UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CHRIS VAN HOLLEN, 

 Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

and 

CENTER FOR INDIVIDUAL 

FREEDOM, 

 Defendant, 

and 

HISPANIC LEADERSHIP FUND, 

 Defendant. 

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Civ. A. No. 1:11-cv-00766 (ABJ) 

DEFENDANT CENTER FOR INDIVIDUAL FREEDOM’S OPPOSITION TO 

PLAINTIFF VAN HOLLEN’S MOTION 

FOR SUMMARY JUDGMENT AND 

CFIF’S CROSS-MOTION FOR SUMMARY JUDGMENT 

August 22, 2011 

Jan Witold Baran (D.C. Bar No. 233486) 

Thomas W. Kirby (D.C. Bar No. 915231) 

Caleb P. Burns (D.C. Bar No. 474923) 

Andrew G. Woodson (D.C. Bar No. 494062) 

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 1 of 27
i 

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii 

INTRODUCTION AND OVERVIEW .......................................................................................... 1 

1. Plaintiff’s Action Is Premature. .......................................................................................... 4 

2. The Statute Unambiguously Validates the Regulation at Step One of Chevron. ............... 6 

3. Moreover, Plaintiff Cannot Show That the Statute Unambiguously Forbids 

Consideration of the Giver’s Purpose under Step One. .................................................... 10 

4. The FEC’s Construction Is Necessary to Save the Statute from Constitutional 

Invalidity........................................................................................................................... 13 

(a) Plaintiff has the burden of showing that applying the statute to require 

broad disclosures from corporations and labor unions satisfies exacting 

scrutiny.................................................................................................................. 13 

(b) The burdens Plaintiff seeks to impose on core speech trigger exacting 

scrutiny.................................................................................................................. 14 

(c) Exacting scrutiny is not satisfied here. ................................................................. 15 

5. Any Remedy Must Avoid Aggravating Speech Burdens. ................................................ 19 

CONCLUSION............................................................................................................................. 20 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 2 of 27
ii 

TABLE OF AUTHORITIES 

CASES

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003).................................................................................................13 

Allied-Signal, Inc. v. United States Nuclear Regulatory Commission, 

988 F.2d 146 (D.C. Cir. 1993).................................................................................................20 

Arizona Free Enterprise Club’s Freedom PAC v. Bennett, 

131 S. Ct. 2806 (2011).............................................................................................................14 

*Buckley v. Valeo, 

424 U.S. 1 (1976)............................................................................................................. passim

California Pro-Life Council, Inc. v. Getman, 

328 F.3d 1088 (9th Cir. 2003) .................................................................................................16 

California State Board of Optometry v. FTC, 

910 F.2d 976 (D.C. Cir. 1990).................................................................................................20 

*Center for Individual Freedom, Inc. v. Tennant, 

Civ. A. No. 1:08-cv-00190, 2011 WL 2912735 (S.D.W.Va. July 18, 2011) ....................17, 18 

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

467 U.S. 837 (1984).............................................................................................................6, 13 

*Citizens United v. FEC, 

130 S. Ct. 876 (2010)....................................................................................................... passim 

Clark v. Martinez, 

543 U.S. 371 (2005).................................................................................................................13 

Dart v. United States, 

961 F.2d 284 (D.C. Cir. 1992).................................................................................................12 

Diouf v. Napolitano, 

634 F.3d 1081 (9th Cir. 2011) .................................................................................................13 

Doe v. Reed, 

130 S. Ct. 2811 (2010).............................................................................................................15 

Doraiswamy v. Secretary of Labor, 

555 F.2d 832 (D.C. Cir. 1976)...................................................................................................5 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 3 of 27
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Emily’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009).....................................................................................................20 

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building Trades Council, 

485 U.S. 568 (1988).................................................................................................................13 

Environmental Defense Fund, Inc. v. Costle, 

657 F.2d 275 (D.C. Cir. 1981)...................................................................................................5 

Esch v. Yeutter, 

876 F.2d 976 (D.C. Cir. 1989)...................................................................................................5 

FCC v. ABC, 

347 U.S. 284 (1954)...................................................................................................................4 

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000)...........................................................................................................12, 13 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981).................................................................................................17 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986)...........................................................................................................11, 16 

*FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007).......................................................................................................3, 12, 14 

First National Bank of Boston v. Bellotti, 

435 U.S. 765 (1978).................................................................................................................15 

Garner v. Louisiana, 

368 U.S. 157 (1961).................................................................................................................19 

Grayned v. City of Rockford, 

408 U.S. 104 (1972)...........................................................................................................18, 19 

Hodgkins ex rel. Hodgkins v. Peterson, 

355 F.3d 1048 (7th Cir. 2004) .................................................................................................15 

Holder v. Humanitarian Law Project, 

130 S. Ct. 2705 (2010).............................................................................................................18 

King v. District of Columbia, 

277 F. 562 (D.C. Cir. 1922).......................................................................................................8 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 4 of 27
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Krislov v. Rednour, 

226 F.3d 851 (7th Cir. 2000) ...................................................................................................15 

Larson v. Valente, 

456 U.S. 228 (1982).................................................................................................................15 

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003).........................................................................................11 

McConnell v. FEC, 

540 U.S. 93 (2003).................................................................................................................7, 8 

McIntyre v. Ohio Elections Commission, 

514 U.S. 334 (1995)...........................................................................................................12, 15 

NAACP v. Button, 

371 U.S. 415 (1963).................................................................................................................18 

Northwest Austin Municipal Utility District Number One v. Holder, 

129 S. Ct. 2504 (2009).............................................................................................................19 

Randall v. Sorrell, 

548 U.S. 230 (2006)...................................................................................................................8 

Reno v. American Civil Liberties Union, 

521 U.S. 844 (1997).................................................................................................................19 

Schneider v. Dumbarton Developers Inc., 

767 F.2d 1007 (D.C. Cir. 1985).................................................................................................1 

Smirnov v. Clinton, 

Civ. A. No. 11-1126, 2011 WL 2746308 (D.D.C. July 14, 2011).............................................7 

Tagg Brothers & Moorhead v. United States, 

280 U.S. 420 (1930)...................................................................................................................6 

Transtech Industries v. A&Z Septic Clean, 

270 F. App’x. 200 (3d Cir. 2008) ..............................................................................................9

Turner Broadcasting System, Inc. v. FCC, 

512 U.S. 622 (1994).................................................................................................................15 

United States v. Granderson, 

511 U.S. 39 (1994).....................................................................................................................7 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 5 of 27
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Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 

455 U.S. 489 (1982).................................................................................................................18 

Whitman v. American Trucking Ass’ns, Inc., 

531 U.S. 457 (2001).................................................................................................................13 

Ziegler v. HRB Mgmt, Inc., 

182 F. App’x 405 (6th Cir. 2006) ..............................................................................................9

