ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 14, 2012 

Nos. 12-5117 & 12-5118 

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CENTER FOR INDIVIDUAL FREEDOM, 

Intervenor-Appellant 

in No. 12-5117, 

AND

HISPANIC LEADERSHIP FUND, 

Intervenor-Appellant 

in No. 12-5118, 

v. 

CHRIS VAN HOLLEN, 

Plaintiff-Appellee, 

AND

FEDERAL ELECTION COMMISSION,

Defendant. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLEE CHRIS VAN HOLLEN 

FRED WERTHEIMER

DEMOCRACY 21 

2000 Massachusetts Ave, N.W. 

Washington, D.C. 20036 

(202) 355-9610 

July 20, 2012 

ROGER M. WITTEN

FIONA J. KAYE

CHRISTINE ELY

WILMER CUTLER PICKERING

 HALE AND DORR LLP

7 World Trade Center 

New York, New York 10007 

(212) 230-8800 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 1 of 64
- i - 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to D.C. Circuit Rule 28(a)(1), Chris Van Hollen submits this 

Certificate as to Parties, Rulings, and Related Cases. 

I. PARTIES

The Appellants are Center for Individual Freedom and Hispanic Leadership 

Fund, who were intervenors in the district court. The Appellee is Chris Van 

Hollen, who was the plaintiff in the district court. The Federal Election 

Commission, who was the defendant in the district court, is not appealing the 

district court’s order. No amicus curiae briefs were filed in the district court. 

Mitch McConnell and Free Speech Coalition, et al. have filed amicus curiae briefs 

in support of Appellants with this Court and Van Hollen anticipates one or more 

amicus curiae briefs will be filed in support of Appellee. 

II. RULINGS UNDER REVIEW

At issue in this appeal is the March 30, 2012 Order by the Honorable Amy 

Berman Jackson granting plaintiff’s motion for summary judgment. See Van 

Hollen v. FEC, --- F. Supp. 2d ----, No. 11-00766, 2012 WL 1066717 (D.D.C. 

Mar. 30, 2012). The ruling is reproduced in the Joint Appendix at 133-165. The 

decision is not yet published in the federal reporter. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 2 of 64
- ii - 

III. RELATED CASES

This case has not previously been before this Court on the merits. On May 

14, 2012, a motions panel refused to enter a stay pending appeal but expedited 

briefing and argument of the appeal. See Joint Appendix 178-179. There are no 

pending related cases.

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 3 of 64
- iii - 

TABLE OF CONTENTS 

Page 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ..............i 

TABLE OF AUTHORITIES .....................................................................................v 

GLOSSARY..............................................................................................................xi 

JURISDICTIONAL STATEMENT ..........................................................................1 

STATEMENT OF THE ISSUES...............................................................................1 

STATEMENT OF THE CASE..................................................................................1 

STATUTES AND REGULATIONS.........................................................................3 

STATEMENT OF FACTS ........................................................................................3 

I. STATUTORY BACKGROUND...............................................................................3 

II. THE FEC’S 2003 REGULATION IMPLEMENTING BCRA ....................................6 

III. WRTL, PROMULGATION OF THE CHALLENGED REGULATION, AND THE 

RESULTING CONSEQUENCES .............................................................................9 

IV. CITIZENS UNITED.............................................................................................13 

V. PROCEEDINGS IN THE DISTRICT COURT AND BEFORE THE MOTIONS PANEL ...14 

SUMMARY OF ARGUMENT ...............................................................................16 

STANDARD OF REVIEW .....................................................................................18 

ARGUMENT ...........................................................................................................19 

I. THE DISTRICT COURT AND MOTIONS PANEL CORRECTLY CONCLUDED 

THAT VAN HOLLEN HAS STANDING................................................................19 

A. Van Hollen Has Informational Standing.............................................19 

B. Van Hollen Also Has Competitor Standing........................................23 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 4 of 64
TABLE OF CONTENTS—CONTINUED 

- iv - 

II. THE DISTRICT COURT CORRECTLY HELD THAT THE CHALLENGED 

REGULATION WAS INCONSISTENT WITH BCRA’S UNAMBIGUOUS TEXT........24 

A. The Electioneering Communications Disclosure Provisions 

Are Unambiguous................................................................................25 

B. BCRA’s Purpose Further Shows That BCRA’s Electioneering 

Communications Disclosure Provisions Are Unambiguous...............29 

C. CFIF/HLF’s Arguments for Reversing the District Court 

Lack Merit ...........................................................................................31 

1. Congress Has Unambiguously Addressed the Question at 

Issue...........................................................................................31 

2. Citizens United Did Not Imply That the Regulation 

Permissibly Construes BCRA...................................................34 

3. FECA’s Definition of the Term “Contribution” Does Not 

Apply.........................................................................................35 

4. The Language Congress Enacted Rules Out a Purpose 

Requirement ..............................................................................36 

5. Constitutional Considerations Do Not Require the Addition 

of a Purpose Requirement.........................................................38 

III. THE REGULATION IS ALSO INVALID UNDER CHEVRON STEP TWO AND IS

ARBITRARY AND CAPRICIOUS, SHOULD THE COURT REACH THE ISSUE..........42 

A. The FEC’s Burden Rationale Is Arbitrary and Capricious .................43 

B. The FEC’s Desire to Limit Disclosure to Contributors Who 

Actually Support Particular Electioneering Communications 

Is Arbitrary and Capricious.................................................................47 

CONCLUSION........................................................................................................49 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 5 of 64
- v - 

TABLE OF AUTHORITIES*

CASES 

Association of Civilian Technicians v. Federal Labor Relations Authority, 

269 F.3d 1112 (D.C. Cir. 2001).....................................................................38 

Barnhart v. Walton, 

535 U.S. 212 (2002).......................................................................................24 

Bowie v. Maddox, 

642 F.3d 1122 (D.C. Cir. 2011).....................................................................42 

Buckley v. Valeo, 

424 U.S. 1 (1976).................................................................................3, 38, 41 

Burlington Truck Lines v. United States, 

371 U.S. 156 (1962).......................................................................................43 

Center for Individual Freedom, Inc. v. Tennant, 

Nos. 08-cv-00190 & -01133, 2011 WL 2912735 (S.D. W. Va. July 

18, 2011) ........................................................................................................40 

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

467 U.S. 837 (1984)...........................................................2, 15, 24, 29, 42, 43 

*Citizens United v. FEC, 

130 S. Ct. 876 (2010).......................... 2, 13, 14, 15, 16, 30, 34, 38, 39, 40, 41 

Coalition for Responsible Regulation, Inc. v. EPA, 

--- F.3d. ---, No. 09-1322, 2012 WL 2381955 (D.C. Cir. June 26, 

2012)..............................................................................................................28 

Esch v. Yeutter, 

876 F.2d 976 (D.C. Cir. 1989).......................................................................12 

 

*

 Authorities upon which we chiefly rely are marked with asterisks. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 6 of 64
TABLE OF AUTHORITIES—CONTINUED 

- vi - 

Family PAC v. McKenna, 

--- F.3d. ---, Nos. 10-35832 & 10-35893, 2012 WL 266111 (9th Cir. 

