Nos. 12-5117 & -5118 

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHRIS VAN HOLLEN, 

Plaintiff-Appellee 

v. 

FEDERAL ELECTION COMMISSION,

Defendant. 

CENTER FOR INDIVIDUAL FREEDOM, 

Intervenor-Appellant 

in No. 12-5117, 

HISPANIC LEADERSHIP FUND, 

Intervenor-Appellant 

in No. 12-5118.

On Appeal from the United States District Court 

for the District of Columbia, No. 1:11-cv-00766-ABJ 

Before the Honorable Amy Berman Jackson 

PLAINTIFF-APPELLEE VAN HOLLEN’S OPPOSITION TO 

INTERVENORS’ “EMERGENCY MOTIONS” FOR STAY 

 Plaintiff-Appellee Chris Van Hollen respectfully submits this opposition to 

“emergency motions” for stay filed by intervenor-appellants Center for Individual 

Freedom (“CFIF”) and Hispanic Leadership Fund (“HLF”). Defendant Federal 

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Election Commission has filed a notice in the District Court that it will not appeal 

the District Court’s judgment, which invalidated an FEC regulation on Chevron

Step One grounds. See No. 11-cv-0766, Dkt. No. 60; Van Hollen v. FEC, --- F. 

Supp. 2d ----, 2012 WL 1066717 (D.D.C. Mar. 30, 2012). The FEC has not taken 

any position regarding intervenors’ stay motion in the Court below or in this Court. 

 After intervenors filed the instant motions in this Court, the District Court 

denied their motions to stay below. See No. 11-cv-0766, Dkt. No. 61 (April 27, 

2012) (“Order Denying Stay”) (attached as Exhibit A). It found that intervenors 

did not meet the heavy burden necessary to justify the extraordinary remedy of a 

stay because they did not demonstrate a likelihood of success on appeal and failed 

to show irreparable harm absent a stay. Id. at 3-4. The District Court also found 

that the public interest weighs against imposing a stay. Id. at 4. 

I. THE DISTRICT COURT PROPERLY VACATED THE REGULATION UNDER 

CHEVRON STEP ONE

The District Court’s grant of summary judgment for the plaintiff vacated the 

challenged FEC regulation. Before the FEC promulgated the regulation that the 

District Court struck down, a predecessor regulation had validly implemented the 

disclosure requirements of the Bipartisan Campaign Reform Act (“BCRA”) § 201 

(codified at 2 U.S.C. § 434(f)). See 11 C.F.R. § 104.20(c) (effective Feb. 3, 2003 

to Dec. 25, 2007). In light of the District Court’s Chevron Step One ruling, “that

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regulation now governs the disclosures required under the BCRA.” Order Denying 

Stay 3. 

As CFIF recognized in its motion for summary judgment below, vacatur is 

presumptively appropriate when a court concludes that a regulation fails under 

Chevron Step One. See No. 11-cv-0766, Dkt. No. 33, 20 (citing Emily’s List v. 

FEC, 581 F.3d 1, 25 (D.C. Cir. 2009); California State Bd. of Optometry v. FTC, 

910 F.2d 976, 982 (D.C. Cir. 1990)); see also Sierra Club v. Van Antwerp, 719 F. 

Supp. 2d 77, 78-79 (D.D.C. 2010) (citing cases for proposition that “both the 

Supreme Court and the D.C. Circuit Court have held that remand, along with 

vacatur, is the presumptively appropriate remedy for a violation of the APA”). But 

see Shays v. FEC, 337 F. Supp. 2d 28, 130 (D.D.C. 2004). 

Remand without vacatur would produce an illogical result. See, e.g., Fox 

Television Stations, Inc. v. FCC, 293 F.3d 537, 541 (D.C. Cir. 2002) (affirming 

vacatur of rule where low probability that Commission would be able to justify 

retaining the rule and disruption caused by vacatur would not be substantial);

American Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1086 (D.C. Cir. 2001) 

(vacating agency action where government had failed to defend its action on prior 

remand); Illinois Pub. Telecommc’ns Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir. 