STATUTES AND REGULATIONS 

2 U.S.C. § 431(8)(A)(i)................................................................................................................4, 7 

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

2 U.S.C. § 441b........................................................................................................................10, 11 

2 U.S.C. § 441b(c)(6).....................................................................................................................11 

Pub. L. No. 107-155, 116 Stat. 81 (2002)..................................................................................5, 10

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

68 Fed. Reg. 404 (Jan. 3, 2003) .....................................................................................................12 

72 Fed. Reg. 72899 (Dec. 26, 2007)................................................................................5, 8, 16, 17 

LEGISLATIVE MATERIALS 

156 Cong. Rec. H4789 (daily ed. June 24, 2010)............................................................................3 

147 Cong. Rec. S2883 (daily ed. Mar. 26, 2001) ..........................................................................11 

147 Cong. Rec. S3042 (daily ed. Mar. 28, 2001) ..........................................................................11 

147 Cong. Rec. S3047-48 (daily ed. Mar. 28, 2001).....................................................................11 

156 Cong. Rec. S3029 (daily ed. May 3, 2010)...............................................................................3 

156 Cong. Rec. S3031 (daily ed. May 3, 2010)...............................................................................3 

Library of Congress, Bill Summary & Status of H.R. 5175, 111th Cong. (2009-2010) .................3 

The Disclosure Act, Democracy Is Strengthened by Casting Light on Spending in 

Elections, H.R. 5175, 111th Cong. 10 (2010) (testimony of Donald J. Simon, General 

Counsel, Democracy 21)............................................................................................................3 

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MISCELLANEOUS 

Chris Van Hollen and Mike Castle, The Disclose Act Is a Matter of Campaign Honesty, 

Wash. Post, June 17, 2010 .........................................................................................................2 

Concise Oxford English Dictionary 310 (11th ed. 2002) ...............................................................8 

Congressman Van Hollen, The Van Hollen “DISCLOSE ACT,” available at 

http://vanhollen.house.gov/UploadedFiles/DISCLOSE_Summary_042910.pdf .....................2 

Nancy Gibbs and Karen Tumulty, A New Day or a False Dawn?, Time, Mar. 31, 2001, 

available at http://www.time.com/time/nation/article/0,8599,104589,00.html .......................11 

Press Conference, Campaign Spending Rules, Feb. 11, 2010 (remarks of Sen. Schumer), 

available at 

http://www.c-spanvideo.org/program/SpendingRu&start=204...................................................2, 3 

Press Release, Congressman Chris Van Hollen, Van Hollen Remarks on Supreme Court 

Ruling in Citizens United Case (Jan. 21, 2010), available at 

http://vanhollen.house.gov/News/DocumentSingle.aspx?DocumentID=167326 .....................2 

Press Release, Congressman Chris Van Hollen, Van Hollen Statement on Passage of the 

DISCLOSE Act (June 24, 2010), available at 

http://vanhollen.house.gov/News/DocumentSingle.aspx?DocumentID=192278 .....................2 

Press Release, Congressman Chris Van Hollen, Van Hollen Statement on Senate 

Leaders’ Commitment to Act on DISCLOSE (June 22, 2010), available at 

http://vanhollen.house.gov/News/DocumentPrint.aspx?DocumentID=191675........................2 

Press Release, President Barack Obama, Statement by the President on the DISCLOSE 

Act (Apr. 29, 2010), at http://m.whitehouse.gov/the-press-office/statement-presidentdisclose-act.................................................................................................................................3 

Press Release, President Barack Obama, Statement by the President on Passage of the 

Disclose Act in the House of Representatives (June 24, 2010), at

http://m.whitehouse.gov/the-press-office/statement-president-passage-disclose-acthouse-representatives.................................................................................................................3 

Press Release, Senator Harry Reid, Reid Statement on House Administration Committee 

Passage of the DISCLOSE Act (May 21, 2010), at

http://democrats.senate.gov/2010/05/22/reid-statement-on-house-administrationcommittee-passage-of-the-disclose-act/) ...................................................................................3 

Webster’s Third New Int’l Dictionary 496 (2002) ..........................................................................8 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 7 of 27
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Defendant Center for Individual Freedom, Inc. (“CFIF”) respectfully joins in Defendant 

Federal Election Commission’s (“FEC”) Motion for Summary Judgment and Opposition to 

Plaintiff Van Hollen’s Motion for Summary Judgment (Dkt. No. 25). In accordance with the 

Court’s August 1, 2011, Minute Order, CFIF has refrained from repeating arguments already 

made in the FEC’s Memorandum of Points and Authorities (“FEC Memorandum”) with which it 

agrees. CFIF hereby adopts the FEC’s Memorandum, subject to the additional or differing 

positions presented herein. 

CFIF is a nonprofit corporation operating under § 501(c)(4) of the Internal Revenue 

Code. Although CFIF engages in speech near elections, its activities principally support the 

general good and common welfare and are not primarily political. CFIF safeguards the privacy 

of its supporters and, hence, stands silent if desired speech creates a risk that they might have to 

be identified. Plaintiff’s Complaint (Dkt. No. 1 ¶ 31) is explicit that it seeks to force CFIF to 

make such disclosures, with the result that CFIF’s core First Amendment speech will be 

burdened and suppressed.1

 To protect its interests, CFIF in this case intervened as a defendant.2

INTRODUCTION AND OVERVIEW 

In Citizens United v. FEC, 130 S. Ct. 876 (2010), the Supreme Court held that the core 

First Amendment right to engage in election-time speech about those who govern us and how 

they govern extends to corporations (and by implication labor unions). Congressman Van 

Hollen immediately vowed to “do everything possible to make sure that [Citizens United] does 

not stand.” Press Release, Congressman Chris Van Hollen, Van Hollen Remarks on Supreme 

 

1

 Additional information about the Center for Individual Freedom (“CFIF”) is found at its website, 

http://www.cfif.org, and in its motion to intervene as a Defendant in this case (Dkt. No. 15), which CFIF 

incorporates here by reference. 

