................................................32 

11 C.F.R. 100.24(a).......................................................................................................19 

11 C.F.R. 100.24(a)(2)...........................................................................................passim 

 

11 C.F.R. 100.24(a)(3)...........................................................................................passim 
ix

11 C.F.R. 100.24(a)(3)(i) ..............................................................................................21 

 

11 C.F.R. 100.24(a)(3(ii) ..............................................................................................21 

11 C.F.R. 100.133.........................................................................................................19 

11 C.F.R. 106.4(g) ........................................................................................................56 

11 C.F.R. 109.20(a).......................................................................................................54 

11 C.F.R. 109.21...........................................................................................................17 

11 C.F.R. 109.21(c)(1)................................................................................................7, 8 

11 C.F.R. 109.21(c)(2)................................................................................................7, 8 

11 C.F.R. 109.21(c)(3)....................................................................................................8 

11 C.F.R. 109.21(d) ......................................................................................................56 

11 C.F.R. 109.21(c)(4)..............................................................................................8, 39 

11 C.F.R. 109.21(d)(1)..................................................................................................54 

 

11 C.F.R. 109.21(d)(3)..................................................................................................54 

11 C.F.R. 109.21(d)(4)............................................................................................10, 54 

11 C.F.R. 109.21(d) (5)...........................................................................................10, 54 

11 C.F.R. 109.21(h) ......................................................................................................11 

11 C.F.R. 109.21(h)(2)..................................................................................................58 

11 C.F.R. 112.1(b) ........................................................................................................23 

11 C.F.R. 112.1(c).........................................................................................................23 

11 C.F.R. 112.5(a)(1)(2) ...............................................................................................23 

11 C.F.R. 300.2(g) ..........................................................................................................2 

11 C.F.R. 300.2(i) ...........................................................................................................2 

11 C.F.R. 300.2(m) .................................................................................................27, 31 
x

11 C.F.R. 300.2 (n) .......................................................................................................27 

11 C.F.R. 300.31.............................................................................................................2 

11 C.F.R. 300.32.............................................................................................................2 

11 C.F.R. 300.64....................................................................................................passim 

11 C.F.R. 300.64(b) ........................................................................................................6 

LCvR 40.5(a) ................................................................................................................15 

MISC. 

 

Advisory Opinion 2003-03 ...........................................................................................25 

Advisory Opinion 2003-05 ...........................................................................................25 

Advisory Opinion 2003-36 ...........................................................................................25 

Advisory Opinion 2006-19 ...........................................................................................22 

117 Cong. Rec. 43,386-388 (Nov. 30, 1971)................................................................22 

147 Cong. Rec. S3184 (daily ed. March 30, 2001).......................................................33 

147 Cong. Rec. S3184-S3185 (daily ed. Mar. 30, 2001)..............................................33 

148 Cong. Rec. S2141 (daily ed. March 20, 2002).......................................................33 

148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002) .........................................................33 

67 Fed. Reg. 35,655. .......................................................................................................2 

67 Fed. Reg. 49,064 ............................................................................................3, 21, 28 

68 Fed. Reg. 436 .....................................................................................................56, 59 

S.27, Bipartisan Campaign Reform Act of 2001, 107th Cong. § 214 (2001)...............33 

SENATE ETHICS MANUAL, 108th Cong., 1st Sess. 75-76 (2003 ed. ................................31 
xi

GLOSSARY 

A.R. = Administrative Record 

 

AO = Advisory Opinion 

 

APA = Administrative Procedure Act 

 

BCRA = Bipartisan Campaign Reform Act of 2002 

 

CMAG = TNS Media Intelligence/CMAG 

 

DCCC = Democratic Congressional Campaign Committee 

 

DNC = Democratic National Committee 

 

DSCC = Democratic Senatorial Campaign Committee 

 

E&J = Explanation and Justification 

 

FEC = Federal Election Commission 

 

FECA = Federal Election Campaign Act of 1971, as amended, 

2 U.S.C. 431-455 

 

GOTV = Get out the vote 

 

MUR = Matter Under Review 

 

NPRM = Notice of Proposed Rulemaking 

 

NRCC = National Republican Congressional Committee 

 

NRSC = National Republican Senatorial Committee 

 

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

 

Shays I 

Appeal

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

 

SNPRM = Supplemental Notice of Proposed Rulemaking 
1

 The parties have filed cross-motions for summary judgment in this facial challenge to 

four regulations promulgated by the Federal Election Commission (“FEC” or “Commission”) to 

implement the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 

116 Stat. 81 (2002), amending the Federal Election Campaign Act of 1971 (“Act” or “FECA”), 

2 U.S.C. 431-55. This Court should grant the Commission’s motion for summary judgment and 

deny plaintiffs’ motion because the Commission has resolved the problems identified in Shays v. 

FEC (“Shays I”), 337 F.Supp.2d 28 (D.D.C. 2004), and Shays v. FEC (“Shays I Appeal”), 

414 F.3d 76 (D.C. Cir. 2005). The Commission’s expanded Explanation and Justification 

(“E&J”) for the regulatory definitions of “voter registration activity” and “get-out-the-vote 

activity” (11 C.F.R. 100.24(a)(2) and (a)(3)) establishes that those definitions further the 

purposes underlying the Act and reflect policy choices well within the Commission’s discretion. 

The revised E&J for the regulation (11 C.F.R. 300.64) governing attendance by federal 

officeholders and candidates at state and local fundraising events presents a reasoned and 

comprehensive justification for the Commission’s rule. Lastly, in determining what constitutes a 

“coordinated expenditure” under the Act, the revised coordinated communications rule 

(11 C.F.R. 109.21) reasonably draws a bright line that is fully supported by the rulemaking 

record and the Commission’s thorough explanation. 

BACKGROUND 

A. The Parties 

 Plaintiffs Christopher Shays and Martin Meehan are Members of the United States House 

of Representatives and were the principal House sponsors of BCRA. Complaint ¶¶ 8-9. 

 The Commission is the independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce the Act. See 2 U.S.C. 

437c(b)(1), 437d(a), (e), and 437g. The Act authorizes the Commission to “formulate policy 
2

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

to carry out the provisions” of the Act. 2 U.S.C. 437d(a)(8). Congress specifically directed the 

Commission to promulgate regulations implementing BCRA. See BCRA §§ 214(b), (c); 402(c). 

 

 B. Substantive and Procedural Background1 

 

 1. The Definitions of “Voter Registration Activity” and “Get-Out-The- 

 Vote Activity” (11 C.F.R. 100.24(a)(2), (3)) 

BCRA added a new term to the Act, “Federal election activity,” that describes certain 

activities that state, district, and local party committees must pay for with either “Federal funds” 

or a combination of Federal and “Levin funds.” 2 U.S.C. 431(20), 441i(b)(1).2

 Congress 

included “voter registration activity” among the activities encompassed by “Federal election 

activity,” see 2 U.S.C. 431(20)(A)(i), but did not define the subsidiary term other than to provide 

that it is only “Federal election activity” if conducted 120 days or fewer before a regularly 

scheduled federal election. Id. Congress also included “get out the vote activity” (“GOTV”) 

within BCRA’s definition of “Federal election activity,” but without further definition beyond 

specifying that GOTV is “Federal election activity” if “conducted in connection with an election 

in which a candidate for Federal office appears on the ballot.” See 2 U.S.C. 431(20)(A)(ii). 

 

1

 “A.R.” references are to the Administrative Record filed on October 31, 2006, Docket 

#17. That record, filed on DVD, consists of three volumes, each of which is an individual file. 

Each volume consists of numbered documents (“Doc. _”) that can be retrieved by clicking on the 

particular document number under the “Bookmarks” tab. Each record page has a unique “A.R.” 

number that may be accessed by typing the number into the page number field at the bottom 

center of the document or by clicking on the desired number under the “Pages” tab (or, in earlier 

versions of Adobe Acrobat, the “Thumbnails” tab). The A.R. page ranges in each volume are as 

follows: Vol. I, A.R. 1-428; Vol. II, A.R. 429-678; and Vol. III, A.R. 679-2223. For the 

convenience of the Court, a small subset of these pages (A.R. 2191-2223) is attached as an 

addendum to this memorandum. 

2

 “Federal funds” are funds subject to the limitations, prohibitions, and reporting requirements of the Act. See 11 C.F.R. 300.2(g). “Levin funds” may be raised and spent by state and 

local political party committees under more lenient restrictions than those applicable to federal 

funds. See 2 U.S.C. 441i(b); 11 C.F.R. 300.2(i), 300.31, 300.32; McConnell v. FEC, 540 U.S. 

93, 163-64 (2003); Doc. 23, A.R. 678 (Commission “has consistently referred to Levin funds as 

non-Federal funds”); 67 Fed. Reg. 35,655 (Levin funds are “a subset of non-Federal funds”). 
3

In 2002, the Commission issued regulations further defining “voter registration activity” 

and “GOTV activity.” See 67 Fed. Reg. 49,064, 49,067-68, 49,110-111 (July 29, 2002); 

11 C.F.R. 100.24(a)(2) (2003 ed.) (“Voter registration activity”); 11 C.F.R. 100.24(a)(3) (2003 

ed.) (“GOTV activity”). The Commission explained that, in defining “voter registration activity,” it tried to avoid requiring “thousands of political committees and grassroots organizations” 

to comply with the Act’s “extensive reporting and filing requirements” merely because they 

encourage voting. 67 Fed. Reg. 49,067. To avoid such an overly broad approach, the Commission opted for a regulation that “require[d] concrete actions to assist” would-be registrants. Id. 

Similar considerations led the Commission to define “GOTV activity” by focusing on a state, 

district, or local party’s assisting registered voters to take some step necessary for voting. Id. 

In Shays I, this Court found that the Commission’s interpretation of “voter registration 

activity” and “GOTV activity” satisfies Chevron step one review. “[I]t is possible to read the 

term ‘voter registration activity’ to encompass those activities that actually register persons to 

vote, as opposed to those that only encourage persons to do so without more.” 337 F.Supp.2d at 

99. The Court reached a similar conclusion regarding “GOTV activity” because the term could 

mean either “any activity that is intended to get people to go out and vote, including encouraging 

them to do so” or “activities that actually physically get[ ] people to the polls.” Id. at 103. 

Under Chevron step two, the Court concluded that the definitions were “not 

impermissible” constructions of the statute, Shays I, 337 F.Supp.2d at 100, 103, 105. The Court 

also concluded that whether the regulations “unduly compromise” the purposes underlying the 

Act was not ripe for resolution; “more guidance on the true scope” of the regulations was 

necessary for that determination. Id. at 100 (citing Orloski v. FEC, 795 F.2d 156, 164 (D.C. Cir. 

1986)). However, the Court held that the Commission’s Notice of Proposed Rulemaking 
4

(“NPRM”) did not satisfy the notice requirements of the Administrative Procedure Act (“APA”) 

because the public could not reasonably have anticipated the final rules. Id. at 100-01, 105. 

 On remand, the Commission initiated a rulemaking “to comply with the district court 

order” (Vol. I, Doc. 7, A.R. 42).3

 In its NPRM of May 4, 2005 (“2005 NPRM”), the 

Commission restated its “concern[ ] that a definition of ‘voter registration activity’ that includes 

merely ‘encouraging’ people to register to vote may sweep too broadly” (A.R. 43). A similar 

concern underlay its approach to the definition of “GOTV activity” (id.). Thus, the NPRM did 

not propose any changes to 11 C.F.R. 100.24(a)(2), but the regulation would continue to be “as 

broad as possible” while incorporating “individual contact and ‘assist’ requirements” (Vol. I, 

Doc. 7, A.R. 43). The 2005 NPRM provided notice and sought comments about “amending the 

regulation, expanding the explanation and justification for the final rules, or providing guidance 

through a case-by-case application of the rules in advisory opinions and in the enforcement 

process” (id.). The Commission received written comments, and on August 4, 2005, the 

Commission held a public hearing on the definition of “Federal election activity.” See Vol. I, 

Docs. 8-18. 

 On February 9, 2006, the Commission voted to promulgate the same definition of “voter 

registration activity” as in 2002, with a fuller explanation of that term. Vol. I, Docs. 24-26. The 

rule states, 11 C.F.R. 100.24(a)(2): 

Voter registration activity means contacting individuals by telephone, in 

person, or by other individualized means to assist them in registering to 

vote. Voter registration activity includes, but is not limited to, printing 

and distributing registration and voting information, providing 

individuals with voter registration forms, and assisting individuals in the 

completion and filing of such forms. 

 

3

 More generally, on remand the Commission undertook rulemakings concerning 23 

different rules, issued nine separate NPRMs, received 916 comments from 1,019 commenters, 

held eight days of hearings, and compiled thousands of pages of documents. Contrary to plaintiffs’ suggestion (Br. 9 & n.10), these proceedings began promptly, and all of them were completed within a few months of the Solicitor General’s decision not to seek certiorari in Shays I. 
5

The Commission explained that “[t]he purpose of retaining the ‘assist’ requirement is to exclude 

‘mere encouragement’ from the scope of the rules” (Vol. I, Doc. 27, A.R. 424). The expanded 

E&J includes additional examples of voter registration activities falling within the meaning of 

“federal election activity” and examples of activities that do not (A.R. 425). 

The Commission promulgated a modified version of the 2002 rule on “GOTV activity”: 

Get-out-the vote activity means contacting registered voters by 

telephone, in person, or by other individualized means, to assist them in 

engaging in the act of voting. Get-out-the-vote activity includes, but is 

not limited to: 

(i) Providing to individual voters information such as the date of the 

election, the times when polling places are open, and the location of 

particular polling places; and 

(ii) Offering to transport or actually transporting voters to the polls. 

11 C.F.R. 100.24(a)(3). This version eliminates the phrase “within 72 hours of an election” in 

example (i) as well as an exemption invalidated in Shays I, 337 F.Supp.2d at 104, regarding 

associations of state and local candidates. See id. at 103, 105; Vol. I, Doc. 27, A.R. 426. The 

expanded E&J explains that the Commission never intended to suggest that GOTV activity may 

occur only within a 72-hour period before an election, so it removed the reference to a specific 

time period to avoid confusion. Id. 

 

 2. Attendance by Federal Candidates and Officeholders at State, 

 District, and Local Party Fundraisers (11 C.F.R. 300.64) 

BCRA regulates solicitations by federal candidates and officeholders. See 2 U.S.C. 

441i(e). The first part of paragraph (1) of that section “[i]n general” prohibits those individuals 

from, inter alia, soliciting funds “in connection with an election for Federal office, including 

funds for any Federal election activity” unless the funds are federal funds. 2 U.S.C. 

441i(e)(1)(A). The second part of paragraph (1), however, permits federal candidates and 

officeholders to solicit nonfederal funds in connection with any election for a nonfederal office 

in amounts that may be contributed to federal candidates and political committees and are not 
6

from sources the Act prohibits. 2 U.S.C. 441i(e)(1)(B). Paragraph (3) is entitled “Fundraising 

events” and states that, “[n]otwithstanding paragraph (1) and [2 U.S.C. 441i](b)(2)(C),” a 

federal candidate or officeholder “may attend, speak, or be a featured guest at a fundraising event 

for a State, district, or local committee of a political party.” 2 U.S.C. 441i(e)(3).4

 

 The regulation at issue in Shays I and again here, 11 C.F.R. 300.64, implements 

paragraph (e)(3) and specifies that a “fundraising event ... includ[es] but [is] not limited to a 

fundraising event at which Levin funds are raised, or at which non-Federal funds are raised.” 

Section 300.64(b) states that “[c]andidates and individuals holding Federal office may speak at 

such events without restriction or regulation.” 

 In Shays I, this Court concluded that 11 C.F.R. 300.64 satisfies Chevron steps one and 

two. 337 F.Supp.2d at 89-90, 91-92. However, the Court also concluded that, “[i]n the absence 

of any further explanation,” 337 F.Supp.2d at 93, the Commission’s E&J failed to provide a 

“reasoned analysis” in support of the regulation, in violation of the APA. On remand, the 

Commission issued an NPRM (Vol. II, Doc. 6) on February 24, 2005, to comply with Shays I by 

revisiting 11 C.F.R. 300.64(b). The NPRM sought comment on revisions to the E&J for the 

original 11 C.F.R. 300.64 and also on a proposal to bar federal candidates and officeholders from 

soliciting or directing nonfederal funds when attending or speaking at party fundraising events. 

See Doc. 6, A.R. 467, 468. The Commission received written comments (Vol. II, Docs. 7-16), 

 

4

 Two other provisions of section 441i(e) refer to paragraph 441i(e)(1). Paragraph (2) 

states that paragraph (1) “does not apply” under certain conditions to the solicitation of funds by 

a federal candidate or officeholder who is also a candidate for a state or local office and is 

soliciting funds in connection with that election. Paragraph (4)(A) states that, “[n]otwithstanding 

any other provision of this subsection,” a federal candidate or officeholder may make a general 

solicitation of funds to certain tax-exempt organizations described in section 501(c) of the 

Internal Revenue Code. 2 U.S.C. 441i(e)(4)(A). Paragraph (4)(B) permits federal candidates or 

officeholders to solicit funds for certain kinds of federal election activity or for an entity whose 

principal purpose is to conduct those activities, if the solicitation is made only to individuals and 

the amount solicited from any individual during a calendar year does not exceed $20,000. 
7

and on May 17, 2005, held a public hearing on the proposals. See Vol. II, Docs. 17-19. On June 

30, 2005, the Commission issued a revised E&J (Vol. II, Doc. 23), along with supplementary 

information, explaining why, “after carefully weighing the relevant factors” (id. at A.R. 674), the 

Commission decided to retain the original rule rather than adopt the alternative proposal. 

 3. The Coordinated Communication Provision (11 C.F.R. 109.21) 

 The Act provides that coordinated expenditures, i.e., “expenditures made by any person 

in cooperation, consultation, or concert with or at the request or suggestion of a candidate, his 

authorized political committees, or their agents, shall be considered a contribution to such 

candidate.” 2 U.S.C. 441a(a)(7)(B)(i). The regulations set out a three-prong test for determining 

when a communication is “coordinated” with a federal candidate or a political party committee 

— based on payment (not challenged here), content, and conduct. 

 a. “Content” Element (11 C.F.R. 109.21(c)) 

 The content prong identifies four subcategories of communications, each of which 

identifies a category of communications whose subject matter is reasonably related to an 

election. A communication that falls into any of the subcategories satisfies the content prong. 

E&J for 2006 Coordination Rulemaking, Vol. III, Doc. 52, A.R. 2162. 

The first content standard is satisfied if the communication is an electioneering 

communication. See 11 C.F.R. 109.21(c)(1). This content standard implements the statutory 

directive that disbursements for coordinated electioneering communications be treated as in-kind 

contributions to, and expenditures by, the candidate or political party supported by the 

communication. 2 U.S.C. 441a(a)(7)(C). 

 The second content standard is satisfied by a public communication made at any time that 

disseminates, distributes, or republishes campaign materials prepared by a candidate, a 

candidate’s authorized committee, or agents thereof. See 11 C.F.R. 109.21(c)(2). This content 
8

standard implements Congress’s mandate that the Commission’s rules address the “republication 

of campaign materials.” See BCRA § 214(c)(1). 

 The third content standard is satisfied if a public communication made at any time 

expressly advocates the election or defeat of a clearly identified candidate for federal office. See

11 C.F.R. 109.21(c)(3); 11 C.F.R. 100.22. The Commission concluded that express advocacy is 

“for the purpose of influencing an election,” no matter when it occurs. Vol. III, A.R. 2162. 

 The fourth content standard is satisfied if a communication refers to a clearly identified 

federal candidate or political party and is publicly distributed within a prescribed timeframe 

(within 90 days of an election for the House or Senate, and from 120 days before a presidential 

primary through the general election) to voters in the jurisdiction where the clearly identified 

candidate is running or the jurisdiction in which one or more candidates of the identified party 

appear on the ballot. 11 C.F.R. 109.21(c)(1)-(4). 

i. The Shays I Decisions on Section 109.21(c). This Court decided in Shays I that 

11 C.F.R. 109.21(c)(1)-(4) satisfies Chevron step one. 337 F.Supp.2d at 61-62. Under Chevron

step two, the Court found that “[the agency’s] construction of the statute is facially permissible.” 

Id. at 62. The Court found the regulation invalid nonetheless, concluding that any consideration 

of the content of a communication would facilitate circumventing the Act’s contribution limits. 

Id. at 62-65. The D.C. Circuit, however, disagreed “with the district court’s suggestion that any 

standard looking beyond collaboration to content would necessarily ‘create an immense 

loophole,’ thus exceeding the range of permissible readings under Chevron step two.” 414 F.3d 

at 99-100. The D.C. Circuit concluded, “we can hardly fault the [Commission’s] effort to 

develop an objective, bright-line test [that] does not unduly compromise the Act’s purposes.” Id. 

at 99 (internal quotations omitted). Moreover, the court expressly “reject[ed] Shays and 

Meehan’s argument that [the Act] precludes content-based standards under Chevron Step One,” 
9

id., and emphasized, “time, place, and content may be critical indicia of communicative 

purpose.” The D.C. Circuit found that “the challenged regulation’s fatal defect is not that the 

FEC drew distinctions based on content, time, and place, but rather that, contrary to the APA, the 

Commission offered no persuasive justification for ... the 120-day time-frame and the weak 

restraints applying outside of it.” Id. at 100. On that limited basis, the court affirmed the district 

court’s invalidation of the Commission’s coordinated communication rules and remanded the 

matter back to the Commission. Id. at 101. 

ii. FEC Proceedings on Remand. The Commission published a new NPRM (Vol. III, 

Doc. 8, A.R. 747-60) on December 14, 2005, that proposed seven alternatives addressing 

coordinated communications. Written comments were received from 28 entities during the 

comment period, which closed on January 13, 2006. The Commission held a public hearing on 

January 25 and 26, 2006, at which 18 witnesses testified. Vol. III, Docs. 29-30, A.R. 1433-2036. 

 On March 13, 2006, the Commission published on its website a Supplemental Notice of 

Proposed Rulemaking (“SNPRM”) making public data it had licensed from TNS Media 

Intelligence/CMAG (“CMAG”) regarding television advertising by presidential and congressional candidates during the 2004 election cycle. Vol. III, Doc. 34, A.R. 2049-50. On March 15, 

2006, the SNPRM was published in the Federal Register. A.R. 2051. The comment period was 

re-opened until March 22, 2006, and 12 commenters submitted additional material. A.R. 2164. 