Jan. 31, 2012).................................................................................................40 

FCC v. AT&T Inc., 

131 S.Ct. 1177 (2011)....................................................................................36 

*FEC v. Akins, 

524 U.S. 11 (1998).................................................... 15, 16, 17, 19, 20, 21, 22 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986).........................................................................................3 

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007).............................................................................9, 14, 35 

Farris v. Seabrook, 

677 F.3d 858 (9th Cir. 2012) .........................................................................40 

Gas Appliance Manufacturers Association, Inc. v. Department of Energy, 

998 F.2d 1041 (D.C. Cir. 1993).....................................................................42 

Human Life of Washington Inc. v. Brumsickle, 

624 F.3d 990 (9th Cir. 2010) .........................................................................40 

IMS, P.C. v. Alvarez, 

129 F.3d 618 (D.C. Cir. 1997).......................................................................12 

Johnson v. United States, 

130 S. Ct. 1265 (2010)...................................................................................36 

Kean for Congress Committee v. FEC, 

398 F. Supp. 2d 26 (D.D.C. 2005).................................................................21 

Massachusetts v. EPA, 

549 U.S. 497 (2007).......................................................................................33 

*McConnell v. FEC, 

540 U.S. 93 (2003)...................................................................4, 32, 38, 39, 41 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 7 of 64
TABLE OF AUTHORITIES—CONTINUED 

- vii - 

McIntyre v. Ohio Elections Commission, 

514 U.S. 334 (1995).......................................................................................41 

Missouri Public Service Commission v. FERC, 

337 F.3d 1066 (D.C. Cir. 2003).....................................................................46 

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile 

Insuance Co., 

463 U.S. 29 (1983).............................................................................42, 45, 49 

National Organization for Marriage, Inc. v. McKee, 

669 F.3d 34 (1st Cir. 2012)............................................................................40 

National Organization for Marriage, Inc. v. McKee, 

649 F.3d 34 (1st Cir. 2011)...........................................................................40 

National Organization for Marriage, Inc. v. Secretary, 

No. 11-14193, 2012 WL 1758607 (11th Cir. May 17, 2012) .......................40 

National Gypsum Co. v. EPA, 

968 F.2d 40 (D.C. Cir. 1992).........................................................................45 

*Pennsylvania Department of Corrections v. Yeskey, 

524 U.S. 206 (1998).................................................................................33, 34 

Performance Coal Co. v. Federal Mine & Health Review Commission, 

642 F.3d 234 (D.C. Cir. 2011)................................................................24, 25 

Public Citizen v. DOJ, 

491 U.S. 440 (1989).......................................................................................19 

Russello v. United States, 

464 U.S. 16 (1983)...................................................................................28, 29 

SEC v. Chenery, 

332 U.S. 194 (1947).......................................................................................38 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 8 of 64
TABLE OF AUTHORITIES—CONTINUED 

- viii - 

*Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005).............................................4, 18, 23, 24, 29, 43 

*Shays v. FEC, 

528 F.3d 914 (D.C. Cir. 2008)...................... 16, 17, 18, 20, 21, 22, 23, 48, 49 

Singleton v. Wulff, 

428 U.S. 106 (1976).......................................................................................42 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010).......................................................................40 

The Real Truth About Abortion, Inc. v. FEC, 

681 F.3d 544 (4th Cir. 2012) .........................................................................40 

Van Hollen v. FEC, --- F. Supp. 2d ----, No. 11-00766, 2012 WL 1066717 

(D.D.C. Mar. 30, 2012) ....................................................................................i 

Village of Barrington, Illinois v. Surface Transportation Board, 

636 F.3d 650 (D.C. Cir. 2011).......................................................................42 

STATUTES AND RULES

Administrative Procedure Act, 5 U.S.C. §§ 551-706 ................................................1 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155 .............................2 

2 U.S.C. 

§ 431(8)......................................................................................................8, 35 

§ 431(8)(A) ......................................................................................................8 

§ 431(11)..................................................................................................31, 32 

§ 434(c)(2)(C)....................................................................................12, 28, 37 

§ 434(f) ..............................................................................6, 27, 29, 31, 37, 39 

§ 434(f)(1)................................................................................................31, 46 

§ 434(f)(2)........................................................................................1, 5, 34, 39 

§ 434(f)(2)(E)............................................................ 18, 25, 26, 27, 35, 37, 46 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 9 of 64
TABLE OF AUTHORITIES—CONTINUED 

- ix - 

§ 434(f)(2)(F).................................. 1, 8, 10, 17, 18, 22, 25, 26, 29, 35, 37, 46 

§ 434(f)(3)..................................................................................................4, 35 

§ 441b(a)..........................................................................................................3 

§ 441b(b)(2) .....................................................................................................4 

§ 454 note ......................................................................................................33 

5 U.S.C. § 702 .........................................................................................................21 

26 U.S.C. § 6033(b)(5).............................................................................................44 

REGULATIONS AND LEGISLATIVE MATERIALS 

11 C.F.R. 

§ 104.20(c).............................................................................................6, 7, 10 

§ 104.20(c)(8) ..........................................................................................10, 48 

§ 104.20(c)(9) ............................................................. 1, 20, 23, 25, 34, 43, 48 

§ 114.10 ...........................................................................................................7 

67 Fed. Reg. 51,131-01 (Aug. 7, 2002).....................................................................7 

68 Fed. Reg. 404-01 (Jan. 3, 2003)..............................................................7, 8, 9, 32 

Treas. Reg. § 1.6033-2(a)(2)(ii)(f)...........................................................................44 

147 Cong. Rec. 

S3022 (daily ed. Mar. 28, 2001)......................................................................6 

S3070 (daily ed. Mar. 29, 2001)......................................................................6 

S3233 (daily ed. Apr. 2, 2001) ........................................................................6 

Tillman Act, ch. 420, 34 Stat. 864 (1907) .................................................................3 

Taft-Hartley Act, ch. 120, § 304, 61 Stat. 159 (1947)...............................................3 

War Labor Disputes Act, ch. 144, § 9, 57 Stat. 167 (1943) ......................................3 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 10 of 64
TABLE OF AUTHORITIES—CONTINUED 

- x - 

OTHER AUTHORITIES 

Comments from Senators John McCain, Russell D. Feingold. Olympia 

Snowe, and James Jeffords, and Representatives Christopher Shays 

and Marty Meehan (Aug. 23, 2002) available at

http://www.fec.gov/pdf/nprm/electioneering_comm/comments/us_co

ng_members.pdf. ...........................................................................................32 

Merriam-Webster Dictionary, available at

http://www.merriamwebster.com/dictionary/contributor..............................26 

Outside Spending, Center for Responsive Politics, “2004 Outside Spending, 

by Groups”; “2006 Outside Spending, by Groups”; “2008 Outside 

Spending, by Groups”; “2010 Outside Spending, by Groups,” 

available at http://www.opensecrets.org/outsidespending/summ.php....12, 13 

Oxford English Dictionary (2d ed. 1989)................................................................25 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 11 of 64
- xi - 

GLOSSARY 

APA Administrative Procedure Act 

BCRA Bipartisan Campaign Reform Act of 2002 

CFIF Center for Individual Freedom 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

HLF Hispanic Leadership Fund 

JA Joint Appendix 

MCFL FEC v. Massachusetts Citizens for Life, Inc. 

