ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 14, 2012

Case Nos. 12-5117 & 12-5118

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Center for Individual Freedom,

Defendant-Appellant,

and

Hispanic Leadership Fund,

Defendant-Appellant,

v.

Chris Van Hollen,

Plaintiff-Appellee,

and

Federal Election Commission,

Defendant-Appellee.

ON APPEAL FROM A FINAL ORDER

OF THE U.S. DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CORRECTED BRIEF OF MITCH MCCONNELL, UNITED STATES

SENATOR, AS AMICUS CURIAE SUPPORTING

APPELLANTS FOR REVERSAL

 Bobby R. Burchfield (D.C. Bar No. 289124)

 Michael S. Stanek (D.C. Bar No. 999836)

 MCDERMOTT WILL & EMERY LLP 

 600 Thirteenth Street, NW

 Washington, DC 20005

 Telephone: 202.756.8000

 Facsimile: 202-756-8087

Dated: June 21, 2012 Counsel for Senator Mitch McConnell

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CERTIFICATE AS TO PARTIES, RULING, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Amicus Senator Mitch McConnell 

submits this certificate as to parties, rulings, and related cases.

Parties

Other than Amicus Senator McConnell, the briefs of Appellants Center for 

Individual Freedom and Hispanic Leadership Fund have listed all parties and 

participants in the proceedings below.

Ruling Under Review

References to the Ruling Under Review appear in the Briefs for Appellants 

Center for Individual Freedom and Hispanic Leadership Fund.

Related Cases

This case has not previously been before this Court and there are no 

pending related cases.

Statement Regarding Appendix

Amicus Senator McConnell adopts the Joint Appendix filed by Appellant 

Center for Individual Freedom.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............................................................................iv

GLOSSARY OF ABBREVIATED TERMS..................................................... vii

Interest of the Amicus Curiae...............................................................................1

INTRODUCTION AND SUMMARY OF ARGUMENT....................................3

ARGUMENT.......................................................................................................5

I. THE DISTRICT COURT MISAPPLIED CHEVRON................................5

A. Chevron Restricts Agency Discretion Only When 

Congress Has “Directly Addressed the Precise Question 

at Issue.” ..........................................................................................5

B. Congress Did Not Directly Address the Precise 

Question at Issue Here. ....................................................................8

C. The FEC Acted Within Its Discretion in Revising Its 

Regulation. ....................................................................................16

II. THE DISCLOSURES ADVOCATED BY PLAINTIFF 

RAISE SERIOUS FIRST AMENDMENT CONCERNS.........................19

A. Disclosure Requirements Are Limited by the First 

Amendment. ..................................................................................19

B. Plaintiff’s Demand for Greater Disclosure Threatens To 

Suppress Core Political Speech......................................................23

C. Recent Experience Shows that Political Adversaries 

Abuse Donor Disclosures...............................................................24

CONCLUSION .....................................................................................................

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TABLE OF AUTHORITIES

FEDERAL CASES ...............................................................................PAGE(S)

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003)........................................................................23

Buckley v. Valeo, 

424 U.S. 1 (1976) ...............................................................................21, 22, 23

Catawba Cnty., N.C. v. EPA, 

571 F.3d 20 (D.C. Cir. 2009)............................................................................7

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

467 U.S. 837 (1984). .....................................................3, 5, 6, 8, 14, 15, 17, 18

*Citizens United v. FEC, 

130 S. Ct. 876 (2010). .............................................................. 4, 11, 16, 21, 22

Continental Air Lines, Inc. v. Department of Transportation, 843 

F.2d 1444 (D.C. Cir. 1988).............................................................................19

Emily’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009)............................................................................23

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) ...............................................................................8, 9, 10

*FEC v. Wisconsin Right To Life,

 551 U.S. 449 (2007) ...........................................................................4, 11, 12

Marbury v. Madison, 

5 U.S. 137 (1803) ...........................................................................................20

McConnell v. FEC, 

540 U.S. 93 (2003) .........................................................................................22

Pennsylvania Dept. of Corrections v. Yeskey,

524 U.S. 206 (1998) .......................................................................................12

Raffles v. Wichelhaus, 

2 H. & C., 159 Eng. Rep. 375 (Ex. 1864). ......................................................11

Nat’l Cable & Telecomm. Assn. v. Brand X Internet Services, 545 

U.S. 967 (2005)..............................................................................................15

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010)..................................................................23, 24

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United States v. Morton, 

467 U.S. 822 (1984) .......................................................................................12

Village of Barrington, Ill. v. Surface Transp. Bd.,

 636 F.3d 650 (D.C. Cir. 2011).........................................................................7

West v. Kerr-McGee Corp., 

765 F.2d 526 (5th Cir. 1985) ..........................................................................12

FEDERAL STATUTES

2 U.S.C. § 431(8).................................................................................................9

*2 U.S.C. § 431(8)(A)(i)......................................................................................9

2 U.S.C. § 434(f)(1)...........................................................................................19

*2 U.S.C. § 434(f)(2)(F) ............................................................................3, 9, 15

2 U.S.C. § 441b(b)(2) ..........................................................................................8

26 U.S.C. § 501(c)(4)...........................................................................................8

RULES AND REGULATIONS

11 C.F.R. § 100.83(c)(4)....................................................................................19

11 C.F.R. § 102.6(b)(2)......................................................................................18

*11 C.F.R. § 104.20(c)(9)................................................................................4, 5

11 C.F.R. § 109.10(e)(vi)...................................................................................19

11 C.F.R. § 114.10(c)...........................................................................................8

11 C.F.R. § 114.15(a).........................................................................................13

68 Fed. Reg. at 404 (Jan. 3, 2003)......................................................................10

*72 Fed. Reg. 72899 (Dec. 26, 2007).................................................................13

Federal Rule of Appellate Procedure 29...............................................................2

U.S. Court of Appeals for the D.C. Circuit Rule 29 .............................................2

.