2

 Having been granted intervention, CFIF now “becomes a full participant in the lawsuit and is treated just as 

if it were an original party.” Schneider v. Dumbarton Developers Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985). CFIF 

is not merely supporting the FEC’s motion but is itself moving for summary judgment. 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 8 of 27
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Court Ruling in Citizens United Case (Jan. 21, 2010).3

 Working with Senator Charles Schumer 

and others, Plaintiff proposed new legislation designed as a “deterrent” to make corporations and 

others “think twice” before exercising their First Amendment rights. Press Conference, 

Campaign Spending Rules, Feb. 11, 2010 (remarks of Sen. Schumer).4

The legislation was dubbed the “Democracy Is Strengthened by Casting Light on 

Spending in Elections Act” (or “DISCLOSE Act”). Plaintiff heralded the bill as “landmark 

legislation [to] provide unprecedented disclosure and transparency in America’s elections.”5 

Press Release, Congressman Chris Van Hollen, Van Hollen Statement on Passage of the 

DISCLOSE Act (June 24, 2010).6

 Plaintiff’s section-by-section analysis of the bill included the 

headings “EXPANDED REQUIREMENTS FOR DISCLOSURE” and “IMPROVED

DISBURSEMENT REPORTING REQUIREMENTS.” Congressman Van Hollen, The Van 

Hollen “DISCLOSE ACT;”7 see also Press Release, Congressman Chris Van Hollen, Van 

Hollen Statement on Senate Leaders’ Commitment to Act on DISCLOSE (June 22, 2010) (“The 

DISCLOSE Act will provide the most transparency and disclosure of political expenditures in 

the history of our elections.”);8 Chris Van Hollen and Mike Castle, The Disclose Act Is a Matter 

of Campaign Honesty, Wash. Post, June 17, 2010 (“this legislation will . . . shine an 

unprecedented amount of sunlight on campaign expenditures”). 

 

3

 Available at http://vanhollen.house.gov/News/DocumentSingle.aspx?DocumentID=167326. 

4

 Available at http://www.c-spanvideo.org/program/SpendingRu&start=204. 

5

 All emphasis is added unless otherwise noted. 

6

 Available at http://vanhollen.house.gov/News/DocumentSingle.aspx?DocumentID=192278. 

7

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

8

 Available at http://vanhollen.house.gov/News/DocumentPrint.aspx?DocumentID=191675. 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 9 of 27
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President Obama, Senator Schumer, Senate Majority Leader Reid, other Members of 

Congress, and an attorney for Congressman Van Hollen in this lawsuit all said the disclosure 

provisions were novel and extreme, describing them as: “the toughest-ever disclosure 

requirements,” “unprecedented transparency,” an “enhanced [and] unprecedented level of 

disclosure,” “a series of new disclosure requirements that will create an unprecedented paper 

trail,” “rigorous new disclosure requirements . . . to shed new light,” “new disclosure 

requirements [of] all . . . donors,” “unprecedented transparency and disclosure,” and 

“comprehensive new disclosure requirements.”9 The bill was considered by both houses of 

Congress and rejected. See Library of Congress, Bill Summary & Status of H.R. 5175, 111th 

Cong. (2009-2010).10

Undaunted, Plaintiff then brought this lawsuit claiming that a statute enacted in 2002 

already imposed the “unprecedented” disclosures proposed by his bill, and that Congress’s clear 

intent had been thwarted by a regulation the FEC adopted in 2007 to implement FEC v. 

Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”). The statute requires persons who 

engage in electioneering communications to disclose “all contributors who contributed an 

aggregate of $1,000 or more to the person making the disbursement” for electioneering 

 

9

 Press Release, President Barack Obama, Statement by the President on the DISCLOSE Act (Apr. 29, 

2010), at http://m.whitehouse.gov/the-press-office/statement-president-disclose-act; Press Release, President Barack 

Obama, Statement by the President on Passage of the Disclose Act in the House of Representatives (June 24, 2010), 

at http://m.whitehouse.gov/the-press-office/statement-president-passage-disclose-act-house-representatives; 156 

Cong. Rec. S3029 (daily ed. May 3, 2010) (statement of Sen. Schumer); Press Conference, Campaign Spending 

Rules, Feb. 11, 2010, available at http://www.c-spanvideo.org/program/SpendingRu&start=204 (remarks of Sen. 

Schumer); Press Release, Senator Harry Reid, Reid Statement on House Administration Committee Passage of the 

DISCLOSE Act (May 22, 2010), at http://democrats.senate.gov/2010/05/22/reid-statement-on-house-administrationcommittee-passage-of-the-disclose-act/); 156 Cong. Rec. S3031 (daily ed. May 3, 2010) (statement of Sen. 

Feinstein); 156 Cong. Rec. H4789 (June 24, 2010) (statement of Rep. Jackson Lee); H.R. 5175, The DISCLOSE 

ACT, “Democracy Is Strengthened by Casting Light on Spending in Elections,” 111th Cong. 10 (2010) (testimony 

of Donald J. Simon, General Counsel, Democracy 21). 

10 Available at http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR05175:@@@L&summ2=m&. 

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communications. 2 U.S.C. § 434(2)(f). Another statute provides that a transaction is a 

“contribution” if it was made “for the purpose of influencing” an election. Id. § 431(8)(A)(i). 

The implementing FEC regulation accordingly requires disclosure of contributors who are 

persons that provide funds “for the purpose of furthering electioneering communications.” 

11 C.F.R. § 104.20(c)(9). 

Plaintiff nevertheless argues that giving weight to the purpose of funding is flatly 

unlawful, and that experience after 2007 shows that the regulation defeats the statute’s purpose. 

In short, he seeks to accomplish through litigation what Congress recently and flatly refused.11 

Plaintiff’s attempt to circumvent the legislative process should be rejected for many of the 

reasons set forth in the FEC’s Memorandum and for the additional reasons set forth below. 

1. Plaintiff’s Action Is Premature. 

The threshold flaw in Plaintiff’s case is that it rests on factual material and legal 

arguments never before presented to the FEC commissioners or to the public for comment. 

Thus, Plaintiff’s request for judicial “review” is premature. Moreover, the fact that, during the 

comprehensive 2007 rulemaking proceeding, not one of the eight sets of pro-disclosure 

comments argued that the statute precluded consideration of purpose is compelling empirical 

proof that the statutory meaning Plaintiff portrays as plain and unambiguous actually is 

invisible.12 

 

11 This is not the first such attempt to end-run Congress. In FCC v. ABC, 347 U.S. 284 (1954), for example, 

the FCC asked Congress to forbid certain game shows and, when Congress refused, then attempted to interpret 

existing law to permit it to impose “the same result” through regulation. The Court disapproved, ruling the agency 

had “over-stepped.” Id. at 296-97. 

12 The eight sets of comments were submitted by: (1) Senators McCain, Feingold, and Snowe, along with 

Congressman Shays (dated Oct. 1, 2007) (Dkt. No. 17-3, VH0370-VH0374); (2) Common Cause, Public Citizen, 

and U.S. PIRG (dated Oct. 1, 2007) (Dkt. No. 17-2, VH0347-VH0360); (3) the Campaign Legal Center, 

Democracy 21, the Brennan Center for Justice, Common Cause, the League of Women Voters, and U.S. PIRG 

(dated Oct. 1, 2007) (Dkt. No. 17-3, VH0394-VH0414); (4) the Democratic Senatorial Campaign Committee and 

the Democratic Congressional Campaign Committee (Oct. 1, 2007) (Dkt. No. 17-2, VH0265-VH0269); (5) Public 

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The challenged regulation was adopted in 2007, and Plaintiff has never sought its 

reconsideration. The rulemaking petition Plaintiff recently filed relates to other regulations. See

Pl. Mem. at 12 n.13 (Dkt. No. 20). Yet Plaintiff’s “Statement of Facts” (at 14-15) consists 

primarily of assertions about the 2008 and 2010 elections and predictions about 2012 and 

citations to sources such as www.opensecrets.org and www.citizen.org. Until those materials are 

evaluated by the FEC, however, a challenge based on them is premature. The review sought 

here is “confined to the full administrative record before the agency at the time the decision was 

made.” Envt’l Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981). The Court is 

“exclusively” limited to “an inquiry into the legality and reasonableness of the agency’s 

action . . . solely on the basis upon which the action was administratively projected.” 