In the final rule (Vol. III, Doc. 52) the Commission adjusted the timeframe for congressional elections from 120 days to 90 days because the data showed virtually no candidate advertisements outside the 90-day period. A.R. 2165, 2167. Senate candidates as a group aired only 

0.87 percent and 0.39 percent of their advertisements more than 90 days before their primary and 

general elections, respectively. This advertising represented 0.66 percent and 0.15 percent of the 

total estimated costs of advertisements run by Senate candidates before the primary and general 
10

elections, respectively. House candidates as a group aired only 8.56 percent and 0.28 percent of 

their advertisements more than 90 days before their primary and general elections, respectively. 

This represented 3.79 percent and 0.13 percent of the total estimated costs of advertisements run 

by House candidates before the primary and general elections, respectively. 

For presidential elections, the Commission determined that appreciable spending 

occurred in the “gap period” between some primaries and the 120-day period before the general 

election. Vol. III, A.R. 2167. The Commission, therefore, adjusted the presidential rule to 

extend from 120 days before the primary election in a state through the general election. Id. The 

data before the Commission showed that this revised timeframe would have covered more than 

99 percent of presidential advertising in 2004. Id. 

b. “Conduct” elements (11 C.F.R. 109.21(d)(4), (5) (common 

vendor/former employee) and 109.21(h) (firewall safe harbor))

i. Common vendor/former employee. The conduct elements of the coordination rule 

also address when a person paying for a communication (“payer”) obtains information about a 

candidate’s or political party’s plans, projects, activities, or needs from a common vendor or 

former employee of a candidate or party and then uses that information in a communication. 

11 C.F.R. 109.21(d)(4), (5). 

 In BCRA § 214(c), Congress directed the Commission to address in its regulations 

“payments for the use of a common vendor” and “payments for communications directed or 

made by persons who previously served as an employee of a candidate or a political party .... ” 

In response, the Commission promulgated the “common vendor” conduct standard in the 2002 

coordination rules. That standard is satisfied if (1) the payer contracts with, or employs, a 

“commercial vendor” to create, produce, or distribute the communication; (2) the commercial 

vendor has provided specified types of services, within the “current election cycle,” to the 

candidate, the candidate’s opponent, or a political party committee; and (3) when working for the 
11

payer, the commercial vendor uses or conveys material information about the campaign plans, 

projects, activities, or needs of the candidate or political party committee that is material to the 

creation, production, or distribution of the communication obtained from the work done for the 

candidate or party committee. Vol. III, A.R. 2174. 

 Similarly, the “former employee” conduct standard in the 2002 coordination rules is 

satisfied if (1) the payer employs a person who was a former employee of a candidate or political 

party within the “current election cycle,” and (2) when working for the payer, the former 

employee uses or conveys material information obtained from work done for the candidate or 

political party. 

 In 2005 the Commission amended the rule to make it applicable while a commercial 

vendor or employee is working for a political committee, and then continuing for another 120 

days. This adjustment substituted the 120-day period in place of the prior time period that 

spanned an entire election cycle. Vol. III, A.R. 2174. This adjustment was based on information 

in the rulemaking record indicating how the former rule actually functioned in practice.

ii. Firewall safe harbor. The firewall safe harbor provision provides that conduct will 

not be considered coordinated if a vendor or former employee implements an effective firewall 

that shields material information in the possession of the vendor, former employee, or political 

committee from the payer. 11 C.F.R. 109.21(h). To qualify, the firewall must be designed and 

implemented to prohibit the flow of relevant information between those employees or 

consultants providing services for the payer and those employees or consultants who currently 

provide, or previously provided, services for the candidate or a political party committee. Vol. 

III, A.R. 2177-78. 

 Any firewall must be described in a written policy distributed to all relevant employees, 

consultants, and clients affected by the policy, including all employees or consultants actually 
12

providing services to the payer or to the candidate or party committee. Vol. III, A.R. 2177. The 

regulation requires that a firewall be put in place before any information has been shared 

between the relevant employees, and that the written firewall policy be distributed to all relevant 

employees before those employees begin work on the communication referencing the candidate 

or political party. Id. The safe harbor does not apply, however, if material information was 

shared despite the existence of the firewall. A.R. 2178.

ARGUMENT 

I. STANDARD OF REVIEW 

A. Summary Judgment

 “In ruling on cross-motions for summary judgment, the court shall grant summary 

judgment only if one of the moving parties is entitled to judgment as a matter of law upon 

material facts that are not genuinely disputed.” GCI Health Care Centers, Inc. v. Thompson, 

209 F.Supp.2d 63, 67 (D.D.C. 2002) (citations omitted). See Fed. R. Civ. P. 56. “Summary 

judgment is ... appropriate where, as here, review is on the administrative record.” GCI Health 

Centers, 209 F.Supp.2d at 67-68 (citations omitted). 

B. The Commission’s Construction of the Act Is Entitled to Deference 

under Chevron 

 The two-step analytic framework from Chevron, U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837 (1984), governs judicial review of regulations embodying 

the Commission’s interpretation of the Act. If Congress “has directly spoken to the precise 

question at issue,” a court “must give effect to [Congress’s] unambiguously expressed intent”; 

but “if the statute is silent or ambiguous with respect to the specific issue,” the court must defer 

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

statute,” that is, is a “reasonable” interpretation. Id. at 842-43, 844. “[I]f the Commission’s 

reading of the statute is reasonable, Chevron requires ... [the court] ‘to accept the agency’s 
13

construction of the statute, even if the agency’s reading differs from what the court believes is 

the best statutory interpretation.’” Covad Communications Co. v. FCC, 450 F.3d 528, 537 (D.C. 

Cir. 2006) (quoting National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 125 S.Ct. 

2688, 2699 (2005)); FEC v. NRA, 254 F.3d 173, 187 (D.C. Cir. 2001) (same). 

“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.” Chevron, 

467 U.S. at 866. “‘[T]he job of judges is to ask whether the Commission made choices 

reasonably within the pale of statutory possibility.’” AT&T Corp. v. FCC, 349 F.3d 692, 699 

(D.C. Cir. 2003) (quoting Verizon Communications, Inc. v. FCC, 535 U.S. 467, 539 (2002)). 

The Commission, which has broad discretionary authority over the administration, interpretation, 

and civil enforcement of the Act, “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). Accord, United States v. Kanchanalak, 192 F.3d 1037, 1049 (D.C. Cir. 1999). 

C. Review of the Regulations under the APA Is Deferential 

 Plaintiffs challenge the Commission’s regulations under the APA.5

 See Complaint ¶¶ 5, 

68-70. A court can set aside an agency action only if it is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). Under this “highly 

deferential standard,” Public Citizen, Inc. v. National Hwy. Traffic Safety Admin., 374 F.3d 

1251, 1260 (D.C. Cir. 2004), “the scope of [judicial] review ... is narrow and a court is not to 

substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the United States, 

Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983). Accord, e.g., Public 

Citizen, 374 F.3d at 1260. In particular, “[t]he standard of review ‘does not’ ...‘permit ... 

 

5

 “Neither FECA nor BCRA contain[s] provisions providing for direct review of the FEC’s 

regulations.” Shays I, 337 F.Supp.2d at 48 n.15. 
14

[a court] to substitute ... [its] policy judgment for that of the Agency.’” New York v. United 

States EPA, 413 F.3d 3, 18 (D.C. Cir. 2005) (internal citation omitted). See also, e.g., Cellco 

Partnership v. FCC, 357 F.3d 88, 93-94 (D.C. Cir. 2004) (arbitrary-and-capricious review 

“presum[es] the validity of agency action”). “[T]he party challenging an agency’s action as 

arbitrary and capricious bears the burden of proof.” San Luis Obispo Mothers For Peace v. 

Nuclear Regulatory Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc). 

 Under 5 U.S.C. 706(2)(D), a court sets aside agency action that is made “without 

observance of procedure required by law.” Section 553 of the APA requires that NPRMs include 

“either the terms or substance of the proposed rule or a description of the subjects and issues 

involved.” 5 U.S.C. 553(b)(3). Section 553 also requires an agency, after notice and comment 

on a proposed rule, to “incorporate in the rules adopted a concise general statement of their basis 

and purpose.” 5 U.S.C. 553(c). 

II. THIS COURT SHOULD NOT REVISIT ITS RULINGS IN SHAYS I THAT 

11 C.F.R. 100.24(a)(2), 100.24(a)(3), AND 300.64 SATISFY PART OR ALL OF 

CHEVRON REVIEW 

This Court in Shays I concluded that (i) 11 C.F.R. 300.64 satisfies Chevron steps one and 

two, (ii) 11 C.F.R. 100.24(a)(2) satisfies Chevron step one, and (iii) 11 C.F.R. 100.24(a)(3) 

satisfies Chevron step one in part. Shays I, 337 F.Supp.2d at 90, 92, 100, 103.6

 See supra pp. 3, 

6. Because the Court has already decided these matters, the rulings are, at the least, the law of 

the case (if issue preclusion does not apply). 

 The doctrine of the law of the case promotes judicial economy by avoiding repeated 

litigation of issues decided during the course of a single case or a closely related case. See, e.g., 

Association of American R.R. v. Surface Transp. Bd., 306 F.3d 1108, 1110-11 (D.C. Cir. 2002) 

(stating on second review after prior remand to agency: “There is not much left to this case. We 

 

6

 Lack of ripeness precluded the Court from determining whether the latter two regulatory 

provisions fully satisfy Chevron step two. Shays I, 337 F.Supp.2d at 100, 105; supra p. 3. 
15

have already decided that the Board’s reading of the statute is permissible .... Neither the law of 

the circuit nor the law of the case permits us to reconsider that issue, despite the Petitioner’s 

efforts to have us do so.”); LaShawn A. v. Barry, 87 F.3d 1389, 1393, 1395 (D.C. Cir. 1996) (en 

banc); Casey v. Planned Parenthood, 14 F.3d 848, 856 n.11 (3d Cir. 1994) (“law of the case rules 

apply to subsequent rulings by the same judge in the same case or a closely related one”). 

As plaintiffs noted in asserting that Shays I and this case are “related cases,” this “action 

involves identical parties, identically aligned as Shays I” and “‘relat[es] to the same subject 

matter.’” Complaint ¶¶ 17, 18 (quoting LCvR 40.5(a)). Indeed, their complaint states that 

“[t]here is a substantial, and often complete, overlap between the legal and factual issues in this 

case and those in Shays I regarding the legality of the Commission’s rules on coordination, 

Federal election activity, and state party fundraisers.” Id. at ¶ 18. In these circumstances, this 

Court should not revisit its rulings that three of the regulations at issue here satisfy Chevron step 

one and are “permissible” constructions of the Act under Chevron step two and that one of the 

regulations also satisfies the requirement that it not undermine the Act, a determination that was 

not yet ripe for resolution in regard to the two other regulations.7

III. THE REGULATORY DEFINITIONS OF “VOTER REGISTRATION 

ACTIVITY” AND “GET-OUT-THE-VOTE ACTIVITY” PASS CHEVRON

REVIEW AND SATISFY APA REQUIREMENTS 

In Shays I, this Court concluded that the voter registration regulation and the main part of 

the GOTV regulation pass Chevron step one review and, under step two, embody a permissible 

construction of the Act. See supra p. 3. The Court further concluded that it could not determine 

whether the regulations “unduly compromise[ ]” the Act’s purposes because of “ambiguity as to 

what acts are encompassed by the regulation,” but “depending on how the Commission enforces 

 

7

 In the Shays I appeal, the court found that plaintiffs had standing to challenge the 

regulations at issue. The Commission is not at this time contesting plaintiffs’ standing. 
16

this regulation, it is quite possible that the regulation will not ‘unduly compromise[] the Act.’” 

337 F.Supp.2d at 100, 105. However, the Court found that the 2002 NPRM violated the APA’s 

notice requirements for both regulations. Id. at 101, 106. As explained below, on remand the 

Commission initiated a new rulemaking on “federal election activity” that satisfied APA notice 

requirements and resulted in an expanded E&J and a modified GOTV regulation. 

A. 11 C.F.R. 100.24(a)(2): Defining the Term “Voter Registration Activity” 

The regulation defining “voter registration activity” presumptively covers the funding of 

all activities by state, district, or local party organizations that actually assist individuals to 

register to vote. As the Commission explained in its expanded E&J, the regulation excludes only 

mere expressions of encouragement, or general exhortations, to register to vote. See Doc. 27, 

A.R. 424-25.8 With this exclusion, the regulation is consistent with BCRA and the longstanding 

public policy goal of encouraging civic participation through voter registration, and presents an 

administratively manageable, practical, and understandable definition. 

To preserve the traditional role of state and local party organizations in encouraging voter 

registration and to avoid unnecessarily infringing on their First Amendment interests, the 

Commission included an “assist” requirement and an “individualized means” requirement that 

exclude the mere expression of encouragement to register to vote. See Doc. 7, A.R. 43; Doc. 27, 

A.R. 424, 425. “In the Commission’s extensive enforcement experience, general exhortations to 

register to vote and to vote are ... common in political party communications” (id. at A.R. 425). 

Every state and local party gathering that ended with a routine “Now remember to register to 

vote!” would otherwise be transformed into a “federal election activity” that could be financed 

only by federally regulated funds. See supra p. 2.9 There is no statutory language or legislative 

 

8

 All citations to the A.R. in Part III of this memorandum are to Volume I of the Record. 

9

 Defining “voter registration activity” broadly to include mere encouragement would also 

affect the ability of party committees and federal candidates to raise funds for section 501(c) 
17

history suggesting that Congress intended BCRA to limit the traditional role of state and local 

party organizations in encouraging citizens to register to vote. Commenters with experience with 

such organizations explained that a more restrictive regulation could adversely affect the 

willingness of local political parties, especially those primarily staffed by volunteers, to engage 

in voter registration activities. See, e.g., Doc. 8, A.R. 49, 189-90, 195-97, 225. In particular, it 

was noted that a definition of “voter registration activity” that included mere encouragement 

could preclude local parties at the grassroots level from responding to simple, general voter 

inquiries. See Doc. 8, A.R. 50; Doc. 18, A.R. 198-99; Doc. 27, A.R. 424, 425. 

The regulation itself is nevertheless very broad and states that “[v]oter registration 

activity includes, but is not limited to, printing and distributing registration and voting 

information, providing individuals with voter registration forms, and assisting individuals in the 

completion and filing of such forms.” 11 C.F.R. 100.24(a)(2). The examples in the expanded 

E&J clarify the regulation’s scope. The Commission made clear the nonexclusive nature of 

these examples by preceding them with the phrase “[v]oter registration activity includes, but is 

not limited to,” and reiterated that the enumerated examples “are illustrations only” (Doc. 27, 

A.R. 425). See United States v. American College of Physicians, 475 U.S. 834, 843 (1986) 

(“Attributing to the term ‘example’ its ordinary meaning, we believe that Example 7 is best 

construed as an illustration of one possible application under given circumstances of the 

regulatory standard.”). 

The expanded E&J (Doc. 27) includes three detailed examples (A.R. 425). The first two 

“illustrate activity where a State, district, or local party committee is providing potential voters 

with personal assistance in registering to vote” (id.). The examples include providing voter 

registration forms, providing answers about how to complete them, and mailing completed forms 

 

charities that organize nonpartisan voter registration drives. The solicitation rules regarding 

these entities depend on the meaning of “federal election activity.” See 2 U.S.C. 441i(d), (e)(4). 
18

to the appropriate government agency (id.). In contrast, a third example sets forth activity that is 

not “voter registration activity.” That example “involves a State or local party committee 

speaker merely encouraging registration and voting without any additional concrete action that 

would be considered personal assistance to potential voters” (id.). The expanded E&J also 

indicates (id.) that “responding to voter inquiries by providing publicly available information, 

such as the address on the FEC’s website for the National Voter Registration Form or the 1-800 

number of a State’s Division of Elections” would not qualify as “voter registration activity.”10 

Whether a specific action or series of actions by a party organization constitutes “voter 

registration activity” thus depends on the particular facts. 

In contrast to the clear and administratively manageable standard adopted by the 

Commission, the vague regulation advocated by plaintiffs included mere encouragement to register to vote. If “[p]recision of regulation must be the touchstone” where First Amendment rights 

are affected, Edenfield v. Fane, 507 U.S. 761, 777 (1993), then the discussion at the August 4, 

2005, hearing amply demonstrated why an “encouragement” test is simply too vague.11 

Including mere encouragement is also unnecessary to effectively implement BCRA, 

which seeks to regulate the funds used to influence federal elections. The Commission’s 

regulation captures what really matters — the financing of actual voter registration activity — 

without stifling local political parties, causing administrative nightmares, or leading to 

 

10 Plaintiffs misread (Br. 57 n.42) this example (Doc. 27, A.R. 425). The salient facts are 

that the individual initiated the inquiry and the party limited its response to referring the inquirer 

to a governmental source. The example does not state, as plaintiffs suggest, that the response 

“‘informed someone of where they may register to vote’” (quoting 337 F.Supp.2d at 99 n.72). 

11 See, e.g., Doc. 18, A.R. 139, 168, 187, 259-60, 275-78; compare id. at 139 ([Q:] “So any 

State party event at which a speaker merely urges someone to register to vote would be Federal 

election activity when done in the last 120 days before an election with no exceptions.” 

[A:] (“Within — yes, within the specified time periods.”) (Paul Ryan), with id. at 168 (“There 

may very well be passing conversations where somebody says, and by the way, you should vote, 

which is a practical matter, and end up not being covered. Where that exact line is will have to 

be determined on a case-by-case basis.”) (Lawrence Noble). 
19

circumvention of the Act. The Commission’s regulation does not permit circumvention of the 

Act because it does not allow the use of federally unregulated funds for disbursements made by 

state and local parties for activities that actually register individuals to vote. See 11 C.F.R. 

100.24(a) and Doc. 27, A.R. 425, Example 1. Furthermore, as the E&J notes (A.R. 425), “many 

programs for widespread encouragement of voter registration to influence Federal elections 

would be captured as public communications under [2 U.S.C. 431(20)(A)(iii)]” because they also 

support or oppose federal candidates, and thus would be required to be financed entirely with 

federal funds. See 2 U.S.C. 441i(b)(1), (2). 

Similarly, permitting nonfederal funds to be used for a state, district, or local party event 

at which a speaker concluded his remarks with “Don’t forget to register and vote!” will not lead 

to any actual or apparent corruption of any federal candidates or officeholders, the primary 

justification for FECA, including BCRA. See Buckley v. Valeo, 424 U.S. 1, 25, 26, 45, 53 

(1976); McConnell v. FEC, 540 U.S. 93, 142, 185 n.72, 187 (2003). When it enacted BCRA, 

Congress continued to allow state, district, and local party organizations to use at least some 

nonfederal funds for voter registration and GOTV activities. See 2 U.S.C. 441i(b)(2) (Levin 

funds). Furthermore, there is “no legislative history or administrative record that general 

encouragement to register to vote or to vote is similar to the corrupting activity Congress was 

concerned with when it required certain activity to be funded with Federal dollars” (Doc. 27, 

A.R. 425), and plaintiffs have cited none.12

As the Commission explained (Doc. 27, A.R. 425), its regulation is consistent with 

longstanding congressional policy to support and encourage voter registration. This policy is 

reflected not only in FECA itself, see 2 U.S.C. 431(9)(B)(ii) (“expenditure” does not include 

 

12 In Shays I, this Court correctly rejected plaintiffs’ argument that Commission regulations 

concerning voter registration activities by corporations and unions, see 11 C.F.R. 100.133, 

conflict with the regulation defining “voter registration activity.” 337 F.Supp.2d at 99-100. 
20

“nonpartisan activity designed to encourage individuals to vote or to register to vote”), but in all 

of the important federal statutes governing voting rights. See, e.g., Voting Rights Act of 1965, 

42 U.S.C. 1973b(a)(1)(F)(iii); National Voter Registration Act of 1993, 42 U.S.C. 1973gg(b)(1); 

Help America Vote Act of 2002, 42 U.S.C. 15483.13

B. 11 C.F.R. 100.24(a)(3): Defining the Term “Get-Out-the-Vote Activity” 

 The Commission’s regulation defining “GOTV activity” covers all actions by state or 

local party organizations that actually assist individual registered voters to vote and excludes 

only mere expressions of encouragement, or general exhortations, to vote. See Doc. 27, A.R. 

424. Like the voter registration regulation, the GOTV regulation does not “unduly compromise[ ]” the Act, see Shays I, 337 F.Supp.2d at 105, but is entirely consistent with the Act, 

provides an understandable and administratively manageable definition, and should be upheld. 

 After reviewing the statutory language and the legislative history of the “federal election 

activity” provision, the Commission “found no evidence that Congress intended to capture every 

state or local party event where an individual ends a speech with the exhortation, ‘Don’t forget to 

vote!’” (Doc. 27, A.R. 424). The Commission noted that “[b]oth Congress and the Commission 

are aware that such speech is ubiquitous and often spontaneous in an election year” (id.). By 

retaining the “assist” and the “individualized means” requirements, the Commission excluded 

“mere encouragement” from the scope of the rule. Thus, the rule focuses specifically on the 

Act’s purpose of regulating the funds used to influence federal elections by capturing actual 

GOTV activity — getting registered voters to cast ballots. See also 67 Fed. Reg. at 49,067 (“The 

Commission understands th[e] purpose [of GOTV activity] to be ... more specific than the 

 

13 In their complaint (¶ 60), plaintiffs alleged that the May 4, 2005, NPRM failed to notify 

the public that the Commission “might limit” the scope of “voter registration activity” and 

“GOTV activity” in its final rulemaking with its interpretation of the “‘individualized means’ 

and ‘assist[ance]’ requirements.” Because plaintiffs have presented no argument whatsoever in 

their opening brief to support this allegation, they have waived the issue. See, e.g., Terry v. 

Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996). 
21

broader purposes of generally increasing public support for a candidate or decreasing public 

support for an opposing candidate.”). 