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OTHER AUTHORITIES

“Legislation to Minimize Corporate Spending in Elections After 

Supreme Court’s Ruling in Citizens United.” (April 29, 2010)......................25

Jess Bravin and Brody Mullins, “New Rules Proposed on Campaign 

Donors,” Wall Street Journal (February 12, 2010) .........................................26

Jia Lynn Yang and Dan Eggen, “Exercising New Ability to Spend 

on Campaigns, Target Finds Itself a Bull’s-eye,” Washington Post, 

August 19, 2010 .............................................................................................28

Jim Abrams, “Lawmakers Call for Restrictions on Political Ads,” 

Associated Press (April 29, 2010)...................................................................25

Kimberly Strassel, “Trolling the President’s List,” The Wall Street 

Journal (May 11, 2012), available at online.wsj.com.....................................28

*Media Matters, 2012: A Three Year Campaign 82-83 (2009) ..........................27

Obama for America, "Behind the Curtain: A brief history of Romney’s donors,” 

(April 20, 2012), available at http://www.barackobama.com/truthteam/entry/behind-the-curtain-a-brief-history-of-romneys-donors. .................... 27

Press Release, Van Hollen Remarks on Supreme Court Ruling in 

Citizens United Case (Jan. 21, 2010) ..............................................................24

Tim Dickinson, “Right-Wing Billionaires Behind Mitt Romney,”

Rolling Stone (May 24, 2012), available at www.rollingstone.com................28

* Authorities upon which we chiefly rely are marked with asterisks

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GLOSSARY OF ABBREVIATED TERMS

BCRA Bipartisan Campaign Reform Act of 2002, 116 Stat. 81

EPA Environmental Protection Agency

FEC or Federal Election Commission

Commission

FECA Federal Election Campaign Act of 1971

Mem. Op. Judge Amy Berman Jackson’s Memorandum Opinion 

accompanying the March 30, 2012 Orders

WRTL II FEC v. Wisconsin Right To Life, 551 U.S. 449 (2007)

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STATUTES AND REGULATIONS

The pertinent statute and regulations are attached in an Addendum to the 

brief.

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Amicus Senator Mitch McConnell submits this brief in support of 

Intervenor-Appellants Center for Individual Freedom and the Hispanic 

Leadership Fund (hereinafter “Intervenors”). Senator McConnell urges this Court 

to reverse the District Court’s order granting Summary Judgment to PlaintiffAppellee Chris Van Hollen, and to remand with directions to dismiss the 

Complaint.

Statement of Identify, Interest of the Amicus Curiae,

and Source of Authority To File

Senator McConnell is the senior United States Senator from the 

Commonwealth of Kentucky. He is the Republican Leader in the United States 

Senate and the former Chairman of the National Republican Senatorial 

Committee, a national political party committee comprising the Republican 

members of the United States Senate.

Senator McConnell is a respected senior statesman and is recognized as the 

Senate’s most passionate defender of the First Amendment guarantee of 

unrestricted political speech. In an important speech to the American Enterprise 

Institute on June 15, 2012, he traced the importance of unrestricted political 

debate to democracy in the United States and warned that ill-advised campaign 

finance disclosure regulations threaten vibrant debate. Senator Mitch McConnell, 

Address at the American Enterprise Institute; Remarks on the First Amendment 

(June 15, 2012). Senator McConnell has acquired considerable practical 

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experience over the last three decades complying with various federal and state 

campaign finance restrictions and legislating on campaign finance issues. In 

particular, Senator McConnell has been Republican Leader during the 111th and 

112th Congresses, in which Plaintiff-Appellee has unsuccessfully advocated 

legislation that would impose disclosure requirements similar to the ones 

Plaintiff-Appellee advocates before this Court.

This brief is filed with the consent of all parties and pursuant to Federal Rule 

of Appellate Procedure 29 and U.S. Court of Appeals for the D.C. Circuit Rule 

29.

Statement of Authorship and Financial Contribution

Pursuant to Rule 29(c)(5), Fed. R. App. P., Senator McConnell states that no 

party or person other than Senator McConnell and his counsel participated in or 

contributed money for the drafting of this brief.

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INTRODUCTION AND SUMMARY OF ARGUMENT

Chevron requires deference to an agency’s construction of a statute it is 

charged with administering unless Congress has “directly addressed the precise 

question at issue.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837, 843 (1984). Congress fails to address the precise question at 

issue if the statute is ambiguous, or if, as was the case in Chevron, Congress did 

not consider the issue and thus “did not actually have an intent.” Id. at 845.

In this case, the district court erred by holding that “Congress spoke 

plainly” in this statute, 2 U.S.C. § 434(f)(2)(F), thus precluding any regulatory 

construction of the statute by the FEC. Mem. Op. at 31. To the contrary, 

Congress could not have considered “the precise question at issue” here—that is, 

the extent to which corporations and labor unions that air electioneering 

communications must report their funding sources—because the very same 

legislation containing section 434(f)(2)(F) expressly prohibited corporations and 

unions from engaging in electioneering communications. Indeed, “the precise 

question at issue” here arose only after the Supreme Court of the United States 

invalidated that prohibition as offensive to the First Amendment. See FEC v. 

Wisconsin Right To Life (“WRTL II”), 551 U.S. 449 (2007). See also Citizens 

United v. FEC, 130 S. Ct. 876 (2010). Further, the statute contains both a patent, 

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or textual, ambiguity, and a latent ambiguity that arose when the circumstances in 

which the statute was intended to operate changed markedly. For these reasons, 

the district court erred as a matter of law by refusing to defer to the FEC’s 

judgment.

The circumstances surrounding the FEC’s rule, 11 C.F.R. § 104.20(c)(9),

demonstrate the wisdom of allowing the agency charged with administering the 

statute to address these ambiguities. When enacted, section 434(f)(2)(F) required 

donor disclosure by a narrow class of organizations, including a minute category 

of non-stock, non-commercial, non-profit, political advocacy corporations. 

Following the Supreme Court’s decisions in WRTL II and Citizens United, the 

disclosure regime must address a vast range of multi-purpose, complex corporate 

and labor organizations, including multi-national corporations, trade associations, 

international unions, and public interest groups. Further, recent reports show that 

certain entities are using campaign finance disclosures for the purpose of 

intimidating and harassing politically active organizations and the donors to such 

organizations.

The current rule grew out of the expertise of the FEC in the political arena, 

and reflects its knowledge of and effort to account for these and other 

considerations. For these reasons, the district court erred in setting aside 11 

C.F.R. § 104.20(c)(9), and its order must be reversed.

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ARGUMENT

I. THE DISTRICT COURT MISAPPLIED CHEVRON.

The parties and the district court recognize that the framework set forth in 

Chevron controls this case. Plaintiff advocates and the district court ruled that 

judicial review need go no further than the first step of Chevron because 

“Congress spoke plainly” and “did not delegate authority to the FEC to narrow 

the disclosure requirements through agency rulemaking.” Mem. Op. at 31. To 

the contrary, Congress did not “directly address[] the precise question at issue” 

here because the statute contains a patent, or textual, ambiguity. In addition, 

Congress prohibited corporations and labor unions from making electioneering 

communications, but the Supreme Court struck down that prohibition. Thus, 

under Chevron, the FEC had discretion to issue a clarifying regulation, and 

properly exercised its rulemaking discretion.

A. Chevron Restricts Agency Discretion Only When Congress Has 

“Directly Addressed the Precise Question at Issue.”