WRTL FEC v. Wisconsin Right to Life, Inc. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 12 of 64
JURISDICTIONAL STATEMENT 

 Appellants’ Statements of Jurisdiction are correct. 

STATEMENT OF THE ISSUES

I. Whether the district court correctly held that Representative Van Hollen had 

standing to challenge an FEC regulation exempting organizations making 

certain political expenditures from disclosing all of their contributors, 11 

C.F.R. § 104.20(c)(9), due to his interest in obtaining full disclosure of the 

information required by the statute that the regulation purported to 

implement. 

II. Whether the district court correctly held that the challenged FEC regulation 

was inconsistent with the unambiguous language of the statute it purported 

to implement, 2 U.S.C. § 434(f)(2), which requires disclosure of all 

contributors. 

III. If the answer to Issue II is no, whether the challenged regulation is 

unreasonable, arbitrary, and capricious.

STATEMENT OF THE CASE 

In April 2011, Congressman Chris Van Hollen sued the Federal Election 

Commission (“FEC”) for promulgating a regulation that permits corporations and 

unions that make “electioneering communications” to disclose only contributors 

who gave for the specific purpose of supporting those communications despite the 

clear statutory requirement that any person (including a corporation or union) 

making an “electioneering communication” disclose all contributors who gave the 

person $1,000 or more in the election cycle. 2 U.S.C. § 434(f)(2)(F). Van Hollen 

brought suit under the Administrative Procedure Act, 5 U.S.C. §§ 551-706 

(“APA”). The FEC regulation at issue is 11 C.F.R. § 104.20(c)(9), which was 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 13 of 64
- 2 - 

purportedly issued to implement the Bipartisan Campaign Reform Act of 2002 

(“BCRA”), Pub. L. No. 107-155. The Center for Individual Freedom (“CFIF”) 

and the Hispanic Leadership Fund (“HLF”) intervened as defendants. The parties 

filed cross-motions for summary judgment, and HLF filed a motion to dismiss, 

questioning Van Hollen’s standing to challenge the regulation. 

The district court granted summary judgment for Rep. Van Hollen, holding 

under Chevron Step One that the challenged regulation was inconsistent with the 

unambiguous language of BCRA § 201. The district court accordingly vacated the 

regulation. Joint Appendix (“JA”) 164. The district court did not reach Chevron

Step Two. Id. The district court also denied HLF’s motion to dismiss. Id. 

The FEC has not appealed. Intervenors CFIF and HLF appealed and moved 

in the district court for a stay pending their appeal. The district court denied the 

stay, holding that the intervenors had failed to demonstrate a likelihood of success 

on appeal, had failed to show irreparable harm, and had not demonstrated that the 

public interest required a stay. JA 172-174. 

Before the district court had ruled, CFIF and HLF moved for a stay in this 

Court. Following the district court’s stay ruling, a panel of this Court denied a 

stay, concluding that Van Hollen has informational standing, that CFIF/HLF had 

failed to demonstrate a strong likelihood that the district court erred in interpreting 

the plain text of BCRA, and that, in view of Citizens United v. FEC, 130 S. Ct. 876 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 14 of 64
- 3 - 

(2010), CFIF/HLF had failed to demonstrate the other requirements for issuance of 

a stay. JA 180-182. 

STATUTES AND REGULATIONS 

All applicable statutes, etc., are contained in the Brief for CFIF. 

STATEMENT OF FACTS

I. STATUTORY BACKGROUND

 In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Supreme Court 

construed provisions of the Federal Election Campaign Act (“FECA”) that capped 

the amount of “expenditures” individuals and political committees could make to 

support or oppose federal candidates. It held that those provisions applied only to 

disbursements for communications that used “express words of advocacy” such as 

“vote for,” “vote against,” and “elect.” Id. at 44 n.52. Having thus narrowed the 

provisions to avoid vagueness problems, the Court invalidated them on First 

Amendment grounds. Id. at 22-38. 

Ten years later, the Court gave a similar narrowing construction to the thenlongstanding statutory ban on corporate and union expenditures to support or 

oppose federal candidates.1

 See FEC v. Massachusetts Citizens for Life, Inc., 479 

U.S. 238, 249 (1986) (“MCFL”). Thereafter, corporations, unions, and other 

 

1 2 U.S.C. § 441b(a); see Tillman Act, ch. 420, 34 Stat. 864 (1907); War 

Labor Disputes Act, ch. 144, § 9, 57 Stat. 167 (1943); Taft-Hartley Act, ch. 120, 

§ 304, 61 Stat. 159 (1947). 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 15 of 64
- 4 - 

groups spent vast sums on purported “issue ads” that avoided the use of “express 

advocacy” language—so-called “magic words”—but praised or criticized federal 

candidates during the campaign season. McConnell v. FEC, 540 U.S. 93, 126-127 

& n.20 (2003), overruled in part on other grounds, 130 S. Ct. 876 (2010). 

In light of these and other developments, Congress concluded that the 

campaign finance system had suffered a “meltdown,” and responded by enacting 

BCRA. See Shays v. FEC, 414 F.3d 76, 81-82 (D.C. Cir. 2005) (“Shays I”). To 

address the problem of “sham issue ads,” BCRA defined a new category of 

campaign spending, which Congress called “electioneering communications”: 

broadcast, cable, or satellite communications that refer to a clearly identified 

federal candidate, are made shortly before an election in which the identified 

candidate is seeking office and, in the case of House and Senate candidates, are 

geographically targeted to the relevant electorate. See BCRA § 201, 2 U.S.C. 

§ 434(f)(3). There is no requirement in BCRA that “electioneering 

communications” be made for the purpose of influencing a federal election; they 

may, or may not be made for that purpose. BCRA banned corporations and unions 

from spending their treasury funds for electioneering communications. BCRA 

§ 203, 2 U.S.C. § 441b(b)(2). It also required “all [persons]” who make 

electioneering communications to disclose “all contributors who contributed” to 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 16 of 64
- 5 - 

the person making the communications unless the communications were paid for 

using a segregated account. BCRA § 201, 2 U.S.C. § 434(f)(2). 