1997) (vacating rule where there was little prospect of agency being able to readopt 

the regulation with a more adequate explanation). 

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Thus, vacatur was the appropriate remedy here. 

II. INTERVENORS HAVE NOT MET THEIR HEAVY BURDEN IN SEEKING THE 

EXTRAORDINARY REMEDY OF A STAY PENDING APPEAL

Intervenors must meet a heavy burden to justify the “extraordinary remedy” 

of a stay pending appeal. Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 

972, 978 (D.C. Cir. 1985) (per curiam); see also In re Special Proceedings, --- F. 

Supp. 2d ----, 2012 WL 859578, at *1 (D.D.C. Feb. 27, 2012) (denying stay of 

order denying motion to permanently seal the report regarding the prosecution of 

Senator Stevens). As the District Court correctly held, intervenors fail to do so. 

See generally Order Denying Stay. Indeed, intervenors fail as to each of the four 

factors that this Court considers in determining whether to grant a stay: (1) their 

appeals have little chance of success on the merits; (2) they have not shown 

irreparable harm absent a stay; (3) a stay would substantially injure the other 

parties interested in the proceeding; and (4) the public interest weighs heavily 

against a stay. See Nken v. Holder, 556 U.S. 418, 426 (2009). 

A. Likelihood Of Success On The Merits 

As the District Court held, intervenors have not persuasively demonstrated 

that they have a substantial likelihood of success on appeal. See Order Denying 

Stay 2-3. They argue that the presence of a novel question of law weighs in favor 

of finding that they have satisfied their burden. See CFIF Motion 10. While the 

District Court noted that this case presents “what appears to be the novel question 

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of whether an agency may promulgate regulations that narrow a statutory provision 

for the stated purpose of curing a perceived ambiguity or change in the statute’s 

reach that was created by new legal precedent,” Van Hollen, 2012 WL 1066717, at 

*1, the District Court did not say that the question was a close one. Rather, it 

found that the question was readily answered by application of the Chevron

doctrine. See, e.g., id. at *1, *11, *16. Demonstrably, the District Court answered 

that question correctly. 

Intervenors largely rehash the same arguments the District Court rejected in 

its fully reasoned opinion. Repetition has not made those arguments any stronger. 

Because intervenors have provided “no new information, authority, or analysis,” 

there is “no basis to conclude” that they have demonstrated a sufficient probability 

of success on appeal. In re Special Proceedings, 2012 WL 859578, at *2. 

As plaintiff demonstrated below, BCRA unambiguously requires all 

“persons,” including corporations and labor organizations, that make 

“electioneering communications” to disclose “all contributors of $1,000 or more.” 

By contrast, the vacated regulation required only disclosure of those who have 

announced a “purpose of furthering electioneering communications.” Subjecting 

the regulation to the two-step analysis of the Chevron case: “asking first whether 

Congress has spoken directly ... to the precise question at issue, and second, if it 

has not, whether the agency’s interpretation is reasonable,” Shays v. FEC, 414 F.3d 

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76, 96 (D.C. Cir. 2005) (internal quotation marks and citations omitted), the 

District Court properly found that the regulation failed at Chevron Step One. The 

District Court held that the FEC “had no explicit or implicit statutory authority to 

limit the disclosure obligations enacted by Congress, which require [] every 

‘person’ who funds ‘electioneering communications’ to disclose ‘all contributors.’” 

Order Denying Stay 2-3. The District Court correctly concluded that Congress 

spoke clearly when it enacted BCRA and had not delegated authority to the FEC to 

narrow the disclosure requirement.

Intervenors continue to argue that the FECA definition of “contribution” 

should dictate the definition of the term “contributor.” See CFIF Motion 11. 