In view of its determinative importance to this appeal, a clear 

understanding of Chevron is essential. Chevron’s precise holding is that the EPA 

acted within its delegated authority under the Clean Air Act by allowing States to 

employ a “bubble” concept for all pollution-emitting devices within the same 

industrial grouping, rather than just for individual plants. The Court set forth a 

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two step process for reviewing an agency’s construction of a statute that it 

administers. First, the Court must ask “whether Congress has directly spoken to 

the precise question at issue.” 467 U.S. at 843 (emphasis added). If Congress 

has not “directly addressed the precise question at issue,” then the Court must 

determine “whether the agency’s answer is based on a permissible construction of 

the statute.” Id. (emphasis added). In Chevron, the Court determined that 

“Congress did not actually have an intent regarding the applicability of the 

bubble concept to the permit program,” and concluded that the EPA’s use of the 

bubble concept “is a reasonable policy choice for the agency to make.” Id. at 845 

(emphasis added).

Even though the EPA had recently changed the regulation pursuant to a 

“Government-wide reexamination of regulatory burdens and complexities” 

undertaken by the Reagan Administration, id. at 857, the Court held:

An initial agency interpretation is not instantly carved in stone. On 

the contrary, the agency, to engage in informed rulemaking, must 

consider varying interpretations and the wisdom of its policy on a 

continuing basis. Moreover, the fact that the agency has adopted 

different definitions in different contexts adds force to the argument 

that the definition itself is flexible, particularly since Congress has 

never indicated any disapproval of a flexible reading of the statute.

Id. at 863-64 (emphasis added).

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Thus, in this case, the first question posed by Chevron is whether Congress 

“directly addressed the precise question at issue.” Put another way, has Congress 

“unambiguously foreclosed the agency’s statutory interpretation.” Village of 

Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 659 (D.C. Cir. 2011)

(quoting Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 35 (D.C. Cir. 2009)). It did 

not. As shown below, both Plaintiff and the district court concede that the statute 

as written is ambiguous in at least one respect. The district court seemed to 

assume, however, that the FEC’s initial construction of the statute in 2003 was 

sufficient, for all time and in all circumstances, to address that ambiguity. Mem.

Op. at 25 n.8 (FEC’s substitution of “donor who donated” for “contributors who 

contributed” “seems to ameliorate the concerns supposedly raised by the 

expansion of the statute’s reach to include corporations and unions”).

Even more pointedly, Congress could not have “addressed the precise 

question at issue,” that is, the extent to which persons engaging in electioneering 

communications must disclose their sources of funding. That is because the class 

of persons who may engage in such speech now is markedly different from and 

far more expansive than the class of speakers Congress believed it was addressing 

when it passed the disclosure provision. In the words of Chevron, “Congress did 

not actually have an intent” in this situation. 467 U.S. at 845.

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B. Congress Did Not Directly Address the Precise Question at Issue 

Here.

When Congress attempted to regulate “electioneering communications” in 

the BCRA, it prohibited all labor unions and virtually all corporations from

funding such communications. 2 U.S.C. § 441b(b)(2). Only a narrow and 

numerically small class of corporations, recognized by the Supreme Court in FEC 

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

engage in electioneering communications. The FEC deems these corporations 

“Qualified Nonprofit Corporations,” or “QNCs.” A corporation can qualify for 

QNC status only by meeting rigorous standards set forth in 11 C.F.R. § 114.10(c),

including, inter alia, being organized as a non-business, non-profit entity under 26 

U.S.C. § 501(c)(4) for the sole express purpose of promoting political ideas, with 

none of its funding from business or labor organizations.

Against that background, Congress imposed disclosure obligations on 

persons making electioneering communications. The portion of the statute at 

issue here requires disclosure of:

If the disbursements were paid out of funds not described in 

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

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

making the disbursement during the period beginning on the first day 

of the calendar year and ending on the disclosure date.

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2 U.S.C. § 434(f)(2)(F) (emphasis added). As the FEC recognized when it issued 

its initial regulation in 2003, the term “contribution” is a defined term in the 

Federal Election Campaign Act, meaning (in pertinent part) “any gift, 

subscription, loan, advance, or deposit of money or anything of value made by 

any person for the purpose of influencing any election for Federal office.” 2 

U.S.C. § 431(8)(A)(i) (emphasis added). See 68 Fed. Reg. 404, 412-413 (Jan. 3, 

2003).

The statute’s use of the term “contributors who contributed” creates a 

patent ambiguity in the statute. In opposing a stay of the lower court’s order, 

Plaintiff Van Hollen observed:

FECA’s definition of “contribution” includes any payment made “for 

the purpose of influencing any election for Federal office.” 2 U.S.C. 

§ 431(8). By contrast, the definition of “electioneering 

communications” includes communications that are not made “for 

the purpose of influencing any election for Federal office,” 

especially as that term has been narrowed by judicial interpretation; 

see id. § 434(f)(3); FEC v. Wisconsin Right to Life, Inc., 551 U.S. 

449, 457 (2007) (drawing line between “issue advocacy” and 

“express advocacy” and noting that “BCRA’s definition of 

‘electioneering communication’ is clear and expansive”). Thus, 

applying the FECA definition to BCRA’s disclosure provisions 

would not make sense.

Plaintiff-Appellee Van Hollen’s Opp. to Intervenors’ “Emergency Motions” for 

Stay, at 6-7 (filed 4/30/12) (emphasis added). Whether it would “make sense” to 

interpret the terms “contributor” and “contribute” in a way consonant with the 

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statutory definition of “contribution” is a debatable question. The key point is 

that the statute contains an ambiguity that Congress entrusted the FEC to resolve. 

To address that ambiguity in the circumstances presented in 2003, the FEC 

substituted a broader term, “donor who donated,” in place of “contributors who 

contributed” in its original regulation implementing section 434(f)(2)(F). See 68 

Fed. Reg. at 420 (prior version of 11 C.F.R. § 104.20(c)(8)).

The Supreme Court’s decision in WRTL II, however, changed the 

underlying assumption about who can make electioneering communications. 

WRTL II held, in an “as applied” challenge, that corporations and labor 

organizations may, in certain circumstances, fund electioneering communications. 

551 U.S. at 449. Whereas before WRTL II only the extremely limited class of 

corporations qualifying as QNCs, but no labor organizations, could engage in 

electioneering communications, WRTL II opened up the possibility that any 

domestic corporation or labor organization could do so. The Supreme Court’s 

ruling in Citizens United striking down the prohibitions on corporate and union 

advocacy reaffirmed and expanded upon this key point.

Thus, the Supreme Court’s ruling in WRTL II created the type of latent 

ambiguity due to an external event recognized in the famous case of Raffles v. 

