IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CHRISTOPHER VAN HOLLEN, JR., 

v. 

Appellee 

 No. 12-5117 

FEDERAL ELECTION COMMISSION, 

Appellant, 

and 

CENTER FOR INDIVIDUAL 

FREEDOM, 

Appellant, 

and 

HISPANIC LEADERSHIP FUND, 

Appellant.

HISPANIC LEADERSHIP FUND’SREPLY TO APPELLEE’S 

OPPOSITION TO EMERGENCY MOTIONFOR 

STAY OF DISTRICT COURT ORDER 

May 2, 2012 

Jason Torchinsky (Bar No. 976033) 

jtorchinsky@hvjlaw.com 

Holtzman Vogel Josefiak PLLC 

45 North Hill Drive 

Suite 100 

Warrenton, VA 20186 

Tel: (540) 341-8808 

Fax: (540) 341-8809 

Counsel for Hispanic Leadership 

Fund 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 1 of 28
1 

SUMMARY AND LEGAL STANDARD

Hispanic Leadership Fund (HLF) presents this reply in support of its 

emergency motion for stay of the District Court for the District of Columbia’s 

order. See No. 11-cv-0766, Dkt. No. 60; Van Hollen v. FEC, 2012 U.S. Dist. 

LEXIS 44342 (D.D.C. Mar. 30, 2012). HLF relies on the arguments presented in 

the emergency motions, and additionally provides its reply to Appellee’s 

opposition. 

HLF reiterates that this Court’s stay of the district court’s order is wellsupported by the following four factors that guide the Court’s exercise of 

discretion: “(1) whether the stay applicant has made a strong showing that he is 

likely to succeed on the merits; (2) whether the applicant will be irreparably 

injured absent a stay; (3) whether issuance of the stay will substantially injure the 

other parties interested in the proceeding; and (4) where the public interest lies.” 

Nken v. Holder, 556 U.S. 418, 426 (2009) (internal citation omitted). 

Appellee contends that this Court should reject HLF’s arguments because 

the district court rejected similar arguments.1

 Opposition at 5. Appellee errs by 

disregarding the standard of review. This Court reviews the district court’s 

 

1

Appellee cites to In re Special Proceedings, 2012 U.S. Dist. LEXIS 34693, at *2 

(D.D.C. Feb. 27, 2012) to support this position. However, that case involved a 

district court’s decision to not repeat its review of arguments already made to that 

same district court in a separate motion. In the case at hand, HLF submits its 

arguments for this Court’s initial consideration. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 2 of 28
2 

analysis of the stay factors under the abuse of discretion standard. See Ark. Dairy 

Coop. Ass’n v. U.S. Dept. of Agric., 573 F.3d 815, 821 (D.C. Cir. 2009) (discussing 

the standard of review in the context of a district court denial of motion for 

preliminary injunction). However, “[t]o the extent the district court’s decision 

hinges on questions of law, [] this [C]ourt’s review is essentially de novo.”See id. 

(citing Serono Lab., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir 1998)). 

ARGUMENT

I. THE PRESENCE OF A NOVELQUESTION OF LAW WEIGHS IN 

FAVOR OF GRANTING A STAY PENDING APPEAL 

The specific novel and serious legal question here is what happens when a 

court explicitly permits that which Congress has explicitly forbidden by 

invalidating a portion of a statute, excising that portion of the statute, while leaving 

in place a corollary provision specifically designed to work in conjunction with the 

invalidated and excised provision.2

The district court recognized that this case 

presents “what appears to be a novel question,” and ultimately resolved that novel 

question under the first step of the Chevron analysis. Van Hollen, 2012 U.S. Dist. 

 

2

 The Supreme Court appears to have a similar issue pending before it in Florida v. 

U.S. Dept. of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011), cert. 

granted and National Federation of Independent Business v. Sebelius, 80 U.S.L.W. 

3297 (U.S. Nov. 14, 2011) (No. 11-393), cert. granted. The question of 

severability and the Court’s role in potentially excising certain provisions and 

considering what to do with the remainder of the statutory scheme are at issue in 

those cases. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 3 of 28
3 

LEXIS 44342, at *1, 16 (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984)). 

The Appellee contends, without any supporting authority, that this Court 

should disregard the presence of this novel question of law because “the [d]istrict 

[c]ourt did not say that the question was a close one.” Opposition at 5. However, 

in considering the issuance of a stay, courts have simply considered whether a 

novel question of law exists while gauging the likelihood of success on the merits. 

See Maqaleh v. Gates, 620 F.Supp. 2d 51, 56 (D.D.C. 2009) (“The issues presented 

are novel and weighty . . . . It follows, then, that these cases present serious legal 

questions . . . [that are] so serious, substantial, [and] difficult as to make them a fair 

ground for litigation.”) (internal citations omitted). Given the nature of the claims 

at stake in this matter, the novel question presented warrants further consideration 

at the appellate level, and this, in turn, weighs in favor of this Court staying the 

district court’s order. 

The presence of a novel, weighty, and difficult legal question weighs in 

favor of a stay. See Washington Metro. Area Transit Comm’n v. Holiday Tours, 

Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (“tribunals may properly stay their own 

orders when they have ruled on an admittedly difficult legal question . . .”). The 

novel nature of the legal question on appeal indicates that the difficulty involved in 

resolving the question may not be easily ascertained. Appellee suggests that it is 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 4 of 28
4 

somehow relevant that the district court “did not say that the question was a close 

one.” The district court “did not say” many things; it did, however, acknowledge 

the FEC’s “most compelling argument.” Van Hollen, 2012 U.S. Dist. LEXIS 

44342, at *16. Furthermore, it is simply not the case, as Appellee suggests, that a 

case resolved on grounds of Chevron step one is necessarily an “easy” case where 

different courts could not possibly reach different conclusions. 

Appellee asserts that “[g]ranting a stay and allowing the unlawful regulation 

to remain in place would thwart Congress’s plain intent in enacting BCRA § 201, 

thereby depriving the public of crucial information to which it is entitled under the 

law.” However, the novel legal question presented here carries such great weight, 

in significant part because “Congress’s plain intent” in enacting BCRA § 201 – to 

bar corporations and labor unions from engaging in this variety of political speech 

– was deemed unconstitutional.

II. APPELLE ASSERTS THE INCORRECT STANDARD FOR 

COMPELLED DISCLOSURE AND EXAGGERATES POTENTIAL 

PUBLIC HARM 

Appellee cites language from Citizens United v. FEC, 130 S. Ct. 876, 895 

(2010), to suggest that any and all disclosure is valid, permissible, “harmful” to the 

person being disclosed only in the rarest of circumstances, and has the Supreme 

Court’s approval. Appellee’s assertions are intended to amplify what it sees as the 

harm to the public that would result from staying the district court’s order. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 5 of 28
5 

 However, “[t]he Supreme Court has long recognized that compelled 

disclosure of political affiliations and activities can impose just as substantial a 

burden on First Amendment rights as can direct regulation.” American Federation 

of Labor and Congress of Industrial Organizations (AFL-CIO) v. Federal Election 

Commission, 333 F.3d 168, 175 (D.C. Cir. 2003). The Supreme Court requires 

that “there be a ‘relevant correlation’ or ‘substantial relation’ between the 

governmental interest and the information required to be disclosed.” Buckley v. 