More specifically, BCRA prescribed two disclosure options for persons 

making electioneering communications in an aggregate amount exceeding $10,000 

per calendar year: 

(E) If the disbursements were paid out of a segregated bank 

account which consists of funds contributed solely by 

individuals . . . directly to this account for electioneering 

communications, the names and addresses of all 

contributors who contributed an aggregate amount of 

$1,000 or more to that account during the period 

beginning on the first day of the preceding calendar year 

and ending on the disclosure date. Nothing in this 

subparagraph is to be construed as a prohibition on the 

use of funds in such a segregated account for a purpose 

other than electioneering communications. 

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

in subparagraph (E), the names and addresses of all 

contributors who contributed an aggregate amount of 

$1,000 or more to the person making the disbursement 

during the period beginning on the first day of the 

preceding calendar year and ending on the disclosure 

date. 

Id.

During the floor debate, Senator Jeffords, who played a key role in drafting 

the legislation, stated: “Corruption will be deterred when the public and the media 

are able to see clearly who is trying to influence the election. In addition our 

provisions will inform the voting public of who is sponsoring and paying for an 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 17 of 64
- 6 - 

electioneering communication.” 147 Cong. Rec. S3022, 3034 (daily ed. Mar. 28, 

2001). Similarly, Senator Snowe said, “What we are saying is disclose who you 

are. Let’s unveil this masquerade. . . . Tell us who is financing these ads to the 

tune of $500 million in this last election. The public has the right to know.” 147 

Cong. Rec. S3070, 3074 (daily ed. Mar. 29, 2001). And Senator Feinstein 

commented, “The attacks come and no one knows who is actually paying for them. 

. . . I believe it is unreasonable and it must end.” 147 Cong. Rec. S3233, 3238 

(daily ed. Apr. 2, 2001). The legislative record contains many other statements to 

similar effect. 

II. THE FEC’S 2003 REGULATION IMPLEMENTING BCRA 

In 2003, the FEC issued regulations implementing BCRA that, in relevant 

part, tracked § 434(f) and thus required any person making disbursements for 

electioneering communications to make, among others, the following disclosures: 

 (7) If the disbursements were paid exclusively from a segregated 

 bank account . . . consisting of funds provided solely by 

 individuals . . . the name and address of each donor who 

 donated an amount aggregating $1,000 or more to the 

 segregated bank account, aggregating since the first day of 

 the preceding calendar year; or 

 (8) If the disbursements were not paid exclusively from a 

 segregated bank account described in paragraph (c)(7) of this 

 section . . ., the name and address of each donor who donated 

 an amount aggregating $1,000 or more to the person making 

 the disbursement, aggregating since the first day of the 

 preceding calendar year. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 18 of 64
- 7 - 

11 C.F.R. § 104.20(c) (effective Feb. 3, 2003 to Dec. 25, 2007).2

When the FEC promulgated these regulations, it was understood that they 

would apply to at least some corporations. Under MCFL, a subset of section 

501(c)(4) groups that had ideological, not business, purposes and that raised their 

funds only from individuals (known as “qualified non-profit corporations”) were 

exempt from the statutory ban on corporate spending for electioneering 

communications, and thus subject to the related disclosure requirements. See 11 

C.F.R. § 114.10 (defining qualified non-profit corporations). Accordingly, the 

FEC proposed a disclosure regime for “section 501(c)(4) corporations that meet 

the conditions for MCFL groups.” FEC, Notice of Proposed Rulemaking, 67 Fed. 

Reg. 51,131-01, 51,137-51,138 (Aug. 7, 2002); see also FEC, Notice of Final 

Rulemaking, 68 Fed. Reg. 404-01, 413 (Jan. 3, 2003). 

In considering the application of this disclosure regime to qualified nonprofit corporations, the FEC rejected “administrative burden” objections, because 

“electioneering communications are not subject to disclosure until disbursements 

 

2

 This version of § 104.20(c) is now in effect as a result of the district court’s 

ruling (see JA 173 (Op. Denying Stay); see also JA 180 (D.C. Cir. Order Denying 

Stay)). CFIF claims that the district court ruled that the agency was barred from 

taking a different view of the statute by its issuance of the 2003 regulation. CFIF 

Br. 32. That is neither what the district court held, nor what Van Hollen argues. 

The district court simply held—and Van Hollen agrees—that prior to promulgation 

of the challenged regulation, “there was a valid regulation in effect implementing 

the BCRA’s disclosure requirement.” JA 173. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 19 of 64
- 8 - 

related to them exceed $10,000,” and even then only the identities of persons 

contributing $1,000 or more need be disclosed. 68 Fed. Reg. at 413. The FEC 

found that these corporations could “reduce their reporting obligations by using 

separate bank accounts.” Id.

The FEC stated that it had promulgated the alternative disclosure provision 

at subparagraph (8) of the regulation to make explicit that “all persons who make 

electioneering communications would be required to disclose their donors who 

donate $1,000 or more in the aggregate during the prescribed period, if they do not 

use segregated bank accounts.” 68 Fed. Reg. at 414. The FEC explained that 

“BCRA at 2 U.S.C. 434(f)(2)(F) specifically mandates disclosure of this 

information.” Id. 

The FEC’s regulation used the synonym “donor” instead of the statutory 

term “contributor,” in order to emphasize that funds given to persons—including 

corporations—who make electioneering communications are not “contributions” 

as FECA defines that term in 2 U.S.C. § 431(8).3

 The FEC’s Notice of Final 

Rulemaking stated: 

 

3

 Section 431(8), a pre-BCRA provision of FECA, defines “contribution” to 

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

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

office; or (ii) the payment by any person of compensation for the personal services 

of another person which are rendered to a political committee without charge for 

any purpose. 2 U.S.C. § 431(8)(A). 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 20 of 64
- 9 - 

The Commission sought comment on whether amounts given to 

persons who make disbursements for electioneering communications 

are contributions subject to the limitations, prohibitions, and reporting 

requirements of the Act. In the new reporting provisions for 

electioneering communications in BCRA, the statute uses the terms 

“contributor” and “contributed,” but it does not use the term 

“contribution.” 2 U.S.C. 434(f)(2)(E) and (F). . . . Nor does BCRA 

amend the definition of “contribution.” See 2 U.S.C. 431(8). . . . 

Based on this analysis, the Commission proposed to treat funds given 

to persons who make electioneering communications as 

“donations[.]” 

68 Fed. Reg. at 412-413. 

III. WRTL, PROMULGATION OF THE CHALLENGED REGULATION, AND THE 

RESULTING CONSEQUENCES

In 2007, the Supreme Court in FEC v. Wisconsin Right to Life, Inc., 551 

U.S. 449 (2007) (“WRTL”), held that BCRA’s ban on corporate electioneering 

communications was unconstitutional as applied to ads that did not contain either 

“express advocacy” or its functional equivalent. Id. at 469-470. WRTL did not 

address or question the constitutionality or scope of BCRA’s disclosure 

requirements applicable to these newly-permitted electioneering communications. 