However, FECA uses the term “contribution” in a different provision, regulating 

different conduct from the electioneering communications provisions added by 

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

purpose of influencing any election for Federal office.” 2 U.S.C. § 431(8). By 

contrast, the definition of “electioneering communications” includes 

communications that are not made “for the purpose of influencing any election for 

Federal office,” especially as that term has been narrowed by judicial 

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

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

and noting that “BCRA’s definition of ‘electioneering communication’ is clear and 

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expansive”). Thus, applying the FECA definition to BCRA’s disclosure provisions 

would not make sense. 

Nor does the dictionary definition of “contribute” turn on purpose as 

intervenors maintain. See CFIF Motion 12. As the District Court found, the plain 

meaning of “contribute” does not include an element of intent. Van Hollen, 2012 

WL 1066717, at *15. Instead, as BCRA makes clear, the term “contribute” means 

giving or granting in common with others—regardless of purpose—to a common 

fund or account, 2 U.S.C. § 434(f)(2)(E) (“all contributors who contributed an 

aggregate amount of $1,000 or more to that account”), or common person, id. 

§ 434(f)(2)(F) (“all contributors who contributed an aggregate amount of $1,000 or 

more to the person making the disbursement”). See also Merriam-Webster’s 

Collegiate Dictionary 252 (10th ed. 2001) (defining transitive verb “contribute” as 

“to give or supply in common with others” and intransitive verb as “to give a part 

to a common fund or store”). As the District Court noted, the following 

hypothetical offered by plaintiff’s counsel at oral argument illustrates that the plain 

meaning of “contributor” does not include an intent requirement: 

Let’s say I was a contributor to the Do-Re-Mi Music Festival. Maybe 

I did that because I love music. Whether or not I love music, I’m a 

contributor. Maybe I hate music but I like to see my name printed on 

the program. I have a purely selfish motive. I’m still a contributor. 

Or maybe I gave because somebody I know was putting the arm on 

me to give to his favorite charity, and I hate music but I gave anyway. 

I’m still a contributor. Or maybe I gave because I thought if I give to 

his charity, he’ll give to my charity. I’m still a contributor. 

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Van Hollen, 2012 WL 1066717, at *15 n.12. 

Intervenors’ constitutional arguments likewise fail on multiple grounds. 

First, plaintiff did not allege that the statute or regulation, as written, violates the 

Constitution, and intervenors did not file their own claims, so intervenors’ 

constitutional arguments were not properly before the District Court. See Van 

Hollen, 2012 WL 1066717, at *15. Second, as the District Court recognized, 

intervenors may not defend the challenged regulation on grounds not invoked by 

the FEC. See id. at *15 n.14; see also SEC v. Chenery Corp., 318 U.S. 80, 88 

(1943); Common Cause v. FEC, 906 F.2d 705, 707 (D.C. Cir. 1990) (propriety of 

agency action must only be judged on the grounds invoked by the agency). The 

FEC did not rely on constitutional considerations in the Explanation & Justification 

it published when it promulgated the regulation. See FEC, Final Rule and 

Explanation and Justification on Electioneering Communications, 11 C.F.R. Part 

104, 114, 72 Fed. Reg. 72,899 (Dec. 26, 2007); see also Order Denying Stay 3 n.3. 

Lastly, even if intervenors’ arguments did not suffer from these deficiencies, the 

Supreme Court’s decision in Citizens United fully answers the constitutional 

concerns intervenors advance. The Court upheld BCRA § 201, noting that the 

“public has an interest in knowing who is speaking about a candidate shortly 

before an election.” 130 S. Ct. at 915. 