 The regulation’s examples provide guidance for identifying GOTV activities that “assist” 

individuals in engaging in the act of voting. Providing individual voters information such as the 

date of the election, the times when polling places are open, and the location of particular polling 

places comes within the regulation, as does offering to transport or actually transporting voters to 

the polls. 11 C.F.R. 100.24(a)(3)(i), (ii). In its E&J (Doc. 27, A.R. 426), the Commission 

included an additional example of GOTV activity: a state party committee hires a consultant one 

month before an election to design a GOTV program and recruit volunteers to drive voters to the 

polls on election day (id.). The Commission further stated that its definition of “GOTV activity” 

would “apply equally to actions taken with regard to absentee balloting or early voting” (id.). 

 Like the voter registration regulation, the GOTV regulation makes clear that the 

examples included in the regulation are not exhaustive (“Get-out-the-vote activity includes, but 

is not limited to ...”). See also Shays I, 337 F.Supp.2d at 103. To clarify that the regulation 

applies without time limitation, the Commission also deleted a timeframe reference (“within 72 

hours of an election”) that had appeared in the first example in the 2002 version of the GOTV 

regulation, but that was “not intended to exclude activity in any other timeframe.” See supra

p. 5; Doc. 27, A.R. 426. The revised examples share the requirement that mere encouragement 

and exhortations alone are not GOTV activity, although an exhortation combined with action to 

help an individual registered voter to vote will be GOTV activity. Whether a particular action is 

GOTV activity depends on the particular facts. 

 The history of another provision of the FECA, 2 U.S.C. 441b, supports the Commission’s 

“GOTV activity” regulation. In 1971, Congressman Hanson successfully offered an amendment 

to the bill that eventually became the Federal Election Campaign Act of 1971, Pub. L. No. 92-
22

225, Title II, § 205, 86 Stat. 10 (1972). The amendment included language permitting 

corporations and unions to finance certain “nonpartisan registration and get-out-the-vote 

campaigns” (now codified at 2 U.S.C. 441b(b)(2)(B)). The legislative history of this amendment 

strongly suggests that Congress understood GOTV in that context to mean personal assistance, 

such as going door-to-door to communicate with voters and transporting voters to the polls. See

117 Cong. Rec. 43,386-388 (Nov. 30, 1971) (remarks of Cong. Crane, Ashbrook, and Hays). 

The Third Circuit understood the legislative history that way as well. Ash v. Cort, 496 F.2d 416, 

425 (3d Cir. 1974) (“The debates ... indicate that members of Congress had a fairly specific and 

limited type of activity in mind when speaking of ‘get-out-the-vote’ drives, primarily door-todoor canvassing and escorting people to the polls.”), rev’d on other grounds, 422 U.S. 66 (1975). 

The Commission’s interpretation of “GOTV activity” accurately reflects the longstanding 

congressional recognition of the importance of GOTV in other provisions of the Act. See Doc. 

27, A.R. 425; 2 U.S.C. 431(9)(B)(ii) (exception to the definition of “expenditure” for, inter alia, 

nonpartisan GOTV activity). 

 Contrary to plaintiffs’ criticism (Br. 54-55), the Commission did not unduly narrow the 

regulation in Advisory Opinion (“AO”) 2006-19, 1 Fed. Election Camp. Fin. Guide (CCH) 

¶ 6505 (June 5, 2006) (available at http://ao.nictusa.com/ao/no/060019.html). In that opinion, 

the Commission considered proposed activities by a local party committee in connection with a 

nonpartisan, municipal general election to be held on the same day as a federal primary election. 

The local party committee proposed to make pre-recorded, electronically dialed telephone calls 

and send a form letter to all registered Democratic voters in the City of Long Beach between four 

and fifteen days prior to the municipal election to urge the recipient to vote for a particular 

candidate for mayor (and other selected local candidates). In advising that the proposed 

communications did “not constitute assisting voters in the act of voting by individualized 
23

means,” the Commission found several facts to be decisive: The communications promoted the 

election of only nonfederal candidates; the time when the committee would make the 

communications supported the conclusion that the communications were likely to be “mere 

encouragement” to vote (i.e., were designed simply to increase general public support for a 

municipal candidate); and the generic communications did “not provide any individualized 

information to any particular recipient (such as the location of the particular recipient’s polling 

place)”or “the hours” the polling place would be open. 

The Commission based its conclusion on the particular combination of facts presented 

and might well have decided otherwise if the facts had differed. An advisory opinion concerns 

only a “specific transaction or activity” and may be relied upon only by the requester or another 

person “involved in any specific transaction or activity which is indistinguishable in all its 

material aspects” from that examined in the AO. 2 U.S.C. 437f(c)(1); 11 C.F.R. 112.1(b), (c); 

11 C.F.R. 112.5(a)(1)(2). See FEC v. National Conservative PAC, 647 F.Supp. 987, 992, 995 

(S.D.N.Y. 1986) (reliance on AO unwarranted where facts different). Thus, plaintiffs fail to 

acknowledge the totality of the circumstances presented in AO 2006-19 and improperly 

generalize about the Commission’s views and intentions from one limited advisory opinion. 

 In sum, the Commission has corrected the problems identified by this Court in Shays I. 

The GOTV regulation is broader than plaintiffs mistakenly represent, reflects the statutory 

language and longstanding congressional policy, provides a workable definition, and fulfills the 

Act’s purposes. The Court should accord full Chevron deference to the Commission’s definition 

of “GOTV activity” and uphold the regulation. 

IV. THE REVISED EXPLANATION AND JUSTIFICATION FOR 11 C.F.R. 300.64 

 SATISFIES THE APA’S REASONED ANALYSIS REQUIREMENT 

Because Shays I found that 11 C.F.R. 300.64 satisfies Chevron review, that decision 

leaves unresolved only one issue: Whether the Commission’s revised and expanded E&J 
24

articulates a reasonable explanation for the regulation, which permits federal candidates and 

officeholders to attend and speak “without restriction or regulation” at state and local party 

fundraisers. See 5 U.S.C. 553. 

 When it enacted BCRA, Congress decided to permit federal candidates and officeholders 

to raise nonfederal funds under certain circumstances. See, e.g., 2 U.S.C. 441i(e)(1)(B) 

(permitting federal candidates or officeholders to solicit funds in connection with any election 

for nonfederal office provided the contributions satisfy federal amount and source restrictions); 

2 U.S.C. 441i(e)(4)(A) (permitting federal candidates or officeholders to make general 

solicitations for certain section 501(c) organizations); 2 U.S.C. 441i(e)(4)(B) (permitting federal 

candidates or officeholders to make specific solicitations for section 501(c) organizations of up 

to $20,000 from individuals). See supra p. 6 n.4. Thus, a nonexistent congressional intent to 

eliminate, rather than merely to limit, solicitation of nonfederal funds by such individuals 

provides no basis for the Court to reject the Commission’s regulation. See Doc. 23, A.R. 675.14

 The E&J explains that the Commission “base[d] ... [its] interpretation on Congress’s 

inclusion of the ‘notwithstanding paragraph (1)’ phrase in section 441i(e)(3)” (Doc. 23, A.R. 

675). As the Supreme Court has noted, “the Courts of Appeals generally have ‘interpreted 

similar “notwithstanding” language ... to super[s]ede all other laws, stating that a clearer 

statement is difficult to imagine.’” Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) 

(quoted at A.R. 675). Accordingly, the Commission concluded that the “notwithstanding” 

phrase “suggests Congress intended the provision to be a complete exemption” (Doc. 23, A.R. 

675). In Shays I, this Court found the phrase to be ambiguous, but that it could be read as “a 

carve-out for unabashed solicitation by federal candidates and officeholders” and thus consistent 

with the Commission’s interpretation. 337 F.Supp.2d at 89-90. 

 

14 A.R. citations in this part of the memorandum are to Volume II of the Record. 
25

 The revised E&J also notes (Doc. 23, A.R. 675) that this Court in Shays I rejected the 

argument that 2 U.S.C. 441i(e)(3) does not permit solicitations merely because Congress did not 

include the word “solicit” in that exception. “While it is true that Congress created carve-outs 

for its general ban in other provisions of BCRA utilizing the term ‘solicit’ or ‘solicitation,’ see

2 U.S.C. 441i(e)(2), (4), these provisions do not conflict with the FEC’s reading of Section 

(e)(3)” (Doc. 23, A.R. 675, quoting Shays I, 337 F.Supp.2d at 90). This Court further agreed 

with the Commission that “‘if Congress had wanted to adopt a provision allowing Federal 

officeholders and candidates to attend, speak, and be featured guests at state party fundraisers but 

denying them permission to speak about soliciting funds, Congress could easily have done so’” 

(id., quoting Shays I, 337 F.Supp.2d at 89). 

 The E&J explains that, unlike the alternative favored by plaintiffs, the Commission’s 

interpretation reconciles section 441i(e)(3) with the exception in section 441i(e)(1)(B). 

In contrast to assertions by commenters that without section 441i(e)(3) 

candidates would not be able to attend, appear, or speak at State party 

events where soft money is raised, the Commission has determined that 

under section 441i(e)(1)(B) alone, Federal candidates and officeholders 

would be permitted to speak and solicit funds at a State party fundraiser 

for the non-Federal account of the State party in amounts permitted by 

FECA not from prohibited sources. See Advisory Opinions 2003-03, 

2003-05 and 2003-36. 

Doc. 23, A.R. 675. Interpreting section 441i(e)(3) merely to allow federal candidates and 

officeholders to attend or speak at a state, district, or local fundraiser but not to solicit funds 

renders the provision a virtual surplusage, since those individuals “may already solicit up to 

$10,000 per year in non-Federal funds from non-prohibited sources for State parties under 

section 441i(e)(1)(B)” (id.).15 The Commission’s regulation properly avoids making section 

 

15 At the hearing, even opponents of the current regulation agreed that 2 U.S.C. 

441i(e)(1)(B) allows federal officeholders and candidates to solicit nonfederal funds subject to 

federal limits and source prohibitions at state and local party fundraisers. Doc. 18, A.R. 553 

(Lawrence Noble), A.R. 608-09 (Donald Simon). 
26

441i(e)(3) a “largely superfluous” provision (Doc. 23, A.R. 675). See, e.g., Duncan v. Walker, 

533 U.S. 167, 174 (2001) (It is “a cardinal principle of statutory construction that a statute ought, 

upon the whole, be so construed that, if it can be prevented, no clause, sentence, or word shall be 

superfluous, void, or insignificant”) (internal quotation marks omitted); Donnelly v. F.A.A., 

411 F.3d 267, 271 (D.C. Cir. 2005) (“We must strive to interpret a statute to give meaning to 

every clause and word, and certainly not to treat an entire subsection as mere surplusage”). 

 The regulation is consistent with legislative intent because it “effectuates the careful 

balance Congress struck between the appearance of corruption engendered by soliciting sizable 

amounts of soft money, and preserving the legitimate and appropriate role Federal officeholders 

and candidates play” at the state and local level (Doc. 23, A.R. 675). The Supreme Court in 

McConnell noted this balancing when it upheld 2 U.S.C. 441i(e), stating that sections 

441i(e)(1)(B) and 441i(e)(3) “preserve the traditional fundraising role of federal officeholders by 

providing limited opportunities for federal candidates and officeholders to associate with their 

state and local colleagues through joint fundraising activities.” 540 U.S. at 183. In addition, 

comments by Republican and Democratic Party representatives on the 2005 NPRM forcefully 

reminded the Commission of the importance of the role that Congress preserved when it enacted 

this fundraiser exception. In summarizing those comments, the E&J explains that they “stressed 

the importance of the unique relationship between Federal officeholders and candidates and their 

State parties. They emphasized that these party fundraising events mainly serve to energize 

grass roots volunteers vital to the political process” (Doc. 23, A.R. 675). See also, e.g., Doc. 18, 

A.R. 523-26. As the representative for the National Republican Senatorial Committee 

commented, these events “water[ ] the grass roots” (Doc. 18, A.R. 524) (internal quotation marks 

omitted). 
27

 Especially in light of the Commission’s recent broadening of its regulations defining the 

terms “solicit” and “direct,” a narrower interpretation of section 441i(e)(3) would interfere with 

the traditional relationship between federal candidates and state and local parties. On remand 

from Shays I, the Commission adopted broad definitions of “solicit” and “direct” that encompass 

even indirect solicitations, as determined by objective criteria such as context and not by the 

speaker’s intent. See Shays I, 337 F.Supp.2d at 73-80 and 414 F.3d at 102-07; 71 Fed. Reg. 

13,926 (March 20, 2006); 11 C.F.R. 300.2(m), (n). All speech during a fundraiser is presented in 

the context of an event whose very purpose is raising funds. Thus, commenters on the 2005 

NPRM were understandably concerned about the possible “chilling effect” of a broader notion of 

“solicit” in the context of a fundraiser hosted by a state or local party. See, e.g., Doc. 15, A.R. 

505, 509; Doc. 18, A.R. 526-27, 585-87, 608; Doc. 23, A.R. 675. These commenters stated, and 

the Commission agreed, that federal candidates and officeholders might refuse to appear at such 

fundraising events out of fear of unwittingly making an illegal solicitation or, if they did attend, 

would be at the mercy of political partisans who might purposefully mischaracterize their 

remarks as solicitations and file complaints against them with the Commission. See Doc. 23, 

A.R. 676-77. See also, e.g., Doc. 16, A.R. 513 (Allowing speech but not solicitation “would ... 

open up a whole new battleground in politics .... The wiser path for federal officeholders and 

candidates will be to avoid the minefield altogether and simply decline invitations,” thereby 

“leading [them] to grow more isolated from local parties.”) (Michael Bassett, Chairman of the 

Ottawa County (Ohio) Democratic Central Committee) (quoted in part in Doc. 23, A.R. 676). 

The Commission shares the concern of these commenters that federal candidates and 

officeholders “would risk complaints, intrusive investigations, and possible violations based on 

general words of support for the party” (Doc. 23, A.R. 677). 

 The E&J also notes (Doc. 23, A.R. 677) that “11 C.F.R. 300.64 is carefully 
28

circumscribed.” The “safe harbor” provided by the regulation “only extends to what Federal 

candidates and officeholders say at the State party fundraising events themselves” (id.). The 

exception “in no way applies to what ... [those individuals] do outside of State party fundraising 

events” (id.). The Commission prohibits federal officeholders and candidates from serving on 

“host committees” for party fundraising events that seek nonfederal funds, and from signing any 

solicitation in connection with such an event (id. at 675). In addition, federal officeholders and 

candidates may not solicit nonfederal funds in any pre-event publicity or through other fundraising appeals (id.). See also id. at 677 (“[T]he regulation does not affect the prohibition on 

Federal candidates and officeholders from soliciting non-Federal funds for State parties in 

fundraising letters, telephone calls, or any other fundraising appeal made before or after the 

fundraising event.”); 67 Fed. Reg. 49065, 49108 (July 29, 2002) (original E&J for final rule) 

(same). Moreover, the regulatory exception applies only to fundraisers undertaken by a state, 

district, or local party organization on its own behalf. See Doc. 23, A.R. 678. 

 The Commission concluded that additional restrictions would provide little, if any, anticircumvention protection. Commenters explained that, in their experience, “the ask [for funds] 

has already been made” before a fundraising event, and those present have already made their 

contribution before arriving. Doc. 23, A.R. 677; Doc. 18, A.R. 525, 605. Thus, a state or local 

party often receives contributions before a fundraising event. Doc. 23, A.R. 677-78. Indeed, the 

cost of admission to the event often serves as the contribution (id.). In these circumstances, it is 

not the role of the speaker who is a federal candidate or officeholder actively to solicit 

contributions, but he or she may well thank the attendees for their support. See, e.g., Doc. 15, 

A.R. 506. Several commenters also noted that local party fundraisers in particular typically raise 

their contributions from individuals and not from corporations or other entities and in low-dollar 

amounts, usually $100 or less, well within federal limits (Doc. 23, A.R. 678; Doc. 18, A.R. 523, 
29

559). In sum, the record indicates that the challenged provision does not present a significant 

opportunity for corruption or the appearance of corruption. See Doc.23, A.R. 677-78.16 

 In Shays I, this Court faulted the Commission for failing to explain why monitoring 

speech for solicitations would be “more vexing in the context of state political party fundraisers 

than ... [it is] outside of such venues where nonfederal money solicitation is almost completely 

barred.” 337 F.Supp.2d at 92. The revised E&J fully satisfies this concern. 

 First, three factors make a state or local fundraising event distinctive: the essential 

fundraising nature of the event, the close ties between federal officeholders or candidates and 

their state and local party organizations, and the role that federal officeholders and candidates 

traditionally play in supporting state and local party organizations (and attracting their vital 

volunteers). “By definition, the primary activity in which persons attending or speaking at State 

party fundraising events engage is raising funds for the State [and local] parties” (Doc. 23, A.R. 

675). Moreover, the hosts of the state or local fundraiser are permitted to publicize the 

appearance of the federal officeholder or candidate as the featured speaker at the event (id.). As 

one commenter remarked, “the very purpose of the candidate’s [or officeholder’s] invited 

involvement — or at least a principal one — is to aid in the successful raising of money” (Doc. 

12, A.R. 497 (Robert Bauer); quoted in Doc. 23, A.R. 675). See also, e.g., Doc. 15, A.R. 508 

(“Congress was certainly aware that allowing a candidate to be the featured speaker at a major 

nonfederal fundraising event would allow a State party to increase the amount of nonfederal 

 

16 The E&J observes (Doc. 23, A.R. 677) that none of the commenters — neither those who 

supported retaining the current language of section 300.64 nor those who favored the alternative 

proposal to prohibit completely solicitation by federal officeholders and candidates at these 

events — could cite any evidence that this provision had undermined BCRA in the last election 

cycle. See also, e.g., Doc. 18, A.R. 542, 545, 596; Doc. 6 (2005 NPRM), A.R. 467 (seeking 

public comment on whether any potential for abuse). If any corruption or significant abuse 

occurs in the future, the Commission has the authority to take appropriate and targeted action. 

See infra pp. 42, 51. 
30

funds raised.”) (Mark Brewer, president, Association of State Democratic Chairs); Doc. 18, A.R. 

600-01 (Bauer). Thus, the nature of the event, the statute’s explicit recognition that the candidate 

or officeholder may serve as the “featured guest,” and the underlying relationship between these 

speakers and the party committees make it extremely difficult for speakers to disassociate 

themselves from the central purpose of the entire event — fundraising — and their speech will 

necessarily be understood in that context. 

 Second, it is unclear to what other venues the Court was referring. For example, if a 

federal candidate or officeholder is the featured speaker at a fundraiser for a national party 

organization, the speaker need not worry about misinterpretations of his or her speech or usual 

courtesies (e.g., “Thanks for supporting the party”) because BCRA prohibits national party 

committees from raising nonfederal funds, 2 U.S.C. 441i(a), but permits the committees and 

federal candidates to solicit federal funds, 2 U.S.C. 441i(e)(1)(A). In that venue, a general 

solicitation would normally, in the post-BCRA world, be interpreted as a request for federal 

funds, with little or no risk of confusion. The same holds true when a candidate solicits funds for 

his or her own campaign committee or for another federal candidate.17 If a candidate or officeholder speaks at an event that is not billed as a fundraiser at all, then there is much less (if any) 

risk that a general expression of gratitude or request for political support could be construed, in 

context, as a subtle solicitation for nonfederal funds. In sum, beyond the state or local party 

fundraiser scenario, the opportunities for a candidate’s or officeholder’s words to be 

misconstrued are rare. 

 

17 Plaintiffs implausibly suggest (Br. 49-50) that a past donor’s conversation with a Member 

of Congress in his office presents the same interpretive quandary as a speech by a federal 

officeholder or candidate at a state or local party fundraiser. The officeholder’s conversation 

with the donor, unlike the officeholder’s speech for a state or local party organization, is not a 

part of a fundraising event for a close ally, with its attendant implication that every speech relates 

to fundraising. Indeed, it could not be, for federal law prohibits soliciting or receiving political 

contributions in any federal building or in the office of anyone who receives a salary from the 

United States Treasury. 18 U.S.C. 607(a)(1) (2000 & Supp. II). 
31

 Finally, some commenters noted (see Doc. 23, A.R. 677) that the Hatch Act, 5 U.S.C. 

7323, regulates political speech and that federal employees seem to be able to abide by its 

restrictions. The Hatch Act, however, differs in crucial respects from the FECA and the 

Commission’s regulations. As the E&J explains (Doc. 23, A.R. 677), the implementing 

regulations for the Hatch Act “contain a narrow definition of ‘solicit’ meaning ‘to request 

expressly’ that another person contribute something. See 5 CFR 734.101.” In addition, a federal 

employee must “knowingly” “solicit” contributions to violate the law. 5 U.S.C. 7323(a)(2), (4); 

18 U.S.C. 602(a)(4). The Commission’s current definition of “solicit,” 11 C.F.R. 300.2(m), 

which plaintiffs have not challenged, is broader and includes neither limitation. Thus, unlike the 

FECA and its implementing regulations, the Hatch Act and its regulations assure speakers that 

they will not risk violating the law if they make a general request for support of a political cause, 

even in the context of a state or local party fundraiser.18

 In sum, the revised E&J contains a strongly reasoned and comprehensive analysis that 

more than adequately supports the Commission’s adoption of 11 C.F.R. 300.64. 

V. THE COORDINATED COMMUNICATION REGULATIONS ARE LAWFUL 

As plaintiffs concede (Br. 9), the task before the Commission on remand was to 

promulgate a rule that “rationally separates election-related advocacy from other activity falling 

outside FECA’s expenditure definition.” 414 F.3d at 102 (emphasis added). The Commission’s 

revised rule and accompanying E&J have done precisely that by providing an “assurance that 

[its] standard does not permit substantial coordinated expenditures” to go unregulated. Id.

 

18 Commenters further relied upon the Senate Code of Official Conduct, but that is also 

inapposite. It prohibits Senators and their staffs from soliciting charitable donations from 

registered lobbyists and foreign agents, but makes an exception, among others, for a fundraising 

event attended by 50 or more persons. See Doc. 23, A.R. 677; SENATE ETHICS MANUAL, 108th

Cong., 1st Sess. 75-76 (2003 ed.) (available at http://ethics.senate.gov/downloads/pdffiles/ 

manual.pdf.) The Senate Code thus gives speakers complete freedom to speak at fundraisers 

attended by 50 or more people. 
32

(emphasis added). As explained below, whenever a regulatory line is drawn, some activity will 

fall on the unregulated side of the line, and the Commission’s rule must “rationally,” not 

perfectly, capture election-related activity so as to prevent a “substantial” amount of such 

communication from evading regulation. Especially when dealing with core First Amendment 

activity, the Commission is not required to interpret the Act in a way that maximizes the risk that 

non-election speech will be chilled or punished, but “must attempt to avoid unnecessarily 

infringing on First Amendment interests.” AFL-CIO v. FEC, 333 F.3d 168, 179 (D.C. Cir. 