Those provisions had not been challenged in WRTL. 

Soon after the Court’s decision, the FEC received a petition requesting a 

rulemaking to implement the WRTL holding. The petition did not request any 

change to the disclosure requirements, as they would be applied to corporations 

and unions after WRTL. Even so, the FEC said in its post-WRTL Notice of 

Proposed Rulemaking that it would revisit the disclosure rules. JA 35. The FEC 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 21 of 64
- 10 - 

wrote: “If the corporation or labor organization does not pay for the electioneering 

communication from [a segregated] account . . . , would the corporation or labor 

organization be required to report ‘the name and address of each donor who 

donated an amount aggregating $1,000 or more’ . . . as required by 2 U.S.C. 

§ 434(f)(2)(F) . . .?” JA 44 (emphasis added). Or, the Notice went on to ask, 

“[s]hould the Commission limit the ‘donation’ reporting requirement to funds that 

are donated for the express purpose of making electioneering communications?” 

Id. 

The FEC promulgated a new version of § 104.20(c) on December 26, 2007. 

The revision added a new subsection (c)(9) to § 104.20, narrowing the disclosure 

requirements for corporations and unions by including a new “purpose” 

requirement not found in the language of § 434(f)(2)(F): 

If the disbursements were made by a corporation or labor organization 

. . . the name and address of each person who made a donation 

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

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

was made for the purpose of furthering electioneering 

communications. 

JA 89 (emphasis added). The FEC did not add any such purpose test to the parallel 

rules requiring disclosure of contributors to partnerships, unincorporated 

associations, or individuals that make electioneering communications, see 11 

C.F.R. § 104.20(c)(8). 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 22 of 64
- 11 - 

The FEC’s Explanation and Justification (“E & J”) for its new rule did not 

point to any asserted ambiguity in BCRA’s text, or indeed refer to any statutory 

text as the basis for the amended rule. Nor did it indicate that First Amendment or 

other constitutional considerations compelled addition of the purpose test. Rather, 

the FEC cited just two reasons for adding the purpose test: (1) to limit 

identification of persons who gave money to “those persons who actually support 

the message conveyed by the [electioneering communications],” and (2) to avoid 

“imposing on corporations and labor organizations the significant burden of 

disclosing the identities of the vast numbers of customers, investors, or 

members[.]” JA 87. 

With respect to its first rationale, the FEC stated that corporations and 

unions may have sources of funds other than donations. Shareholders, customers, 

and union members, for example, may exchange money for shares, products, and 

membership. These persons, the FEC said, may not support the corporation’s or 

union’s electioneering communications. JA 87. The FEC, however, did not 

explain how such persons could be defined as “contributors” or “donors,” or why 

doing so would make any sense in the context of BCRA’s disclosure requirements. 

With respect to its “burden” rationale, the FEC explained that, in the absence of a 

purpose test, tracking and reporting the name of, for example, every customer who 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 23 of 64
- 12 - 

paid a corporation more than $1000 over the course of a year would be costly and 

require “inordinate” effort. Id. 

The FEC acknowledged that it had drawn its “for the purpose of furthering” 

test not from BCRA but from FECA’s pre-BCRA reporting requirements for 

“independent expenditures.” See 2 U.S.C. § 434(c)(2)(C) (providing that persons 

other than political committees must file statements disclosing “the identification 

of each person who made a contribution in excess of $200 to the person filing such 

statement which was made for the purpose of furthering an independent 

expenditure” (emphasis added)). 

Following the promulgation of the challenged regulation, the 2008 election 

cycle saw disclosure concerning the funding of electioneering communications fall 

considerably.4

 Disclosure fell still further in the 2010 cycle. As the FEC admitted 

 

4

 Compare Outside Spending, Center for Responsive Politics, “2004 Outside 

Spending, by Groups” and “2006 Outside Spending, by Groups” with “2008 

Outside Spending, by Groups,” available at

http://www.opensecrets.org/outsidespending/summ.php?cycle=2010&disp=O&typ

e=E&chrt=D (electioneering communications filter). CFIF/HLF attack Van 

Hollen for citing post-rulemaking facts, see CFIF Br. 22, 40 n.40, but themselves 

rely on numerous post-rulemaking events. See id. 15-18, 33-34; HLF Br. 12, 35, 

36, 37, 43. In any event, the Court may consider information outside the 

administrative record to determine whether the agency considered all the relevant 

factors or fully explicated its course of conduct or grounds of decision. See Esch v. 

Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989); see also IMS, P.C. v. Alvarez, 129 

F.3d 618, 624 (D.C. Cir. 1997). The Court may consider the actual effect of the 

challenged regulation in determining whether the FEC failed to consider whether 

the regulation would create a loophole and thereby undermine BCRA. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 24 of 64
- 13 - 

in its answer below, the public record reflects little or no disclosure of the 

numerous contributors to non-profit corporations that made substantial 

electioneering communications in the 2010 congressional races. JA 30 ¶ 31. 

Persons making such communications “disclosed the sources of less than 10 

percent of the $79.9 million” in related spending. JA 30 ¶ 30.5

 The ten “persons” 

that reported spending the most on electioneering communications (all of them 

claiming tax-exempt status under Sections 501(c) or 527 of the Internal Revenue 

Code) disclosed the sources of only five percent of the money they spent. Id. Of 

these ten “persons,” only three disclosed any information about their funders. Id. 

IV. CITIZENS UNITED

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

down limitations on corporate and union political spending as facially 

unconstitutional. As a result, corporations and unions may now use their general 

treasury funds to pay for ads, including those containing express advocacy or its 

functional equivalent. However, the Court rejected, 8-1, petitioners’ as-applied 

challenge to the disclosure requirements for electioneering communications, 

reasoning that “the public has an interest in knowing who is speaking about a 

candidate shortly before an election.” Id. at 915. The Court explained that 

“disclosure permits citizens . . . to react to the speech of corporate entities in a 

 

5

 See “2010 Outside Spending, by Groups,” supra note 4. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 25 of 64
- 14 - 

proper way. . . . [T]ransparency enables the electorate to make informed decisions 

and give proper weight to different speakers and messages.” Id. at 916. 

V. PROCEEDINGS IN THE DISTRICT COURT AND BEFORE THE MOTIONS PANEL

On March 30, 2012, the district court granted Congressman Van Hollen’s 

motion for summary judgment. Relying on Van Hollen’s statement that, if the 

FEC regulations did not faithfully implement the BCRA disclosure provisions, he 

would be deprived of information to which he was entitled under those statutes, the 

court held that Van Hollen had informational standing. See JA 144-145. 