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Intervenors also argue that the District Court Order creates a structural 

absurdity because it “requir[es] an organization making electioneering 

communications to provide much broader and more invasive disclosures than if the 

organization were making independent expenditures.” CFIF Motion 13. But the 

distinction between disclosure requirements related to electioneering 

communications and one of the requirements related to independent expenditures 

was created by Congress, not the District Court.1

 Congress used the phrase “for 

the purpose of furthering” in the FECA provision requiring disclosure of 

contributors of $200 or more to persons making “independent expenditures,” 2 

U.S.C. § 434(c)(2)(C), but Congress did not include that or comparable language 

in the BCRA provision applying to disclosure of contributors of $1,000 or more to 

persons making “electioneering communications,” id. § 434(f). The absence of the 

phrase “for the purpose of furthering” in § 434(f)(2)(F) is significant because 

Congress could have adopted the language it had earlier included in § 434(c), but 

chose not to do so. Cf. Motion Picture Ass’n of America, Inc. v. FCC, 309 F.3d 

 

1

 The independent expenditure disclosure requirement is not as limited as 

intervenors contend. Section 434(c)(1) requires disclosure of all contributors of 

$200 or more to the person making an independent expenditure. 2 U.S.C. 

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

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796, 801-802 (D.C. Cir. 2002) (noting that provisions in pari materia must be 

construed together to discern their meaning).2

 

B. Irreparable Harm 

To justify the extraordinary remedy of a stay, a showing of irreparable harm 

is crucial. See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); 

FTC v. Church & Dwight Co., 756 F. Supp. 2d 81, 86 (D.D.C. 2010) (denying stay 

where defendant failed to identify clearly irreparable harm), aff’d, 665 F.3d 1312 

(D.C. Cir. 2011). Intervenors claim that compliance with the disclosure 

requirements would impose a heavy burden and result in “First Amendment harm.” 

CFIF Motion 15; see also HLF Motion 18. But the Supreme Court has rejected 

such arguments. Disclosure requirements might be unconstitutional as applied to a 

specific organization where that organization has demonstrated “a reasonable 

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

their names were disclosed.” Citizens United, 130 S. Ct. at 916. Neither CFIF nor 

HLF has made such a factual showing. See Van Hollen, 2012 WL 1066717, at 

 

2

 Intervenors are also wrong that all corporations were barred from making 

electioneering communications prior to Citizens United. See HLF Motion 10. The 

Supreme Court found that BCRA permitted MCFL corporations to make 

“electioneering communications.” See McConnell, 540 U.S. at 211 (“Because our 

decision in the MCFL case was on the books for many years before BCRA was 

enacted, we presume that the legislators who drafted [the Wellstone Amendment] 

were fully aware that the provision could not validly apply to MCFL-type 

entities.”). 

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*16. Rather, as the District Court held, “It is [] difficult to see how defendantintervenors would be harmed by complying with the disclosure provisions that the 

Supreme Court specifically upheld in Citizens United.” Order Denying Stay 4. 

Intervenors also argue that the District Court’s decision vacating the 

regulation “obfuscates what is and what is not required to be disclosed.” HLF 

Motion 18. Even if that were true, it would not qualify as irreparable injury. But 

it’s not true: corporations and labor organizations that make electioneering 

communications and that do not use the statute’s segregated account option need 

only abide by the plain text of the statute and disclose “the names and addresses of 

contributors who contributed an aggregate amount of $1,000 or more.” BCRA 

§ 201, 2 U.S.C. § 434(f)(2). Furthermore, in light of the District Court’s ruling, the 

regulation that was in effect prior to the FEC’s promulgation of the invalid 

regulation now governs disclosure requirements for corporations. See Order 

Denying Stay 3; 11 C.F.R. § 104.20(c) (effective Feb. 3, 2003 to Dec. 25, 2007). 

Intervenors have not demonstrated why it would be difficult to comply with this 

straightforward regulation. 

Thus, intervenors fail to show how they will be irreparably harmed by denial 

of a stay. A stay would simply allow continued violations of the plain language of 

BCRA § 201. 

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C. Harm To Other Interested Parties 

Plaintiff, on the other hand, will suffer harm if a stay is granted. See Shays 

v. FEC, 340 F. Supp. 2d 39, 52 (D.D.C. 2004) (“The existence of loopholes and 

unfaithful regulations constitutes a daily injury to both [plaintiffs’] interests and the 

clearly articulated intent of Congress”), aff’d, 414 F.3d 76 (D.C. Cir. 2005). 