Doraiswamy v. Sec’y of Labor, 555 F.2d 832, 839-40 (D.C. Cir. 1976). 

As the FEC Memorandum demonstrates (at 39-41), none of the narrow circumstances in 

which review may extend beyond the record before the agency are present here.13 Moreover, 

Plaintiff formally stipulated to a decision “on the administrative record within the meaning of the 

Federal Rules of Civil Procedure and the Rules of the United States District Court for the District 

 

Campaign (dated Oct. 1, 2007) (Dkt. No. 17-3, VH0390-VH0391); (6) Professors Richard Briffault and Richard L. 

Hasen (dated Sept. 25, 2007) (Dkt. No. 17-2, VH0184-VH0188); (7) the State of Washington’s Public Disclosure 

Commission (dated Sept. 28, 2007) (Dkt. No. 17-2, VH0191-VH0192); and (8) Bob Bauer and the Campaign Legal 

Center (as an additional joint comment) (dated Oct. 1, 2007) (Dkt. No. 17-3, VH0432-VH0433); see also Pl. Mem. 

at 8 (Dkt. No. 20). 

13 Extra-record evidence may be relevant in exceptional cases where the agency “failed to examine all 

relevant factors,” Pl. Mem. at 14 n.14 (Dkt. No. 20) (citing Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989)), 

but, by definition, the FEC could not have “failed to examine” data from 2008 and 2010 during the 2007 rulemaking 

because the data did not yet exist. Plaintiff asserts that extra-record evidence is appropriate because the FEC “failed 

to consider the factor of whether or not the regulation would undermine” the Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 81. Pl. Mem. at 14 n.14. This legal claim not only fails to provide a basis for 

incorporating new factual evidence into the Court’s analysis, but it is belied by the FEC’s stated justification for the 

Final Rule: “[T]he Commission has determined that the policy underlying the disclosure provisions of [the statute] 

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].” Final Rule and Explanation and 

Justification on Electioneering Commc’ns, 72 Fed. Reg. 72899, 72911 (Dec. 26, 2007). 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 12 of 27
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of Columbia.” See Stipulation at 1 (Dkt. No. 9). Plaintiff then used a briefing format that Local 

Rule 7(h)(2) allows only where “judicial review is based solely on the administrative record.” 

Thus, Plaintiff has waived any right to rely on facts not presented to the FEC. 

To make matters worse, Plaintiff interweaves his new factual assertions with a new legal 

position the FEC has not had a chance to address. During the 2007 rulemaking, the eight sets of 

written comments opposing any refinement to the prior disclosure regulation argued that WRTL

did not directly address disclosure, broad disclosure was consistent with congressional policy, 

and other similar arguments. Those comments were prepared by skilled counsel. But not one set 

advanced Plaintiff’s claim that the statute unambiguously deprived the FEC of discretion to 

adjust the disclosure burden based on purpose. To the contrary, as noted above, Plaintiff and his 

allies recently insisted that legislation compelling broad disclosures would be entirely new and 

unprecedented. 

Plaintiff certainly is free to “apply for a rehearing before [the agency] or to institute new 

proceedings” to present new facts and legal theories. See Tagg Bros. & Moorhead v. United 

States, 280 U.S. 420, 445 (1930). To avoid piecemeal litigation, the Court may exercise its 

discretion to stay or dismiss this proceeding for a time to allow such a petition. At minimum, the 

Court should refuse to consider factual materials and be very skeptical of legal arguments that 

lay unrecognized for a decade and have not yet been presented to the FEC. 

2. The Statute Unambiguously Validates the Regulation at Step One of 

Chevron.

Plaintiff contends that the consideration of purpose in the FEC regulation violates a clear 

statutory prohibition and thus fails at Step One of the analysis in Chevron U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837 (1984). Pl. Mem. at 18-23. Plaintiff has it backwards. 

The statute not only permits but requires that a giver’s purpose be considered in deciding who 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 13 of 27
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must be disclosed, thus validating the regulation. The FEC elects to bypass Step One, arguing 

for Step Two deference to the agency’s resolution of supposed statutory ambiguity. Prevailing 

on that basis would maximize the agency’s discretion and power. But because the statute 

unambiguously validates the regulation at Step One, the Court need not reach Step Two. 

At Step One, the Court uses all “‘traditional tools of statutory construction’ to determine 

whether Congress has unambiguously expressed its intent, including an examination of the 

statute’s text, structure, purpose and legislative history.” Smirnov v. Clinton, Civ. A. No. 

11-1126, 2011 WL 2746308, at *8 (D.D.C. July 14, 2011) (citation omitted). Here, as Plaintiff 

concedes, the key statutory phrase is “contributors who contributed.” See Pl. Mem. at 3, 19-20. 

Although “contributor” and “contributed” are not defined in the statute, they “share the same 

root as the defined term ‘contribution.’” See FEC Mem. at 20. The statute defines 

“contribution” in terms of the giver’s relevant purpose – i.e., “for the purpose of influencing any 

election for federal office.” 2 U.S.C. § 431(8)(A)(i). Indeed, it was this exact purpose that 

provided the essential constitutional rationale for Congress to enact the electioneering 

communication disclosure requirement. See McConnell v. FEC, 540 U.S. 93, 196 (2003) 

(relying on informational interests identified in Buckley v. Valeo, 424 U.S. 1 (1976), to allow for 

disclosure of electioneering communication spending “to influence federal elections”).14

Courts regularly give the same meaning to noun and verb forms of the same term. See, 

e.g., United States v. Granderson, 511 U.S. 39, 46 (1994) (“‘it seems reasonable to give . . . a 

similar construction’ to a word used as both a noun and a verb in a single statutory sentence”); 

 

14 Plaintiff cites FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”), for the proposition that 

electioneering communications can have purposes other than to influence elections. Pl. Mem. at 21. But those 

purposes are not what motivated Congress to enact the electioneering communication provision. See McConnell v. 

FEC, 540 U.S. 93, 193-94 (2003) (“Congress enacted [the electioneering communication provision] to correct the 

flaws it found in the existing system” in order to regulate “advertisements . . . intended to influence the election”). 