Valeo, 424 U.S. 1, 64 (1976). 

It cannot be argued that the public is harmed by an absence of disclosure 

unless the disclosure contemplated actually falls within the realm of valid 

governmental interests. No court has endorsed compelled disclosure simply 

because the result is more information for the public to digest, and there exists no 

valid “public interest” in such wide-ranging, unlimited disclosure. The harm to the 

public, therefore, must be measured in terms of whether the disclosure at issue 

actually “serves an important public function” insofar as it (i) sheds light on 

sources of a candidate’s financial support; (ii) serves to deter actual corruption and 

the appearance of corruption, and/or (iii) enables contribution limit violations to be 

detected. See Buckley, 424 U.S. at 67-68. We note that this case does not involve 

financial support of candidates, does not implicate any contribution limits, and 

entails only speech independent of candidates which the Supreme Court held is not 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 6 of 28
6 

corrupting. See Citizens United, 130 S. Ct. at 909 (“we now conclude that 

independent expenditures, including those made by corporations, do not give rise 

to corruption or the appearance of corruption”). 

Appellee further asserts that “Plaintiff and the rest of the voting public will 

be harmed because disclosure of important campaign-related information 

mandated by the plain language of BCRA will not be made.” Opposition at 12. 

The effect of the district court’s order, however, is to require the disclosure of 

considerable information that is not fairly categorized as “campaign-related.” One 

result of the district court’s order, for example, is to require the disclosure of the 

name and address of any person who “contributes” (or “donates”) $1,000 or more 

to a membership organization that subsequently makes an “electioneering 

communication” with general treasury funds. Such information may or may not be 

“campaign related,” and because Congress intended to prohibit most electioneering 

communications, Congress never actually legislated any such result. 

As this Court previously explained, “the Supreme Court has concluded that 

extensive interference with political groups’ internal operations and with their 

effectiveness does implicate significant First Amendment interests in associational 

autonomy.” AFL-CIO, 333 F.3d at 177. Thus, any weighing of the public interest 

should take into account that the district court’s order will require the disclosure of 

broad swaths of information pertaining both to persons’ speech and associational 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 7 of 28
7 

choices and organizations’ internal affairs – much of which may not actually be 

“campaign related” – and that this result was never intended by Congress. 

Appellee also suggests that disclosure requirements “do not prevent anyone 

from speaking.” Opposition at 14-15. While courts are fond of making this 

observation, the evidence in this particular matter shows otherwise. Since the 

District Court issued its order, those who would make “electioneering 

communications” (i.e., constitutionally protected political speech) have stopped 

speaking almost entirely. Between January 1, 2012 and March 31, 2012, thirtythree (33) electioneering communication reports were filed with the FEC. See 

Exhibit A, available athttp://www.fec.gov/finance/disclosure/ec_table.shtml 

(visited May 1, 2012). Since March 30, 2012, the day the district court issued its 

order, only three Electioneering Communication Reports have been filed. Id. Two 

of these reports relate to communications that were actually distributed prior to 

March 30, 2012. Only a single electioneering communication was been distributed 

on or after March 30 – and that communication likely began airing earlier in the 

day - before the district court issued its opinion in the late afternoon. Id.

Thus, while disclosure requirements “do not prevent anyone from speaking,” 

orders from courts that dramatically and suddenly alter the rules of the game 

during an ongoing election appear to do precisely that. This Court is urged to 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 8 of 28
8 

recognize that as long as the rules remain uncertain, it is would-be speakers who 

suffer ongoing harm.

III. THREE OF SIX FEC COMMISSIONERS DISAGREE THAT THE 

MEANING OF ‘CONTRIBUTORS’ IS AS PLAINLY OBVIOUS AS 

THE DISTRICT COURT SUGGESTS 

The Federal Election Commission lacked four votes to appeal this matter. 

Chair Hunter and Commissioners McGahn and Peterson voted to appeal, while 

Vice Chair Weintraub and Commissioner Bauerly voted not to pursue an appeal.3

 

Both groups of Commissioners issued Statements of Reasons explaining their 

votes. These Statements are attached as Exhibit B (Statement of Three 

Commissioners in Support of Appeal) and Exhibit C (Statement of Two 

Commissioners in Opposition to Appeal). 

 The Commissioners who sought to pursue an appeal in this matter raised a 

series of questions regarding the district court’s order, with a heavy focus on what 

the statutory phrase “contributors who contributes” actually means. The district 

court indicated that “an individual’s status as a ‘contributor’ is not dependent on 

 

3

The Commissioners who opposed the appeal, proposed repealing the regulatory 

language invalidated by the district court in January 2011. See Draft Notice of 

Proposed Rulemaking on Independent Expenditures and Electioneering 

Communications by Corporate and Labor Organizations, Draft A at 74-78, Agenda 

Doc. No. 11-02 for Meeting of Jan. 20, 2011,available 

athttp://sers.nictusa.com/fosers/showpdf.htm?docid=68481 (visited May1, 2012). 

The Commissioners who favored appeal have resisted those efforts to open a new 

rulemaking focusing on the disclosure question. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 9 of 28
9 

his or her purpose in transferring the funds.” Van Hollen, 2012 U.S. Dist. LEXIS 

44342, at *14. This is not how the Federal Election Campaign Act defines the 

obviously related term “contribution,” which is limited to transfers of money or 

other things of value “for the purpose of influencing any election for Federal 

office.” 2 USC § 431(8)(A)(i). Appellee agrees, but maintains that even though 

the relevant statutory language requires certain disclosures of “all contributors who 

contributed,” the definition of “contribution” cannot be used to inform the meaning 

of “all contributors who contributed” because it “would not make sense.” 

Opposition at 6-7. 

The three FEC Commissioners who voted to appeal this matter note that in 

2003, the FEC substituted “each donor who donated” for “all contributors who 

contributed,” on the grounds that “donor” had a different connotation than 

“contributor.” Exhibit B at 2-3. The Commissioners noted, “if BCRA’s 

electioneering communications reporting provision was clear on its face, then it is 

unclear why it is appropriate for the Commission’s now-revived 2003 regulation to 

substitute different terminology with a more ‘clear connotation’ than what was 

used in the statute.” Id at 3. 

 These views indicate that the statutory language of BCRA is not nearly as 

unambiguous as the district court suggests, and further evidences that Appellants 

are more likely to prevail on the merits than is argued by Appellee. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 10 of 28
10 

CONCLUSION

For the foregoing reasons, and for the reasons provided in HLF and CFIF’s 

emergency motions, this Court should grant HLF’s emergency motion for stay 

pending appeal. 