Wichelhaus, 2 H. & C., 159 Eng. Rep. 375 (Ex. 1864). In Raffles, a seemingly 

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unambiguous contract for shipment of cotton on the ship “Peerless” was rendered 

ambiguous when the parties learned that two ships, both named “Peerless,” would 

be sailing from the same port. This unknown but material fact created a “latent 

ambiguity” in the contract. Courts recognize similar “latent ambiguities” in 

construing statutes that have “superficial clarity.” West v. Kerr-McGee Corp., 

765 F.2d 526, 530 (5th Cir. 1985) (turning to legislative history to resolve a latent 

ambiguity). As the Supreme Court observed in United States v. Morton, 467 U.S. 

822, 835 n. 21 (1984), “[l]itigation often brings to light latent ambiguities or 

unanswered questions that might not otherwise be apparent.”1

By vastly expanding the numbers, structures, and funders of organizations 

allowed to make electioneering communications, WRTL II created a latent 

ambiguity in the provision. Congress could not have “directly addressed the 

precise question at issue” here because it expressly and intentionally prohibited 

electioneering communications by the very types of entities, represented by the 

Intervenors, now most impacted by the disclosure regulations. In view of this 

 

1

 Plaintiff cites Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 

(1998), which held that the Americans with Disability Act applies to state 

prisoners, for the proposition that application of a statute in a situation not 

anticipated by Congress suggests breadth of the statute, not ambiguity. But Yeskey

is not relevant here: it involved a statute found to be unambiguous, did not 

address agency construction of a statute, and did not apply the Chevron analysis.

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absence of direction from Congress, the FEC’s responsibility was to determine 

how, if at all, the disclosure regime should be modified in light of this expansion.

Accordingly, after notice and allowing comment, the FEC issued a revised 

regulation on December 26, 2007, providing:

If the disbursements were made by a corporation or labor 

organization pursuant to 11 C.F.R. § 114.15(a), the name and 

address of each person who made a donation aggregating $1,000 or 

more to the corporation or labor organization, aggregating since the 

first day of the preceding calendar year, which was made for the 

purpose of furthering electioneering communications.

11 C.F.R. § 104.20(c)(9) (emphasis added). See 72 Fed. Reg. 72899, 72913 (Dec. 

26, 2007). The revised regulation drew on the intent aspects inherent in the 

congressional use of “contributors who contributed,” but used the term 

“donation” to expand that notion to fit the broader concept of electioneering 

communications.

The district court acknowledged a potential ambiguity in the terms 

“contribute” and “contributed.” Slip op at 25 n. 8.2 Further, the court seemed to 

 

2

 Nothing better illustrates the district court’s failure to defer to the FEC than its 

discussion of the meaning of the word “contributor.” See Mem. Op. at 22-28 & 

nn. 8-12. Even though the Federal Election Campaign Act defines the term 

“contribution,” 2 U.S.C. § 431(8)(A)(i), and vests administration of the Act in the 

FEC, id. §§ 437c(b)(1), 437d(a)(8), the district court defined the term for itself. 

(continued...)

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accept that in 2003, when the FEC issued its original regulation, the agency acted 

within its authority by substituting “donor” and “donated” for those terms. See 68 

Fed. Reg. 404, 413, 420 (Jan. 3, 2003). The district court erroneously assumed, 

however, that the FEC’s original solution for the ambiguity “had already 

narrowed the universe” and “nothing about WRTL made the existing regulations

ineffective.” Mem. Op. at 25 n.8. In sum, the lower court assumed that the FEC 

was precluded from revisiting its original construction, even in response to 

intervening events.

Chevron rejected those propositions, holding that “[a]n initial agency 

interpretation is not instantly carved in stone,” and that “to engage in informed 

rulemaking,” an agency is not merely authorized but “must consider varying 

interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 

 

Rather than define “contributor” consistent with the statutory definition of 

“contribution,” however, the court invoked the Oxford English Dictionary,

Merriam-Webster Dictionary, and a hypothetical conceived by plaintiff's counsel 

to find a “plain meaning” at odds with the FEC’s construction. By doing so, the 

district court usurped the FEC’s authority to construe the statute.

In any event, the discussions by the district court and plaintiff’s counsel do not 

address the difficult aspects of this issue. Is someone who pays membership dues 

to an organization a “contributor” or a “purchaser” of a membership? Is the 

policy of disclosing persons who fund advocacy furthered by requiring disclosure 

of donors who do not intend their donations to be used for electioneering 

communications? Resolution of these issues is within the domain of the FEC.

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U.S. at 863-64 (emphasis added). In Chevron, the Supreme Court deferred to an 

EPA revision of a regulation even though the only change between the old and 

new versions was a mandate for broad regulatory review by the Reagan 

Administration.3 Thus, even without the intervening change in law effected by 

WRTL, the FEC has authority to revisit its regulations “on a continuing basis” 

when it, in its expert judgment, believes appropriate.

WRTL did intervene, however. Reasonable minds might disagree, perhaps, 

about whether WRTL II sufficiently altered the electioneering communications 

landscape to merit reconsideration of the disclosure regulation. But that was the 

FEC’s judgment to make. By substituting its own judgment that “nothing about 

WRTL made the existing regulations ineffective,” Mem. Op. at 25 n.8, the district 

court invaded the agency’s area of expertise and overstepped its judicial 

prerogative.

 

3

See also Nat’l Cable & Telecomm. Assn. v. Brand X Internet Services, 545 U.S. 

967, 981 (2005) (“Some of the respondents dispute this conclusion [that Chevron

deference was owed], on the ground that the Commission’s interpretation is 

inconsistent with its past practice. We reject this argument. Agency 

inconsistency is not a basis for declining to analyze the agency’s interpretation 

under the Chevron framework.”); id. at 981-82 (“[I]n Chevron itself, this Court 

deferred to an agency interpretation that was a recent reversal of agency policy.”).

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To justify its decision, the district court observed that Congress expected 

some corporations—QNCs—to make electioneering communications. Mem. Op. 

at 18. As confirmed by the hue and cry of campaign finance reform advocates in 

response to WRTL II and later Citizens United, however, the recent expansion of 

corporate and union funding for electioneering communications is an epochal 

event in the campaign finance world, and the lower court’s dismissal of this 

expansion as having no effect on the disclosure regulations is shocking. 

Certainly, the FEC was within its discretion in concluding that a disclosure 

regulation appropriate for a small class of single-purpose and simply-organized 

QNCs is not appropriate for multi-purpose, complex commercial corporations, 

trade associations, public interest organizations, and labor unions.

The textual ambiguity created by BCRA’s use of “contributors who 

contributed,” and the latent ambiguity created by WRTL II, demonstrate that 

Congress did not address the precise question at issue. Thus, the FEC was within 

its delegated authority in recognizing that its earlier interpretation of 2 U.S.C. § 

434(f)(2)(F) was “not instantly carved in stone,” and thus revisiting “the wisdom 

of its policy” in view of the dramatic expansion of allowable electioneering 

communications. Chevron, 467 U.S. at 863-64.