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King v. D.C., 277 F. 562, 564-65 (D.C. Cir. 1922) (construing verb “registered” in accordance 

with statutory definition of noun “registration”). Moreover, the Supreme Court has consistently 

referred to those who make a “contribution” under the statute as “contributors.” See, e.g., 

Randall v. Sorrell, 548 U.S. 230, 246 (2006) (“[C]ontribution limits” restrict “the contributor’s 

freedom of political association”); McConnell, 540 U.S. at 134-35 (a “contributor’s ability to 

engage in free communication” is impacted by “contribution limits”); Buckley, 424 U.S. at 21 (a 

“contribution” shows the “contributor’s support” for a particular “candidate and his views”). 

Thus, a “contributor who contributed” is one who made a “contribution” as defined by the 

statute, which requires an election-influencing purpose. 

Plaintiff argues that the statute’s internal definition should yield to external dictionaries. 

The cited dictionaries, however, actually reinforce the statutory definition. Plaintiff contends, for 

example, that the dictionary definition of “contribute” is “to give or grant in common with 

others.” Pl. Mem. at 20 (quoting Webster’s Third New Int’l Dictionary 496 (2002)). But that is 

not the entire definition. The full first definition is: “contribute,” i.e., “to give or grant in 

common with others (as to a common fund or for a common purpose): give (money or other aid) 

for a specified object.” Webster’s Third New Int’l Dictionary 496 (emphases added). Another 

dictionary cited by Plaintiff also turns on purpose: to “contribute” is “to give in order to help 

achieve something.” Pl. Mem. at 20 (quoting Concise Oxford English Dictionary 310 (11th ed. 

2004)). Plaintiff’s dictionaries thus confirm that “contribution” turns on the giver’s purpose.15

 

15 Plaintiff makes another omission. As noted in the FEC Memorandum (at 33), Plaintiff repeatedly argues 

that the regulation requires disclosure only if a contributor “announces” an intent to further electioneering 

communications. But the regulation also requires disclosure of funds “received in response to solicitations 

specifically requesting funds to pay for [electioneering communications] as well as funds specifically designated for 

[electioneering communications].” 72 Fed. Reg. at 72911. No “announcement” is required. 

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Plaintiff also cites statements in the legislative record for support. But those focus on 

purpose as well, calling for disclosure of persons who “sponsor[] and pay[] for an electioneering 

communication” (Sen. Jeffords), decide to “financ[e] these ads” (Sen. Snowe), or “actually pay[] 

for them” (Sen. Feinstein). See Pl. Mem. at 4 n.2. One would not select such language to 

describe persons who merely paid dues without regard for, agreement with, or knowledge of a 

company’s or union’s electioneering activities. Instead, the quoted language is a natural way to 

describe payments for the purpose of sponsoring or financing electioneering communications. 

Moreover, contrary to Plaintiff’s assertion, the statute’s reference to “all contributors” 

does not expand the class of contributors that must be disclosed. Id. at 19. As Plaintiff 

recognizes, “all” means “the whole amount” or “every member of [the] set or group.” Id. It 

prevents exception but does not require more than the specified class. By using “all,” Congress 

required disclosure of every “contributor who contributed,” but not of other funding sources. 

E.g., Transtech Indus., Inc. v. A&Z Septic Clean, 270 F. App’x 200, 210 (3d Cir. 2008) (because 

“‘all’ modifies ‘claims made,’” it cannot reach “claims which could have been made”); Ziegler v. 

HRB Mgmt, Inc., 182 F. App’x 405, 407 (6th Cir. 2006). 

Indeed, Plaintiff acknowledges that the term “all contributors” requires consideration of 

the giver’s purpose. Pl. Mem. at 30-31. In his view, if money is given for investment purposes, 

in connection with a sale, or as payment for a loan, it need not be disclosed. Id. On the other 

hand, if money is not given to obtain an equivalent return – e.g., to pay dues to “non-profit 

groups and labor organizations” – Plaintiff would require its disclosure. Id. at 32. In short, 

Plaintiff assigns the giver’s purpose a controlling role, but prefers to stress a different purpose. 

Plaintiff attempts to justify his choice of purpose by arguing that the 2003 regulation 

originally implementing the disclosure requirement referred to a contributor as someone who 

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makes a “donation.” Id. at 20. But Step One analysis turns on the statute’s text, not on a term 

first employed in a subsequent regulation. The statutory term is “contributor.” The language, 

structure, purpose, and history of the statute all confirm that the relevant purpose is to support 

electioneering communications. Because that is what the regulation provides, it is validated at 

Step One and the judicial inquiry should end there. 

3. Moreover, Plaintiff Cannot Show That the Statute Unambiguously 

Forbids Consideration of the Giver’s Purpose under Step One. 

If the Court were not persuaded that Step One analysis conclusively validates the 

regulation, it then would face Plaintiff’s claim (at 18-27) that the statute so clearly forecloses 

consideration of the giver’s purpose that there is no room for FEC discretion and Plaintiff must 

prevail at Step One. The FEC Memorandum (at 18-28) already refutes that aspect of Plaintiff’s 

claim, but the following three considerations bolster the FEC’s position. 

First, Congress clearly did not contemplate any disclosure of the funding sources of 

corporations and unions because the statute prohibited such funding. Federal law already flatly 

“prohibited . . . corporations and unions from using general treasury funds to make direct 

contributions to candidates or independent expenditures that expressly advocate the election or 

defeat of a candidate, through any form of media” in connection with federal elections. Citizens 

United, 130 S. Ct. at 887. In the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-

155, 116 Stat. 81, Congress extended the ban to electioneering communications by corporations 

and unions, even if such speech fell short of express advocacy. 2 U.S.C. § 441b. Since 

corporate and labor union electioneering communications were unlawful, Congress never 

considered how much disclosure was warranted for such speech.16

 

16 Commenters during the 2007 rulemaking explained that the lack of congressional consideration meant that 

“the agency is writing on a blank slate” given the “unexpected situation” presented by WRTL. Comment from the 

Alliance for Justice (dated Oct. 1, 2007) (Dkt. No. 17-4, VH0438, VH0444); FEC Hearing Transcripts, In the matter 

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Plaintiff seeks to avoid this problem by asserting that, for a time during statutory drafting, 

Congress contemplated disclosures by the unique subset of corporations described in FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”). There is considerable 

doubt that is so.17 In any event, the central rationale for the MCFL exception was that such 

entities were entirely unlike the ordinary corporations and labor unions that could engage in 

electioneering communications after WRTL. Id. at 263 (MCFL corporations are “more akin to 

voluntary political associations”). 

Moreover, MCFL status was defined very narrowly and there were very few such entities. 

See Brief of Family Research Council et al. as Amicus Curiae Supporting Appellee at 10, WRTL, 

 

of: Electioneering Communications, Notice 2007-16 (dated Oct. 17, 2007) (Dkt. No. 17-5, VH0642). As one 

observed, “it was Congress’s explicit design that a union or a corporation acting in compliance with FECA would 

never have occasion to report an [electioneering communication] since it could never lawfully undertake one.” 