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. See Van Hollen, 2012 WL 1066717, at *7; see also Declaration 

of Representative Chris Van Hollen, No. 11-cv-0766, Dkt. No. 20-1, ¶ 5. 

D. The Public Interest 

The public interest is a “uniquely important consideration” in evaluating a 

request for the extraordinary remedy of a stay pending appeal. National Ass’n of 

Farmworkers Orgs. v. Marshall, 628 F.2d 604, 616 (D.C. Cir. 1980); see also In re 

Special Proceedings, 2012 WL 859578, at *5; National Ass’n of Mfrs. v. Taylor, 

549 F. Supp. 2d 68, 77 (D.D.C. 2008) (denying stay pending appeal of decision 

that requirements under Lobbying Disclosure Act were constitutional); Shays, 340 

F. Supp. 2d at 54 (denying stay pending appeal of ruling that certain FEC 

regulations violated the APA). As the District Court recognized, the stricken 

regulation “does not comport with the Congressional purpose and intent behind 

campaign finance legislation: to expose the parties behind the communications to 

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the light.” Van Hollen, 2012 WL 1066717, at *15 n.13. Granting 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. See Order Denying Stay 4 (“The public has a 

strong interest in the full disclosure mandated by the BCRA.” (citing Citizens 

United, 130 S. Ct. at 914-16)). 

As the record below reflects and the FEC conceded below, the disclosure 

mandated in plain language by BCRA § 201 has sunk to an all-time low under the 

now-invalidated regulation. See Defendant FEC’s Answer, No. 11-cv-0766, Dkt. 

No. 16, ¶ 30. In 2010, persons making electioneering communications disclosed 

the sources of less than 10 percent of their $79.9 million in electioneering 

communication spending. See Outside Spending, Center for Responsive Politics, 

2010 Outside Spending, by Groups, available at http://www.opensecrets.org/

outsidespending/summ.php?cycle=2010&disp=O&type=E&chrt=D (last updated 

Apr. 26, 2012). The ten persons that reported spending the most on electioneering 

communications (all of them not-for-profit corporations) disclosed the sources of a 

mere five percent of the money spent. Id. Of these ten not-for-profit corporations, 

only three disclosed any information about their funders. Id.

3

 

3

 The Washington Post last week reported that “[n]early all of the independent 

advertising aired for the 2012 general-election campaign has come from interest 

groups that do not disclose their donors, suggesting that much of the political 

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Longstanding Supreme Court precedent recognizes the strong public interest 

in campaign finance disclosure. As the Court held in Buckley v. Valeo, 424 U.S. 1, 

67 (1976), disclosure requirements “deter actual corruption and avoid the 

appearance of corruption.” For such reasons, the Court has consistently upheld 

campaign finance disclosure provisions, such as BCRA § 201. See, e.g., Citizens 

United v. FEC, 130 S. Ct. 876, 916 (2010); McConnell v. FEC, 540 U.S. 93, 201-

202 (2003); Buckley, 424 U.S. at 67. The Court has specifically said that the 

disclosure requirements of BCRA § 201 serve an important public function 

because they provide the electorate with information about the sources of electionrelated spending and help citizens “make informed choices in the political 

marketplace.” Citizens United, 130 S. Ct. at 914 (internal quotation marks and 

citation omitted). The Court in Citizens United drew attention to the problems that 

result when groups run ads “while hiding behind dubious and misleading names.” 

Id.

4

 Contrary to what intervenors argue, disclosure requirements “do not prevent 

 

spending over the next six months will come from sources invisible to the public.” 

Dan Eggen, Most independent ads for 2012 election are from groups that don’t 

disclose donors, Wash. Post, Apr. 24, 2012, available at http://www. 

washingtonpost.com/politics/most-independent-ads-for-2012-election-are-fromgroups-that-dont-disclose-donors/2012/04/24/gIQACKkpfT_story.html. 