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C. The FEC Acted Within Its Discretion in Revising Its Regulation.

Having concluded improperly that the FEC violated the statute by 

undertaking any revision of 11 C.F.R. § 104.20(c)(9), the district court did not 

decide whether the FEC’s revision was within its broad zone of discretion. Mem. 

Op. at 2. To make that determination, this Court asks whether the agency’s 

policy choice will “frustrate the policy that Congress sought to implement.” 

Shays v. FEC, 528 F.3d 914, 919 (D.C. Cir. 2008) (citations omitted). As shown, 

Congress did not anticipate the need for disclosure by commercial corporations, 

trade associations, labor unions, and the array of other entities now entitled to 

make electioneering communications, so the FEC undertook notice and comment 

rulemaking to assess what donor disclosures would be appropriate in this new 

context.

The FEC reported that “[a]ll commenters who addressed disclosure of 

[electioneering communications] stated that corporations and labor unions should 

not be required to report the sources of funds that made up their general treasury 

funds.” 72 Fed. Reg. at 72899 (Dec. 26, 2007). Other commenters argued 

against disclosure of persons paying membership dues, for limiting disclosures by 

nonprofit corporations to the ones made to the Internal Revenue Service, and 

against disclosure of “investors, customers, and donors [who] do not necessarily 

support the corporation’s electioneering communications.” Id. at 72911. The 

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FEC also considered the “significant burden of disclosing the identities of the vast 

numbers of customers, investors, or members, who have provided funds for 

purposes entirely unrelated to the making of [electioneering communications.]” 

Id. Taking all these considerations into account, the FEC “determined that the 

policy underlying the disclosure provisions of BCRA is properly met by requiring 

corporations and labor organizations to disclose and report only those persons 

who made donations for the purpose of funding [electioneering 

communications].” Id. (emphasis added).

As the FEC had observed when it issued the original regulation in 2003, 

section 434(f)(2)(F) used the terms “contributors who contribute.” Those terms 

reasonably imply a connection to the statutory term “contribution,” which is 

defined as a donation “for the purpose of influencing a federal election.” In view 

of this word choice by Congress, the FEC was within its discretion in making “a 

reasonable policy choice” by including an element of purposefulness for the 

donations being made. See Chevron, 467 U.S. at 845 (upholding EPA’s 

“reasonable policy choice” in the absence of a congressional directive). By 

adding the phrase “for the purpose of furthering electioneering communications” 

the FEC made the disclosure parallel to other disclosure provisions in FECA and 

the regulations. See, e.g., 11 C.F.R. § 102.6(b)(2) (collecting agent must report 

only if it makes expenditures or contributions “for the purpose of influencing 

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federal elections”); id. § 100.83(c)(4) (advances from candidate’s brokerage 

account need not be reported unless “for the purpose of influencing the 

candidate’s election for Federal office”); id. § 109.10(e)(vi) (reporting of persons 

who contribute to an independent expenditure committee “for the purpose of 

furthering the reported independent expenditure.”).

As the FEC recognized, corporations and unions typically have multiple 

sources of funding. See supra page 16. Some sources may or may not be from

“contributors who contributed.” Others bear little relation to electioneering 

communications because the contributor may not support or even know about the

electioneering communications. The FEC’s targeted approach fulfills the goal of 

disclosing persons or entities directly involved in funding electioneering 

communications without imposing unnecessary burden. Compare Continental 

Air Lines, Inc. v. Department of Transportation, 843 F.2d 1444, 1455 (D.C. Cir. 

1988) (“We cannot say, therefore, that the agency’s interpretation would frustrate 

the policies of Congress embraced in enacting [the amendment] or is ‘patently 

inconsistent’ with statutory mandate.”).

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II. THE DISCLOSURES ADVOCATED BY PLAINTIFF RAISE 

SERIOUS FIRST AMENDMENT CONCERNS.

The district court accepted Plaintiffs’ erroneous assumption that any and 

all disclosure requirements on political speakers are per se valid.4 No precedent 

supports this dangerous proposition. Although the Supreme Court has often 

approved disclosure requirements, it has done so with the caveat that such 

requirements are permissible only so long as they do not have a tendency to 

suppress speech. The FEC’s disclosure regulation better comports with First 

Amendment concerns than the regulation advocated by Plaintiff Van Hollen.

A. Disclosure Requirements Are Limited by the First Amendment.

The district court observed that the Supreme Court upheld 2 U.S.C. 

§ 434(f)(1) against a First Amendment attack in Citizens United. See Mem. Op. 

at 29 (citing 130 S. Ct. at 914-16). When the Supreme Court upheld Section 

434(f)(1) in Citizens United, however, the regulation at issue here had been in 

 

4

 The lower court suggested that First Amendment considerations were not 

properly before it because the Intervenors had not filed a complaint or 

counterclaim asserting them, and the FEC “has no authority . . . to ‘save’ statutes 

by promulgating regulations that contravene the plain language of the statue.” 

Mem. Op. at 29. It is basic that FEC Commissioners, having sworn to uphold the 

Constitution, must act in accordance with its provisions, including the First 

Amendment. See Marbury v. Madison, 5 U.S. 137, 179-80 (1803). Moreover, it 

is the Plaintiff that is challenging the regulation; Intervenors had no obligation to 

assert a First Amendment “claim” for the hypothetical situation that will exist if 

the regulation is invalidated.

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effect for over three years, and this Court must assume the Supreme Court was 

aware of the FEC’s regulatory interpretation. Moreover, the constitutionality of 

the statute is not at issue here; it is the way Plaintiff wants the statute 

implemented through the regulation that raises First Amendment concerns.

More important, the Court in Citizens United held section 434(f)(1) was 

“valid as applied to the ads for the movie and to the movie itself,” that were at 

issue in that case. 130 S. Ct. at 914 (emphasis added). But the Court reiterated its 

warning from Buckley v. Valeo, 424 U.S. 1, 74 (1976), that disclosure 

requirements may, indeed, run afoul of the First Amendment, noting that “asapplied challenges would be available if a group could show a reasonable 

probability” that disclosure of contributor names “will subject [the contributors] 

to threats, harassment, or reprisals from either Government officials or private 

parties.” 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 74, internal quotation 

marks omitted). Later, the Court cited McConnell v. FEC, 540 U.S. 93 (2003),

for this same principle: “In McConnell, the Court recognized that § 201 would be 

unconstitutional as applied to an organization if there were a reasonable 

probability that the group’s members would face threats, harassment, or reprisals 

if their names were disclosed.” 130 S. Ct. at 916. This is yet another reason the 

Court must defer to the expertise of the FEC to determine how much disclosure is 

appropriate in these circumstances.