Comment from the AFL-CIO, AFSCME, NEA, and SEIU (dated Oct. 1, 2007) (Dkt. No. 17-4, VH0457) (emphasis 

in original). As a result, it “is unclear whether, and if so how, Congress would want to apply the reporting 

requirements with respect to the full range of corporations and labor organizations which may now pay for 

electioneering communications under some circumstances.” Comment from the Alliance for Justice (VH0438). 

FEC Commissioner Ellen Weintraub – a self-described “big advocate of transparency and disclosures” – vocalized 

potential concerns that “Congress may not have thought through what it was going to mean for [corporations and 

unions] to have disclosure because they were not anticipating that these entities would be able to make 

electioneering communications.” FEC Hearing Transcript (dated Oct. 17, 2007) (VH0499). 

17 Congress adopted the “Wellstone Amendment,” codified at 2 U.S.C. § 441b(c)(6), that “applied § 441b’s 

expenditure ban to all nonprofit corporations” equally. Citizens United v. FEC, 130 S. Ct. 876, 891 (2010). The 

Wellstone Amendment did “not, on its face, exempt MCFL organizations from its prohibition.” McConnell, 540 

U.S. at 211; see also McConnell v. FEC, 251 F. Supp. 2d 176, 803 (D.D.C. 2003), aff’d in part, rev’d in part on 

other grounds, 540 U.S. 93 (2003) (Leon, J.) (noting that the Government “concede[s] that Section 204 does not 

contain an exemption for MCFL organizations”), id. at 373 (Henderson, J.) (“The Wellstone Amendment (BCRA 

section 204) prevents any [MCFL] corporation, from the ACLU to the NRA to MCFL itself, from making a 

disbursement for any electioneering communication.”). For his part, Senator Wellstone explained that his 

amendment directly challenged the rationale underlying FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 

(1986) (“MCFL”), and maintained that MCFL’s fundamental premise was now invalid. See 147 Cong. Rec. S3042 

(daily ed. Mar. 28, 2001). Senator McConnell, who voted for the Wellstone Amendment, viewed it “as another 

unconstitutional ornament we could put on this tree.” Nancy Gibbs and Karen Tumulty, A New Day or a False 

Dawn?, Time, Mar. 31, 2001, available at http://www.time.com/time/nation/article/0,8599,104589,00.html. 

Likewise, Senators McCain, Feingold, and John Edwards opposed the amendment because it lumped MCFL

organizations “in with unions and for-profit corporations, [creating] a very serious constitutional problem because 

the U.S. Supreme Court has already specifically addressed that issue.” 147 Cong. Rec. S2883 (daily ed. Mar. 26, 

2001) (statement of Sen. Edwards). See also id. at S3047-48 (daily ed. Mar. 28, 2001) (statement of Sen. DeWine) 

(“As long as the Wellstone amendment stays in the bill, clearly this bill is going to be held to be unconstitutional” 

under MCFL.). 

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551 U.S. 449 (collecting and citing FEC data). Also, there was no evidence that any disclosure 

burdens imposed on them would be similar to those that would be experienced by corporations 

and labor unions generally. Indeed, when the FEC was first implementing the electioneering 

communication disclosure requirement in 2003, the FEC noted the virtual absence of burden 

concerns from MCFL entities and chose not to address the subject in the final rule. See 

Bipartisan Campaign Reform Act of 2002 Reporting; Coordinated and Independent 

Expenditures; Final Rules, 68 Fed. Reg. 404, 413 (Jan. 3, 2003). Requiring broad disclosures 

from ordinary corporations and labor unions engaging in forbidden speech would be a very 

different kettle of fish, and Congress never addressed, let alone intended, that burden. See FEC 

Mem. at 18. 

Second, Congress will not be assumed to burden speech casually. Congress may not 

impose disclosure burdens on core speech based on a “simple interest in providing voters with 

additional relevant information.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 348 

(1995). Nor may the government omit a tailoring analysis to ensure that an associated disclosure 

requirement would be “narrowly limited to those situations where the information sought has a 

substantial connection with the governmental interests sought to be advanced.” Buckley, 424 

U.S. at 80-81. Only clear, affirmative evidence could show an unambiguous intent to impose an 

untailored burden. See infra, Section 4 (discussion of constitutional avoidance). 

Third, the fact that Congress recently “considered and rejected” during the debate on the 

DISCLOSE Act the broad disclosure requirement Plaintiff seeks here is evidence that such a 

requirement was not originally intended. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 131-32 (2000); Dart v. United States, 961 F.2d 284, 286 (D.C. Cir. 1992) (“The legislative 

history . . . erases any doubt about Congress’s intent: Congress rejected a bill that would have 

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[provided the relief sought].”). Congress is the body that should impose the fundamental 

changes sought by Plaintiff. See Brown & Williamson, 529 U.S. at 159; see also Whitman v. Am. 

Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001). What Congress has just rejected should not be 

imposed by a litigation end-run based on hitherto unperceived meanings in legislation from a 

decade ago. 

Thus, Plaintiff cannot prevail at Step One, and the FEC’s compelling defense of its 

discretion precludes Plaintiff from prevailing at Step Two, if the Court reaches that point. 

4. The FEC’s Construction Is Necessary to Save the Statute from 

Constitutional Invalidity. 

First Amendment considerations also require that the FEC’s construction of the statute be 

upheld. The rule that serious constitutional doubts must be avoided if possible is not merely a 

prudential practice of the courts. It also is a traditional tool for ascertaining congressional intent 

at Step One of Chevron and provides a reasonable Step Two basis for agencies to exercise their 

discretion to minimize constitutional concerns.18 Here, not only would Plaintiff’s construction 

raise serious First Amendment questions – it would render the statute unconstitutional. 

(a) Plaintiff has the burden of showing that applying the statute to 

require broad disclosures from corporations and labor unions 

satisfies exacting scrutiny. 

Plaintiff’s reference (at 8) to the fact that McConnell held that the statutory disclosure 

requirements are facially valid does not meet his First Amendment burden. As WRTL made 

clear, those who seek to apply a facially valid statute to circumstances not directly considered 

 

18 See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. Trades Council, 485 U.S. 568, 575 (1988); AFLCIO v. FEC, 333 F.3d 168, 175-79 (D.C. Cir. 2003) (constitutional avoidance may apply at either step of the inquiry 

in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)); Diouf v. Napolitano, 634 F.3d 

1081, 1086 n.7 (9th Cir. 2011) (the doctrine is a “cardinal principle” of construction); Clark v. Martinez, 543 U.S. 

371, 381 (2005) (the doctrine reveals congressional intent). In this case, applying the constitutional avoidance 

doctrine at either step yields the same answer: the FEC’s interpretation of the statute must be upheld to avoid serious 

First Amendment concerns raised by Plaintiff’s construction. 