4

 Intervenors erroneously argue that there is a substantial likelihood that this 

Court could find that the holding in Citizens United does not dispose of the First 

Amendment arguments it has presented because, it is contended, Citizens United

applies only to the disclosure requirements as limited by the FEC regulation the 

District Court invalidated. See CFIF Motion 13. There is no support for that 

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anyone from speaking," but they do serve the interests of "transparency," 

accountability, and promoting informed decision-making by voters. Id. 

CONCLUSION 

F or these reasons, intervenors' motions for stay should be denied, as should 

their request in the alternative for an unreasonably expedited briefing schedule for 

which they have not shown good cause. 

FRED WERTHEIMER 

DEMOCRACY 21 

2000 Massachusetts Ave, N.W. 

Washington, D.C. 20036 

(202) 355-9610 

Respectfully submitted, 

~.Jev--$c M"~#~ ROGER M. WITTEN 

FIONAJ. KAYE 

WILMER CUTLER PICKERING 

HALE AND DORR LLP 

399 Park Avenue 

N ew York, NY 10022 

(212) 230-8800 

contention in the Supreme Court's opinion. When the Court referred to disclosure 

of "certain contributors," it cited the statute, 2 U.S.C. § 434(t)(2), not the 

regulation, 11 C.F.R. § 104.20(c)(9). Citizens United, 130 S. Ct. at 914. The 

statute already contains a limitation warranting the phrase "certain contributors," in 

that it only requires disclosure of persons that give $1,000 or more (or under the 

segregated account option-those that give $1,000 or more to that account). See 2 

U.S.C. § 434(t)(2)(E) & (F). Nor did the Government's brief contend that BCRA 

§ 201' s constitutionality turned in any way on the loophole-opening effect of the 

challenged regulation. Brief for Appellee, No. 08-205, 2009 WL 406774, at *40-

41 (U.S. Feb. 17,2009). 

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DONALD J. SIMON

SONOSKY CHAMBERS SACHSE

 ENDRESON & PERRY, LLP

1425 K Street, N.W., Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

TREVOR POTTER

J. GERALD HEBERT 

PAUL S. RYAN

TARA MALLOY

CAMPAIGN LEGAL CENTER

215 E Street N.E. 

Washington, D.C. 20002 

(202) 736-2200 

USCA Case #12-5117 Document #1371408 Filed: 04/30/2012 Page 16 of 23
EXHIBIT A 

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CHRIS VAN HOLLEN, Jr., )

)

Plaintiff, )

)

v. ) Civil Action No. 11-0766 (ABJ)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Chris Van Hollen, Jr., brought this lawsuit against defendant Federal Election 

Commission (“FEC”), alleging that defendant violated the Administrative Procedure Act 

(“APA”), 5 U.S.C. § 706, by promulgating 11 C.F.R. § 104.20(c)(9). The lawsuit claimed that 

defendant exceeded its statutory authority by promulgating a regulation that was contrary to the 

disclosure regime set forth in the Bipartisan Campaign Reform Act (“BCRA”), 2 U.S.C. 

§ 434(f)(2)(E) and (F). Plaintiff also contended that the regulation violated the APA because it 

was arbitrary, capricious, and contrary to law. The parties cross-moved for summary judgment. 

On March 30, 2012, this Court issued its Memorandum Opinion (“Mem. Op.”) and Order 

[Dkt. # 47 and # 48], which granted plaintiff’s motion for summary judgment and denied 

defendant’s cross motion for summary judgment. The Order also denied defendant-intervenor 

Hispanic Leadership Fund’s (“HLF”) motion to dismiss and denied defendant-intervenor Center 

for Individual Freedom’s (“CFIF”) cross motion for summary judgment. CFIF and HLF 

appealed the Order and now move this Court for a stay pending appeal. [Dkt. # 51 and # 52]. 