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Although disclosure requirements “impose no ceiling on campaign related 

activities,” Buckley, 424 U.S. at 64 (quoted in Citizens United, 130 S. Ct. at 914), 

they are not immune to First Amendment review. They are subject to “exacting 

scrutiny,” which requires a “substantial relation” between the disclosure 

requirement and a “sufficiently important” government interest. Citizens United, 

130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66). Plaintiff’s demand for 

disclosure of every “donor” to an organization making electioneering 

communications, regardless of the individual donor’s purpose in giving, would 

not inform the public about persons engaged in political debate.

Moreover, as this Court recently said, if a group can show that a risk of 

retaliation is “likely to affect adversely the ability of the [group] and its members 

to pursue their collective effort to foster beliefs which admittedly they have the 

right to advocate,” then the government can justify the disclosure requirement 

“only by demonstrating that it directly serves a compelling state interest.” AFLCIO v. FEC, 333 F.3d 168, 176 (D.C. Cir. 2003) (internal quotations omitted). 

See also SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (“Disclosure 

requirements . . . burden First Amendment interests because ‘compelled 

disclosure, in itself, can seriously infringe on privacy of association and belief.’”) 

(quoting Buckley, 424 U.S. at 64).

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If a disclosure requirement has the intent or effect of suppressing speech, it 

may not stand under traditional First Amendment analysis. See Citizens United, 

130 S. Ct. at 898 (“[P]olitical speech must prevail against laws that would 

suppress it, whether by design or inadvertence”). First Amendment protection is 

especially strong here, because electioneering communications are by definition 

independent speech, not coordinated with any candidate or party. The Supreme 

Court held in Citizens United that this form of speech has no tendency to corrupt, 

and this Court held in Emily’s List v. FEC, 581 F.3d 1, 18 (D.C. Cir. 2009), that 

donations to groups engaging in independent speech have no potential to corrupt. 

As this Court put it in SpeechNow.org, 599 F.3d at 696, “because Citizens United

held that independent expenditures do not corrupt or give the appearance of 

corruption as a matter of law, then the government can have no anti-corruption 

interest in limiting contributions to independent expenditure-only organizations.”5 

If the independent speech has no potential to corrupt, and donations to the speaker 

have no potential to corrupt, any anti-corruption purpose of disclosing the identity 

 

5

SpeechNow.org upheld disclosure requirements by an independent group after 

noting that “SpeechNow . . . intends to comply with the disclosure requirements 

applicable to those who make independent expenditures,” and that “the additional 

reporting requirements that the FEC would impose on SpeechNow if it were a 

political committee are minimal.” 599 F.3d at 697. Here, Plaintiff Van Hollen 

seeks a radical increase of disclosure, which SpeechNow does not support.

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of those donors is attenuated at best. The FEC’s targeted approach to disclosure 

fulfills the goal of informing the public about donors supporting the 

electioneering communications with the minimum imposition on the donors’ First 

Amendment rights of privacy, association, and speech.

B. Plaintiff’s Demand for Greater Disclosure Threatens To 

Suppress Core Political Speech.

This case is fundamentally different from earlier disclosure cases. The 

disclosure requirements previously reviewed by the Court had a good faith intent 

to inform the public. Immediately after the Supreme Court’s decision in Citizens 

United, however, Plaintiff Van Hollen announced that he, Senator Charles 

Schumer, and others would “make sure [they] do everything possible to make 

sure [the] decision does not stand.” Press Release, Van Hollen Remarks on 

Supreme Court Ruling in Citizens United Case (Jan. 21, 2010). Three months 

later, he and Senator Schumer held a press conference entitled, “Legislation to 

Minimize Corporate Spending in Elections After Supreme Court’s Ruling in 

Citizens United.” (April 29, 2010) (emphasis added). The legislation announced 

at that press conference, known as the DISCLOSE Act, would impose disclosure 

obligations similar to the ones Plaintiff advocates here. The press release said the 

bill would “mandate an unprecedented level of disclosure not only of an 

organization’s spending but also its donors.” See, e.g., Press Release, Senator 

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Jeanne Shaheen, “Shaheen Cosponsors Legislation That Would Blunt Citizens 

United Ruling,” (April 29, 2010) (emphasis added). During the press conference, 

Senator Schumer predicted that if the donor disclosure provisions were enacted, 

corporate political expenditures would “shrivel up” and corporations “won't do 

them.” Jim Abrams, “Lawmakers Call for Restrictions on Political Ads,” 

Associated Press (April 29, 2010). Senator Schumer warned that “the deterrent 

effect [of the disclosure requirements] should not be underestimated.” Jess 

Bravin and Brody Mullins, “New Rules Proposed on Campaign Donors,” Wall 

Street Journal (February 12, 2010) (emphasis added).

Notwithstanding the high rhetoric about “the public’s right to know,” one 

motive behind the demand for increased disclosure, and perhaps a dominant 

motive, is not more information for the public, but less political speech from 

adversaries.

C. Recent Experience Shows that Political Adversaries Abuse 

Donor Disclosures.

Many recent reports show a concerted effort to harass and intimidate 

persons who are using the rights protected by Citizens United to engage in 

political speech. Media Matters has announced that its staff “will systematically 

review the independent expenditure reports provided to the FEC,” and use the 

disclosures of corporate donors to those efforts to “create a multitude of public 

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relations challenges for corporations that make the decision to meddle in political 

campaigns.” Media Matters, 2012: A Three Year Campaign 82-83 (2009). 

“Working with allied organizations,” Media Matters intends “to provoke 

backlashes among companies’ shareholders, employees, and customers, and the 

public-at-large.” Id. at 83 (emphasis added). 

Disclosure of donors by Restore Our Future, an independent political 

advocacy organization supporting Mitt Romney’s candidacy for President, led to 

a highly publicized attack on the donors by Obama for America. See “Behind the 

Curtain: A brief history of Romney’s donors,” Obama for America (April 20, 

2012), available at http://www.barackobama.com/truth-team/entry/behind-thecurtain-a-brief-history-of-romneys-donors. Kimberly Strassel of the Wall Street 

Journal has reported that a former Democratic Senate staffer has recently called 

an Idaho courthouse to peruse the divorce records of one of Restore Our Future’s 

donors. Kimberly Strassel, “Trolling the President’s List,” The Wall Street 

Journal (May 11, 2012), available at online.wsj.com. Rolling Stone magazine 

ran an “exposé” of donors to Restore Our Future, revealing their businesses and 

home addresses, and reviling them with epithets like “the pyramid schemer” and 

“the tax dodger.” Tim Dickinson, “Right-Wing Billionaires Behind Mitt 

Romney,” Rolling Stone (May 24, 2012), available at www.rollingstone.com. 

See also Jia Lynn Yang and Dan Eggen, “Exercising New Ability to Spend on 

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Campaigns, Target Finds Itself a Bull’s-eye,” Washington Post, August 19, 2010

(recounting backlash against Target for donating to an advocacy organization).