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and approved by precedent must justify the specific application. 551 U.S. at 465 (although the 

electioneering communication provision was “facially valid,” government had burden of 

justifying application not addressed in prior case); see also Citizens United, 130 S. Ct. at 915-16 

(government satisfied its burden). 

McConnell did not validate Plaintiff’s position because, when it was decided, the 

disclosure statute did not burden corporate or labor unions because they were flatly forbidden to 

engage in electioneering communications. McConnell did not discuss what burdens were proper 

for then-unlawful speech. Now that such an application is possible, Plaintiff has the burden of 

justification, and the burden has not been met. Moreover, and as discussed in more detail below, 

implementing Plaintiff’s position would also render the statute unconstitutionally vague. 

Plaintiff’s failure to demonstrate the constitutionality of applying the statute to 

corporations and labor unions has two important implications for this case. First, the 

presumption that Congress intends to avoid constitutional doubts bolsters the Step One analysis 

and confirms the Step Two reasonableness of the FEC’s position. Second, the First Amendment 

forbids this Court to grant any remedy that would have the effect of applying an untailored and 

vague statute to chill core speech. 

(b) The burdens Plaintiff seeks to impose on core speech trigger 

exacting scrutiny. 

Because “‘[d]iscussion of public issues and debate on the qualifications of candidates are 

integral to the operation’ of our system of government,” “the First Amendment has its fullest and 

most urgent application to speech uttered during a campaign for political office.” Ariz. Free 

Enter. Club’s Freedom PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011) (quoting Buckley, 424 U.S. 

at 14 (per curiam) (citations and quotations omitted)). And, as the Supreme Court recently 

clarified, “‘this is no less true because the speech comes from a corporation rather than an 

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individual.’” Citizens United, 130 S. Ct. at 904 (quoting First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765, 777 (1978)). Plaintiff thus seeks to burden core speech. 

Conditioning the right to core speech on disclosure of supporters and financing is, in 

itself, a significant speech burden, even if those disclosed do not face harassment. Buckley, 424 

U.S. at 64; see Doe v. Reed, 130 S. Ct. 2811, 2818 (2010) (collecting examples). The burden 

that “compelled disclosure imposes cannot be justified by a mere showing of some legitimate 

governmental interest,” even if the “deterrent effect on the exercise of First Amendment rights 

arises, not through direct government action, but indirectly as an unintended but inevitable result 

of the government’s conduct in requiring disclosure.” Buckley, 424 U.S. at 64-65. The Supreme 

Court has, accordingly, “subjected these requirements to ‘exacting scrutiny,’ which requires a 

‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ 

governmental interest.” Citizens United, 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66). 

“[S]ubstantial relation” requires careful tailoring of the benefit to the harm.19

(c) Exacting scrutiny is not satisfied here. 

Plaintiff’s proposed interpretation of the electioneering communication disclosure 

requirement cannot meet this “exacting scrutiny.” 

First, the disclosure requirement would be far too broad and untailored to bear a 

“substantial relation” to any “important governmental interest.” The Supreme Court upheld 

the original independent expenditure disclosure requirements in the Federal Election Campaign 

Act of 1971 by limiting their application only to those contributions that are “campaign related” 

 

19 Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1060 (7th Cir. 2004); McIntyre v. Ohio Election 

Comm’n, 514 U.S. 334, 347 (1995) (“exacting scrutiny” requires burdens to be “narrowly tailored”); Larson v. 

Valente, 456 U.S. 228, 230, 251 (1982) (“registration and reporting requirements” were facially invalid because 

defenders “failed to demonstrate [law] is ‘closely fitted’”); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 

(1994) (even restrictions on commercial speech must not “burden substantially more speech than is necessary”); 

Krislov v. Rednour, 226 F.3d 851, 863 (7th Cir. 2000) (“does not burden more speech than is necessary”). 

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because, absent this interpretation, “the relation of the information sought to the purposes of the 

Act may be too remote.” Buckley, 424 U.S. at 80. In other words, disclosure was tailored to 

reach only “spending that is unambiguously related to the campaign of a particular federal 

candidate.” Id.; see also Citizens United, 130 S. Ct. at 914 (upholding disclosure requirement 

“based on a governmental interest in ‘provid[ing] the electorate with information’ about the 

sources of election-related spending”) (quoting Buckley, 424 U.S. at 66). Only by limiting the 

disclosure obligation in this manner could the Supreme Court ensure that the “requirement is 

narrowly limited to those situations where the information sought has a substantial connection 

with the governmental interests sought to be advanced.” Buckley, 424 U.S. at 81. Requiring 

disclosure of sources of funds in the general treasury of a corporation or union without a 

connection to elections fails this test. See FEC Mem. at 30-36. 

Second, the heavy burden Plaintiff’s proposed disclosure requirement would impose 

on corporations and unions is not justified. “[R]eporting and disclosure requirements are 

more burdensome for multi-purpose organizations . . . than for political action committees whose 

sole purpose is political advocacy.” Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1101 

n.16 (9th Cir. 2003).20 As the FEC concluded, “to identify those persons who provided funds 

totaling $1,000 or more to a corporation or labor union would be very costly and require an 

inordinate amount of effort.” Final Rule and Explanation and Justification on Electioneering 

Commc’ns, 72 Fed. Reg. 72899, 72911 (Dec. 26, 2007). Furthermore, it would raise serious 

“concerns regarding individual donor privacy” protected by the First Amendment. Id. at 

 

20 Returning to MCFL corporations discussed in Section 3, supra, they are not similarly situated to other 

corporations or labor unions from a First Amendment perspective under this same rationale. Just as those who 

contribute to political action committees do so to advance the organization’s political mission, those who contribute 

to an MCFL corporation “are fully aware of its political purposes, and in fact contribute precisely because they 

support those purposes . . . . Any contribution therefore necessarily involves at least some degree of delegation of 

authority to use such funds in a manner that best serves the shared political purposes of the organization and 

contributor.” MCFL, 479 U.S. at 260-61. The same cannot be said of multi-purpose corporations and labor unions.

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72901.21 A West Virginia district court reviewing an analogous state law recently found that 

demanding this level of disclosure would be “quite burdensome on those entities and may 

discourage” individuals “from associating with and giving to the entity as a consequence.” Ctr. 

for Individual Freedom, Inc. v. Tennant, Civ. A. No. 1:08-cv-00190, 2011 WL 2912735, at *49 

(S.D.W.Va. July 18, 2011). 

Here, Congress never considered whether a massive disclosure requirement of this kind 

was justified because it did not foresee that this issue would arise. FEC Mem. at 18-19. In the 

2007 rulemaking, the FEC found that the broad disclosures now demanded by Plaintiff were not 

justified. 72 Fed. Reg. at 72911. Plaintiff does not show from that record that the FEC erred. 