2003). As the D.C. Circuit explained, “giving appropriate Chevron deference, we think the FEC 

could construe the expenditure definition’s purposive language as leaving space for collaboration 

between politicians and outsiders on legislative and political issues involving only a weak nexus 

to any electoral campaign.” 414 F.3d at 99. 

A. Background

For three decades, the Act has provided that a coordinated expenditure, i.e., one made “in 

cooperation, consultation, or concert with or at the request or suggestion of a candidate, his 

authorized political committees, or their agents, shall be considered a contribution to such 

candidate.” 2 U.S.C. 441a(a)(7)(B)(i). In turn, an “expenditure” is defined to include “anything 

of value ... made ... for the purpose of influencing any election for Federal office.” 2 U.S.C. 

431(9)(A)(i). BCRA expressly repealed the Commission’s existing coordination regulations that 

relied largely upon “collaboration or agreement” with a candidate as a test for “coordinated 

general public political communications” (former 11 C.F.R. 100.23), and instructed the 

Commission to develop new regulations. BCRA §§ 214(b), (c). Congress placed only two 

restrictions on the Commission’s discretion in formulating the new regulations: they (1) “shall 

not require agreement or formal collaboration to establish coordination,” and (2) “shall” address 
33

four specific aspects of coordinated communications “[i]n addition to any subject determined by 

the Commission.” BCRA § 214(c) (emphasis added). 

Beyond the factors listed in the statute, BCRA is totally silent on what else the 

Commission should consider in defining coordination. This broad delegation of authority was 

the direct result of Congress’s inability to agree upon its own definition of coordinated 

expenditures. When the bill that became BCRA was introduced in the Senate, it contained a 

broad definition of “coordinated activity.” See S.27, Bipartisan Campaign Reform Act of 2001, 

107th Cong. § 214 (Jan. 22, 2001). However, when the Senate was unable to reach agreement on 

a new statutory definition of coordination, Senator McCain introduced an amendment that, inter

alia, delegated to the Commission the authority to fashion a new definition. Amendment No. 

165, 147 Cong. Rec. S3184 (March 30, 2001). 

There is one thing I want to make very clear and reiterate: While this amendment instructs the FEC to consider certain issues in the new rule-making, it doesn’t require the 

FEC to come out any certain way or come to any definite conclusion one way or another. 

147 Cong. Rec. S3184-3185 (Mar. 30, 2001) (statement of Sen. Feingold). See also 148 Cong. 

Rec. S2145 (Mar. 20, 2002) (Sen. Feingold and Sen. McCain). 

 When Congress delegates this type of authority, the fullest measure of Chevron deference 

is required. See supra pp. 12-14. “When Congress has ‘explicitly left a gap for the agency to 

fill, there is an express delegation of authority to the agency to elucidate a specific provision of 

the statute by regulation,’ and any ensuing regulation is binding in the courts unless procedurally 

defective, arbitrary or capricious in substance or manifestly contrary to the statute.” 

Pharmaceutical Research and Mfrs. v. Thompson, 362 F.3d 817, 822 (D.C. Cir. 2004) (quoting 

Chevron, 476 U.S. at 844). 

 In Shays I, the D.C. Circuit held that, “[r]egarding Chevron step one, we agree that 

Congress has not spoken directly to the issue at hand.” 414 F.3d at 98. The Court also rejected 
34

the plaintiffs’ argument that “FECA precludes content-based standards under Chevron step one,” 

as well as the “district court’s suggestion that any standard looking beyond collaboration to content would necessarily ‘create an immense loophole,’ thus exceeding the range of permissible 

readings under Chevron step two.” Id. at 99-100 (quoting 337 F.Supp.2d at 65).19 The Court 

found, however, that the Commission’s explanation for the regulation was inadequate under the 

APA. Id. at 97, 100. On remand, the Commission therefore conducted a rulemaking, 

promulgated a revised rule, and supported it with a detailed E&J. Doc. 52, A.R. 2161-73.20

 

B. The Revised Coordination Content Standard Is Not Arbitrary and 

 Capricious and Has Been Comprehensively Explained 

“[T]o qualify as an ‘expenditure’ in the first place, spending must be undertaken ‘for the 

purpose of influencing’ a federal election ... [a]nd as the FEC points out, time, place, and 

content may be critical indicia of communicative purpose.” Shays I, 414 F.3d at 99 (citations 

omitted). Thus, subjecting communications to the “coordinated expenditure” limits regardless of 

when made or whether they even mention any election, candidate, or political issue, would 

improperly exceed the reach of the underlying definition of “expenditure.” In short, the Act 

effectively requires consideration of content to classify a communication as a coordinated 

“expenditure.” 

1. The Timing of an Advertisement May Indicate Its Purpose, 

and the Regulation’s Content Timeframes Are Supported By 

Reliable Empirical Data 

Mass communications that occur shortly before an election are more likely to be for the 

purpose of influencing an election than those much earlier, especially if they mention a candidate 

or political party. In McConnell, the Supreme Court approved Congress’s timing restrictions in 

 

19 These holdings are now the law of the case. See supra pp. 14-15; United States v. Alaw, 

327 F.3d 1217, 1220 (D.C. Cir. 2003). Moreover, plaintiffs no longer challenge the regulation 

under Chevron step one. See Shays Br. 10. 

20 All references within this section are to Volume III of the record. 
35

the “electioneering communication” provision, relying heavily upon the empirical evidence 

before it (including a study called “Buying Time”) that showed that “almost all” of the broadcast 

ads that mentioned candidates and were “specifically intended to affect election results” were 

“aired in the 60 days immediately preceding a federal election.” 540 U.S. at 127. The Court also 

rejected the claim that the provision “is underinclusive because it leaves advertising 61 days in 

advance of an election entirely unregulated,” noting that “[t]he record amply justifies Congress’ 

line-drawing.” McConnell, 540 U.S. at 206, 208; see also E&J, A.R. 2165 (“‘Buying Time’ 

study ... further supports the conclusion that the vast majority of election related advocacy 

occurs immediately before an election”). The Court thus upheld Congress’s judgment that the 

timing of public communications can be a decisive factor in determining whether speech is 

sufficiently election-related to warrant regulation. The temporal criteria in the Commission’s 

fourth content standard are the same kind of reasonable line drawing approved by the Court. 

 To address questions raised by the D.C. Circuit in Shays I, the Commission in its NPRM 

“specifically invite[d] comments in the form of empirical data that show the time periods before 

an election in which electoral communications generally occur.”21 A.R. 750, 2163. 

Unfortunately, although some commenters provided unscientific anecdotal evidence, no 

commenters (including the plaintiffs) provided any studies, statistical samples, or other empirical 

evidence that would help provide an overview of the frequency, pattern, and intensity of political 

advertising. See infra pp. 47-48. To fill that void, the Commission licensed data from TNS 

Media Intelligence/CMAG (“CMAG”) regarding television advertising spots run by presidential, 

Senate, and House of Representatives candidates during the 2004 election cycle. A.R. 2163. As 

 

21 The Court suggested three inquiries, 414 F.3d at 102: “Do candidates in fact limit 

campaign-related advocacy to the four months surrounding elections, or does substantial 

election-related communication occur outside the window? Do congressional, senatorial, and 

presidential races ... occur on the same cycle...? And, perhaps most important, to the extent 

election-related advocacy now occurs primarily within 120 days, would candidates and collaborators aiming to influence elections simply shift coordinated spending outside that period...?” 
36

the Commission explained in its E&J, and not contested by plaintiffs, “CMAG is a leading 

provider of political advertising tracking and provides media analysis services to a wide variety 

of clients, including national media organizations, foundations, academics, and Fortune 100 

companies. See www.tnsmicmag.com.” Id. CMAG provided the data used for the 2000 

“Buying Time” study, relied upon by BCRA’s principal sponsors in formulating its provisions. 

See, e.g., 148 Cong. Rec. S2141 (daily ed. March 20, 2002) (statement of Sen. McCain). CMAG 

data were also heavily relied upon by the courts in McConnell. See 540 U.S. at 206; 251 

F.Supp.2d 583-587 (Kollar-Kotelly); id. at 796-98 (Leon). 

 The focus of the D.C. Circuit’s questions was the pattern of candidate spending over 

time, and the CMAG data unequivocally reveal that virtually all of it takes place within 90 days 

of congressional elections. CMAG monitors more than 560 television stations in 101 major 

markets, 21 hours per day (5:00 a.m. - 2:00 a.m.). A.R. 2187 (from DVD open 

“CMAG_READ_ME” file). In McConnell, this Court “accept[ed] the CMAG data as a valid 

database.” 251 F.Supp.2d 176, 561 n.88 (Kollar-Kotelly). In particular, the Court explained, id. 

at 583-84, that, 

[t]he evidence shows that CMAG is used as the basis for many political science 

studies which are peer-reviewed and published by the top political science journals in 

the country, and is a regular resource for politicians and political parties. Given the 

widespread acceptance of CMAG in academic political circles, and the fact that 

Plaintiffs were unable to demonstrate that its flaws result in bias, I accept the CMAG 

data as a legitimate source of data for use in studies seeking to understand the 

contours of political advertising, recognizing it has certain limitations. 

The data CMAG provided the Commission include “all candidate sponsored ads for federal races 

(US House, US Senate, President) from 11/6/02 - 11/2/04,” A.R. 2187 (from DVD open 

“CMAG_READ_ME” file), and the Commission analyzed well over half a million ad airings. 

See A.R. 2197, 2199, 2209, 2211, 2216, 2218; FEC Fact ¶ 35. 
37

In response to the D.C. Circuit’s first question, 414 F.3d 102, the data show that 

“substantial election-related communication” does not occur outside the 90-day line drawn by 

the Commission for congressional races. The data show that almost all congressional candidates 

run their ads within 60 days of election and only a small fraction are run between 60 and 90 days 

before an election. A.R. 2165. Beyond 90 days, this candidate advertising “nearly ceases.” 

A.R. 2167. See A.R. 2209-12, 2216-19 (graphs reproduced in addendum). 

Senate candidates aired 91.60 percent and 94.73 percent of their advertisements 

within 60 days of the primary and general election, respectively. This represented 

93.32 percent and 97.20 percent of the estimates costs of advertisements the 

Senate candidates ran before the primary and general elections, respectively.... 

 The data show that a minimal amount of activity occurs between 60 and 90 

days before an election, and that beyond 90 days, the amount of candidate 

advertising approaches zero. Senate candidates aired only 0.87 percent and 0.39 

percent of their advertisements more than 90 days before their primary and 

general elections, respectively, which represented 0.66 percent and 0.15 percent 

of the total estimated costs.... Similarly, House candidates aired only 8.56 

percent and 0.28 percent of their advertisements more than 90 days before their 

primary and general elections, respectively. This represented 3.79 percent and 

0.13 percent of the total estimated costs of advertisements run by House 

candidates.... 

A.R. 2165 (footnotes omitted). The Commission’s decision to use a 90-day period for House 

and Senate races was thus directly responsive to the D.C. Circuit’s analysis and supported by 

substantial empirical evidence. 

 These data about candidates’ advertising are also entirely consistent with the Buying 

Time studies in the BCRA record and the testimony of the national political party committees 

during the rulemaking. The Buying Time studies reported that the vast majority of electionrelated advocacy financed by interest groups occurs immediately before an election: “In the 

2000 election, genuine issue ads are rather evenly distributed throughout the year, while groupsponsored electioneering ads make a sudden and overwhelming appearance immediately before 

elections.” Craig B. Holman and Luke P. McLoughlin, “Buying Time 2000: Television Adver-
38

tising in the 2000 Federal Elections” at 56 (2002); A.R. 2165. Similarly, the national party committees provided evidence that in 2004 the parties’ coordinated activity took place within 60 days 

of the relevant election. A.R. 2165. See A.R. 2113 (comments of NRCC: “[d]uring the 2004 

election cycle, all coordinated expenditures made by the NRCC for the 2004 general election 

were made within 60 days of the general election”); A.R. 2119-20 (similar comments of NRSC). 

In response to the D.C. Circuit’s second question, 414 F.3d at 102, the Commission 

analyzed the CMAG data and other relevant evidence, and concluded that advertising for 

presidential campaigns follows a different pattern than congressional races. Under the 

Commission’s 2002 regulations, the presidential general election coordinated communication 

window effectively extended further back than 120 days before the general election because the 

parties’ presidential nominating conventions were also treated as elections under the fourth 

content standard. Thus, as a practical matter, in 2004 the coordination regulations applied for 

184 days before the general election for Republican candidates and 219 days for Democratic 

candidates. A.R. 2166. Even with this extended period, however, in several states there was a 

“gap period” between the primary elections and the start of the general election period — with 

varying lengths depending upon the dates chosen by states for their primaries. The CMAG data 

revealed that in media markets contained within individual “battleground” states, an appreciable 

amount of advertising took place during the gap period. In these markets the Republican 

presidential candidate spent almost $9.5 million on television ads during the gap period, or “14 

percent of the total costs of media spots aired by the Republican Presidential candidate in those 

media markets after the State primaries.... Democratic Presidential candidates spent $1,221,045 

on post-primary television advertisements that occurred during the gap period.” Id.

 The Commission closed this gap for presidential campaigns in its revised content 

standard. Under the revised rule, a communication will satisfy the fourth content standard for 
39

presidential races if it takes place at any time beginning 120 days before the primary election up 

through the date of the general election. 

According to the [CMAG] data, in the 2004 election cycle, over 99 percent of the 

estimated media spot spending by Presidential candidates in media markets fully 

contained within individual “battleground” States occurred during this time 

period. This time period is now fully covered by the Commission’s revised 

content standard at 11 C.F.R. 109.21(c)(4). 

A.R. 2166 (footnote omitted). See A.R. 2191-2200 (graphs reproduced in addendum). Thus, the 

rule’s distinct and lengthy time period for presidential races is entirely reasonable and supported 

by substantial evidence. The CMAG data showed no similar pattern of “gap” spending by 

congressional candidates. 

 In response to the D.C. Circuit’s third question, 414 F.3d at 102, the Commission 

reasonably concluded that the minimal value of advertising outside the revised timeframes limits 

the risk that candidates and collaborators would shift their coordinated spending to earlier times. 

The candidates’ own spending pattern directly indicates the kind of advertising they believe to be 

effective in influencing voters, and they have little incentive to ask outside groups to pay for 

advertisements that they themselves find of minimal use. Although the Commission concluded 

that the record “overwhelmingly support[s] a 60-day time frame for Congressional candidate 

communications,” its revised rule took a more cautious approach. A.R. 2167. “[I]n order to 

foreclose the possibility that candidates and groups will shift spending outside the applicable 

time frame, the Commission has determined to set the Congressional time frame at 90 days.” Id. 

 The temporal element of the Commission’s 2002 coordination regulation was in effect for 

four years, and the instant rulemaking record contains no evidence that candidates and 

collaborators engaged in increased unlawful coordination or shifted their coordinated activity 

earlier in the election cycle to avoid the challenged rules’ restrictions. Although some 

commenters submitted examples of ads that were run outside 120 days, they presented no 
40

evidence that they were coordinated with candidates. More generally, “[n]one of the 

commenters submitted any evidence that, during the recent election cycles during which the 

Commission’s 2002 coordination rules were in effect, House or Senate candidates asked outside 

groups to run advertisements more than 90 days before House or Senate primary or general 

elections.” A.R. 2168. Indeed, when the Commission specifically inquired about this issue at 

the rulemaking hearing, “these commenters acknowledged that there was no evidence that any of 

these advertisements had been coordinated with a candidate or a political party committee.” 

A.R. 2167-68; A.R. 1617-18 (testimony of Paul Ryan); A.R. 1619 (testimony of Marc Elias). 

Likewise, none of the commenters who professed concern about the Commission’s proposed rule 

suggested that they had filed any administrative complaints with the Commission alleging acts of 

coordination, or had even contemplated doing so. See generally A.R. 968-1007 (comments of 

Campaign Legal Center, Democracy 21, and Center for Responsive Politics). To the contrary, as 

the Commission explained in its E&J, “[s]ince the 2002 rule took effect, the Commission has 

received very few complaints alleging that House or Senate candidates or their agents 

coordinated with outside groups to produce or distribute communications that ran between 90 

and 120 days before a House or Senate primary or general election.” A.R. 2168. 

Regarding the possibility that coordinated spending might shift outside the rule’s timeframes, the Commission’s judgment is entitled to particularly deferential review. “[A]n agency’s 

predictive judgments about areas that are within the agency’s field of discretion and expertise’ 

are entitled to ‘particularly deferential’ review as long as they are reasonable.” Core 

Communications, Inc. v. Level 3 Communications, 455 F.3d 267, 282 (D.C. Cir 2006) (quoting 

Milk Industry Foundation v. Glickman, 132 F.3d 1467, 1478 (D.C. Cir. 1998)). “[T]he Commission’s decisions must sometimes rest on judgment and prediction rather than pure factual determinations. In such cases complete factual support for the Commission’s ultimate conclusions is 
41

not required, since ‘a forecast of the direction in which future public interest lies necessarily 

involves deductions based on the expert knowledge of the agency.’” FCC v. WNCN Listeners 

Guild, 450 U.S. 582, 594-95 (1981) (quoting FCC v. Nat’l Citizens Comm. for Broadcasting, 

436 U.S. 775, 814 (1978)); accord Earthlink, Inc. v. FCC, 462 F.3d 1, 13 (D.C. Cir. 2006). 

Here, the Commission necessarily must make predictions about how actors wishing to 

influence a federal election will behave in the future under a new regulatory regime. The 

Commission reasonably made its judgment based on the available evidence of recent political 

advertising practices, its experience in this area, and its consideration of what incentives exist for 

such actors. “[A]s long as they are reasonable, [agency predictive judgments] need not rest on 

‘pure factual determinations.” Earthlink, 462 F.3d at 13. “Even if we were skeptical of the 

Commission’s conclusion regarding existing regulatory controls, however, that conclusion 

embodies precisely the sort of prediction about the behavior of a regulated entity to which — in 

the absence of contrary evidence — we ordinarily defer. As we have repeatedly observed, ‘it is 

within the scope of the agency’s expertise to make ... a prediction about the market it regulates, 

and a reasonable prediction deserves our deference notwithstanding that there might also be 

another reasonable view.’” Process Gas Consumers Group v. FERC, 292 F.3d 831, 838 (D.C. 

Cir. 2002) (quoting Envtl. Action, Inc. v. FERC, 939 F.2d 1057, 1064 (D.C. Cir. 1991)).22 

Indeed, there are circumstances where agency decisionmaking “is legislative in character ... 

where explicit factual findings are not possible, and the act of decision is essentially a prediction 

based upon pure legislative judgment, as when a Congressman decides to vote for or against a 

 

22 For example, in Core Communications Inc., 455 F.3d at 281-82, the FCC decided to 

forbear enforcing growth caps for telecommunications bound for internet service providers. The 

D.C. Circuit held that the FCC could reasonably rely on declining dial-up subscriber base data as 

a proxy to predict a decline in overall dial-up usage, despite not having specific data predicting 

overall declines in dial-up usage. Id. While petitioners explained that usage per dial-up 

subscriber could significantly increase because subscribers must remain online longer than 

broadband users to receive the same content, the Court ruled that the FCC’s predictive judgment 

that there would be an overall decline in dial-up usage was entitled to deference. Id. 
42

particular bill.” Industrial Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467, 474-75 (D.C. Cir. 

1974). If the Commission’s predictive judgments are not borne out, it can revisit whether the 

regulation needs to be amended to address unexpected changes in advertising patterns or 

attempts to circumvent the Act. See Earthlink, 462 F.3d at 13 (the agency “is fully capable of 

reassessing the situation if its predictions are not borne out”). “[W]e cannot require an agency to 

enter precise predictive judgments on all questions as to which neither its staff nor interested 

commenters have been able to supply certainty.” American Public Communications Council v. 

Federal Communications Commission, 215 F.3d 51, 56 (D.C. Cir. 2000). 

2. The Commission’s Line Drawing Accommodates Core First 

Amendment Concerns and Does Not Compromise the Act

Longer timeframes or a less objective test could unnecessarily chill speech on public 

issues protected by the First Amendment. As the Commission explained, A.R. 2168: 

 Retaining a longer time frame that is not supported by the record could 

potentially subject political speech protected under the First Amendment to 

Commission investigation. Subjecting activity to investigation that the evidence 

shows is unlikely to be for the purpose of influencing Federal elections could chill 

legitimate lobbying and legislative activity. As the Supreme Court has 

emphasized, where First Amendment rights are affected, “[p]recision of regulation 

must be the touchstone,” Edenfield v. Fane, 507 U.S. 761, 777 (1993). 

The D.C. Circuit agreed that the Commission could ensure that its rule gives breathing space for 

politicians to collaborate with outsiders on “legislative and political issues involving only a weak 

nexus to any electoral campaign,” 414 F.3d at 99, and as the data discussed above demonstrate, 

advertising before the periods defined by the Commission likely has only a “weak nexus” 

(if any) to election day.23

 

23 During the Commission’s 2002 rulemaking, plaintiffs agreed that the Commission should 

take care to avoid discouraging legitimate non-electoral collaboration. Plaintiffs commented 

“that a lobbying meeting between a group and a candidate should not trigger a finding that 

subsequent communication is coordinated.” Comments of Shays and Meehan, at 5, October 11, 

2002, submitted in Administrative Record in Shays I, filed on March 17, 2004. 
43

 The D.C. Circuit further approved the “FEC’s effort to develop an ‘objective, bright-line 

test [that] does not unduly compromise the Act’s purposes,’ considering that [the Court] 

approved just such a test for ‘contribution’ in Orloski.” 414 F.3d at 99 (quoting 795 F.2d 

at 165). Indeed, Orloski is directly on point and supports the Commission’s line drawing here. 