The court held that Congress spoke plainly when it enacted BCRA, and did 

not delegate authority to the agency to narrow the electioneering communications 

disclosure requirement. It further concluded that the potentially expanded universe 

of entities that are now permitted to finance electioneering communications—and 

hence are required to disclose their contributors—after the Supreme Court’s 

decisions striking down some of the law’s substantive restrictions on who can 

lawfully make or fund electioneering communications in the first place did not 

render the plain language of the statute ambiguous. “The agency cannot 

unilaterally decide to take on a quintessentially legislative function; if sound policy 

suggests that the statute needs tailoring in the wake of WRTL or Citizens United, it 

is up to Congress to do it.” JA 164. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 26 of 64
- 15 - 

In holding that the text favors Van Hollen at Chevron Step One, the court 

concluded more specifically that there is “no question” that BCRA requires every 

“person” who makes electioneering communications to disclose “all contributors”; 

that the statutory definition of “person” explicitly includes corporations and 

unions; and that there are “no terms limiting that requirement to call only for the 

names of those who transmitted funds accompanied by an express statement that 

the contribution was intended for the purpose of funding electioneering 

contributions.” JA 149. The court also concluded that it is “clear that Congress 

intended to ‘shine[] sunlight on the undisclosed expenditures for sham issue 

advertisements,’” and thus Congress’ “clearly articulated legislative purpose” 

favors Van Hollen’s interpretation of the statute. JA 153-154 (citation omitted). 

The district court vacated the challenged regulation, which had the effect of 

reinstating the FEC’s 2003 rule. The court also denied HLF’s motion to dismiss 

for lack of standing and held that CFIF/HLF’s constitutional arguments for 

limiting disclosure lacked merit in light of Citizens United’s strong affirmation of 

the constitutionality of the statutory disclosure requirements. 

In denying CFIF/HLF’s motions for a stay pending appeal, the district court 

held that they had not demonstrated a substantial likelihood of success on the 

merits because the FEC “had no explicit or implicit statutory authority to limit the 

disclosure obligations enacted by Congress,” and under FEC v. Akins, 524 U.S. 11 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 27 of 64
- 16 - 

(1998) and Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III”), Van Hollen 

has standing. JA 172-173. The court also stated that it is “difficult to see how 

defendant-intervenors would be harmed by complying with the disclosure 

provisions that the Supreme Court specifically upheld in Citizens United,” whereas 

the public has a “strong interest in the full disclosure mandated” by BCRA. JA 

174. 

A motions panel of this Court agreed with the district court when the panel 

ruled on CFIF/HLF’s motions for stay. The panel recognized that Van Hollen has 

informational standing and that CFIF/HLF did not demonstrate a strong likelihood 

of success on appeal because the statute’s “disclosure requirement applies to all 

contributors regardless of their subjective purpose in contributing.” JA 180-181. 

It concluded that CFIF/HLF’s other arguments “fare[d] no better” and noted that 

CFIF/HLF are “free to create” segregated bank accounts to fund electioneering 

communications “if they wish to protect the anonymity of those who contribute for 

a purpose other than funding ‘electioneering communications.’” JA 181-182. 

SUMMARY OF ARGUMENT

Congressman Van Hollen has both informational and competitor standing to 

bring this lawsuit. Because the regulation deprives Van Hollen of information to 

which he is entitled under the law—“the names and addresses of all contributors 

who contributed an aggregate amount of $1,000 or more” to persons making 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 28 of 64
- 17 - 

disbursements to fund electioneering communications, see 2 U.S.C. § 434 

(f)(2)(F)—he has informational standing under Akins and Shays III, as both the 

district court and the motions panel concluded. Additionally, though the district 

court and motions panel did not need to reach the issue, Van Hollen has competitor 

standing under Shays I because he is entitled to run for office in an election free of 

BCRA-banned practices. 

The district court rightly concluded that Congress spoke clearly when it 

enacted BCRA’s electioneering communications disclosure provisions: BCRA’s 

plain text requires that every “person” who makes an electioneering 

communication must disclose “all contributors” of $1,000 or more. The ordinary 

meaning of “contribute” does not include a specific subjective intent; as the district 

court held, it means to give money without an expectation of or right to services or 

property in return. Other traditional tools of statutory construction—legislative 

purpose and statutory context—also support the district court’s holding. 

Even if Congress did not envision that corporations and unions would make 

electioneering communications—as CFIF/HLF argue—Supreme Court precedent 

holds that the unambiguous text of a statute applies as written in unanticipated 

circumstances. The term “contributor” as used in BCRA cannot import the FECA 

definition of “contribution” because there is a structural disconnect between the 

two terms: a FECA “contribution” is one made for the purpose of influencing 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 29 of 64
- 18 - 

federal elections, while electioneering communications include communications 

that are not, or may not be, made for the purpose of influencing federal elections. 

Moreover, reading a purpose test into 2 U.S.C. § 434(f)(2)(F) would make the 

segregated account option in § 434(f)(2)(E) surplusage and contravene basic 

principles of statutory construction. 

If this Court concludes that BCRA’s disclosure provisions are ambiguous, it 

should hold that the regulation is unreasonable, arbitrary, and capricious. The 

FEC’s burden rationale is premised on absurd notions, for example, that 

“contributors” include customers and investors; and it relies on no data, just the 

comments of entities that would be subject to the disclosure requirements. 

Moreover, given the limitations Congress already wrote into the statute, as well as 

the segregated account option, the burden rationale cannot be taken seriously. The 

FEC’s only other rationale—to limit disclosure to only those contributors that 

support the message conveyed by the electioneering communication—is also 

arbitrary and capricious, given the availability of the segregated account option. 

STANDARD OF REVIEW 

The Court reviews de novo the district court’s holdings sustaining Van 

Hollen’s standing and invalidating the FEC’s regulation as inconsistent with the 

statute it purports to implement. See Shays III, 528 F.3d at 920.

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 30 of 64
- 19 - 

ARGUMENT

I. THE DISTRICT COURT AND MOTIONS PANEL CORRECTLY CONCLUDED 

THAT VAN HOLLEN HAS STANDING

HLF is the only party that has challenged Van Hollen’s standing. The 

district court correctly held, and the motions panel agreed, that Van Hollen has 

informational standing under Supreme Court and Circuit precedent. Although the 

district court and motions panel found it unnecessary to address the issue, Van 

Hollen also has competitor standing under applicable Circuit precedent. 

A. Van Hollen Has Informational Standing 

The Supreme Court first recognized informational standing in the campaign 

finance context in FEC v. Akins, 524 U.S. 11, 21 (1998). In Akins, voters 

challenged the FEC’s determination that a particular organization did not qualify 

as a “political committee” subject to FECA’s disclosure requirements. Id. at 15-

16. The Court held that the voters had suffered an “injury” sufficient to establish 

standing based on their inability to obtain information about the organization’s 

donors and expenditures that FECA required the organization to disclose. Id. at 

21. The Court noted that it had “previously held that a plaintiff suffers an ‘injury 

in fact’ when the plaintiff fails to obtain information which must be publicly 

disclosed pursuant to a statute.” Id. (citing Public Citizen v. DOJ, 491 U.S. 440, 

449 (1989)). 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 31 of 64
- 20 - 

This Court followed Akins in Shays III, which is on all fours with this case. 