In any event, such a sweeping and unfocused disclosure regime could not even 

conceivably “bear a sufficient relationship to the interest of providing the electorate with 

meaningful information as to who is speaking in electioneering communications.” Tennant, 

2011 WL 2912735, at *49. As the FEC found, “[a] corporation’s general treasury funds are 

often largely comprised of funds received from investors such as shareholders who have 

acquired stock in the corporation’s products and services, or in the case of a non-profit 

corporation, donations from persons who support the corporation’s mission.” 72 Fed. Reg. at 

72911. Accordingly, “[t]he practical effect of requiring such expansive disclosure is not only to 

 

21 Multiple commenters raised these concerns during the 2007 rulemaking, objecting to any proposal that 

would conflict with “established First Amendment principles” by requiring disclosure of an organization’s entire 

donor list, or at least a significant portion thereof. Comment from the Alliance for Justice (VH0445). Quoting from 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 388 (D.C. Cir. 1981), one commenter explained 

that the “[r]eporting of donors represents ‘the very heart of the organism which the first amendment was intended to 

nurture and protect: political expression and association.’” Comment from the American Taxpayers Alliance and 

Americans for Limited Government (dated Oct. 1, 2007) (Dkt. No. 17-3, VH0422). This same theme was 

incorporated into other submissions, which stressed that “[t]he constitutionality of a statute that implicates First 

Amendment rights must be examined by considering both whether and to what extent it serves the actual 

governmental interests that underlay its enactment.” Comment from the AFL-CIO, AFSCME, NEA, and SEIU 

(VH0458) (emphasis in original). For many, donor disclosure requirements “present[ed] significant privacy 

concerns that [simply were] not outweighed by the government interests in disclosure.” Comment by Independent 

Sector (dated Oct. 1, 2007) (Dkt. No. 17-3, VH0365). 

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compel a flood of information, but a flood of information that is not necessarily relevant to the 

purpose the [statute] purportedly serves: to provide the electorate with information as to who is 

speaking.” Tennant, 2011 WL 2912735, at *49. Indeed, “a large swath” of those who provide 

corporate or union general treasury funds may “not support an organization’s electioneering 

communications” or “even be aware that the organization is engaging in electioneering 

communications.” Id. In short, the disclosure obligation that Plaintiff incorrectly insists is 

required by the statute “adds little value to the disclosure scheme that exists . . . and does so at 

great cost to the vitality and ability to speak of corporations and organizations.” Id. Such a 

disclosure requirement is incompatible with the First Amendment. In contrast, the FEC’s 

reasonable construction of the law “does not overreach and bears a substantial relation to the 

information-providing purpose it serves.” Id. 

Third, and last, the statute would be impermissibly vague under Plaintiff’s proposed 

construction. “[T]he most important factor affecting the clarity that the Constitution demands 

of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Vill. 

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). “Precision of 

regulation must be the touchstone in an area so closely touching our most precious freedoms.” 

NAACP v. Button, 371 U.S. 415, 438 (1963).

If a law “threatens to inhibit . . . free speech,” it must meet a “more stringent vagueness 

test” than just the “fair notice” that due process requires of all laws. Buckley, 426 U.S. at 40-41, 

79; Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010). This is because 

“[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if 

the boundaries of the forbidden areas were clearly marked,” and precious speech thus is 

suppressed. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (internal quotations 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 25 of 27
19 

omitted); Reno v. Am. Civil Liberties Union, 521 U.S. 844, 871-72 (1997). Also, statutory 

vagueness prevents legislators from carefully weighing First Amendment costs. See Grayned, 

408 U.S. at 109 n.5; Garner v. Louisiana, 368 U.S. 157, 200, 202 (1961) (Harlan, J. concurring). 

Yet Plaintiff asks this Court to deprive CFIF and others of the guidance provided by the 

FEC regulation, to reject the understanding justified by the statute’s language, structure, and 

purpose, and to leave speakers subject to a statutory provision under which some but not all

sources of general treasury funds would need to be disclosed. The only guide Plaintiff suggests 

is that “donations” – a term that does not appear anywhere in the statute – must be disclosed and 

“investment revenue, sales revenue, loan proceeds, and the like” need not be disclosed. Pl. 

Mem. at 31. But undefined terms such as “donations” and phrases such as “and the like” do not 

provide speakers engaged in sensitive First Amendment activity with sufficient guidance. 

Unable to predict how enforcers later will classify a myriad of funding sources, this uncertainty 

will lead corporations and labor unions to stand silent, depriving the public of core First 

Amendment speech. 

Federal courts should “not decide a constitutional question if there is some other ground 

upon which to dispose of the case.” Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 

2504, 2513 (2009) (citations and quotations omitted). Because Plaintiff’s proposed construction 

would require the Court to strike down the statute as violating the First Amendment for the 

reasons just discussed, Plaintiff’s construction should be rejected. 

5. Any Remedy Must Avoid Aggravating Speech Burdens. 

For the reasons discussed above and those stated by the FEC, the Court should deny 

Plaintiff’s motion for summary judgment and grant summary judgment dismissing the Complaint 

with prejudice. Such relief is required by law and is consistent with the First Amendment. 

Case 1:11-cv-00766-ABJ Document 33 Filed 08/22/11 Page 26 of 27
20 

If the Court were to conclude that the regulation fails under the Administrative Procedure 

Act for some remediable procedural defect in its enactment or for a lack of factual support, the 

regulation should remain in effect pending remand to the agency for further proceedings. FEC 

Mem. at 43-45; see, e.g., Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 

150-51 (D.C. Cir. 1993). On the other hand, if the Court concludes that the regulation fails under 

Chevron because it is contrary to the statute, vacatur of the regulation – with the right of an 

immediate appeal – would be the appropriate remedy. See, e.g., Emily’s List v. FEC, 581 F.3d 1, 

25 (D.C. Cir. 2009); Cal. State Bd. of Optometry v. FTC, 910 F.2d 976, 982 (D.C. Cir. 1990). 

However, vacating the regulation would invite application to corporations and labor unions of a 

statute that is void for lack of tailoring and for vagueness. Before granting such a remedy, the 

Court should declare that such an application of the statute would violate the First Amendment 

unless and until a new regulation redresses the First Amendment violations. 

CONCLUSION 

For these reasons, the Court should grant Defendants’ motion for summary judgment. 

August 22, 2011 Respectfully submitted, 

 /s/ Thomas W. Kirby 

Jan Witold Baran (D.C. Bar No. 233486) 

 E-mail: jbaran@wileyrein.com

Thomas W. Kirby (D.C. Bar No. 915231) 

 E-mail: tkirby@wileyrein.com

Caleb P. Burns (D.C. Bar No. 474923) 

 E-mail: cburns@wileyrein.com

Andrew G. Woodson (D.C. Bar No. 494062) 

 E-mail: awoodson@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

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