Dated: May 2, 2012 Respectfully submitted, 

Holtzman Vogel Josefiak PLLC 

By: 

Jason Torchinsky (Bar No. 976033) 

jtorchinsky@hvjlaw.com 

Holtzman Vogel Josefiak PLLC 

45 North Hill Drive 

Suite 100 

Warrenton, VA 20186 

Tel: (540) 341-8808 

Fax: (540) 341-8809 

Counsel for Hispanic Leadership Fund 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 11 of 28
CERTIFICATE OF SERVICE

I hereby certify that on May 2, 2012, I electronically filed the foregoing 

Hispanic Leadership Fund’s Reply to Appellee’s Opposition to Emergency Motion 

for Stay of District Court Order, with the Clerk of the Circuit Court for the District 

of Columbia using the CM/ECF system. 

 The following were served via electronic mail: 

 Counsel for the Appellee: 

Roger Michael Witten - roger.witten@wilmerhale.com 

Brian A. Sutherland - brian.sutherland@wilmerhale.com 

Fiona J. Kaye - fiona.kaye@wilmerhale.com 

 Counsel for Appellant Federal Election Commission: 

David Brett Kolker - dkolker@fec.gov 

Harry Jacobs Summers - hsummers@fec.gov 

Holly Jean Baker - hbaker@fec.gov 

Seth E. Nesin - snesin@fec.gov 

Counsel for Appellant Center for Individual Freedom:

Thomas W. Kirby - tkirby@wileyrein.com 

Caleb Burns – cburns@wileyrein.com 

Andrew Woodson – awoodson@wileyrein.com 

 

 Jason Torchinsky

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 12 of 28
EXHIBIT A

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 13 of 28
HOME / CAMPAIGN FINANCE REPORTS AND DATA / ELECTIONEERING COMMUNICATIONS / REPORTS

Electioneering Communications Reports

Electioneering Communications are broadcast ads (television, radio, cable, satellite), made by people or

groups who do not file regular reports with the FEC, that refer to a federal candidate, are targeted to

voters and appear within 30 days of a primary or 60 days of a general election. Individual contribution

limits do not apply here, but, with some exceptions, no corporate or union funds may be used to pay for

these ads, and they must be disclosed. This list includes all electioneering communication reports filed with

the FEC, beginning with the most recent filing. Note that some of the filings below amend earlier reports,

so the same activity may appear in two or more different filings.

Filer Date Filer ID Filer Name Amendment

Indicator

Begin

Cvg Date

End

Cvg Date

Public

Distribution

Date

Total

Donations

this

statement

16-APR-12 C30001788 AMERICAN HOSPITAL

ASSOCIATION

N 31-MAR-10 05-APR-10 05-APR-10 0 209250

13-APR-12 C30001945 PLANNED PARENTHOOD

ACTION FUND INC.

A 31-JAN-12 31-JAN-12 31-JAN-12 0 36168

05-APR-12 C30001986 FREEDOM PATH N 30-MAR-12 04-APR-12 04-APR-12 0 26940

22-MAR-12 C30001655 CROSSROADS

GRASSROOTS POLICY

STRATEGIES

N 16-MAR-12 21-MAR-12 21-MAR-12 0 118305

22-MAR-12 C30001986 FREEDOM PATH N 16-MAR-12 21-MAR-12 21-MAR-12 0 129460

19-MAR-12 C30001978 PATRIOTIC VETERANS

INC.

N 01-JAN-12 31-MAR-12 17-MAR-12 0 15000

15-MAR-12 C30001978 PATRIOTIC VETERANS

INC.

N 01-JAN-12 31-MAR-12 12-MAR-12 0 25200

12-MAR-12 C30001028 AMERICAN FUTURE

FUND

N 24-FEB-12 07-MAR-12 07-MAR-12 0 29206

12-MAR-12 C30001028 AMERICAN FUTURE

FUND

N 24-FEB-12 07-MAR-12 07-MAR-12 0 29206

09-MAR-12 C30001952 AMERICAN

CONSERVATIVE UNION

N 06-FEB-12 07-MAR-12 07-MAR-12 0 15589

23-FEB-12 C30001655 CROSSROADS

GRASSROOTS POLICY

STRATEGIES

A 26-JAN-12 05-FEB-12 05-FEB-12 0 31219

23-FEB-12 C30001655 CROSSROADS

GRASSROOTS POLICY

STRATEGIES

A 26-JAN-12 06-FEB-12 06-FEB-12 0 3050

22-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 19-FEB-12 19-FEB-12 0 123806

22-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 19-FEB-12 19-FEB-12 0 129459

22-FEB-12 C30001655 CROSSROADS

GRASSROOTS POLICY

STRATEGIES

A 26-JAN-12 01-FEB-12 01-FEB-12 0 40402

17-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 17-FEB-12 17-FEB-12 0 564956

17-FEB-12 C30001952 AMERICAN

CONSERVATIVE UNION

A 06-FEB-12 07-FEB-12 07-FEB-12 0 18575

10-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 09-FEB-12 09-FEB-12 0 261250

10-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 09-FEB-12 09-FEB-12 0 847435

10-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 09-FEB-12 09-FEB-12 0 249800

10-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 09-FEB-12 09-FEB-12 0 200000

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Electioneering Communications Reports http://www.fec.gov/finance/disclosure/ec_table.shtml

1 of 44 5/1/2012 1:30 PM

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 14 of 28
10-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 09-FEB-12 09-FEB-12 0 589635

10-FEB-12 C30001101 US CHAMBER OF

COMMERCE

N 06-FEB-12 09-FEB-12 09-FEB-12 0 335250

07-FEB-12 C30001028 AMERICAN FUTURE

FUND

A 14-OCT-10 22-OCT-10 15-OCT-10 0 19272

07-FEB-12 C30001028 AMERICAN FUTURE

FUND

A 26-OCT-10 28-OCT-10 26-OCT-10 0 62200

07-FEB-12 C30001655 CROSSROADS

GRASSROOTS POLICY

STRATEGIES

N 26-JAN-12 06-FEB-12 06-FEB-12 0 2886

07-FEB-12 C30001952 AMERICAN

CONSERVATIVE UNION

N 06-FEB-12 07-FEB-12 07-FEB-12 0 18575

07-FEB-12 C30001960 AMERICANS FOR

PROSPERITY

N 03-FEB-12 06-FEB-12 06-FEB-12 0 67666

06-FEB-12 C30001655 CROSSROADS

GRASSROOTS POLICY

STRATEGIES

N 26-JAN-12 05-FEB-12 05-FEB-12 0 30301

02-FEB-12 C30001655 CROSSROADS

GRASSROOTS POLICY

STRATEGIES

N 26-JAN-12 01-FEB-12 01-FEB-12 0 40402

01-FEB-12 C30001945 PLANNED PARENTHOOD

ACTION FUND INC.