In Shays III, Representative Shays challenged a regulation the FEC issued to 

implement BCRA’s requirement that the agency define “coordinated 

communications.” Shays v. FEC, 528 F.3d 914, 918 (D.C. Cir. 2008) (“Shays 

III”). The Court held “Shays plainly [had] standing under [Akins],” id. at 923, 

explaining that “as in Akins, Shays’s injury is the denial of the information he 

believes the law entitles him to . . . the regulation illegally denies him information 

about who is funding presidential candidates’ campaigns.” Id. 

Because § 104.20(c)(9) deprives Van Hollen, like Shays, of “information to 

which [he is] entitled under . . . BCRA,” JA 93, Van Hollen has suffered an injury 

in fact. The standing allegations in Van Hollen’s complaint track those found 

sufficient in Shays III. Compare Complaint for Declaratory and Injunctive Relief 

at 6 ¶ 11, Shays v. FEC, No. 06-1247-CKK (D.D.C. July 11, 2006), Dkt. 1 (“Shays 

III Complaint”) with JA 12 ¶ 10. Van Hollen, like Shays, claims informational 

standing because, in his capacity as a voter, candidate, and elected officeholder, he 

has an interest in obtaining full disclosure of information that the challenged 

regulations inhibit. Compare Shays III Complaint at 8 ¶ 13 with JA 12-13 ¶ 11. 

HLF ignores Shays III in wrongly contending that the Supreme Court’s 

Akins decision was “inseparably linked to the statutory standing language of [2 

U.S.C.] § 437g.” HLF Br. 17. Shays III was not a § 437g case: Shays sued the 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 32 of 64
- 21 - 

FEC under the APA, as Van Hollen has done here. And, as in Shays III, the APA 

confers upon Van Hollen the right to bring this action as “[a] person . . . adversely 

affected or aggrieved by agency action within the meaning of a relevant statute[.]” 

5 U.S.C. § 702. This Court saw “no difference between [Shays’s] injury and the 

injury deemed sufficient to create standing in Akins.” Shays III, 528 F.3d at 923. 

Moreover, the Supreme Court in Akins found Article III standing separately from 

the plaintiffs’ statutory standing under § 437g. See Akins, 524 U.S. at 26 

(“[R]espondents, as voters, have satisfied both prudential and constitutional

standing requirements.” (emphasis added)). If the denial of information were not 

an injury for constitutional standing purposes, Congress’s conferral of a statutory 

right to bring an action under § 437g would never have sufficed. 

HLF further errs in asserting that Van Hollen’s injury is merely a 

generalized grievance. As the Supreme Court has held, that other voters, party 

members, and candidates suffer the same injury does not diminish the concrete 

injury to Van Hollen because “the informational injury at issue here, directly 

related to voting, the most basic of political rights, is sufficiently concrete and 

specific such that the fact that it is widely shared does not deprive Congress of 

constitutional power to authorize its vindication in the federal courts.” Akins, 524 

U.S. at 24-25; see also Kean for Congress Comm. v. FEC, 398 F. Supp. 2d 26, 36 

(D.D.C. 2005) (“The Court in Akins did not require the plaintiffs to establish a 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 33 of 64
- 22 - 

statutory right to information and then further establish an additional concrete and 

immediate harm.”). As in Akins and Shays III, the information Van Hollen seeks 

would help him “evaluate candidates for public office” and “evaluate the role that 

outside groups’ financial assistance might play in a specific election.” 524 U.S. at 

21; 528 F.3d at 923. 

HLF also errs in arguing that invalidating § 104.20(c)(9) will not redress 

Van Hollen’s injury because he will not be able to access information “detailing 

the specific person or entities that financed any particular electioneering 

communication[.]” HLF Br. 20. Van Hollen does not seek such information: He 

seeks disclosure only of the information BCRA requires to be disclosed—“the 

names and addresses of all contributors who contributed an aggregate amount of 

$1,000 or more” to persons making disbursements to fund electioneering 

communications. See 2 U.S.C. § 434 (f)(2)(F). HLF’s assertion that Van Hollen 

should prefer a form of information that he does not want and that is different from 

the information BCRA entitles him to receive is irrelevant. Van Hollen seeks 

information about all contributors financing electioneering communications, not, 

as HLF suggests, only information about contributors who specifically seek to 

further the purpose of the electioneering communications they finance. The relief 

Van Hollen seeks will lead to the disclosure of exactly the information BCRA 

entitles him to and, therefore, will redress his grievance. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 34 of 64
- 23 - 

Shays III provides further evidence that invalidating the challenged 

regulation will properly redress Van Hollen’s injury. There, Shays claimed that 

the FEC’s unlawful regulation denied him information about who was funding 

presidential campaigns. This Court held that invalidating the rule and requiring 

disclosure of the illegally withheld information would redress that injury. See 

Shays III, 528 F.3d at 923. HLF does not distinguish Shays III. 

B. Van Hollen Also Has Competitor Standing 

Section 104.20(c)(9) also injures Van Hollen because it “infringes [his] 

protected interest in participating in elections untainted” by activities that disregard 

BCRA’s statutory disclosure requirements. JA 12-13. Because the challenged 

regulation permitted and encouraged corporations and unions making 

electioneering communications not to disclose “all contributors,” Van Hollen 

could not draw voters’ attention to the identity of those who might fund attacks on 

him or other candidates. See JA 12-13, 93. Van Hollen’s injury is traceable 

directly to the challenged regulation, and the district court’s order invalidating 

§ 104.20(c)(9) redressed it. 

This Court has held that federal candidates “suffer injury to a statutorily 

protected interest if under FEC rules they must compete for office in contests 

tainted by BCRA-banned practices.” Shays v. FEC, 414 F.3d 76, 85 (D.C. Cir. 

2005) (“Shays I”); see also id. at 83-96. In Shays I, the Court determined that a 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 35 of 64
- 24 - 

candidate for federal election need not show that he has already been injured by the 

BCRA-banned practice or that “specific rivals have exploited each challenged 

rule[.]” Id. at 90. Rather, candidates “may challenge FEC subversion of BCRA’s 

guarantees without establishing with any certainty . . . that the challenged rules 

will disadvantage their reelection campaigns.” Id. at 91 (internal quotation marks 

and citation omitted). Van Hollen has made that showing here. Compare id. at 84 

(quoting declarations of Reps. Shays and Meehan), with Van Hollen Decl. ¶ 4 (JA 

92-93). 