Case 1:11-cv-00766-ABJ Document 61 Filed 04/27/12 Page 1 of 5

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2

A stay pending appeal is an extraordinary remedy. Cuomo v. U.S. Nuclear Regulatory 

Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985). It is “an intrusion into the ordinary process of 

administration and judicial review . . . and accordingly is not a matter of right, even if irreparable 

injury might otherwise result to the appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009)

(internal quotation marks and citation omitted). Instead, a stay is an exercise of judicial 

discretion, and whether to grant it depends upon the specific circumstances of the case. Id. at 

433. The moving party bears the burden of justifying why the Court should grant this 

extraordinary remedy. Id. at 433–34.

The Court considers four factors in reviewing the motion:

(1) whether the stay applicant has made a strong showing that it 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.

Id. at 434. The first two factors are the most critical. Id. The moving party must make a strong 

showing on at least one of them and some showing on the other. Baker v. Socialist People’s 

Libyan Arab Jamahirya, 810 F. Supp. 2d 90, 97 (D.D.C. 2011), citing Cuomo, 772 F.2d at 974. 

Here, defendant-intervenors have not demonstrated a substantial likelihood of success on 

the merits. In its ruling, the Court struck down a regulation that was expressly designed to 

“narrow” the disclosure regime established by the BCRA. 1 Defendant had no explicit or 

 

1 HLF takes issue with the Court’s application of the two-step analysis set forth in Chevron 

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). HLF’s Mem. in Supp. of 

Mot. for Stay (“HLF’s Mem.”) at 6, citing Mem. Op. at 6. HLF submits that “the question of 

whether ‘Congress has explicitly left a gap for the agency to fill’ is a separate and distinct 

question from ‘whether Congress has directly spoken to the question at issue.’” Id. at 7. The 

Court notes that it quoted and applied the correct Chevron test, see Mem. Op. at 2, 12–13, but 

this was not an obvious Chevron situation. The question presented by the case was that the 

FEC’s stated reason for its promulgation of the rule was that the Supreme Court had altered the 

landscape – not that Congress had left a gap for the agency to fill – so it was incumbent upon the 

Court to determine what that meant under the Chevron test.

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3

implicit statutory authority to limit the disclosure obligations enacted by Congress, which require

that every “person” who funds “electioneering communications” to disclose “all contributors.”

See 2 U.S.C. § 434(f)(1). Prior to the promulgation of the regulation that was struck down, there 

was a valid regulation in effect implementing the BCRA’s disclosure requirement. 11 C.F.R. 

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

also Mem. Op. at 4–5. In light of the Court’s ruling, that regulation now governs the disclosures 

required under the BCRA. 

Defendant-Intervenors also contend that they are likely to succeed on the merits because 

plaintiff lacks standing to challenge the regulation. HLF’s Mem. at 2–6. In light of FEC v. 

Akins, 524 U.S. 11 (1998) and Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008), and as defendant 

FEC’s acknowledgement that plaintiff has standing suggests,2 defendant-intervenors are not 

likely to succeed on this issue either. 

Defendant-Intervenors have also failed to show that they will be irreparably harmed 

absent a stay. CFIF contends that “[b]ecause the primary election season already is underway, 

injury to speech and associational rights already is occurring.” CFIF’s Mem. in Supp. of Mot. 

for Stay (“CFIF’s Mem.”) at 9; Mazzella Decl. ¶ 3 [Dkt. # 15-2] (stating that the Court’s ruling 

“will force CFIF to abandon some of its desired speech and alter other speech” and that “[t]his is 

a substantial impairment of our rights of free speech and association”).3 But, as the Court noted 

 

2 Defendant FEC agreed at oral argument that plaintiff had standing. Motions Hearing 

Transcript (“Tr.”) at 57 (Jan. 11, 2012).