In that case, the Court recognized that Congress did not intend to “prohibit all corporate 

donations,” id. at 163, and that the Act’s 

purposes must be read against the clear statutory language that prohibits some 

corporate donations, but, by necessary implication, permits others. It becomes readily 

apparent upon reading the statute and its purposes in this way that Congress left a 

large gap between the obviously impermissible and the obviously permissible. This 

gap creates the potential for a broad range of differing interpretations of the Act.... 

Id. at 164. The Court then deferred to the Commission’s interpretation, even though, “[c]learly, 

the FEC’s interpretation is one of the most favorable to corporations and incumbents that the 

agency could have adopted.” Id. at 165. Like the rule at issue here, the Commission’s 

interpretation at issue in Orloski relied in part upon the express advocacy standard to create a 

bright-line definition to distinguish non-political congressional events from campaign events. 

See id. at 160. Most important, the Court explicitly noted the gray area — indeed, the overlap — 

between these two kinds of events: “any corporate funding of congressional events indirectly 

influences the election.” Id. at 163 (emphasis added). In short, the Court did not require the 

Commission to regulate every bit of corporate spending that could in some way affect an 

election. The Commission is not required to maximize regulation; “no legislation pursues its 

purposes at all costs.” United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 495 (D.C. 

Cir. 2004). Here, as advertising become more and more remote from the election, the likelihood 

of its influencing a federal election greatly diminishes, and the Commission’s rule is reasonable 

even if a very small number of early, non-express-advocacy ads might have some speculative, 

minimal effect on an election. 
44

 The Orloski decision not only upheld the Commission’s interpretation as reasonable, but 

also held that “[a]dministrative exigencies mandate that the FEC adopt an objective, bright-line 

test[,]... necessary to enable donees and donors to easily conform their conduct to the law and to 

enable the FEC to take the rapid, decisive enforcement action that is called for in the highlycharged political arena.” 795 F.2d at 165. Those concerns are even more important here, where 

the activity at issue is actual speech to influence legislation, not simply corporate donations of 

food to a congressional event, as was the case in Orloski. Also, as in Orloski, the Commission 

was concerned that “disgruntled opponents” could “take advantage of a totality of the 

circumstances test to harass the sponsoring candidate and his supporters.” A.R. 2168 (quoting 

Orloski, 795 F.2d at 165). Although the Commission sought comment on a standard that would 

use a “promote, attack, support, or oppose standard” (“PASO”) criterion outside the pre-election 

period, “most commenters agreed that the Commission should continue to use a bright-line rule,” 

and the Commission concluded that a PASO standard would not provide the “clearest guidance 

to those seeking to comply with the coordination regulations.” A.R. 2170. 

 More generally, bright-line rules can satisfy APA review, even when they are 

underinclusive to some extent, because of the clarity and administrability they provide. In Flynn 

v. Commissioner of IRS, 269 F.3d 1064 (D.C. Cir. 2001), former IRS employees challenged a 

regulation allowing only current employees to bring a tax court action regarding retirement plan 

amendments. In Flynn, as here, Congress had expressly delegated the authority to define the 

specific scope of the statute at issue. Id. at 1070. The court held that the regulation was not 

arbitrary or capricious, despite the “categorical distinction between current and former 

employees” which did “not map perfectly” onto the relevant categories of interests. Id. The 

court noted that “regulatory simplicity and ease of administration” may have been among the 

“reasonable objectives” in crafting the regulatory scheme. Id. It found nothing precluding a rule 
45

that “corresponds roughly” to the categories of employees affected by plan amendments and 

concluded that the agency’s approach was not “unreasonably underinclusive.” Id. at 1070-1071. 

Similarly, in Chen v. Ashcroft, 381 F.3d 221 (3rd Cir. 2004), the court upheld a Board of 

Immigration Appeals interpretation of a statutory definition of “persecution” to apply to spouses, 

but not fiancés or other non-spouses, of those forced to undergo abortions. The court stressed 

that the Board’s “bright-line” rule using marital status as a “proxy” satisfied Chevron analysis in 

view of the Board’s heavy workload and its “interest in promoting administrability and 

verifiability,” noting that “a rule is not irrational just because it is underinclusive to some 

extent.” Id. at 229-30. 

The Commission’s factual conclusions and line-drawing must be upheld if supported by 

substantial evidence, even if the agency could have reached another result. “Congress gave the 

Commission — not the [plaintiffs] or this Court — discretion in regulatory line-drawing. The 

mere fact that the Commission’s exercise of its discretion resulted in a line that the [plaintiffs] 

would have drawn differently is not sufficient to make it unlawful.” Covad Communications, 

450 F.3d at 543. “An agency’s conclusion ‘may be supported by substantial evidence even 

though a plausible alternative interpretation of the evidence would support a contrary view.’” 

Sec’y of Labor, Mine Safety and Health Admin. v. Federal Mine Safety and Health Review 

Comm’n, 111 F.3d 913, 918 (D.C. Cir. 1997) (citation omitted). 

The 90-day period for congressional races and 120-day period for presidential races (with 

the “gap period” closed) are reasonably drawn lines based on the comprehensive data from 

CMAG and other evidence in the record. The Commission determined that more than 99% of 

the spending for advertising run by Senate candidates was for ads run within 90 days of an 

election and more than 96% of the spending for ads run by House candidates was for ads run 

within 90 days of an election. A.R. 2165; FEC Fact 37-38. As discussed above, the data 
46

indicate that little incentive exists to coordinate with candidates outside these time windows in 

light of the lack of interest that candidates have largely shown in advertising at those early times, 

and the Commission’s predictive judgment on this is entitled to deference. The Commission’s 

enforcement docket indicates that early coordination has not occurred to any great extent since 

the regulation has been in effect, and no evidence of any kind was presented during the 

rulemaking about a single coordinated expenditure outside these windows. A.R. 2168. When an 

agency’s decision is supported by this kind of substantial evidence, that is the end of the Court’s 

inquiry: “[t]his sensibly deferential standard of review does not allow us to reverse reasonable 

findings and conclusions, even if we would have weighed the evidence differently.” Sec’y of 

Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1104 (D.C. Cir. 1998). See also Chrysler 

Corp. v. U.S. EPA, 631 F.2d 865, 890 (D.C. Cir. 1980) (“This court may not displace the 

Administrator’s ‘choice between two fairly conflicting views,’ even if we ‘would justifiably have 

made a different choice had the matter been before (us) de novo.’”) (citation omitted). See

Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992) (“The court should not supplant the agency’s 

findings merely by identifying alternative findings that could be supported by substantial 

evidence”). Accord Hagelin v. FEC, 411 F.3d 237, 243 (D.C. Cir. 2005). 

Plaintiffs’ brief rests largely on the unremarkable proposition (Br. at 12-26) that a very 

small percentage of election-related ads have been broadcast outside the regulation’s timeframes. 

But whenever a line is drawn, events will occur on both sides of it; otherwise, the line would 

serve no purpose. “The proper Chevron inquiry is not whether the agency construction can give 

rise to undesirable results in some instance ... but rather whether, in light of the alternatives, the 

agency construction is reasonable.” Barnhart v. Thomas, 540 U.S. 20, 29 (2003). Plaintiffs’ 

impractical alternative appears to be a blurry line that would capture so much speech that 

genuine legislative debate and lobbying would be chilled, while serving no significant anti-
47

corruption purpose beyond what the Commission’s regulation already accomplishes. 

The statistics discussed above derive from a systematic, unbiased review of the vast 

majority of broadcast advertising paid for by candidates during an entire election cycle. See 

supra pp. 36-40; infra pp. 49-52. Indeed, the data set includes well in excess of half a million 

airings of television ads. FEC Fact ¶ 35. Although some commenters provided the Commission 

with anecdotal evidence about several dozen ads, no commenter even attempted to provide a 

systematic overview akin to what the CMAG data reveal. Plaintiffs’ strategy of applying a 

magnifying glass to a small number of unusual ads, while wearing blinders to the vast 

mainstream of election ads, is little more than a distracting distortion. None of the ads 

highlighted by plaintiffs that were run less than a decade ago was alleged, by either the plaintiffs 

or any other party during the rulemaking, to involve coordinated spending. Thus, what plaintiffs 

present is tantamount to a list of worst-case hypothetical examples, but they do not suffice to 

substitute their policy preferences for the Commission’s. See Ohio v. Akron Center for 

Reproductive Health, 497 U.S. 502, 514 (1990) (plurality opinion) (provision should not be 

invalidated “on a facial challenge based upon a worst-case analysis that may never occur”); 

Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457, 461 (11th Cir. 1996) (“As for 

the League’s hypothesized, fact-specific worst case scenarios, we also decline to accept the facial 

challenge based on these perceived problems.”).24

 

24 Plaintiffs rely almost exclusively upon a cherry-picked collection of press reports 

(Plaintiffs’ Exhibits (“PX”) 18-131) that describe radio and television ads based on statements 

from campaigns or campaign press releases. See, e.g., Br. at 22 n.23 (citing PX 54, a report 

based on what campaign “told” press); id. (PX 70 “according to a Oct. 6 press release [ad] went 

on the air”). On their face, these press releases are inherently unreliable because they are based 

on statements from campaigns and often merely reflect their hopes or goals for the future. See

PX 76 (“plans to run later this week”). Other press accounts acknowledge the advertisements’ 

anomaly; for example, one press article describing the 2004 Illinois Senate Race notes that the ad 

it describes was “believed to be earlier than any other candidate [ad] in Illinois history.” PX 61. 
48

Finally, plaintiffs also argue (Br. 26-31) that the content regulation is too narrow because, 

outside the 90/120-day periods, it only covers republication of campaign materials and express 

advocacy communications. It is true that McConnell upheld BCRA’s electioneering 

communication provision in part because the Court found that the “magic words” interpretation 

of express advocacy was not constitutionally required and did little to capture the electoral 

advocacy that filled the airwaves in the 60 days before the general election. However, Congress 

made a deliberate decision to continue to rely upon express advocacy in other contexts. See 

2 U.S.C. 431(17)(B).25 The Commission’s regulation interpreting “express advocacy” is broader 

than the “magic words” approach, see 11 C.F.R. 100.22(b), and the Commission’s coordinated 

regulation reaches well beyond express advocacy during the 90 days before an election. Thus, 

given the rarity of early candidate ads, the breadth of section 100.22(b), the relevant timeframes 

far ahead of the election (when subtle ads without express advocacy are less likely to be understood as election ads), and the coverage of all republished campaign materials, the regulation will 

capture the overwhelming majority of electorally significant advocacy that occurs far before the 

election, without unnecessarily chilling protected speech and association during that period.26

 

25 Express advocacy remains a part of the definition of independent expenditure for all nonbroadcast communications at all times, and even for broadcast communications outside the 

timeframes of the electioneering communication provision. See 2 U.S.C. 431(17)(A), 434(f)(3). 

26 In a footnote, plaintiffs state (at 11-12 n.13) that they are also challenging another aspect 

of the coordination rule: that a communication must clearly identify a candidate or political 

party to satisfy the content standard. Plaintiffs fail, however, to include any argument in this 

footnote, so any claim on this point has been waived. Terry v. Reno, 101 F.3d 1412, 1415 (D.C. 

Cir. 1996) (reference to issue without briefing constitutes waiver). In any event, if no party or 

candidate is even identified in an ad, an electoral, rather than legislative purpose is highly 

unlikely. Congress did not include any such ads in its definition of electioneering 

communication, nor did it suggest that such ads be considered by the Commission during its 

coordinated expenditure rulemaking. Moreover, no evidence of any such coordinated ads was 

submitted to the Commission during the actual rulemaking. 
49

C. The Commission’s Reliance on the CMAG Data Is Not Arbitrary and 

Capricious and Did Not Violate the APA 

1. The CMAG Data Are Comprehensive and Reliable

 Plaintiffs argue (Br. 34-37) that the Commission’s use of the CMAG data is arbitrary and 

capricious because of various alleged flaws, but similar CMAG data were relied upon by the 

Supreme Court in McConnell and provide substantial evidence for the Commission’s rule. In 

particular, plaintiffs complain that the CMAG data include only television advertising purchased 

by candidates and do not include certain multi-state markets. However, whatever limits the 

CMAG data have are inconsequential, and none of the flaws plaintiffs allege undermines the 

usefulness of the data or the Commission’s reliance upon this comprehensive information. In its 

findings of fact in McConnell, this Court explained that “no evidence has been presented that the 

data is biased in one way or the other based on the fact that CMAG does not cover 20 percent of 

American households or local cable channels.” 251 F.Supp.2d at 583 (Kollar-Kotelly). The 

same is true here. 

 As explained supra pp. 35-38, the focus of the D.C. Circuit’s questions was on the pattern 

of candidate advertising, and that is exactly what the CMAG data captured.27 CMAG captures 

information from more than 560 television broadcasters, but it does not include every small 

broadcaster or any radio stations.28 From a statistical perspective, however, what matters is 

whether there is any reason to believe that the data is unrepresentative or skewed. In other 

words, plaintiffs have presented no evidence to suggest that if additional data had been captured, 

 

27 The CMAG data did not include the contents of the ads themselves, so obtaining data 

about ads purchased by non-candidates would not have provided information about whether such 

ads mentioned candidates, or if so, in what context. As explained supra pp. 35-38, however, 

evidence from McConnell and testimony in this rulemaking from the national party committees 

suggest that the pattern of spending by interest groups and political parties is similar to that of 

candidate spending. 

28 Although CMAG provided only a limited number of ads from 2003, they were requested 

by the Commission and provided where available. A.R. 2187 (from DVD open 

“CMAG_READ_ME” file). Because certain states do not have any media markets among the 

101 tracked by CMAG, not all states or races are included in the CMAG data. 
50

the overall pattern of spending would have looked any different in a way that would undercut the 

Commission’s conclusions. See Segar v. Smith, 738 F.2d 1249, 1276-77 (D.C. Cir. 1984) 

(where there was no reason to believe that among experienced personnel one racial group was 

more likely to possess certain prior work experience, it did not matter that a statistical analysis 

failed to control for that qualification). 

Moreover, no commenter, including the plaintiffs, presented any comprehensive data 

comparable to CMAG data during the rulemaking, and plaintiffs have not questioned the 

accuracy of the data itself. 

But unquantified, speculative, and theoretical objections to the proffered statistics 

are properly given little weight by the trial court: 

When a plaintiff submits accurate statistical data, and a defendant alleges that 

relevant variables are excluded, defendant may not rely on hypothesis to lessen 

the probative value of plaintiff’s statistical proof. Rather, defendant ... must 

either rework plaintiff’s statistics incorporating the omitted factors or present 

other proof undermining plaintiff’s claims. 

Trout v. Lehman, 702 F.2d 1094, 1102 (D.C. Cir. 1983), vacated on other grounds, 465 U.S. 

1056 (1984) (quoting Segar v. Civiletti, 508 F. Supp. 690, 712 (D.D.C. 1981)). The plaintiffs 

here have done nothing to “rework” the CMAG data nor did they present any other proof to the 

Commission that contradicts it. 

As the D.C. Circuit has also recognized, the “appropriate degree of refinement of [a] 

statistical analysis ... may depend upon the quality and control of the available data.” Id., 702 

F.3d at 1101. Thus, for example, CMAG simply does not collect data from radio broadcasting as 

it does from television, so such information was not available to the Commission — just as it 

was unavailable to the Supreme Court in McConnell when it upheld the electioneering 

communication provision. There is simply no evidence in the record that the pattern of electoral 

advocacy on radio is significantly different from television, let alone that it is significantly more 

likely to take place early in the election cycle and to avoid the use of express advocacy. An 
51

agency “may compensate for a shortage of data through use of other qualitative methods, 

including reasonable extrapolation.” Lignite Energy Council v. EPA, 198 F.3d 930, 934 (D.C. 

Cir. 1999). Of course, regarding the possibility that patterns of broadcast advertising may 

change in response to the coordination regulation, no data about the future can yet exist. “Where 

existing methodology or research ... is deficient, the agency necessarily enjoys broad discretion 

to attempt to formulate a solution to the best of its ability on the basis of available information.” 

Industrial Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d at 474 n.18 (citation omitted). Thus, if 

“insufficient data is presently available to make a fully informed factual determination[,] 

[d]ecision making must in that circumstance depend to a greater extent upon policy judgments 

and less upon purely factual analysis.” Id. at 474. 

 For the presidential races, the Commission limited its analysis to the media markets 

contained within the 21 most highly contested “battleground” states. A.R. 2166 n.21. By 

focusing on such states, the Commission actually took a statistically conservative approach 

because such states would be presumed to have the most advertising, even if they are not 

representative of the entire nation.29 Although plaintiffs complain (Br. 35-36) that this approach 

did not include a couple of important states, plaintiffs did not submit any of their own data from 

these locations or attempt to show that the key percentages would change overall if more states 

were included in the analysis; not surprisingly, for example, plaintiffs do not even acknowledge 

that the percentages of early advertising would likely drop if non-battleground states were added 

to the data. More generally, plaintiffs present no analysis of the existing data that would suggest 

that there is any significant variation in the timing of advertising from state to state. In any 

 

29 The Commission omitted several battleground states that did not have their media 

markets contained within their respective borders because there would have been no simple way 

to match broadcasts to particular state primary elections when those broadcasts reached more 

than one state. 
52

event, plaintiffs’ criticism about the presidential race data has no bearing on the congressional 

races, where the CMAG data was not limited to battleground states. 

Finally, plaintiffs argue (Br. 31) that the Commission ignored “examples of early 

advertising before it,” but there is no requirement in administrative law that an agency’s 

explanation for its decision must recite or discuss each piece of evidence, whether supportive or 

adverse, that formed part of the record. See United States v. Pierce Auto Freight Lines, Inc., 

327 U.S. 515, 529 (1946) (“the Commission is not compelled to annotate to each finding the 

evidence supporting it”); cf. BellSouth Corp. v. FCC, 162 F.3d 1215, 1224 (D.C. Cir. 1999) (“the 

agency is not required to author an essay for the disposition of each application”) (quoting 

KCST-TV, Inc. v. FCC, 699 F.2d 1185, 1191-92 (D.C. Cir. 1983)). The Commission is entitled 

to a presumption of regularity in its administrative decisionmaking, see, e.g., Hercules, Inc. v. 

EPA, 598 F.2d 91, 123 (D.C. Cir. 1978), and it is clear from the extensive record that the 

Commission in fact reviewed the relevant and available evidence. 

2. The Commission’s Use of the CMAG Data Did Not Violate the 

Procedural Requirements of the APA

Although plaintiffs’ complaint (¶ 38) appeared to allege that the Commission’s use of the 

CMAG data violated the procedural requirements of the APA, plaintiffs abandoned that claim in 

their brief when they (Br. 33) “put[] to one side the Commission’s [allegedly] improper lastminute procedures” to consider the CMAG data in the rulemaking. In any event, any such 

argument has no basis in fact or law. The supplemental data were obtained after the public was 

invited to submit data in response to the original NRPM. When no one submitted such data, the 

Commission sought and obtained such information from an outside vendor. While the formal 

supplemental comment period was seven days (from March 15 through March 22, 2006), 

commenters actually had nine days (from March 13, the day the Commission published the 

notice on its website, until March 22, 2006). Neither plaintiffs nor anyone else requested 
53

additional time to comment on the data, so they have waived the right to complain about that 

now. Covad Communications, 450 F.3d at 548-50. Moreover, nine other sets of comments were 

submitted, while plaintiffs chose to submit nothing. The fact that others commented is a strong 

indication that the notice was adequate.30

“Agencies may develop additional information in response to public comments and rely 

on that information without starting anew ‘unless prejudice is shown.’” Personal Watercraft 

Industry Ass’n v. Department of Commerce, 48 F.3d 540, 544 (D.C. Cir. 1995) (citation 

omitted). “The party objecting has the burden of ‘indicat[ing] with “reasonable specificity” what 

portions of the documents it objects to and how it might have responded if given the 

opportunity.’” Id. (citations omitted); see also West Virginia v. EPA, 362 F.3d 861, 869 (D.C. 

Cir. 2004). Plaintiffs have the data that is now before the Court, yet they offer no explanation 

about the nature of the comments they would have made during the rulemaking if given more 

time; that silence is dispositive. “The short of the matter is that petitioners have identified no 

relevant information they might have supplied had they anticipated [the agency’s] final rule. We 

therefore hold that [the agency] complied with the notice and comment requirements.” Ass’n of 

Battery Recyclers, Inc., 208 F.3d at 1059. 

D. The “Common Vendor” and “Former Employee” Conduct Standards Are 

Not Arbitrary and Capricious 

The fourth and fifth conduct standards address common vendors and former employees 

of candidates or political parties and were originally promulgated in 2002 as part of the BCRA 

rulemaking. 11 C.F.R. 109.21(d)(4), (5). During the rulemaking necessitated by the Shays I

 

30 See A.R. 2052-56 (comments of Chamber of Commerce); A.R. 2057-59 (comments of 

Alliance for Justice); A.R. 2060-61 (comments of Internal Revenue Service); A.R. 2062-65 

(comments of DNC); A.R. 2066-68 (comments of DSCC and DCCC); A.R. 2069-2110 

(comments of Democracy 21, Campaign Legal Center, Center for Responsive Politics); A.R. 

2111-13 (comments of NRCC); A.R. 2114-17 (comments of Center for Competitive Politics); 

A.R. 2118-21 (comments of NRSC). 
54

remand, the Commission re-evaluated these rules based on their application in practice and 

reasonably concluded, as explained in the E&J, that the temporal limit in these standards should 

be more carefully tailored to reflect the actual marketplace for political consultants and 

employees. A.R. 2175-76. Under the revised rule, these conduct standards apply whenever a 

commercial vendor or former employee performs work for a candidate or party, and then 

continues for another 120 days. 

 This regulation reaches beyond people who act as agents of a candidate or political party, 

because agents “would already be covered by the first three conduct standards at 11 CFR 

109.21(d)(1) through (d)(3).” A.R. 2174-75. See also 11 C.F.R. 109.20(a); A.R. 2179 (technical 

amendment). Although the Commission considered eliminating the common vendor and former 

employee standard entirely and limiting the conduct standard to persons vested with agency 

authority, it decided that broader coverage was appropriate to ensure that improper coordination 

does not take place through the conduct of a former employee or common vendor. A.R. 2175. 