N 31-JAN-12 31-JAN-12 31-JAN-12 0 36168

25-JAN-12 C30001028 AMERICAN FUTURE

FUND

N 17-JAN-12 24-JAN-12 24-JAN-12 0 2008

25-JAN-12 C30001028 AMERICAN FUTURE

FUND

N 17-JAN-12 24-JAN-12 24-JAN-12 0 2008

25-JAN-12 C30001028 AMERICAN FUTURE

FUND

N 17-JAN-12 24-JAN-12 24-JAN-12 0 2008

25-JAN-12 C30001028 AMERICAN FUTURE

FUND

N 17-JAN-12 24-JAN-12 24-JAN-12 0 2008

16-JAN-12 C30001937 RON VINCENT FOR

CONGRESS COMMITTEE

VINCENT J

N 01-JAN-12 31-DEC-12 1000 0

15-DEC-11 C30001929 ENDING SPENDING INC N 15-DEC-11 20-JAN-12 15-DEC-11 357545 357545

13-DEC-11 C30001564 WORKERS FOR A BETTER

HAWAII

N 10-MAY-10 18-MAY-10 10-MAY-10 0 31414

13-DEC-11 C30001655 CROSSROADS

GRASSROOTS POLICY

STRATEGIES

N 09-DEC-11 12-DEC-11 12-DEC-11 0 20245

08-DEC-11 C30001564 WORKERS FOR A BETTER

HAWAII

N 30-APR-10 09-MAY-10 01-MAY-10 100000 41885

13-SEP-11 C30001911 EMERGENCY COMMITTEE

FOR ISRAEL

N 12-SEP-11 12-SEP-11 12-SEP-11 0 27695

19-MAY-11 C30001101 US CHAMBER OF

COMMERCE

A 16-MAY-11 18-MAY-11 18-MAY-11 0 100000

18-MAY-11 C30001101 US CHAMBER OF

COMMERCE

N 16-MAY-11 25-MAY-11 18-MAY-11 0 100000

31-MAR-11 C30001648 AMERICAN ACTION

NETWORK

N 12-OCT-10 14-OCT-10 14-OCT-10 0 231000

11-MAR-11 C30001028 AMERICAN FUTURE

FUND

A 27-SEP-10 12-OCT-10 08-OCT-10 0 146517

04-MAR-11 C30001028 AMERICAN FUTURE

FUND

A 09-AUG-10 24-AUG-10 12-AUG-10 0 50335

03-MAR-11 C30001028 AMERICAN FUTURE

FUND

A 27-SEP-10 12-OCT-10 29-SEP-10 0 215566

02-MAR-11 C30000368 OCEAN CHAMPIONS

VOTER FUND

A 28-SEP-10 30-SEP-10 30-SEP-10 150000 49867

22-FEB-11 C30001812 COLORADO

PROGRESSIVE ACTION

A 01-OCT-10 11-NOV-10 23-OCT-10 60000 15000

18-FEB-11 C30000160 CAMPAIGN MONEY

WATCH

A 27-SEP-10 07-OCT-10 06-OCT-10 725000 730000

18-FEB-11 C30000160 CAMPAIGN MONEY

WATCH

A 14-OCT-10 17-OCT-10 16-OCT-10 0 375000

18-FEB-11 C30000160 CAMPAIGN MONEY

WATCH

A 01-JAN-09 26-SEP-10 26-SEP-10 50000 28718

Electioneering Communications Reports http://www.fec.gov/finance/disclosure/ec_table.shtml

2 of 44 5/1/2012 1:30 PM

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 15 of 28
18-FEB-11 C30000160 CAMPAIGN MONEY

WATCH

A 08-OCT-10 13-OCT-10 08-OCT-10 350000 41000

15-FEB-11 C30001903 AMERICANS FOR

COMMON SENSE

SOLUTIONS

N 03-SEP-10 20-SEP-10 03-SEP-10 15000 13639

15-FEB-11 C30001903 AMERICANS FOR

COMMON SENSE

SOLUTIONS

N 26-OCT-10 02-NOV-10 26-OCT-10 75000 28771

15-FEB-11 C30001903 AMERICANS FOR

COMMON SENSE

SOLUTIONS

N 07-OCT-10 01-NOV-10 08-OCT-10 25000 30924

15-FEB-11 C30001903 AMERICANS FOR

COMMON SENSE

SOLUTIONS

N 20-OCT-10 01-NOV-10 21-OCT-10 50000 38989

15-FEB-11 C30001903 AMERICANS FOR

COMMON SENSE

SOLUTIONS

N 19-OCT-10 02-NOV-10 21-OCT-10 0 9112

04-FEB-11 C30001853 AMERICANS UNITED FOR

SAFE STREETS

A 29-OCT-10 01-NOV-10 01-NOV-10 100572.4 100572

03-FEB-11 C30001754 WOMEN'S VOICES

WOMEN VOTE ACTION

FUND

A 20-OCT-10 20-OCT-10 20-OCT-10 0 723466

03-FEB-11 C30001770 CARE MEMBERSHIP

ORGANIZATION

A 15-OCT-10 18-OCT-10 18-OCT-10 0 11870

02-FEB-11 C30001861 SET IT STRAIGHT A 21-OCT-10 27-OCT-10 26-OCT-10 5000 5000

02-FEB-11 C30001861 SET IT STRAIGHT A 27-OCT-10 03-NOV-10 29-OCT-10 2000 2000

01-FEB-11 C30000921 SUSAN B ANTHONY LIST

INC

A 06-APR-10 09-APR-10 06-APR-10 0 23524

01-FEB-11 C30001770 CARE MEMBERSHIP

ORGANIZATION

A 15-OCT-10 18-OCT-10 18-OCT-10 0 11870

11-JAN-11 C30001804 WEST VIRGINIANS FOR

LIFE INC.

A 19-OCT-10 28-OCT-10 19-OCT-10 10757

20-DEC-10 C30001648 AMERICAN ACTION

NETWORK

A 20-AUG-10 24-AUG-10 23-AUG-10 0 499895

20-DEC-10 C30001648 AMERICAN ACTION

NETWORK

A 30-SEP-10 01-OCT-10 30-SEP-10 0 290395

29-NOV-10 C30001861 SET IT STRAIGHT N 27-OCT-10 03-NOV-10 29-OCT-10 2000 2000

19-NOV-10 C30001861 SET IT STRAIGHT N 27-OCT-10 03-NOV-10 29-OCT-10 2000 2000

02-NOV-10 C30001853 AMERICANS UNITED FOR

SAFE STREETS

N 29-OCT-10 01-NOV-10 01-NOV-10 100572.4 100572

01-NOV-10 C30001184 Catholics United N 29-OCT-10 01-NOV-10 31-OCT-10 5557.32 5557

01-NOV-10 C30001887 MICHIGAN CITIZENS

FOR FISCAL

RESPONSIBILITY

N 31-OCT-10 01-NOV-10 31-OCT-10 0 29000

01-NOV-10 C30001887 MICHIGAN CITIZENS

FOR FISCAL

RESPONSIBILITY

N 31-OCT-10 01-NOV-10 31-OCT-10 0 62500

01-NOV-10 C30001887 MICHIGAN CITIZENS

FOR FISCAL

RESPONSIBILITY

N 31-OCT-10 01-NOV-10 31-OCT-10 0 33500

01-NOV-10 C30001895 COOK INLET

SPORTFISHING CAUCUS

N 29-OCT-10 01-NOV-10 31-OCT-10 24990.31 24990

31-OCT-10 C30001721 WEST VIRGINIA

CONSERVATIVE

FOUNDATION INC.