Far from an effort to inform the public, the demand for greater donor 

disclosure from organizations exercising the rights recognized in WRTL II and 

Citizens United represents an effort to suppress legitimate political debate. The 

FEC’s revised regulation fulfills the purpose of section 434(f)(2)(F) of identifying 

contributors who support electioneering communications, while avoiding the 

overdisclosure of persons and entities involved only tangentially, or not at all, 

with these communications.

CONCLUSION

For the reasons set forth above and in the briefs of the Intervenors, Amicus 

Senator Mitch McConnell urges the Court to reverse the district court’s order and 

remand for dismissal of Plaintiff's complaint.

June 21, 2012 Respectfully submitted,

/s/Bobby R. Burchfield

Bobby R. Burchfield (D.C. Bar No. 289124)

E-mail: bburchfield@mwe.com

Michael S. Stanek (D.C. Bar No.999836)

E-mail: mstanek@mwe.com

MCDERMOTT WILL & EMERY LLP 

600 Thirteenth Street, NW

Washington, DC 20005

(202) 756-8000

Counsel for Senator Mitch McConnell

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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of the Court’s 

May 25, 2012, Order because this brief contains 5,590 words, excluding the parts 

of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. 

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because 

this brief has been prepared in a proportionally spaced typeface using Microsoft 

Word 2003 in Times New Roman, 14-point type.

/s/ Bobby R. Burchfield

Bobby R. Burchfield

Counsel for Senator Mitch McConnell

Dated: June 21, 2012

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CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of June 2012, I caused a copy of the 

foregoing BRIEF OF MITCH MCCONNELL, UNITED STATES SENATOR to 

be served on the following counsel through this Court’s electronic filing system 

and/or by electronic mail:

Roger M. Witten

 roger.witten@wilmerhale.com

Fiona J. Kaye

 fiona.kaye@wilmerhale.com

Christine D. Ely

 christine.ely@wilmerhale.com

Wilmer Cutler Pickering Hale and

Dorr LLP

399 Park Avenue

New York, NY 10022

212-230-8800

Edward C. DuMont

 edward.dumont@wilmerhale.com

Wilmer Cutler Pickering Hale and

Dorr LLP

1875 Pennsylvania Avenue, N.W.

Washington, DC 20006

202-663-6000

Fred Wertheimer

 fwertheimer@democracy21.org

Democracy 21

2000 Massachusetts Avenue, N.W.

Washington, DC 20036

202-355-9610

Donald J. Simon

 DSimon@sonosky.com

Sonosky Chambers Sachse

Endreson & Perry, LLP

1425 K Street, N.W., Suite 600

Washington, DC 20005

202-682-0240

Scott L. Nelson

 snelson@citizen.org

Public Citizen

Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

202-588-1000

USCA Case #12-5117 Document #1380171 Filed: 06/21/2012 Page 36 of 45
- 29 -

Harry Jacobs Summers

 hsummers@fec.gov

Holly Jean Baker

 hbaker@fec.gov

David Brett Kolker

 dkolker@fec.gov

Federal Election Commission

999 E Street, NW

Washington, DC 20463

202-694-1650

Jason Brett Torchinsky

 jtorchinsky@hvjlaw.com

Michael Bayes

 jmbayes@hvjlaw.com

Christopher Winkelman

 cwinkelman@hvjlaw.com

Holtzman Vogel Josefiak, PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

540-341-8808

Jan Witold Baran 

 jbaran@wileyrein.com

Thomas W. Kirby 

 tkirby@wileyrein.com

Caleb P. Burns

 cburns@wileyrein.com

Andrew G. Woodson 

 awoodson@wileyrein.com

WILEY REIN LLP

1776 K St., NW

Washington, D.C. 20006

202.719.7000

Trevor Potter

TPotter@campaignlegalcenter.org

J. Gerald Hebert

GHebert@campaignlegalcenter.org

Paul S. Ryan

PRyan@campaignlegalcenter.org

Tara Malloy

TMalloy@campaignlegalcenter.org

Campaign Legal Center

215 E Street, N.E.

Washington, DC 20002

202-736-2200

/s/ Bobby R. Burchfield

Bobby R. Burchfield

Counsel for Senator Mitch McConnell

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A- 1

-ADDENDUM OF STATUTES AND REGULATIONS

TABLE OF CONTENTS

Federal Statutes Page

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

2 U.S.C. § 434(f)(1), (2)(F)...................................................................A-2

2 U.S.C. § 437(c)(b)(1).........................................................................A-4

2 U.S.C. § 441(b)(2) .............................................................................A-5

26 U.S.C. § 501(c)(4)............................................................................A-6

Federal Rules Page

11 C.F.R. § 100.83(c)(4).......................................................................A-6

11 C.F.R. § 102.6(b)(2).........................................................................A-7

11.C.F.R. § 104.20 (c)(9)......................................................................A-7

11 C.F.R. § 109.10 (e)(vi).....................................................................A-6

11 C.F.R. §114.15 (a)............................................................................A-8

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2 U.S.C. § 431. Definitions.

* * *

(8)(A) The term “contribution” includes--

(i) any gift, subscription, loan, advance, or deposit of money or anything of 

value made by any person for the purpose of influencing any election for 

Federal office; or

2 U.S.C. § 434. Reporting Requirements.

* * *

(f) Disclosure of electioneering communications

(1) Statement required

Every person who makes a disbursement for the direct costs of producing 

and airing electioneering communications in an aggregate amount in excess 

of $10,000 during any calendar year shall, within 24 hours of each 

disclosure date, file with the Commission a statement containing the 

information described in paragraph (2).

(2) Contents of Statement

Each statement required to be filed under this subsection shall be made 

under penalty of perjury and shall contain the following information:

* * *

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

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

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

making the disbursement during the period beginning on the first 

day of the preceding calendar year and ending on the disclosure 

date. 

* * *

(3) Electioneering communication

For purposes of this subsection--

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(A) In general

(i) The term “electioneering communication” means any 

broadcast, cable, or satellite communication which--

(I) refers to a clearly identified candidate for Federal office;

(II) is made within--

(aa) 60 days before a general, special, or runoff election 

for the office sought by the candidate; or

(bb) 30 days before a primary or preference election, or 

a convention or caucus of a political party that has 

authority to nominate a candidate, for the office sought 

by the candidate; and

(III) in the case of a communication which refers to a 

candidate for an office other than President or Vice 

President, is targeted to the relevant electorate.