3 CFIF also contends that it will be irreparably harmed absent a stay because Congress did 

not evaluate and approve of the “first amendment burdens” that compliance with the Court’s 

ruling would require. CFIF’s Mem. at 10. According to CFIF, the FEC did contemplate those 

burdens when it promulgated the rule at issue in this case. The Court notes that the stated 

justification for the rulemaking was not Constitutional compliance. Electioneering 

Communications, 72 Fed. Reg. 50,261, 50271 (proposed August 31, 2007) (asking in the Notice 

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in its memorandum opinion, the Supreme Court expressly upheld the disclosure requirements set 

forth in the BCRA in Citizens United v. FEC, 588 U.S. ---, 130 S. Ct. 876 (2010). In its 

decision, the Supreme Court observed that the disclosure requirements serve an important public 

function because they “‘provid[e] the electorate with information about the sources of electionrelated spending,’” 130 S. Ct. at 914, quoting Buckley v. Valeo, 424 U.S. 1, 66 (1976), and “help 

citizens ‘make informed choices in the political marketplace,’” id., quoting McConnell v. FEC,

540 U.S. 93, 197 (2003). It is therefore difficult to see how defendant-intervenors would be 

harmed by complying with the disclosure provisions that the Supreme Court specifically upheld 

in Citizens United.

Because defendant-intervenors have failed to demonstrate two of the four factors 

necessary for the stay – the likelihood of success on the merits and irreparable harm – the motion 

will be denied. But the Court notes that the public interest also favors a denial of the requested 

stay. The public has a strong interest in the full disclosure mandated by the BCRA. See Citizens 

United, 130 S. Ct. at 914–16. The Court is not persuaded by defendant-intervenors’ argument 

that a public interest exists in ensuring that “fundamental constitutional issues are fully aired and 

carefully considered by the courts.” CFIF’s Mem. at 12 (internal quotation marks and citation 

omitted). The Court previously rejected these claims in its opinion, finding that they were not 

properly before the Court, and in any event, the First Amendment concerns had been addressed 

by the Supreme Court in Citizens United.

 

of Proposed Rulemaking, whether, in light of the recent Supreme Court decisions, “the 

Commission [should] limit the ‘donation’ reporting requirement to funds that are donated for the 

express purpose of making electioneering communications?”) And, even if the Constitution 

were the driving force behind the rulemaking, Congress did not delegate authority to the FEC to 

engage in rulemaking for that purpose, particularly when the statutory language of the BCRA is 

clear and unambiguous. See Mem. Op. at 29.

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5

Accordingly, it is ORDERED that defendant-intervenors’ motions for stay pending 

appeal [Dkt. # 51 and # 52] are DENIED. The Clerk is directed to transmit a copy of this Order 

to the Court of Appeals for the District of Columbia Circuit. 

AMY BERMAN JACKSON

United States District Judge

DATE: April 27, 2012

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CERTIFICATE OF SERVICE 

I certify that on April 30, 2012, I caused a copy of the foregoing PlaintiffAppellee Chris Van Hollen's Opposition To Intervenors' "Emergency Motions" 

For Stay to be served by CM/ECF and overnight courier upon the following 

counsel: 

JASON BRETT TORCHINSKY 

HOLTZMAN VOGEL JOSEFIAK, PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

(540) 341-8808 

Attorney for Intervenor-Appellant 

Hispanic Leadership Fund 

JAN WITOLD BARAN 

CALEB PAUL BURNS 

THOMAS W. KIRBY 

WILEY REIN LLP 

1776 K Street, N.W. 

Washington, D.C. 20006-2359 

(202) 719-7000 

Attorneys for Intervenor-Appellant 

Center for Individual Freedom 

DAVID BRETT KOLKER 

HOLLY JEAN BAKER 

HARRY JACOBS SUMMERS 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Attorney for Defendant-Appellee 

RUSSELLM. DAVIS 

FORMAL FILINGS COORDINATOR 

WILMER CUTLER PICKERING 

HALE AND'DORR LLP 

1875 Pennylvania Avenue, N.W. 

Washington, D.C. 20006 

(202) 247-2706 

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