N 30-OCT-10 31-OCT-10 31-OCT-10 0 17500

29-OCT-10 C30001051 AMERICANS FOR

PROSPERITY

N 27-OCT-10 28-OCT-10 28-OCT-10 0 35235

29-OCT-10 C30001754 WOMEN'S VOICES

WOMEN VOTE ACTION

FUND

N 20-OCT-10 28-OCT-10 28-OCT-10 0 55009

29-OCT-10 C30001879 HISPANIC LEADERSHIP

FUND

N 27-OCT-10 01-NOV-10 29-OCT-10 0 100000

28-OCT-10 C30001051 AMERICANS FOR

PROSPERITY

N 22-OCT-10 27-OCT-10 27-OCT-10 0 20890

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NETWORK

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Electioneering Communications Reports http://www.fec.gov/finance/disclosure/ec_table.shtml

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USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 16 of 28
28-OCT-10 C30001648 AMERICAN ACTION

NETWORK

N 12-OCT-10 28-OCT-10 28-OCT-10 0 146135

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NETWORK

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NETWORK

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NETWORK

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NETWORK

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NETWORK

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27-OCT-10 C30001028 AMERICAN FUTURE

FUND

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27-OCT-10 C30001101 US CHAMBER OF

COMMERCE

N 27-OCT-10 28-OCT-10 28-OCT-10 0 132000

27-OCT-10 C30001101 US CHAMBER OF

COMMERCE

N 26-OCT-10 27-OCT-10 27-OCT-10 0 140000

27-OCT-10 C30001648 AMERICAN ACTION

NETWORK

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27-OCT-10 C30001705 PATRIOT MAJORITY USA

FUND

N 22-SEP-10 26-OCT-10 26-OCT-10 605000 254500

27-OCT-10 C30001846 ENTERPRISE FREEDOM

ACTION COMMITTEE

N 22-OCT-10 26-OCT-10 26-OCT-10 0 75488

27-OCT-10 C30001853 AMERICANS UNITED FOR

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N 25-OCT-10 26-OCT-10 26-OCT-10 153173.14 153173

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FUND

N 26-OCT-10 28-OCT-10 26-OCT-10 0 22250

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ORGANIZATION

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25-OCT-10 C30001820 MI FAMILIA VOTA CIVIC

PARTICIPATION

CAMPAIGN

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24-OCT-10 C30001747 CENTER FOR INDIVIDUAL

FREEDOM

N 21-OCT-10 23-OCT-10 23-OCT-10 0 294601

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FUND

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23-OCT-10 C30001051 AMERICANS FOR

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NETWORK

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22-OCT-10 C30001648 AMERICAN ACTION

NETWORK

N 12-OCT-10 22-OCT-10 22-OCT-10 0 725000

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NETWORK

N 12-OCT-10 22-OCT-10 22-OCT-10 0 231000

22-OCT-10 C30001648 AMERICAN ACTION

NETWORK

N 12-OCT-10 22-OCT-10 22-OCT-10 0 435000

22-OCT-10 C30001648 AMERICAN ACTION

NETWORK

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NETWORK

N 12-OCT-10 21-OCT-10 21-OCT-10 0 49000

22-OCT-10 C30001648 AMERICAN ACTION

NETWORK

N 12-OCT-10 21-OCT-10 21-OCT-10 0 130000

22-OCT-10 C30001648 AMERICAN ACTION

NETWORK

N 12-OCT-10 21-OCT-10 21-OCT-10 0 275000

22-OCT-10 C30001648 AMERICAN ACTION

NETWORK

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Electioneering Communications Reports http://www.fec.gov/finance/disclosure/ec_table.shtml

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EXHIBIT B

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 18 of 28
 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463

STATEMENT ON VAN HOLLEN v. FEC

Chair CAROLINE C. HUNTER and 

Commissioners DONALD F. McGAHN and MATTHEW S. PETERSEN 

 On March 30, 2012, the United States District Court for the District of Columbia ruled in 

favor of the plaintiff’s motion for summary judgment in this matter.1

 We voted against the 

recommendation by the Commission’s Office of General Counsel not to appeal the decision. We 

supported appealing the district court’s ruling2

 initially because we feared that the opinion left the 

Commission with insufficient guidance as to what an acceptable regulatory implementation of the 

statute would look like. The district court subsequently issued an order and opinion denying 

defendant-intervenors’ motion for a stay pending appeal. While the latter ruling settled – for now – 

the regulatory question, the court’s opinions still create, in our view, a maze of uncertainty for many 

advocacy groups wishing to exercise their First Amendment rights. 

BACKGROUND

 2 U.S.C. § 434(f)(2) provides that sponsors of electioneering communications3 must report 

the names and addresses of “all contributors who contributed an aggregate amount of $1,000 or 

more to the person making the disbursement [for the electioneering communication] during the 

period beginning on the first day of the preceding calendar year and ending on the disclosure date.”4 

If the sponsor established a segregated bank account in advance, then the reporting may be limited 

to “all contributors who contributed an aggregate amount of $1,000 or more to that account” during 

the same period.5

 In 2007, prior to our appointment, the Commission promulgated a regulation to implement 

this statute, which required reporting under the following conditions: 

 

1 Van Hollen v. FEC, No. 11-0766, slip op. (D. D.C. Mar. 30, 2012). 

2

 Because the Commission may not act without an affirmative vote of at least four of its members, and our colleagues 

voted against appeal, the Commission is not seeking an appeal in this matter. 2 U.S.C. § 437c(c). 

3

 Generally, an electioneering communication is any broadcast, cable, or satellite communication which refers to a 

clearly identified candidate for Federal office and is made within 30 days before a primary or 60 days before a general 

election, and is targeted to the relevant electorate. 2 U.S.C. § 434(f)(3)(A). 

4

 2 U.S.C. § 434(f)(2)(F). 

5

 2 U.S.C. § 434(f)(2)(E). 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 19 of 28
Statement on Van Hollen v. FEC

Page 2 of 7 

If the disbursements were made by a corporation or labor organization pursuant to 

11 C.F.R. § 114.15, the name and address of each person who made a donation 

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

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

of furthering electioneering communications. 