 Contrary to plaintiffs’ characterization (Br. 40), the revised regulation does not “shrink” 

the relevant time period to a “mere 120-day window,” but instead includes any time when the 

common vendor is actively “common” between the organizations or candidate and then continues for 120 days after the last day of the most recent employment or provision of services. A.R. 

2175. If an employee leaves a candidate’s or party’s employment and later performs additional 

work after employment has terminated, the last day when work is performed restarts the 120-day 

clock. Thus, the covered time period is inevitably longer than 120 days and in some cases much 

longer. Indeed, if a vendor begins working for a candidate as soon as that person announces his 

or her candidacy, and continues working for that candidate until at least 120 days before the 

election, then the regulation in practice applies to that vendor for the entire election cycle. 
55

Commenters raised numerous problems with the 2002 version of this rule. In practice, 

the earlier version functioned as an extended cooling off period and caused substantial harm to 

individuals who were essentially blacklisted and could not obtain further employment for 

extended periods of time. Indeed, one commenter noted that the ethics rules in Congress only 

limit subsequent employment for one year, and no other such ethics rule has a time period even 

close to the potential length of this rule — six years in the case of Senate election cycles. A.R. 

2175; A.R. 1867-68. “These commenters stated that the rule had a ‘chilling effect’ on the 

retention of consultants and employees because organizations want to avoid the speculative 

allegations of improper coordination.” A.R. 2175; A.R. 875 (comments of Ellen Malcolm on 

behalf of EMILY’s List: “entire election cycle creates significant and unnecessary legal risks for 

individuals”); A.R. 765 (comments of NRSC: explaining “heavy process penalty” for an alleged 

violation). Commenters described the significant interviewing and investigative burden 

associated with hiring commercial vendors, who can be in short supply, especially in smaller 

markets. A.R. 2175. Some commercial vendors felt compelled under the prior rule to refuse 

work from political committees early in an election cycle in order to preserve their ability to 

work for a political party or candidate as the election approaches. Id.

The Commission reasonably concluded that the 120-day rule will not undermine the 

effectiveness of the conduct standards or lead to circumvention of the Act. There was testimony 

that material information that could be the basis of a coordinated expenditure has a very short 

“shelf life” in politics. A.R. 2175. Witnesses explained how campaign information from a 

primary election tends to be irrelevant in a general election that usually has a very different 

focus. A.R. 1852, 2176. Also, similar to the rationale that underlies the Commission’s polling 

regulations (which have never been challenged), national and local events tend to render 
56

campaign plans and strategy obsolete on a fairly rapid basis. A.R. 2176. See 11 C.F.R. 106.4(g) 

(after 61 days, polling information retains only 5% of its value). 

Plaintiffs argue (Br. 41) that the 120-day period is arbitrary and that the Commission 

failed to explain why it is departing from the longer period in its earlier rule. All line drawing, 

however, is inherently arbitrary in some sense. See Boyce Motor Lines v. United States, 342 

U.S. 337, 340-41 (1952); see also American Public Communications Council, 215 F.3d at 56 

(“Any figure that it might have chosen ... would likely be challenged); Covad Communications 

Co., 450 F.3d at 543. Here, as explained above, the Commission explained why it was adopting 

a time period tied to when a vendor’s or employee’s work actually took place, rather than a onesize-fits-all approach. Contrary to plaintiffs’ claim (Br. 42) that this was an “unexplained aboutface,” this rule is consistent with the goals of the prior rulemaking, where the Commission stated 

that it was not attempting to “create any prohibition on the use of common vendors” and did not 

seek to “unduly intrud[e] into existing business practices.” 68 Fed. Reg. 436. The Commission 

has merely fine-tuned its rule to meet its earlier goal more precisely, with the benefit of evidence 

from its enforcement experience regarding how the prior rule functioned in practice.31

 

E. The Firewall Conduct Regulation Is Not Arbitrary and Capricious 

The firewall safe harbor provision in 11 C.F.R. 109.21(d) is a reasonable means of 

accommodating the right of political parties and other political committees to make unlimited 

independent expenditures, while simultaneously safeguarding against unlawful coordinated 

expenditures. The regulation provides that an expenditure is not coordinated if a vendor, former 

employee, or political committee creates an effective firewall, which is a barrier erected within 

 

31 Plaintiffs’ reliance (Br. 42) on Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. 

Ins. Co., 463 U.S. 29 (1983), is misplaced. That case did not involve a revised calibration of a 

time period, but a total rescission of car safety regulation. Here, although the Commission considered rescinding the common vendor and former employee provisions and relying solely upon 

the inclusion of “agents” for this kind of activity, it declined to do so. In any event, the Commission’s reasoning satisfies the “reasoned analysis” requirement of State Farm, id. at 42. 
57

an organization to bifurcate staff so as to prevent the flow of information from one set of staffers 

to the other. With this barrier in place, staffers that are shielded from certain information 

conveyed by a candidate to others within the same organization may plan, produce, and 

distribute independent expenditures relating to that candidate, because they do not have access to 

the information needed to satisfy any of the “conduct” prong. To qualify for the safe harbor, the 

firewall must be designed and implemented to prohibit the flow of relevant information between 

those employees or consultants providing services to the person or entity paying for the 

communication and those employees or consultants who currently provide, or previously 

provided, services for the candidate or a political party committee. A.R. 2177-78. 

The Supreme Court has held that political party committees (and most others) have a 

constitutional right to make unlimited independent expenditures. Colorado Repub. Fed. 

Campaign Comm. v. FEC, 518 U.S. 604, 614, 618 (1996) (“Constitution ... grants to individuals, 

candidates, and ordinary political committees the right to make unlimited independent 

expenditures”). See also McConnell, 540 U.S. at 213-214. The Act also permits political party 

committees to make coordinated expenditures up to certain limits on behalf of their candidates, 

2 U.S.C. 441a(d), along with direct contributions to those candidates, 2 U.S.C. 441a(a). Because 

there is inherent tension between these two rights, the Commission adopted the firewall 

provision to provide guidance to political party committees seeking to exercise their rights to 

make both unlimited independent expenditures and limited coordinated expenditures in a manner 

that ensures the coordinated expenditure limits are not exceeded. 

Despite plaintiffs’ deeply flawed assertions (Br. 44-46), the specific requirements of the 

firewall safe harbor are demanding. Any firewall must actually be effective: it must be 

established before any information has been shared between relevant employees, and described 

in a written policy that is distributed to all employees, consultants, and clients affected by the 
58

policy before those employees begin work on the communication referencing the candidate or 

political party. 11 C.F.R. 109.21(h)(2). “Relevant employees” includes all employees or 

consultants actually providing services to the person paying for the communication or the 

candidate or political party committee. Most importantly, the safe harbor will not apply if there 

is any specific information indicating that, despite the firewall, material information has passed 

through it. A.R. 2178. 

Contrary to plaintiffs’ assertions (Br. 44, 46), an organization cannot take advantage of 

the firewall safe harbor by “simply alleg[ing] that it has an internal ‘firewall,’” and the 

Commission will not simply “take an accused party’s word.” As the E&J makes perfectly clear, 

the Commission will, as it does in every enforcement matter, review the evidence presented by 

both the accuser and the accused, and weigh the credibility and specificity of any allegation of 

coordination against the credibility and specificity of the facts presented in the response showing 

that the elements of the safe harbor are satisfied. A.R. 2177-78. An entity seeking to use the 

firewall safe harbor must be “prepared to provide reliable information (e.g., affidavits) about an 

organization’s firewall, and how and when the firewall policy was distributed and implemented.” 

A.R. 2178. If an organization cannot meet its burden of proof and the Commission determines 

that the firewall was inadequately designed or was breached after its creation, the organization 

will not be able to avail itself of the safe harbor, and the Commission may find reason to believe 

that a violation of the Act has taken place and investigate. See 2 U.S.C. 437g(a)(2). 

 Plaintiffs also complain (Br. 45) that the Commission failed to provide adequate 

“guidance to the regulated community as to what actually constitutes an ‘effective’ firewall.” 

However, as explained above, the Commission has specified the basic requirements of a firewall, 

indicated how it should be structured and implemented, and provided an example (see A.R. 

2177, discussing MUR 5506). The Commission believes that one size does not fit all when it 
59

comes to firewalls, and firewalls will be more effective when they are established and 

implemented in light of an organization’s own particular needs. Furthermore, it is not the 

Commission’s proper role to micromanage the internal workings of political organizations. In 

light of these considerations, however, any group seeking to take advantage of the firewall bears 

the burden of showing that its firewall was properly implemented and functioned effectively. 

See Perot v. FEC, 97 F.3d 553, 559-60 (D.C. Cir. 1996) (under the Commission’s debate 

regulations, an organization has “leeway to decide which specific criteria to use” in selecting 

candidates for debates, but it “runs the risk the FEC will subsequently determine that it ... 

violated [the law]”). If any organization is unsure whether its firewall is adequate, it can seek an 

advisory opinion from the Commission. Id. (organization “acts at its peril, unless it first secures 

an FEC advisory opinion pursuant to 2 U.S.C. § 437f”). 

 Finally, plaintiffs argue that the Commission previously rejected a safe harbor proposal in 

2003. Br. 43 (citing 68 Fed. Reg. 437). Contrary to plaintiffs’ assertions, the proposal put 

forward by two commenters during the 2003 rulemaking was not “identical” to the new rule. 

The 2003 proposal contemplated a common vendor signing an agreement promising to maintain 

the confidentiality of information received from a client. The Commission rejected the proposal 

because it determined not to presume coordination based on the mere presence of a common 

vendor. 68 Fed. Reg. 437. In other words, when no presumption exists, there is no need to rebut 

it. The firewall provision, moreover, concerns the internal workings of a single organization that 

has the right to make both independent and coordinated expenditures, and therefore needs to 

separate personnel who work within the organization. Thus, the 2003 proposal and firewall safe 

harbor are simply not comparable and, contrary to plaintiffs’ argument (Br. 46), there has been 

no “abrupt shift” in the Commission’s policy. The Commission’s mechanism for enforcement is 

clear: organizations may establish firewalls that satisfy the new regulation, but if they fail to 
60

abide by its criteria or the firewall fails, the Commission will pursue whatever enforcement 

action is necessary. 

CONCLUSION 

 For the reasons set out above, this Court should grant the Commission’s motion for 

summary judgment and deny plaintiffs’ motion for summary judgment. 

Respectfully submitted, 

 /s/ Lawrence H. Norton 

_____________________________________________________________________________________________________________________________ 

Lawrence H. Norton 

General Counsel 

 /s/ Richard B. Bader /_____________________________________________________________________________________________________________________________ 

 Richard B. Bader 

 Associate General Counsel 

 (D.C. Bar # 911073) 

 /s/ David Kolker _____________________________________________________________________________________________________________________________ 

 David Kolker 

Assistant General Counsel 

(D.C. Bar # 394558) 

 /s/ Vivien Clair _____________________________________________________________________________________________________________________________ 

 Vivien Clair 

Attorney 

 /s/ Greg J. Mueller _____________________________________________________________________________________________________________________________ 

Greg J. Mueller 

Attorney 

(D.C. Bar # 462840) 

January 19, 2007 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 
Shays and Meehan v. FEC, 06-CV-1247 (CKK) 

Addendum 

(Submitted in support of FEC’s Motion For Summary Judgment and 

Opposition To Plaintiffs’ Motion For Summary Judgment) 

A.R. Pages 2191-2223 
-600 -570 -540 -510 -480 -450 -420 -390 -360 -330 -300 -270 -240 -210 -180 -150 -120 -90 -60 

Days Before General Election

P1 - Total Number of Media Spots Airing During Entire Presidential Ele

Cycle – Democratic Party Presidential Candidates

Primary/C

150 to 121 

Genera

6/5 (-15

6/6 (-14

PR

6/8 (-14

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election 

5/8 (-178) AZ-Rep, 

UT-Rep, WY-Rep

5/11 (-175) NE, WV

5/15 (-171) DE-Rep, 

ME-Rep

5/18 (-168) AR, KY, OR

5/22 (-164) AK-Rep, 

MI-Rep

5/23 (-163) NC-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Primary/Caucus/Conv.

210 to 181 Days Before 

General Election 

4/13 (-203) CO

4/17 (-199) NC-Dem, 

VI-Dem

4/24 (-192) KS-Rep

4/27 (-189) PA

5/1 (-185) NV-Rep

5/4 (-182) IN

Primary/Caucus/Conv.

240 to 211 Days Before 

General Election 

3/8 (-239) AS-Dem

3/9 (-238) FL, LA, MS, 

TX, WA-Rep

3/13 (-234) KS-Dem

3/16 (-231) IL

3/20 (-227) AK-Dem, 

GU-Dem, WY-Dem

3/27 (-220) SC-Rep

Primary/Caucus/Conv.

270 to 241 Days Before 

General Election 

2/7 (-269) MI-Dem, WA-Dem

2/8 (-268) ME-Dem

2/10 (-266) DC-Rep, TN, VA-Dem

2/14 (-262) DC-Dem, NV-Dem

2/17 (-259) WI

2/21 (-255) GU-Rep

2/24 (-252) HI-Dem, ID-Dem, 

UT-Dem

2/28 (-248) AS-Rep, 

VI-Rep

3/2 (-245) CA, CT, GA, MD, MA, 

MN, NY, OH, RI, VT

Primary/Caucus/Conv.

294 to 271 Days Before 

General Election 

1/13 (-294) DC

1/19 (-288) IA 

1/27 (-280) NH

2/3 (-273) AZ-Dem, 

DE-Dem, MO, NM-Dem, 

ND, OK, SC-Dem

Rep Nat

Conv 

8/30-9/

(-64 to -6

Dem Nat'l 

Conv 

7/26-7/29

(-99 to -96)

Shays v. FEC,

06-CV-1247 (CKK),

A.R. Page:

2191
-600 -570 -540 -510 -480 -450 -420 -390 -360 -330 -300 -270 -240 -210 -180 -150 -120 -90 -60 

Days Before General Election

P2 - Total Estimated Cost of Media Spots Airing During Entire Presidenti

Cycle – Democratic Party Presidential Candidates

Prim

150 

G

6/

6/

6

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election 

5/8 (-178) AZ-Rep, 

UT-Rep, WY-Rep

5/11 (-175) NE, WV

5/15 (-171) DE-Rep, 

ME-Rep

5/18 (-168) AR, KY, OR

5/22 (-164) AK-Rep, 

MI-Rep

5/23 (-163) NC-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Primary/Caucus/Conv.

210 to 181 Days Before 

General Election 

4/13 (-203) CO

4/17 (-199) NC-Dem, 

VI-Dem

4/24 (-192) KS-Rep

4/27 (-189) PA

5/1 (-185) NV-Rep

5/4 (-182) IN

Primary/Caucus/Conv.

240 to 211 Days Before 

General Election 

3/8 (-239) AS-Dem

3/9 (-238) FL, LA, MS, 

TX, WA-Rep

3/13 (-234) KS-Dem

3/16 (-231) IL

3/20 (-227) AK-Dem, 

GU-Dem, WY-Dem

3/27 (-220) SC-Rep

Primary/Caucus/Conv.

270 to 241 Days Before 

General Election 

2/7 (-269) MI-Dem, WA-Dem

2/8 (-268) ME-Dem

2/10 (-266) DC-Rep, TN, VA-Dem

2/14 (-262) DC-Dem, NV-Dem

2/17 (-259) WI

2/21 (-255) GU-Rep

2/24 (-252) HI-Dem, ID-Dem, 

UT-Dem

2/28 (-248) AS-Rep, 

VI-Rep

3/2 (-245) CA, CT, GA, MD, MA, 

MN, NY, OH, RI, VT

Primary/Caucus/Conv.

294 to 271 Days Before 

General Election 

1/13 (-294) DC

1/19 (-288) IA 

1/27 (-280) NH

2/3 (-273) AZ-Dem, 

DE-Dem, MO, NM-Dem, 

ND, OK, SC-Dem

Rep Nat'l 

Conv 

8/30-9/2

(-64 to -61

Dem Nat'l 

Conv 

7/26-7/29

(-99 to -96)

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-600 -570 -540 -510 -480 -450 -420 -390 -360 -330 -300 -270 -240 -210 -180 -150 -120 -90 

Days Before General Election

P3 - Total Number of Media Spots Airing During Entire Presidential Electi

– Republican Party Presidential Candidates

Pri

150 

G

6

6

6

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election 

5/8 (-178) AZ-Rep, 

UT-Rep, WY-Rep

5/11 (-175) NE, WV

5/15 (-171) DE-Rep, 

ME-Rep

5/18 (-168) AR, KY, OR

5/22 (-164) AK-Rep, 

MI-Rep

5/23 (-163) NC-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Primary/Caucus/Conv.

210 to 181 Days Before 

General Election 

4/13 (-203) CO

4/17 (-199) NC-Dem, 

VI-Dem

4/24 (-192) KS-Rep

4/27 (-189) PA

5/1 (-185) NV-Rep

5/4 (-182) IN

Primary/Caucus/Conv.

240 to 211 Days Before 

General Election 

3/8 (-239) AS-Dem

3/9 (-238) FL, LA, MS, 

TX, WA-Rep

3/13 (-234) KS-Dem

3/16 (-231) IL

3/20 (-227) AK-Dem, 

GU-Dem, WY-Dem

3/27 (-220) SC-Rep

Primary/Caucus/Conv.

270 to 241 Days Before 

General Election 

2/7 (-269) MI-Dem, WA-Dem

2/8 (-268) ME-Dem

2/10 (-266) DC-Rep, TN, VA-Dem

2/14 (-262) DC-Dem, NV-Dem

2/17 (-259) WI

2/21 (-255) GU-Rep

2/24 (-252) HI-Dem, ID-Dem, 

UT-Dem

2/28 (-248) AS-Rep, 

VI-Rep

3/2 (-245) CA, CT, GA, MD, MA, 

MN, NY, OH, RI, VT

Primary/Caucus/Conv.

294 to 271 Days Before 

General Election 

1/13 (-294) DC

1/19 (-288) IA 

1/27 (-280) NH

2/3 (-273) AZ-Dem, 

DE-Dem, MO, NM-Dem, 

ND, OK, SC-Dem

Dem Na

Conv 

7/26-7/2

(-99 to -9

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-600 -570 -540 -510 -480 -450 -420 -390 -360 -330 -300 -270 -240 -210 -180 -150 -120 -90 -60 

Days Before General Election

P4 - Total Estimated Cost of Media Spots Airing During Entire Presidenti

Cycle – Republican Party Presidential Candidates

Prim

150 

G

6

6

6

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election 

5/8 (-178) AZ-Rep, 

UT-Rep, WY-Rep

5/11 (-175) NE, WV

5/15 (-171) DE-Rep, 

ME-Rep

5/18 (-168) AR, KY, OR

5/22 (-164) AK-Rep, 

MI-Rep

5/23 (-163) NC-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Primary/Caucus/Conv.

210 to 181 Days Before 

General Election 

4/13 (-203) CO

4/17 (-199) NC-Dem, 

VI-Dem

4/24 (-192) KS-Rep

4/27 (-189) PA

5/1 (-185) NV-Rep

5/4 (-182) IN

Primary/Caucus/Conv.

240 to 211 Days Before 

General Election 

3/8 (-239) AS-Dem

3/9 (-238) FL, LA, MS, 

TX, WA-Rep

3/13 (-234) KS-Dem

3/16 (-231) IL

3/20 (-227) AK-Dem, 

GU-Dem, WY-Dem

3/27 (-220) SC-Rep

Primary/Caucus/Conv.

270 to 241 Days Before 

General Election 

2/7 (-269) MI-Dem, WA-Dem

2/8 (-268) ME-Dem

2/10 (-266) DC-Rep, TN, VA-Dem

2/14 (-262) DC-Dem, NV-Dem

2/17 (-259) WI

2/21 (-255) GU-Rep

2/24 (-252) HI-Dem, ID-Dem, 

UT-Dem

2/28 (-248) AS-Rep, 

VI-Rep

3/2 (-245) CA, CT, GA, MD, MA, 

MN, NY, OH, RI, VT

Primary/Caucus/Conv.

294 to 271 Days Before 

General Election 

1/13 (-294) DC

1/19 (-288) IA 

1/27 (-280) NH

2/3 (-273) AZ-Dem, 

DE-Dem, MO, NM-Dem, 

ND, OK, SC-Dem

Rep Nat'l 

Conv 

8/30-9/2

(-64 to -6

Dem Nat'l 

Conv 

7/26-7/29

(-99 to -96)

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-120 -90 -60 -30 

Days Before General Election

P5 - Total Number of Media Spots Airing During Entire Presidential El

Cycle – Other Party Presidential Candidate

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election 

5/8 (-178) AZ-Rep, 

UT-Rep, WY-Rep

5/11 (-175) NE, WV

5/15 (-171) DE-Rep, 

ME-Rep

5/18 (-168) AR, KY, OR

5/22 (-164) AK-Rep, 

MI-Rep

5/23 (-163) NC-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Primary/Caucus/Conv.

210 to 181 Days Before 

General Election 

4/13 (-203) CO

4/17 (-199) NC-Dem, 

VI-Dem

4/24 (-192) KS-Rep

4/27 (-189) PA

5/1 (-185) NV-Rep

5/4 (-182) IN

Primary/Caucus/Conv.

240 to 211 Days Before 

General Election 

3/8 (-239) AS-Dem

3/9 (-238) FL, LA, MS, 

TX, WA-Rep

3/13 (-234) KS-Dem

3/16 (-231) IL

3/20 (-227) AK-Dem, 

GU-Dem, WY-Dem

3/27 (-220) SC-Rep

Primary/Caucus/Conv.

270 to 241 Days Before 

General Election 

2/7 (-269) MI-Dem, WA-Dem

2/8 (-268) ME-Dem

2/10 (-266) DC-Rep, TN, VA-Dem

2/14 (-262) DC-Dem, NV-Dem

2/17 (-259) WI

2/21 (-255) GU-Rep

2/24 (-252) HI-Dem, ID-Dem, 

UT-Dem

2/28 (-248) AS-Rep, 

VI-Rep

3/2 (-245) CA, CT, GA, MD, MA, 

MN, NY, OH, RI, VT

Primary/Caucus/Conv.