* * *

(B) Exceptions

The term “electioneering communication” does not include--

* * *

(ii) a communication which constitutes an expenditure or an 

independent expenditure under this Act;

* * *

(iv) any other communication exempted under such 

regulations as the Commission may promulgate (consistent 

with the requirements of this paragraph) to ensure the 

appropriate implementation of this paragraph, except that 

under any such regulation a communication may not be 

exempted if it meets the requirements of this paragraph and is 

described in section 431(20)(A)(iii) of this title. 

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(C) Targeting to relevant electorate

For purposes of this paragraph, a communication which refers to a 

clearly identified candidate for Federal office is “targeted to the 

relevant electorate” if the communication can be received by 50,000 

or more persons--

(i) in the district the candidate seeks to represent, in the case of 

a candidate for Representative in, or Delegate or Resident 

Commissioner to, the Congress; or

(ii) in the State the candidate seeks to represent, in the case of 

a candidate for Senator. 

2 U.S.C. § 437c. Federal Election Commission.

* * *

(b) Administration, enforcement, and formulation of policy; exclusive jurisdiction 

of civil enforcement; Congressional authorities or functions with respect to 

elections for Federal office

(1) The Commission shall administer, seek to obtain compliance with, and 

formulate policy with respect to, this Act and chapter 95 and chapter 96 of 

Title 26. The Commission shall have exclusive jurisdiction with respect to 

the civil enforcement of such provisions.

2 U.S.C. § 437d. Powers of Commission.

* * *

(a) Specific authorities

The Commission has the power--

* * *

(8) to develop such prescribed forms and to make, amend, and repeal such 

rules, pursuant to the provisions of chapter 5 of Title 5, as are necessary to 

carry out the provisions of this Act and chapter 95 and chapter 96 of Title 

26; and

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2 U.S.C. § 441b. Contributions or expenditures by national banks, 

corporations, or labor organizations.

(a) In general

It is unlawful for any national bank, or any corporation organized by authority of 

any law of Congress, to make a contribution or expenditure in connection with 

any election to any political office, or in connection with any primary election or 

political convention or caucus held to select candidates for any political office, or

for any corporation whatever, or any labor organization, to make a contribution 

or expenditure in connection with any election at which presidential and vice 

presidential electors or a Senator or Representative in, or a Delegate or Resident 

Commissioner to, Congress are to be voted for, or in connection with any 

primary election or political convention or caucus held to select candidates for 

any of the foregoing offices, or for any candidate, political committee, or other 

person knowingly to accept or receive any contribution prohibited by this 

section, or any officer or any director of any corporation or any national bank or 

any officer of any labor organization to consent to any contribution or 

expenditure by the corporation, national bank, or labor organization, as the case 

may be, prohibited by this section. 

(b) Definitions; particular activities prohibited or allowed

* * *

(2) For purposes of this section and section 791(h) of Title 15, the term 

“contribution or expenditure” includes a contribution or expenditure, as 

those terms are defined in section 431 of this title, and also includes any 

direct or indirect payment, distribution, loan, advice, deposit, or gift of 

money, or any services, or anything of value (except a loan of money by a 

national or State bank made in accordance with the applicable banking 

laws and regulations and in the ordinary course of business) to any 

candidate, campaign committee, or political party or organization, in 

connection with any election to any of the offices referred to in this section 

or for any applicable electioneering communication, but shall not include 

(A) communications by a corporation to its stockholders and executive or 

administrative personnel and their families or by a labor organization to its 

members and their families on any subject; (B) nonpartisan registration and 

get-out-the-vote campaigns by a corporation aimed at its stockholders and 

executive or administrative personnel and their families, or by a labor 

organization aimed at its members and their families; and (C) the 

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A- 6

establishment, administration, and solicitation of contributions to a separate 

segregated fund to be utilized for political purposes by a corporation, labor 

organization, membership organization, cooperative, or corporation 

without capital stock.

26 U.S.C. § 501. Exemption from tax on corporations, certain trusts, etc.

* * *

(c) List of exempt organizations. The following organizations are referred to in 

subsection (a)

(4) (A) Civic leagues or organizations not organized for profit but operated 

exclusively for the promotion of social welfare, or local associations of 

employees, the membership of which is limited to the employees of a 

designated person or persons in a particular municipality, and the net 

earnings of which are devoted exclusively to charitable, educational, or 

recreational purposes. 

(B) Subparagraph (A) shall not apply to an entity unless no part of the net 

earnings of such entity inures to the benefit of any private shareholder or 

individual.

11 C.F.R. § 100.83. Brokerage loans and lines of credit to candidates.

* * *

(c) Routine living expenses

(1) A loan derived from an advance on a candidate’s brokerage account, 

credit card, home equity line of credit, or other line of credit available to 

the candidate, that is used by the candidate solely for routine living 

expenses, as described in 11 CFR 100.153, does not need to be reported 

under 11 CFR part 104 provided that the loan, advance, or line of credit is 

repaid exclusively from the personal funds of the candidate or payments 

that would have been made irrespective of the candidacy pursuant to 11 

CFR 113.1(g)(6). 

(4) Notwithstanding paragraph (c)(1) of this section, the portion of any loan 

or advance from a candidate’s brokerage account, credit card account, 

home equity line of credit, or other line of credit that is used for the 

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A- 7

purpose of influencing the candidate’s election for Federal office shall be 

reported under 11 CFR part 104.

11 C.F.R. § 102.6. Transfers of funds; collecting agents.

(b) Fundraising by reporting agents; No reporting required--

* * *

(2) Collecting agent not required to report. A collecting agent that is an 

unregistered organization and that follows the procedures of 11 CFR 

102.6(c) is not required to register and report as a political committee under

11 CFR parts 102 and 104,, provided that the organization does not engage 

in other activities such as making contributions or expenditures for the 

purpose of influencing Federal elections.

11 C.F.R. § 104.20. Reporting electioneering communications.

* * *

(c) Contents of statement. Statements of electioneering communications filed 

under paragraph (b) of this section shall disclose the following information:

* * *

(9) If the disbursements were made by a corporation or labor organization 

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

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

organization, aggregating since the first day of the preceding calendar year, 

which was made for the purpose of furthering electioneering 

communications. 

11 C.F.R. § 109.10. How do political committees and other persons 

report independent expenditures?

* * *

(e) Content of verified reports and statements and verification of reports and 

statements.

* * *

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(vi) The identification of each person who made a contribution in 

excess of $200 to the person filing such report, which contribution 

was made for the purpose of furthering the reported independent 

expenditure. 

11 C.F.R. § 114.15. Permissible use of corporate and labor organization 

funds for certain electioneering communications.

* * *

(a) Corporations and labor organizations may make an electioneering 

communication, as defined in 11 CFR 100.29, to those outside the restricted class 

unless the communication is susceptible of no reasonable interpretation other than 

as an appeal to vote for or against a clearly identified Federal candidate.

USCA Case #12-5117 Document #1380171 Filed: 06/21/2012 Page 45 of 45