11 C.F.R. § 104.20(c)(9).6

 Plaintiff brought a challenge under the Administrative Procedure Act (“APA”) on the 

grounds that the Commission’s 2007 regulation impermissibly narrowed the scope of the rule for 

corporations and labor organizations to reporting only donors who made donations for the purpose 

of furthering electioneering communications.7 On March 30, 2012, the United States District Court 

for the District of Columbia ruled in favor of the plaintiff’s motion for summary judgment.8 Under 

a “Chevron step one”9

 analysis, the district court held that the Commission improperly narrowed the 

regulation because the meaning of the term “contribute” in the statute was plain, and did not include 

a purpose or intent element.10 In reaching this conclusion, the court relied primarily on the 

definitions of “contributor” and “contribute” set forth in the Oxford English Dictionary and 

Merriam-Webster Dictionary. Ultimately, the court agreed with the plaintiff and held that 

“contributor ‘means a person who gives money without expectation of service or property or legal 

right in return.’”11 

ANALYSIS

 The district court’s decision is confusing in two ways: First, there seem to be internal 

contradictions in the opinion. Second, it seems that a rule consistent with the opinion, when applied 

to real-world examples, might lead to potentially absurd results. 

 In rendering its decision, the court held that the BCRA was not ambiguous with respect to 

the reporting of electioneering communications. Yet, the court’s opinion appeared to condone the 

Commission’s initial rulemaking in 2003, in which the Commission implemented the statute by 

requiring the reporting of “each donor who donated an amount aggregating $1,000 or more to the 

 

6 See Draft Final Rules on Electioneering Communications, Certification dated November 21, 2007, available at

http://sers.nictusa.com/fosers/showpdf.htm?docid=73272 (Commissioners Lenhard, Mason, Walther, and Weintraub 

voted affirmatively. Commissioner von Spakovsky dissented). 

7 Van Hollen v. FEC, No. 11-0766, Complaint at ¶ 3 (D. D.C. filed Apr. 21, 2011). 

8 See supra note 1. 

9

 Under “Chevron step one,” the court asks “whether Congress has directly spoken to the precise question at issue,” and 

whether “the statute unambiguously forecloses the agency’s interpretation.” Van Hollen v. FEC, slip op. at 12 (citing

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843 (1984)). 

10 Id. at 26-28. 

11 Id. at 27. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 20 of 28
Statement on Van Hollen v. FEC

Page 3 of 7 

person making the disbursement.”12 The court noted approvingly that, “If [the BCRA’s use of] ‘all 

contributors who contributed’ was ambiguous from the start, the FEC had a rulemaking to address 

it. And its substitution of the words ‘donor’ and ‘donation,’ with their clear connotation of 

providing something for nothing . . . seems to ameliorate the concerns supposedly raised by the 

expansion of the statute’s reach to include corporations and unions.”13 In its subsequent opinion 

denying defendant-intervenors’ motion for a stay pending appeal, the district court confirmed that 

the 2003 regulation “now governs the disclosures required under the BCRA.”14

 Yet, if BCRA’s electioneering communications reporting provision was clear on its face, 

then it is unclear why it is appropriate for the Commission’s now-revived 2003 regulation to 

substitute different terminology with a more “clear connotation” than what was used in the statute. 

Under Chevron step one, the court, had it followed its own logic, should have found the entirety of 

what is now designated as 11 C.F.R. § 104.20(c)(9) to be invalid, rather than just the 2007 portion 

that was added to the regulation. But the court only struck the challenged addition made in 2007 

and, indeed, confirms the 2003 rule now governs. 

 Alternatively, notwithstanding Chevron step one, if BCRA was ambiguous, and the 

Commission did address its ambiguity in 2003, the court seems to be suggesting the agency cannot 

revisit that initial determination.15 If that is true, it would severely limit an agency’s ability to fix 

mistakes in its regulations or reconsider close calls with the benefit of experience. In other words, if 

an ambiguity can be resolved in more than one way and still be consistent with the statute, it is not 

apparent why choosing one option should foreclose an agency from reopening that determination 

later. 

 

 As for the requirement in the 2003 regulation that sponsors of electioneering 

communications report their “donors,” the court did not provide sufficient guidance as to what that 

term would cover in the post-WRTL and post-Citizens United landscape. Rather, the court 

asked rhetorically, “[i]s it really difficult to determine if dues paid in return for the benefits of 

membership are ‘donations,’ or if investors who pay for shares of stock and customers who pay for 

goods and services are a corporation’s ‘donors?’”16 First, this question appears to concede that 

there is a line between receipts that trigger reporting and receipts that do not – and that line is 

determined by the purpose behind the money. More importantly, although the court thought the 

answer as to where that line should be is obvious, we are not sure the answer is so clear. 

The considerations that animated the Commission’s 2007 rulemaking illustrate the difficulty 

in discerning the difference between dues and donations. There, it was shown to be quite difficult 

to craft a rule that would capture consistently the concept of “donation” with respect to the diversity 

 

12 11 C.F.R. §§ 104.20(c)(7), (8) (2003) (emphasis added). 

13 Van Hollen v. FEC, slip op. at 25 n.8. 

14 Van Hollen v. FEC, No. 11-0766, slip op. (D. D.C. Apr. 27, 2012) at 3 (hereinafter, “Opinion on Motion for Stay”). 

15 Van Hollen v. FEC, slip op. at 25 n.8.

16 Id. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 21 of 28
Statement on Van Hollen v. FEC

Page 4 of 7 

of entities that may make electioneering communications. The idea of “benefits for memberships” 

does not necessarily answer the question. For example, take the contrast between a labor 

organization and a Section 501(c)(4) organization such as the Sierra Club.17 On the one hand, 

member dues given to a labor union might not appear to be “donations” or “contributions”18

because the members are getting in return the “benefits of membership,” as the court suggests. On 

the other hand, the Sierra Club asks its supporters to “donate” to the organization,19 and for one’s 

$15 “donation,” a donor gets the following “Member-only benefits”: 

• One-year subscription to Sierra magazine 

• Worldwide Members-only outdoor trips 

• Automatic membership in your local Sierra Club Chapter 

• Discounts on Sierra Club calendars, books, and other merchandise20

It is unclear, if there is a difference between the two, why the benefits received from union 

membership would prevent union dues from triggering reporting requirements, yet benefits received 

from Sierra Club membership would not. 

 Moreover, “donors” to the Sierra Club presumably care about the group’s work “in 

preserving wilderness, wildlife and nature's most splendid wild places,”21 and this type of work, 

along with the group’s lobbying efforts, could, in some non-trivial sense, be viewed as the type of 

“benefits of membership” described by the district court. Thus, when applied to actual entities, the 

court’s distinction between “dues” (for which the payer receives “benefits”) versus “donations” (for 

which the payer receives no “benefits”) is not so neatly drawn. 