294 to 271 Days Before 

General Election 

1/13 (-294) DC

1/19 (-288) IA 

1/27 (-280) NH

2/3 (-273) AZ-Dem, 

DE-Dem, MO, NM-Dem, 

ND, OK, SC-Dem

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-120 -90 -60 -30 

Days Before General Election

P6 - Total Estimated Cost of Media Spots Airing During Entire Presidenti

Cycle – Other Party Presidential Candidates

Prim

150 t

Ge

6/5 

6/6 

6/

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election 

5/8 (-178) AZ-Rep, 

UT-Rep, WY-Rep

5/11 (-175) NE, WV

5/15 (-171) DE-Rep, 

ME-Rep

5/18 (-168) AR, KY, OR

5/22 (-164) AK-Rep, 

MI-Rep

5/23 (-163) NC-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Primary/Caucus/Conv.

210 to 181 Days Before 

General Election 

4/13 (-203) CO

4/17 (-199) NC-Dem, 

VI-Dem

4/24 (-192) KS-Rep

4/27 (-189) PA

5/1 (-185) NV-Rep

5/4 (-182) IN

Primary/Caucus/Conv.

240 to 211 Days Before 

General Election 

3/8 (-239) AS-Dem

3/9 (-238) FL, LA, MS, 

TX, WA-Rep

3/13 (-234) KS-Dem

3/16 (-231) IL

3/20 (-227) AK-Dem, 

GU-Dem, WY-Dem

3/27 (-220) SC-Rep

Primary/Caucus/Conv.

270 to 241 Days Before 

General Election 

2/7 (-269) MI-Dem, WA-Dem

2/8 (-268) ME-Dem

2/10 (-266) DC-Rep, TN, VA-Dem

2/14 (-262) DC-Dem, NV-Dem

2/17 (-259) WI

2/21 (-255) GU-Rep

2/24 (-252) HI-Dem, ID-Dem, 

UT-Dem

2/28 (-248) AS-Rep, 

VI-Rep

3/2 (-245) CA, CT, GA, MD, MA, 

MN, NY, OH, RI, VT

Primary/Caucus/Conv.

294 to 271 Days Before 

General Election 

1/13 (-294) DC

1/19 (-288) IA 

1/27 (-280) NH

2/3 (-273) AZ-Dem, 

DE-Dem, MO, NM-Dem, 

ND, OK, SC-Dem

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-240 -210 -180 -150 -120 -90 -60 -30 

Days Before Primary/Caucus/Convention

P7 - Number of Media Spots Airing On or Before Presidential Primary 

Convention in All Media Markets Fully Contained within a Single “Battleg

Days to Election Percentage

 0 - 30 50.25%

 0 - 60 78.87%

 0 - 90 87.46%

 0 - 120 91.56%

 0 - 150 96.67%

 0 - 180 98.58%

Total Count: 45,474

* The Media Markets fully contained within a single “Battleground” State are: Phoenix, AZ; Tucson, AZ; Little Rock, AR; Colorado Spring, CO

Miami, FL; Orlando, FL; Tampa, FL; West Palm Beach, FL; Cedar Rapids, IA; Des Moines, IA; Detroit, MI; Flint, MI; Grand Rapids, MI; 

Cleveland, OH; Columbus, OH; Harrisburg, PA; Johnstown, PA; Wilkes-Barre, PA; Seattle, WA; Madison, WI; Milwaukee, WI.

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-240 -210 -180 -150 -120 -90 -60 

Days Before Primary/Caucus/Convention

P8 - Estimated Cost of Media Spots Airing On or Before Presidential P

Convention in All Media Markets Fully Contained within a Single “Batt

Days to Election Percentage

 0 - 30 52.63%

 0 - 60 85.15%

 0 - 90 93.38%

 0 - 120 95.11%

 0 - 150 98.24%

 0 - 180 99.64%

Total Cost: $16,411,945.00

* The Media Markets fully contained within a single “Battleground” State are: Phoenix, AZ; Tucson, AZ; Little Rock, AR; Colorado Sprin

Miami, FL; Orlando, FL; Tampa, FL; West Palm Beach, FL; Cedar Rapids, IA; Des Moines, IA; Detroit, MI; Flint, MI; Grand Rapids

Cleveland, OH; Columbus, OH; Harrisburg, PA; Johnstown, PA; Wilkes-Barre, PA; Seattle, WA; Madison, WI; Milwaukee, WI.

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-300 -270 -240 -210 -180 -150 -120 -90 -60 -30 

Days Before General Election

P9 - Number of Media Spots Airing On or Before Presidential General Ele

in All Media Markets Fully Contained within a Single “Battleground” St

Days to Election Percentage

 0 - 30 32.35%

 0 - 60 51.91%

 0 - 90 58.95%

 0 - 120 69.33%

 0 - 150 76.83%

 0 - 180 84.92%

 0 - 210 93.64%

 0 - 240 99.93%

Total Count: 204,688

* The Media Markets fully contained within a single “Battleground” State are: Phoenix, AZ; Tucson, AZ; Little Rock, AR; Colorado Spring, CO; F

Miami, FL; Orlando, FL; Tampa, FL; West Palm Beach, FL; Cedar Rapids, IA; Des Moines, IA; Detroit, MI; Flint, MI; Grand Rapids, MI; La

Cleveland, OH; Columbus, OH; Harrisburg, PA; Johnstown, PA; Wilkes-Barre, PA; Seattle, WA; Madison, WI; Milwaukee, WI.

Primary/Cauc

180 to 151 Day

General Ele

5/8 (-178) A

5/18 (-168

5/22 (-164) M

Primary/Caucus/Conv.

210 to 181 Days Before 

General Election 

4/13 (-203) CO

4/27 (-189) PA

5/1 (-185) NV-Rep

Primary/Caucus/Conv.

240 to 211 Days Before 

General Election 

3/9 (-238) FL, WA-Rep

Primary/Caucus/Conv.

270 to 241 Days Before 

General Election 

2/7 (-269) MI-Dem, WA-Dem

2/17 (-259) WI

3/2 (-245) OH

Primary/Caucus/Conv.

294 to 271 Days Before 

General Election 

1/19 (-288) IA 

2/3 (-273) AZ-Dem

Dem Nat'l 

Conv 

7/26-7/29

(-99 to -96)

Rep Nat'l 

Conv 

8/30-9/2

(-64 to -61)

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-300 -270 -240 -210 -180 -150 -120 -90 -60 -30 

Days Before General Election

P10 - Estimated Cost of Media Spots Airing On or Before Presidential Ge

in All Media Markets Fully Contained within a Single “Battleground

Days to Election Percentage

 0 - 30 37.17%

 0 - 60 57.91%

 0 - 90 63.96%

 0 - 120 73.38%

 0 - 150 79.90%

 0 - 180 88.94%

 0 - 210 95.25%

 0 - 240 99.96%

Total Cost: $172,307,036.00

* The Media Markets fully contained within a single “Battleground” State are: Phoenix, AZ; Tucson, AZ; Little Rock, AR; Colorado Spring, CO; Ft. 

Miami, FL; Orlando, FL; Tampa, FL; West Palm Beach, FL; Cedar Rapids, IA; Des Moines, IA; Detroit, MI; Flint, MI; Grand Rapids, MI; Las 

Cleveland, OH; Columbus, OH; Harrisburg, PA; Johnstown, PA; Wilkes-Barre, PA; Seattle, WA; Madison, WI; Milwaukee, WI.

Primary/Caucu

180 to 151 Day

General Ele

5/8 (-178) AZ

5/18 (-168) 

5/22 (-164) M

Primary/Caucus/Conv.

210 to 181 Days Before 

General Election 

4/13 (-203) CO

4/27 (-189) PA

5/1 (-185) NV-Rep

Primary/Caucus/Conv.

240 to 211 Days Before 

General Election 

3/9 (-238) FL, WA-Rep

Primary/Caucus/Conv.

270 to 241 Days Before 

General Election 

2/7 (-269) MI-Dem, WA-Dem

2/17 (-259) WI

3/2 (-245) OH

Primary/Caucus/Conv.

294 to 271 Days Before 

General Election 

1/19 (-288) IA 

2/3 (-273) AZ-Dem

Rep Nat'l 

Conv 

8/30-9/2

(-64 to -61)

Dem Nat'l 

Conv 

7/26-7/29

(-99 to -96)

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Presidential Graphs – Notes 

Page 1 of 6

PRESIDENTIAL GRAPHS – NOTES Election Cycle Graphs 

• The general election date, 11/2/04, is represented on the x-axis as day “0”. • Any data for media spots paid for by a Presidential candidate on the general election ballot that aired on or before the general 

election are represented on the graphs. The data for each such media spot appears on the graphs in relation to the general 

election date (day “0”). 

• The dates of each primary/caucus/convention are listed below each graph. These dates reflect joint Democratic, Republican, 

and Other Party primaries unless otherwise noted. The number of days each primary/caucus/convention occurred before the general election is indicated, as a negative number, in parentheses after the date. 

Media Markets Fully Contained within a Single “Battleground” State Graphs 

• The TNS Media Intelligence/CMAG (“CMAG”) data lists a “Media Market” for each media spot paid for by a Presidential 

candidate. 

• CMAG Media Markets correspond to Nielsen Media Group Designated Market Areas (“DMAs”), available at 

www.nielsenmeida.com/DMAs.html. 

• Many DMAs extend into multiple States. The CMAG data for media spots in these DMAs do not specify which State’s 

primary/caucus/convention is relevant for any given media spot. 

• In order to isolate data geographically limited to “Battleground” States, a list of DMAs contained within a single State was 

compared against a list of the “Battleground” States in the 2004 Presidential election, resulting in a list of 23 single-State DMAs in 11 “Battleground” States. The relevant primary/caucus/convention for any media spots paid for by a Presidential candidate in any of these single-State DMAs is assumed to be the primary/caucus/convention of the single State within that 

DMA. 

• 49% of the total number of media spots in the CMAG data, and 54% of the total estimated cost, paid for by Presidential 

candidates are represented on the Media Markets Fully Contained within a Single “Battleground” State graphs. 

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Presidential Graphs – Notes 

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Primary/Caucus/Convention Graphs

• Because primaries/caucuses/conventions are held on several different dates, in order to compare media spots aired before each 

primary/caucus/convention, the primary/caucus/convention date in each of the 11 “Battleground” States is represented on the x-axis as day “0”. 

• For example, the Ohio primary was held on 3/2/04 and the Pennsylvania primary was held on 4/27/04. Both of these primaries 

are represented as day “0” on the graph. Accordingly, a media spot that aired in Ohio on 2/21/04 (10 days before the Ohio primary) would be represented on the graph at day “– 10”. Similarly, a media spot that aired in Pennsylvania on 4/17/04 (10 

days before the Pennsylvania primary) would also appear on the graph at day “–10”.

• Every Democratic Party and Republican Party Presidential candidate was assumed to be on the candidate list for every 

Presidential caucus and Presidential convention.

• Any data for media spots paid for by a Presidential candidate on a primary ballot (or assumed to be on a caucus/convention 

candidate list) that aired in a Media Market that is fully contained within a single “Battleground” State on or before that 

primary/caucus/convention date are represented on the graphs. The data for each such media spot appears on the graphs in relation to that primary/caucus/convention date (day “0”).

• Any data for media spots paid for by “Other” Party Presidential candidates are not represented on the graphs. General Election Graphs

• The general election date, 11/2/04, is represented on the x-axis as day “0”.• Any data for media spots paid for by a Presidential candidate on a general election ballot that aired in a Media Market that is

fully contained within a single “Battleground” State on or before the general election date, but after that candidate’s 

primary/caucus/convention dates, are represented on the graphs. The data for each such media spot appears on the graphs in relation to the general election date (day “0”).

• The dates of each primary/caucus/convention in the 11 “Battleground” States are listed below each graph. These dates reflect 

joint Democratic, Republican, and Other Party primaries unless otherwise noted. The number of days each primary/caucus/convention occurred before the general election is indicated, as a negative number, in parentheses after the 

date.

• Any data for media spots paid for by “Other” Party Presidential candidates are not represented on the graphs. 

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Presidential Graphs – Notes 

Page 3 of 6

List of Media Markets Fully Contained within a Single “Battleground” State

DMA StatePhoenix AZTucson AZLittle Rock AR Colorado Spring CO Ft. Myers FL Miami FLOrlando FLTampa FL

DMA StateWest Palm Beach FL Cedar Rapids IA Des Moines IA Detroit MIFlint MIGrand Rapids MI Las Vegas NV Cleveland OH

DMA StateColumbus OHHarrisburg PAJohnstown PAWilkes-Barre PASeattle WAMadison WIMilwaukee WI

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Presidential Graphs – Notes 

Page 4 of 6

List of DMAs Contained Within a Single State

• A list of DMAs that are fully-contained within a single State was determined from Warren Communications News, Inc. at 

http://warren.365media.com/warren/Searchasp?d=155.

• Note. Although the CMAG data lists Manchester, NH, as a separate Media Market (television station WMUR), Nielsen Media 

Group does not have a Manchester DMA; WMUR is in the Boston DMA. 

DMA

States with counties within DMA 

1 Albany, NY MA, NY, VT 2 Albuquerque, NM AZ, CO, NM 3 Atlanta, GA AL, GA 4 Austin, TX TX 5 Baltimore, MD MD 6 Baton Rouge, LA LA, MS 7 Birmingham, AL AL 8 Boston, MA MA, NH, VT 9 Buffalo, NY NY, PA 

10 Burlington, VT NH, NY, VT 11 Cedar Rapids, IA IA 12 Champaign, IL IL 13 Charleston, WV KY, OH, WV 15 Charlotte, NC NC, SC, VA 16 Chattanooga, TN GA, NC, TN 17 Chicago, IL IL, IN 18 Cincinnati, OH IN, KY, OH 19 Cleveland, OH OH 20 Colorado Springs, CO CO 21 Columbia, SC SC 22 Columbus, OH OH 23 Dallas, TX TX 24 Davenport, IA IL, IA 25 Dayton, OH IN, OH 

DMA

States with counties within DMA 

26 Denver, CO CO, NE, SD, WY 27 Des Moines, IA IA 28 Detroit, MI MI 29 El Paso, TX NM, TX 30 Evansville, IL, IN, KY 31 Flint, MI MI 32 Fresno, CA CA 33 Ft. Myers, FL FL 34 Grand Rapids, MI MI 35 Green Bay, WI MI, WI 36 Greensboro, NC NC, VA 37 Greenville, SC GA, NC, SC 38 Harrisburg, PA PA 39 Hartford, CT CT 40 Honolulu, HI HI 41 Houston, TX TX 42 Huntsville, AL AL, TN 43 Indianapolis, IN IN 44 Jackson, MS MS 45 Jacksonville, FL FL, GA 46 Johnstown, PA PA 47 Kansas City, KS/MO KS, MO 48 Knoxville, TN KY, TN 49 Las Vegas, NV NV 

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Presidential Graphs – Notes 

Page 5 of 6

DMA

States with counties within DMA 

50 Lexington, KY KY 51 Little Rock, AR AR 52 Los Angeles, CA CA 53 Louisville, KY IN, KY 54 Madison, WI WI 55 Memphis, TN AR, MI, MO, TN 56 Miami, FL FL 57 Milwaukee, WI WI 58 Minneapolis, MN MN, WI 59 Mobile, AL AL, FL 60 Nashville, TN KY, TN 61 New Orleans, LA LA, MS 62 New York, NY CT, NJ, NY, PA 63 Norfolk, VA NC, VA 64 Oklahoma City, OK OK 65 Omaha, NE IA, MO, NE 66 Orlando, FL FL 67 Paducah, KY IL, KY, MO, TN 68 Philadelphia, PA DE, NJ, PA 69 Phoenix, AZ AZ 70 Pittsburgh, PA MD, PA, WV 71 Portland, ME ME, NH 72 Portland, OR OR, WA 73 Providence, RI MA, RI 74 Raleigh, NC NC, VA 75 Richmond, VA VA 

DMA

States with counties within DMA 

76 Roanoke, VA VA 77 Rochester, NY NY 78 Sacramento, CA CA 79 Salt Lake City, UT ID, NV, UT, WY 80 San Antonio, TX TX 81 San Diego, CA CA 82 San Francisco, CA CA 83 Savannah, GA GA, SC 84 Seattle, WA WA 85 Shreveport, LA AR, LA, OK, TX 86 South Bend, IN IN, MI 87 Spokane, WA ID, MT, OR, WA 88 Springfield, MO AR, MO 89 St. Louis, MO IL, MO 90 Syracuse, NY NY 91 Tampa, FL FL 92 Toledo, OH MI, OH 93 Tri-Cities, TN KY, TN, VA 94 Tucson, AZ AZ 95 Tulsa, OK KS, OK 96 Waco, TX TX 97 Washington, DC DC, MD, PA, VA, WV 98 West Palm Beach, FL FL 99 Wichita, KS KS, NE 

100 Wilkes-Barre, PA PA 101 Youngstown, OH OH, PA 

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Presidential Graphs – Notes 

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List of “Battleground” States

• A list of “Battleground” States was determined from the following sources: Cook Political Report, 

(http://www.cookpolitical.com/column/2004/021704.php); ABC News/Washington Post

(http://www.abcnews.go.com/sections/us/WorldNewsTonight/battlegrounds_poll_040422.html); National Journal

(http://nationaljournal.com/members/campaign/2004/swingstates/); Wall Street Journal/Zogby International (http://online.wsj.com/public/resources/documents/info-battleground04-print.html). 

“Battleground” States 

Arizona Michigan Ohio

Arkansas Minnesota Oregon

Colorado Missouri Pennsylvania

Florida Nevada Tennessee

Iowa New Hampshire Washington

Louisiana New Mexico West Virginia 

Maine North Carolina Wisconsin

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2004 PRESIDENTIAL PRIMARY DATES 

Establishing the date for a Presidential Primary, and determining the type of Presidential Primary held, varies from State to State. This is due 

to differences in State statutes, party constitutions, party rules and regulations, party by-laws, and delegate selection plans. In some States, a 

Caucus and/or Convention may be held instead of a Presidential Primary Election. Other states may use a combination of both Caucuses and 

Primaries for delegate selection. This State-by-State variation should be kept in mind when examining this listing of dates for the 2004 

Presidential Primaries. 

STATE PRIMARY 

DATE 

CAUCUS 

DATE 

CONVENTION 

DATE 

DAYS BEFORE 

GENERAL ELECTION

11/2/04 

Alabama 6/1 154 

Alaska 3/20 (D) 

5/21-5/22 (R) 

227 

164 

American Samoa 1 3/8 (D) 

2/28 (R) 

239 

248 

Arizona 2/3 (D) 

5/8 (R) 

273 

178 

Arkansas 5/18 168 

California 3/2 245 

Colorado 4/13 203 

Connecticut 3/2 245 

Delaware 2/3 (D) 

5/14-5/15 (R) 

273 

171 

D.C. 1/13 

2/10 (R) 

2/14 (D) 

294 

266 

262 

Florida 3/9 238 

Georgia 3/2 245 

Guam 1 3/20 (D) 

2/21 (R) 

227 

255 

Hawaii 2/24 (D) 

6/4-6/6 (R) 

252 

149 

Idaho 5/25 

2/24 (D) 

161 

252 

Illinois 3/16 231 

Indiana 5/4 182 

Iowa 1/19 288 

Kansas 3/13 (D) 

4/24 (R) 

234 

192 

Kentucky 5/18 168 

Louisiana 3/9 238 

Maine 2/8 (D) 

5/15 (R) 

268 

171 

Maryland 3/2 245 

Massachusetts 3/2 245 

Michigan 2/7 (D) 

5/21-5/22 (R) 

269 

164 

Minnesota 3/2 245 

Mississippi 3/9 238 

Missouri 2/3 273 

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STATE PRIMARY 

DATE 

CAUCUS 

DATE 

CONVENTION 

DATE 

DAYS BEFORE 

GENERAL ELECTION

11/2/04 

Montana 6/8 147 

Nebraska 5/11 175 

Nevada 2/14 (D) 

4/29-5/1 (R) 

262 

185 

New Hampshire 1/27 280 

New Jersey 6/8 147 

New Mexico 6/1 

2/3 (D) 

154 

273 

New York 3/2 245 

North Carolina 4/17 (D) 

5/21-5/23 (R) 

199 

163 

North Dakota 2/3 273 

Ohio 3/2 245 

Oklahoma 2/3 273 

Oregon 5/18 168 

Pennsylvania 4/27 189 

Puerto Rico 1 6/6 (D) 149 

Rhode Island 3/2 245 

South Carolina 2/3 (D) 

3/27 (R) 

273 

220 

South Dakota 6/1 154 

Tennessee 2/10 266 

Texas 3/9 238 

Utah2 2/24 (D) 

5/8 (R) 

252 

178 

Vermont 3/2 245 

Virginia 2/10 (D) 

6/5 (R) 

266 

150 

Virgin Islands 1 4/17 (D) 

2/28 (R) 

199 

248 

Washington 2/7 (D) 

3/9 (R) 

269 

238 

West Virginia 5/11 175 

Wisconsin 2/17 259 

Wyoming 3/20 (D) 

5/8 (R) 

227 

178 

Notes:

1. Presidential General Elections are not held in American Samoa, Guam, Puerto Rico and the Virgin Islands. 

2. In Utah, whether a Presidential Primary Election is held is dependent upon funding by the legislature, which did not 

occur for 2004. Consequently, the Utah State Democratic Party scheduled a party-run Presidential preference primary 

for 2/24/04.