 

 To add to this confusion, a rule distinguishing between a labor union and a Section 501(c)(4) 

entity creates an anomalous result. If union dues were to be excluded from treatment as 

contributions or donations (because members get a benefit from their dues), but funds given to the 

Sierra Club are included, then labor unions running electioneering communications would be 

 

17 Sierra Club, IRS Form 990, available at

http://dynamodata.fdncenter.org/990_pdf_archive/941/941153307/941153307_201012_990O.pdf (last visited April 19, 

2012). 

18 It strikes us that it would not be improper in this context to use the term “contribution” colloquially to also mean 

“dues,” which, again, calls into question the court’s Chevron step one analysis. The term also is used colloquially to 

include transactions such as “contributions” made by individuals to their Individual Retirement Accounts, for which 

they receive certain tax benefits. See, e.g., “IRA Contribution Limits,” Internal Revenue Service, at 

http://www.irs.gov/retirement/participant/article/0,,id=211358,00.html (last visited Apr. 23, 2012). 

19 Sierra Club, “Donate,” at

https://secure.sierraclub.org/site/Donation2?idb=0&df_id=1282&1282.donation=form1&autologin=true&s_src=N10ZS

CZZ02&s_subsrc=JRG (last visited April 19, 2012) (emphasis added). 

20 Sierra Club, “Join the Sierra Club,” at

https://secure.sierraclub.org/site/Donation2?idb=0&df_id=7040&7040.donation=form1&s_src=N10ZSCMC01&s_subs

rc=MC (last visited April 19, 2012) (emphasis added). 

21 Sierra Club, “Why join the Sierra Club?”, at https://secure.sierraclub.org/site/SPageServer?pagename=Why_Join (last 

visited April 19, 2012). 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 22 of 28
Statement on Van Hollen v. FEC

Page 5 of 7 

required to disclose less information about who financed their ads than non-profit corporations. 

However, there is nothing in the legislative history that indicates Congress intended this. After all, 

at the time BCRA was passed, unions were prohibited from even making electioneering 

communications, unlike certain non-profit corporations that take funds only from individuals.22 In 

other words, entities that were more strictly regulated (i.e., unions) would be subject to a lesser 

disclosure requirement than entities that had been regulated less (i.e., certain non-profit 

corporations) at the time BCRA was passed. 

 Moreover, there are still additional ambiguities to resolve. According to the court: 

The Oxford English Dictionary defines “contributor” as “one that contributes or 

gives to a common fund; one that bears a part in effecting a result.” The verb 

“contribute” is defined, in relevant part, as “to give or pay jointly with others; to 

furnish a common fund or charge.” Similarly, the Merriam-Webster dictionary 

defines “contributor,” in relevant part, as “to give or supply in common with 

others [;] . . . to give a part to a common fund or store[.]” Each of these 

definitions suggests that as the term is commonly used, an individual’s status as a 

“contributor” is not dependent on his or her purpose in transferring the funds.

23 

 The practical reality is that it is implausible that anyone would give money to any entity, 

whether it is a for-profit or non-profit corporation or labor organization, for no purpose whatsoever. 

Thus, if the reporting of “contributors” is “not dependent on his or her purpose in transferring the 

funds,” is the district court essentially requiring the reporting of all funds that an entity receives for 

any and all purposes (provided that the aggregate reporting threshold is met)? If so, does this mean 

that unions and groups like the Sierra Club would, in fact, have to report every person who gives 

$1,000 or more to the organization if it sponsors an electioneering communication? 

This certainly cannot be what Congress intended.24 In fact, there is legislative history that 

makes clear that Congress intended the opposite result. Senator Jeffords, one of the principal 

 

22 See 2 U.S.C. § 441b(b)(2) (2002) (prohibiting labor union funding of electioneering communications); FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986). The district court was well aware of the post-MCFL legal 

regime. See Van Hollen v. FEC, slip op. at 4 n.1. Several years after BCRA, the Supreme Court further relaxed the 

prohibition on corporate- and labor-sponsored electioneering communications, and which decision was the impetus for 

the Commission’s 2007 rulemaking on electioneering communications. See note 28, infra. Of course, Citizens United 

v. FEC removed the prohibition altogether. 130 S. Ct. 876 (2010). 

23 Van Hollen v. FEC, slip op. at 26 (internal citations omitted) (emphasis added). 

24 The counterpoint to this is that entities may set up the segregated bank accounts set forth in 2 U.S.C. § 434(f)(2)(E) 

for the purpose of sponsoring electioneering communications, whereby the reporting obligation attaches only to funds 

deposited into such accounts. But what about an entity that decides to exercise its First Amendment rights on an ad hoc

basis, perhaps in response to a legislative issue that arises suddenly? If the entity did not set up a segregated account 

more than a calendar year in advance of speaking (within which period the electioneering reporting obligation attaches 

with respect to an entity’s “contributors”), depending on how broadly the Commission implements this decision, the 

practical difficulty of reporting sources of funds may effectively prevent that entity from speaking. This may 

contravene the Supreme Court’s holding in Citizens United that a corporation may fund electioneering communications 

and independent expenditures from its general treasury funds, and cannot be required to make such communications 

only from a separate segregated fund. 130 S. Ct. 876. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 23 of 28
Statement on Van Hollen v. FEC

Page 6 of 7 

architects of the electioneering communication provisions, said as much. In deliberating the bill, 

Senator Jeffords made clear that the electioneering communication provisions “will not require the 

invasive disclosure of all donors . . . .”25 By resolving the case on Chevron step one, the district 

court does not look to such legislative history. 

 The court views the separate bank account as a way to address the practical concerns that 

animated the Commission’s 2007 rulemaking which the court strikes down: 

[T]he separate bank account option Congress provided in BCRA might be a 

viable way to solve the agency’s concerns about the burden the disclosure rule 

would impose on the newly regulated entities . . . So it appears to the Court that 

the separate bank account option already included in the statute would largely 

solve the problem the FEC set out to address.26

 Yet, the court’s decision could be read to cast doubt on the Commission’s 2007 

implementation of the statute’s electioneering communications reporting requirement for sponsors 

that choose to use the option of the segregated bank account. The language in BCRA originally 

specified that these accounts were to “consist[] of funds contributed solely by individuals.”27 In 

response to the Supreme Court’s 2007 ruling in FEC v. Wisconsin Right to Life (“WRTL”),28 in 

addition to adding the purpose element to the electioneering communications regulation at issue in 

this litigation, the Commission altered its regulations to allow for corporate and union funds to be 

accepted into the segregated accounts set forth in 2 U.S.C. § 434(f)(2)(E).29 Since the court rejected 

the Commission’s argument that WRTL’s expansion of the right to sponsor electioneering 

communications to additional entities justified the Commission’s introduction of the purpose 

element in the 2007 rulemaking,30 does that also affect the Commission’s regulations regarding 

separate accounts? Under the court’s reasoning, assuming that the language of BCRA is to be read 

literally (notwithstanding other judicial decisions and other language in the Act), the availability of 

the separate electioneering communications reporting accounts for use in accepting corporate and 

labor organization funds may also be cast into doubt, since the statute on its face does not appear to 

provide for this interpretation. 

 Given these and other questions, uncertainty has been created as to how sponsors must 

report their electioneering communications going forward. Roll Call has said, “[t]he March 30 

ruling muddies the waters further,” while the law firm of Covington & Burling has noted, “[t]o the 

 

25 147 Cong. Rec. S2813 (Mar. 27, 2001). 

26 Van Hollen v. FEC, slip op. at 20 n.5. 

27 2 U.S.C. § 434(f)(2)(E) (emphasis added). 

28 551 U.S. 449 (2007). 

29 11 C.F.R. § 114.14(d)(2)(i); see also Explanation and Justification for Regulations on Electioneering 

Communications, 72 Fed. Reg. 72899, 72912 (Dec. 26, 2007). 

30 Id. at 16-22. 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 24 of 28
Statement on Van Hollen v. FEC

Page 7 of 7 

degree that individuals view the election laws as murky, counterintuitive or the product of an Alice 

in Wonderland-like experience, the effect of this decision may serve to reinforce that view.”31 

CONCLUSION

 The district court’s ruling in this litigation leaves us with little direction to resolve the 

difficult questions facing members of the public who sponsor electioneering communications. This 

problem is especially acute for those entities that BCRA and the Commission’s 2003 regulation did 

not contemplate as being eligible to fund electioneering communications. Short of an appeal, the 

best advice the Commission may be able to offer the public is to take any “reasonable 

interpretation”32 of the statute, the regulation, and the court opinion. This is not the preferred 

course. As the Supreme Court has stated, vagueness in the law must be avoided so as to “give the 

person of ordinary intelligence a reasonable opportunity to know what is prohibited,” and this is 

especially so in “sensitive areas of basic First Amendment freedoms,” where vagueness “‘operates 

to inhibit the exercise of (those) freedoms.’”33 Speakers ought not be left to guess at the potential 

breadth of the reach of attendant reporting obligations, particularly when Congress itself has not 

sanctioned such breadth. 

 

31 Eliza Newlin Carney, FEC Ruling Leaves Ad Uncertainty, ROLL CALL, Apr. 9, 2012 (emphasis added). 

32 See, e.g., “Federal Election Commission Announces Plans to Issue New Regulations to Implement the Honest 

Leadership and Open Government Act of 2007,” Federal Election Commission, Sep. 24, 2007, at

http://www.fec.gov/press/press2007/20070924travel.shtml. 

33 Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)). 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 25 of 28
EXHIBIT C

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 26 of 28
FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

Statement of Vice Chair Weintraub and Commissioner Bauerly regarding the 

Commission’s decision not to appeal the decision in Van Hollen v. FEC

April 27, 2012 

On March 30, 2012, the United States District Court for the District of Columbia issued 

its opinion and order granting summary judgment to the Plaintiff in Van Hollen v. FEC.

1

 

Yesterday the Commission apprised the District Court that it does not intend to appeal the 

Court’s order.2

 We supported the decision not to appeal. 

The case, brought by U.S. Representative Chris Van Hollen, challenged a regulation 

defining the disclosure requirements for corporations and labor unions that fund 

electioneering communications. Rep. Van Hollen argued that the regulation was contrary 

to the disclosure regime set forth in the Bipartisan Campaign Reform Act (BCRA) and 

should therefore be declared invalid. The District Court’s decision granted Rep. Van 

Hollen’s motion for summary judgment. 

We believe in the general presumption that the regulations promulgated by the 

Commission should be defended, including, if necessary, by appealing an adverse district 

court decision. However, it has not been the Commission’s practice automatically to 

appeal any adverse ruling. On the contrary, in some cases, the costs of prolonged 

defensive litigation, to both the Commission and the public as a whole, outweigh its 

potential benefits. That was the conclusion we reached here.3

All told, the District Court’s opinion in this case is thorough and well-reasoned, and does 

not have sufficient weakness to suggest it is likely to be reversed on appeal. Nor does 

this case raise significant constitutional issues or require further guidance from the 

courts.4

 It presents a straight-forward application of the plain language of the statute. 

 

1 Van Hollen v. FEC, __ F. Supp. 2d __, 2012 WL 1066717 (D.D.C. Mar. 30, 2012). 

2 See Notice, Dkt. No. 60, Van Hollen v. FEC, No. 11-cv-00766-ABJ (D.D.C. Apr. 26, 2012). 

3

 It is also the conclusion that we recently reached when we, along with our colleagues, decided not to 

appeal the District Court’s ruling in Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011), and instead enter 

into a negotiated final stipulated judgment. This is consistent with earlier decisions by the Commission, 

such as the decision not to appeal the invalidation of a number of regulations in Shays v. FEC, 337 F. Supp. 

2d 28 (D.D.C. 2004); the Commission instead proceeded through rulemakings. 

4

 Despite the “sky is falling” rhetoric adopted by some with respect to the District Court’s decision, the 

Commission need not throw up its hands and declare that it cannot offer meaningful advice on how to 

USCA Case #12-5117 Document #1371902 Filed: 05/02/2012 Page 27 of 28
Consequently, we could not support expending the significant resources necessary for an 

appeal. Rather, the wisest and most efficient course of action is to quickly bring our 

regulations into conformity with the statute. 

In addition, we also would have preferred to inform the District Court and the D.C. 

Circuit that the Commission opposed the motion for stay pending the appeal being 

attempted by the two intervenors. In any event, the District Court today denied that 

motion, noting that the intervenors failed to show both likelihood of success on the merits 

of their appeal and a threat of irreparable harm.5

 We also continue to believe – as the 

Commission articulated before the District Court6

 – that only the Commission has the 

right to appeal. The Commission has now determined not to appeal. 

We note finally that we have attempted on several occasions to seek public input on the 

regulation invalidated by the District Court and others concerning disclosure of campaign 

finance information. As the Supreme Court explained in Citizens United, “effective 

disclosure” is what “enables the electorate to make informed decisions and give proper 

weight to different speakers and messages.”7 We now welcome the opportunity to work 

with our colleagues to bring our regulations governing the reporting of electioneering 

communications into compliance with the Act, guided by the Supreme Court’s teaching. 

 comply with the Act. For several years prior to adoption of the rule at issue in 2007, the Commission 

administered a rule that clearly and simply applied the Act’s requirements of disclosing those who give 

more than $1000 to Qualified Nonprofit Corporations. 

5 See Memorandum Opinion & Order, Dkt. No. 61, Van Hollen v. FEC, No. 11-cv-00766-ABJ (D.D.C. 

Apr. 27, 2012). 

6 See Defendant FEC’s Response to the Motion to Intervene at 1-2, Dkt. No. 18, Van Hollen v. FEC, No. 

11-cv-00766-ABJ (D.D.C. June 30, 2011). 

7 Citizens United v. FEC, 558 U.S. __, 138 S. Ct. 876, 916 (2010). 

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