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Days Before Primary/Caucus/Convention

S1 - Total Number of Media Spots Airing On or Before Senate

Primary/Caucus/Convention

Percentage Days to Election

 0 - 30 69.01%

 0 - 60 91.60%

 0 - 90 99.13%

 0 - 120 99.47%

 0 - 150 99.95%

 0 - 180 100.00%

Total Count: 89,096

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-180 -150 -120 -90 -60 -30 

Days Before Primary/Caucus/Convention

S2 - Total Estimated Cost of Media Spots Airing On or Before Senate Prim

Election/Caucus/Convention

Percentage Days to Election

 0 - 30 75.19%

 0 - 60 93.32%

 0 - 90 99.34%

 0 - 120 99.55%

 0 - 150 99.95%

 0 - 180 100.00%

Total Cost: $47,303,049

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06-CV-1247 (CKK),

A.R. Page:

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Days Before General Election

S3 - Total Number of Media Spots Airing On or Before Senate Gene

Election

Percentage Days to Election

 0 - 30 69.87%

 0 - 60 94.73%

 0 - 90 99.61%

 0 - 120 99.72%

 0 - 150 99.73%

 0 - 180 100.00%

Total Count: 149,310

Primary/Caucus/Conv. 181+ Days Before General Election

11/9/03 (-359) PR 3/2 (-245) CA, MD, OH 

3/6 (-241) KS-Other 3/9 (-238) MS, TX 

3/13 (-234) TX-Other 3/14 (-233) UT-Other

3/16 (-231) IL 3/20 (-227) TX-Other

4/17 (-199) MI-Other, UT-Other 4/24 (-173) IN-Other, SC-Other

4/27 (-189) PA 5/1 (-185) WV-Other

5/2 (-184) SSC-Other 5/4 (-182) IN 

Primary/Caucus/Conv.

60 to 31 Days Before 

General Election

9/4 (-59) GU

9/7 (-56) AZ, NV 

9/11 (-52) DE, VI

9/14 (-49) DC, MA

 MN, NH, NY, RI, 

 VT, WA, WI 

9/18 (-45) HI 

Primary/Caucus/Conv

90 to 61 Days Before 

General Election

8/5 (-89) TN

8/10 (-84) CO, CT

8/17 (-77) WY

8/24 (-70) AK

8/31 (-63) FL

Primary/Caucus/Conv.

120 to 91 Days Before 

General Election

7/20 (-105) GA, NC

7/27 (-98) OK

8/3 (-91) KS, MI, MO

Primary/Caucus/Conv.

150 to 121 Days Before 

General Election

6/5 (-150) MI-Other

6/8 (-147) IA, ME, MT,

NJ, ND, SC, VA

6/22 (-133) UT

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election

5/6 (-180) SC-Other

5/8 (-178) CT, UT, VA-Dem

5/10 (-176) CT

5/11 (-175) NE, WV

5/15 (-171) CT-Rep, 

 KS-Other, VA

5/18 (-168) AR, KY, OR 

5/22 (-164) CT-Rep, 

 UT-Other, VA

5/23 (-163) MI-Other 

5/24 (-162) CT-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

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06-CV-1247 (CKK),

A.R. Page:

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-180 -150 -120 -90 -60 -30 

Days Before General Election

S4 - Total Estimated Cost of Media Spots Airing On or Before Senate 

Election

Percentage Days to Election

 0 - 30 74.47%

 0 - 60 97.20%

 0 - 90 99.85%

 0 - 120 99.91%

 0 - 150 99.91%

 0 - 180 100.00%

Total Cost: $106,454,740

Primary/Caucus/Conv

90 to 61 Days Before 

General Election

8/5 (-89) TN

8/10 (-84) CO, CT

8/17 (-77) WY

8/24 (-70) AK

8/31 (-63) FL

Primary/Caucus/Conv.

60 to 31 Days Before 

General Election

9/4 (-59) GU

9/7 (-56) AZ, NV 

9/11 (-52) DE, VI

9/14 (-49) DC, MA

 MN, NH, NY, RI, 

 VT, WA, WI 

9/18 (-45) HI 

Primary/Caucus/Conv.

120 to 91 Days Before 

General Election

7/20 (-105) GA, NC

7/27 (-98) OK

8/3 (-91) KS, MI, MO

Primary/Caucus/Conv.

150 to 121 Days Before 

General Election

6/5 (-150) MI-Other

6/8 (-147) IA, ME, MT,

NJ, ND, SC, VA

6/22 (-133) UT

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election

5/6 (-180) SC-Other

5/8 (-178) CT, UT, VA-Dem

5/10 (-176) CT

5/11 (-175) NE, WV

5/15 (-171) CT-Rep, 

 KS-Other, VA

5/18 (-168) AR, KY, OR 

5/22 (-164) CT-Rep, 

 UT-Other, VA

5/23 (-163) MI-Other 

5/24 (-162) CT-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Primary/Caucus/Conv. 181+ Days Before General Election

11/9/03 (-359) PR 3/2 (-245) CA, MD, OH 

3/6 (-241) KS-Other 3/9 (-238) MS, TX 

3/13 (-234) TX-Other 3/14 (-233) UT-Other

3/16 (-231) IL 3/20 (-227) TX-Other

4/17 (-199) MI-Other, UT-Other 4/24 (-173) IN-Other, SC-Other

4/27 (-189) PA 5/1 (-185) WV-Other

5/2 (-184) SSC-Other 5/4 (-182) IN 

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06-CV-1247 (CKK),

A.R. Page:

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Senate Graphs – Notes 

Page 1 of 1 SENATE GRAPHS – NOTES Primary/Caucus/Convention Graphs 

• Because primaries/caucuses/conventions are held on several different dates, in order to compare media spots aired before each 

primary/caucus/convention, the primary/caucus/convention date is represented on the x-axis as day “0”. 

• For example, the Ohio primary was held on 3/2/04 and the Pennsylvania primary was held on 4/27/04. Both of these primaries 

are represented as day “0” on the graph. Accordingly, a media spot that aired in Ohio on 2/21/04 (10 days before the Ohio primary) would be represented on the graph at day “– 10”. Similarly, a media spot that aired in Pennsylvania on 4/17/04 (10 

days before the Pennsylvania primary) would also appear on the graph at day “–10”. 

• Any data for media spots paid for by a Senate candidate on a primary ballot, or caucus/convention candidate list, that aired on

or before that primary/caucus/convention date are represented on the graphs. The data for each such media spot appear on the graphs in relation to that primary/caucus/convention date (day “0”). 

• Any candidate identified both as either a Democratic or Republican Party candidate and as an Other party candidate was 

treated as only a Democratic or Republican Party candidate with respect to primaries/caucuses/conventions.

General Election Graphs 

• The general election date, 11/2/04, is represented on the x-axis as day “0”.• Any data for media spots paid for by a Senate candidate on the general election ballot that aired on or before the general 

election date, but after that candidate’s primary/caucus/convention date, are represented on the graphs. The data for each such media spot appear on the graphs in relation to the general election date (day “0”).

• The dates of each primary/caucus/convention are listed below each graph. These dates reflect joint Democratic, Republican, 

and Other Party primaries unless otherwise noted. The number of days each primary/caucus/convention occurred before the general election is indicated, as a negative number, in parentheses after the date.

• Two States held “primary runoff” elections (SC on 6/22/04 and GA on 8/10/04). Any data regarding media spots aired after 

these States’ primary dates (SC on 6/9/04 and GA on 7/20/04), but before these States’ primary “runoff” dates, are not represented on the graphs. 

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2004 CONGRESSIONAL PRIMARY DATES 

Note: S Indicates Senate Election 

STATE PRIMARY 

DATE 

CONVENTION DATE DAYS BEFORE GENERAL 

ELECTION 

11/2/04 

Alabama S 6/1 154 

Alaska S 8/24 70 

American Samoa1 n/a 

Arizona S 9/7 56 

Arkansas S 5/18 168 

California S 3/2 245 

Colorado S 8/10 84 

Connecticut S 8/10 

5/10 (D) 

5/10 (R) District 4 

5/15 (R) Districts 2, 3 

5/22 (R) District 5 

5/24 (R) District 1 

84 

176 

176 

171 

164 

162 

Delaware 9/11 52 

D.C. 9/14 49 

Florida S 8/31 63 

Georgia S 7/20 105 

Guam 9/4 59 

Hawaii S 9/18 45 

Idaho S 5/25 161 

Illinois S 3/16 231 

Indiana S 5/4 

4/24 (Other) 

182 

192 

Iowa S 6/8 147 

Kansas S 8/3 

3/6 (Other) 

5/15 (Other) 

91 

241 

171 

Kentucky S 5/18 168 

Louisiana2 S n/a 

Maine 6/8 147 

Maryland S 3/2 245 

Massachusetts 9/14 49 

Michigan 8/3 

4/17 (Other) 

5/23 (Other) 

6/5 (Other) 

91 

199 

163 

150 

Minnesota 9/14 49 

Mississippi 3/9 238 

Missouri S 8/3 91 

Montana 6/8 147 

Nebraska 5/11 175 

Nevada S 9/7 56 

New Hampshire S 9/14 49 

New Jersey 6/8 147 

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A.R. Page:

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STATE PRIMARY 

DATE 

CONVENTION DATE DAYS BEFORE GENERAL 

ELECTION 

11/2/04 

New Mexico 6/1 157 

New York S 9/14 49 

North Carolina S 7/20 105 

North Dakota S 6/8 147 

Ohio S 3/2 245 

Oklahoma S 7/27 98 

Oregon S 5/18 168 

Pennsylvania S 4/27 189 

Puerto Rico 11/9/03 359 

Rhode Island 9/14 49 

South Carolina S 6/8 

4/24 (Other) 

5/6 (Other) 

147 

192 

180 

South Dakota S 6/1 154 

Tennessee 8/5 89 

Texas 3/9 

3/13 (Other) Districts 7, 16, 18, 

20, 29, 30, 32 

3/20 (Other) All Remaining 

Districts 

238 

234 

227 

Utah 3 S 6/22 

5/8 (D), (R) 

5/22 (Other) 

3/14 (Other) 

4/17 (Other) 

133 

178 

164 

233 

199 

Vermont S 9/14 49 

Virginia 4 6/8 

5/8 (D) District 5 

5/15 (D) Districts 1, 6, 7, 9, 10 

5/15 (R) Districts 3, 8 

5/22 (D) District 4 

5/22 (R) District 9 

147 

178 

171 

171 

164 

164 

Virgin Islands 9/11 52 

Washington S 9/14 49 

West Virginia 5/11 

5/1 (Other) 

175 

185 

Wisconsin S 9/14 49 

Wyoming 8/17 77 

Notes:

1. In American Samoa, no Primary Election was held. A General Election was held on 11/2/04. 

2. In Louisiana, no Primary Election was held. The election for candidates seeking Federal office is the General Election, which 

was held on 11/2/04. A General Runoff Election was held on 12/4/04. 

3. In Utah, nominating Conventions are held by the parties prior to the Primary. 

4. In Virginia, parties may choose to nominate candidates by Convention rather than by Primary. 

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Days Before Primary/Caucus/Convention

H1 - Total Number of Media Spots Airing On or Before House Primary/Caucus/C

Days to Election Percentage

 0 - 30 80.21%

 0 - 60 88.16%

 0 - 90 91.44%

 0 - 120 97.26%

 0 - 150 98.92%

 0 - 180 99.06%

Total Count: 35,205

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Days Before Primary/Caucus/Convention

H2 - Total Estimated Cost of Media Spots Airing On or Before House

Primary/Caucus/Convention

Percentage Days To Election

 0 - 30 84.65%

 0 - 60 92.68%

 0 - 90 96.21%

 0 - 120 99.00%

 0 - 150 99.58%

 0 - 180 99.66%

Total Cost: $17,253,099

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Days Before General Election

H3 - Total Number of Media Spots Airing On or Before House General 

Days To Election Percentage

 0 - 30 77.77%

 0 - 60 98.09%

 0 - 90 99.72%

 0 - 120 99.84%

 0 - 150 99.96%

 0 - 180 99.98%

Total Count: 131,665

Primary/Caucus/Conv. 181+ Days Before General Election

11/9/03 (-359) PR 3/2 (-245) CA, MD, OH 

3/6 (-241) KS-Other 3/9 (-238) MS, TX 

3/13 (-234) TX-Other 3/14 (-233) UT-Other

3/16 (-231) IL 3/20 (-227) TX-Other

4/17 (-199) MI-Other, UT-Other 4/24 (-173) IN-Other, SC-Other

4/27 (-189) PA 5/1 (-185) WV-Other

5/2 (-184) SSC-Other 5/4 (-182) IN 

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election

5/6 (-180) SC-Other

5/8 (-178) CT, UT, VA-Dem

5/10 (-176) CT

5/11 (-175) NE, WV

5/15 (-171) CT-Rep, 

 KS-Other, VA

5/18 (-168) AR, KY, OR 

5/22 (-164) CT-Rep, 

 UT-Other, VA

5/23 (-163) MI-Other 

5/24 (-162) CT-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Primary/Caucus/Conv.

150 to 121 Days Before 

General Election

6/5 (-150) MI-Other

6/8 (-147) IA, ME, MT,

NJ, ND, SC, VA

6/22 (-133) UT

Primary/Caucus/Conv.

120 to 91 Days Before 

General Election

7/20 (-105) GA, NC

7/27 (-98) OK

8/3 (-91) KS, MI, MO

Primary/Caucus/Conv

90 to 61 Days Before 

General Election

8/5 (-89) TN

8/10 (-84) CO, CT

8/17 (-77) WY

8/24 (-70) AK

8/31 (-63) FL

Primary/Caucus/Conv.

60 to 31 Days Before 

General Election

9/4 (-59) GU

9/7 (-56) AZ, NV 

9/11 (-52) DE, VI

9/14 (-49) DC, MA

 MN, NH, NY, RI, 

 VT, WA, WI 

9/18 (-45) HI 

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06-CV-1247 (CKK),

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Days Before General Election

H4 - Total Estimated Cost of Media Spots Airing On or Before House General 

Days to Election Percentage

 0 - 30 83.58%

 0 - 60 98.75%

 0 - 90 99.87%

 0 - 120 99.92%

 0 - 150 99.99%

 0 - 180 100.00%

Total Cost: $91,892,310.00

Primary/Caucus/Conv. 181+ Days Before General Election

11/9/03 (-359) PR 3/2 (-245) CA, MD, OH 

3/6 (-241) KS-Other 3/9 (-238) MS, TX 

3/13 (-234) TX-Other 3/14 (-233) UT-Other

3/16 (-231) IL 3/20 (-227) TX-Other

4/17 (-199) MI-Other, UT-Other 4/24 (-173) IN-Other, SC-Other

4/27 (-189) PA 5/1 (-185) WV-Other

5/2 (-184) SSC-Other 5/4 (-182) IN 

Primary/Caucus/Conv.

60 to 31 Days Before 

General Election

9/4 (-59) GU

9/7 (-56) AZ, NV 

9/11 (-52) DE, VI

9/14 (-49) DC, MA

 MN, NH, NY, RI, 

 VT, WA, WI 

9/18 (-45) HI 

Primary/Caucus/Conv

90 to 61 Days Before 

General Election

8/5 (-89) TN

8/10 (-84) CO, CT

8/17 (-77) WY

8/24 (-70) AK

8/31 (-63) FL

Primary/Caucus/Conv.

120 to 91 Days Before 

General Election

7/20 (-105) GA, NC

7/27 (-98) OK

8/3 (-91) KS, MI, MO

Primary/Caucus/Conv.

150 to 121 Days Before 

General Election

6/5 (-150) MI-Other

6/8 (-147) IA, ME, MT,

NJ, ND, SC, VA

6/22 (-133) UT

Primary/Caucus/Conv.

180 to 151 Days Before 

General Election

5/6 (-180) SC-Other

5/8 (-178) CT, UT, VA-Dem

5/10 (-176) CT

5/11 (-175) NE, WV

5/15 (-171) CT-Rep, 

 KS-Other, VA

5/18 (-168) AR, KY, OR 

5/22 (-164) CT-Rep, 

 UT-Other, VA

5/23 (-163) MI-Other 

5/24 (-162) CT-Rep

5/25 (-161) ID

6/1 (-154) AL, NM, SD

Shays v. FEC,

06-CV-1247 (CKK),

A.R. Page:

2219
House Graphs – Notes 

Page 1 of 2

HOUSE GRAPHS – NOTESPrimary/Caucus/Convention Graphs 

• Because primaries/caucuses/conventions are held on different dates, in order to compare media spots aired before each 

primary/caucus/convention, the primary/caucus/convention date is represented on the x-axis as day “0”. 

• For example, the Ohio primary was held on 3/2/04 and the Pennsylvania primary was held on 4/27/04. Both of these primaries 

are represented as day “0” on the graph. Accordingly, a media spot that aired in Ohio on 2/21/04 (10 days before the Ohio primary) would be represented on the graph at day “– 10”. Similarly, a media spot that aired in Pennsylvania on 4/17/04 (10 

days before the Pennsylvania primary) would also appear on the graph at day “–10”. 

• Any data for media spots paid for by a House candidate on a primary ballot, or caucus/convention candidate list, that aired on 

or before that primary/caucus/convention date are represented on the graphs. The data for each such media spot appear on the graphs in relation to that primary/caucus/convention date (day “0”). 

• “Special elections” were held in five States in 2003 and 2004. Three of these were held before that State's primary (HI, TX, 

KY) and two were held on the same date as that State's primary (SD, NC). Any data for media spots paid for by candidates on 

the ballot for these “special elections” appear on the graphs in relation to these States’ primary election dates (day “0”).

State Special Election Date Primary Election Date Days Before Primary Election 

HI 1/4/03 9/18/04 623

TX 5/3/03

6/3/03 

3/9/04 311

280 

KY 2/17/04 5/18/04 91

SD 6/1/04 6/1/04 0

NC 7/20/04 7/20/04 0

• Any candidate identified both as either a Democratic or Republican Party candidate and as an Other party candidate was 

treated as only a Democratic or Republican Party candidate with respect to primaries/caucuses/conventions.

Shays v. FEC,

06-CV-1247 (CKK),

A.R. Page:

2220
House Graphs – Notes 

Page 2 of 2

General Election Graphs 

• The general election date, 11/2/04, is represented on the x-axis as day “0”.• Any data for media spots paid for by a House candidate on the general election ballot that aired on or before the general 

election date, but after that candidate’s primary/caucus/convention date, are represented on the graphs. The data for each such media spot appear on the graphs in relation to the general election date (day “0”).

• The dates of each primary/caucus/convention are listed below each graph. These dates reflect joint Democratic, Republican, 

and Other Party primaries unless otherwise noted. The number of days each primary/caucus/convention occurred before the general election is indicated, as a negative number, in parentheses after the date.

• Primary “runoff” elections were held in four States (TX Dist. 1, 10, 15, 17, 28 on 4/13/04; AL Dist. 5 on 6/29/04; GA Dist. 6, 

8 on 8/10/04; NC Dist. 5, 10 on 8/17/04). Any data regarding media spots that aired after these States’ primary dates (TX on 

3/9; AL on 6/1/04; GA on 7/20/04; NC on 7/20/04) but before these primary “runoff” dates, are not represented on the graphs. 

Shays v. FEC,

06-CV-1247 (CKK),

A.R. Page:

2221
2004 CONGRESSIONAL PRIMARY DATES 

Note: S Indicates Senate Election 

STATE PRIMARY 

DATE 

CONVENTION DATE DAYS BEFORE GENERAL 

ELECTION 

11/2/04 

Alabama S 6/1 154 

Alaska S 8/24 70 

American Samoa1 n/a 

Arizona S 9/7 56 

Arkansas S 5/18 168 

California S 3/2 245 

Colorado S 8/10 84 

Connecticut S 8/10 

5/10 (D) 

5/10 (R) District 4 

5/15 (R) Districts 2, 3 

5/22 (R) District 5 

5/24 (R) District 1 

84 

176 

176 

171 

164 

162 

Delaware 9/11 52 

D.C. 9/14 49 

Florida S 8/31 63 

Georgia S 7/20 105 

Guam 9/4 59 

Hawaii S 9/18 45 

Idaho S 5/25 161 

Illinois S 3/16 231 

Indiana S 5/4 

4/24 (Other) 

182 

192 

Iowa S 6/8 147 

Kansas S 8/3 

3/6 (Other) 

5/15 (Other) 

91 

241 

171 

Kentucky S 5/18 168 

Louisiana2 S n/a 

Maine 6/8 147 

Maryland S 3/2 245 

Massachusetts 9/14 49 

Michigan 8/3 

4/17 (Other) 

5/23 (Other) 

6/5 (Other) 

91 

199 

163 

150 

Minnesota 9/14 49 

Mississippi 3/9 238 

Missouri S 8/3 91 

Montana 6/8 147 

Nebraska 5/11 175 

Nevada S 9/7 56 

New Hampshire S 9/14 49 

New Jersey 6/8 147 

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06-CV-1247 (CKK),

A.R. Page:

2222
STATE PRIMARY 

DATE 

CONVENTION DATE DAYS BEFORE GENERAL 

ELECTION 

11/2/04 

New Mexico 6/1 157 

New York S 9/14 49 

North Carolina S 7/20 105 

North Dakota S 6/8 147 

Ohio S 3/2 245 

Oklahoma S 7/27 98 

Oregon S 5/18 168 

Pennsylvania S 4/27 189 

Puerto Rico 11/9/03 359 

Rhode Island 9/14 49 

South Carolina S 6/8 

4/24 (Other) 

5/6 (Other) 

147 

192 

180 

South Dakota S 6/1 154 

Tennessee 8/5 89 

Texas 3/9 

3/13 (Other) Districts 7, 16, 18, 

20, 29, 30, 32 

3/20 (Other) All Remaining 

Districts 

238 

234 

227 

Utah 3 S 6/22 

5/8 (D), (R) 

5/22 (Other) 

3/14 (Other) 

4/17 (Other) 

133 

178 

164 

233 

199 

Vermont S 9/14 49 

Virginia 4 6/8 

5/8 (D) District 5 

5/15 (D) Districts 1, 6, 7, 9, 10 

5/15 (R) Districts 3, 8 

5/22 (D) District 4 

5/22 (R) District 9 

147 

178 

171 

171 

164 

164 

Virgin Islands 9/11 52 

Washington S 9/14 49 

West Virginia 5/11 

5/1 (Other) 

175 

185 

Wisconsin S 9/14 49 

Wyoming 8/17 77 

Notes:

1. In American Samoa, no Primary Election was held. A General Election was held on 11/2/04. 

2. In Louisiana, no Primary Election was held. The election for candidates seeking Federal office is the General Election, which 

was held on 11/2/04. A General Runoff Election was held on 12/4/04. 

3. In Utah, nominating Conventions are held by the parties prior to the Primary. 

4. In Virginia, parties may choose to nominate candidates by Convention rather than by Primary. 

Shays v. FEC,

06-CV-1247 (CKK),

A.R. Page:

2223