II. THE DISTRICT COURT CORRECTLY HELD THAT THE CHALLENGED 

REGULATION WAS INCONSISTENT WITH BCRA’S UNAMBIGUOUS TEXT

In assessing an agency’s purported implementation or construction of a 

statutory provision, a court first employs “the traditional tools of statutory 

construction, including examination of the statute’s text, legislative history, and 

structure, as well as its purpose” to determine whether Congress has itself spoken 

unambiguously to the issue in question. E.g., Shays I, 414 F.3d at 105 (internal 

quotation marks and citations omitted); Chevron, U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837, 842-843 (1984). If the statutory language is clear—as 

it is here—then the Court’s inquiry is at an end. See, e.g., Barnhart v. Walton, 535 

U.S. 212, 217-218 (2002) (“[I]f the statute speaks clearly to the precise question at 

issue, we must give effect to the unambiguously expressed intent of Congress.” 

(internal quotation marks omitted)); see also Performance Coal Co. v. Federal 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 36 of 64
- 25 - 

Mine & Health Review Comm’n, 642 F.3d 234, 238 (D.C. Cir. 2011) (“[T]o defeat 

application of a statute’s plain meaning, Respondents must show either that, as a 

matter of historical fact, Congress did not mean what it appears to have said, or 

that, as a matter of logic and statutory structure, it almost surely could not have 

meant it.” (internal quotation marks omitted)). 

A. The Electioneering Communications Disclosure Provisions Are 

Unambiguous 

BCRA unambiguously speaks to the precise question at issue here, which is 

what a “person” making a certain volume of electioneering communications must 

disclose. Applying the foregoing principles of statutory interpretation, the district 

court held that § 104.20(c)(9) was inconsistent with an unambiguous legislative 

text—2 U.S.C. § 434(f)(2)(E) and (F). BCRA plainly prescribes that, if a person 

spending more than $10,000 per year on electioneering communications does not 

establish a segregated account under 434(f)(2)(E), the person must disclose “all 

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

making the disbursement,” § 434(f)(2)(F). 

The term “contributor” is not ambiguous. As the district court held, it means 

a person who gives money without expectation of or right to receive service or 

property in return. JA 160; see Oxford English Dictionary, 2d edition (1989) 

(online version 2012) (defining “contributor” as “one that contributes or gives to a 

common fund” and defining “contribute,” in relevant part, as “to give or pay 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 37 of 64
- 26 - 

jointly with others; to furnish a common fund or charge”); see also MerriamWebster Dictionary online at 1, 3, available at

http://www.merriamwebster.com/dictionary/contributor (defining “contributor,” in 

relevant part, as “to give or supply in common with others [;] . . . to give a part to a 

common fund or store”). 

As the district court and motions panel recognized, the plain meaning of 

“contribute” does not include a requirement that the contributor have any particular 

state of mind. JA 160; JA 181. Instead, as BCRA makes clear, the term 

“contribute” means giving or granting in common with others—regardless of 

purpose—to a common person, 2 U.S.C. § 434(f)(2)(F) (“all contributors who 

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

disbursement”) (emphasis added), or common fund or account, id. § 434(f)(2)(E) 

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

account”) (emphasis added). CFIF argues that dictionary definitions support the 

FEC regulation because dictionaries “define the verb ‘contribute’ to include a 

purpose element.” CFIF Br. 29. Van Hollen does not contend that “contributors” 

never give money with a purpose but what defines whether someone is a 

“contributor” to another person is simply whether one has made a donation to 

support that person; it is not whether one has a purpose to support a specific act 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 38 of 64
- 27 - 

that the recipient may perform with the money contributed. Nothing in the 

definitions CFIF cites supports requiring some more specific purpose. 

The district court and motions panel both found the following hypothetical 

useful to illustrate that the ordinary meaning of “contributor” does not require that 

the contributor harbor or express a particular intent: 

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. 

See JA 160 n.12; see also JA 181. BCRA requires disclosure of contributors who 

gave to the person making the expenditure; thus, no purpose other than a purpose 

to contribute to the person making the electioneering communication can be read 

into the statute. 

The statutory context also demonstrates that 2 U.S.C. § 434(f) is 

unambiguous. BCRA’s electioneering communications disclosure requirements 

include one provision that effectively limits disclosure to persons with an intent to 

give specifically to finance electioneering communications—the segregated 

account option in § 434(f)(2)(E), which requires disclosure only of amounts 

contributed by individuals “directly to [such an] account for electioneering 

communications.” If corporations want to disclose only donors who specifically 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 39 of 64
- 28 - 

wish to fund electioneering communications, they can set up a segregated account 

and accept contributions for that purpose only from individuals. If CFIF and HLF 

were correct that the term “contributor” necessarily includes a purpose element, the 

segregated account option would be surplusage and the option would make no 

sense. And where Congress has recognized the significance of a donor’s purpose 

in only one of two closely related subsections of the statute, there is no warrant for 

the FEC to impose such a limitation on the other. “Where Congress includes 

particular language in one section of a statute but omits it in another section of the 

same Act, it is generally presumed that Congress acts intentionally and purposely 

in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 

(1983) (citation and alteration omitted); see also Coalition for Responsible 

Regulation, Inc. v. EPA, --- F.3d ---- 2012 WL 2381955, at *30 (D.C. Cir. June 26, 

2012) (the fact that certain narrowing language was used in one subsection and not 

in another “strongly suggest[ed]” that the subsection without such language “was 

meant to be construed broadly”). 

Furthermore, 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 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, 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 40 of 64
- 29 - 

id. § 434(f). The absence of the phrase “for the purpose of furthering” in 

§ 434(f)(2)(F) is significant, because Congress could have added the language it 

had earlier included in § 434(c) when it amended FECA through BCRA, but chose 

not to do so. See Russello, 464 U.S. at 23. 

B. BCRA’s Purpose Further Shows That BCRA’s Electioneering 

Communications Disclosure Provisions Are Unambiguous 

Beyond the statutory text itself, a court applying the first step of the Chevron

analysis may also consider legislative purpose in determining whether Congress’s 

command is unambiguous. As the district court held, because the addition of a 

purpose requirement in the FEC’s challenged regulation would foreseeably 

facilitate wholesale evasion of BCRA’s statutory disclosure requirement, see supra

12-13, it was contrary to Congress’ intent in enacting BCRA. See Shays I, 414 

F.3d at 106 (holding, at Chevron Step One, that FEC regulation was invalid 

because it facilitated circumvention of the statute). A corporation could avoid 

complying with BCRA under the invalid regulation simply by not asking 

contributors why they gave money. Shays I, 414 F.3d. at 103 (observing that 

under FEC’s definition of the word “solicit,” a candidate could state that “it’s 

important for our state party to receive at least $100,000 from each of you” without 

having “asked” for money (internal quotation marks omitted)); id. at 106 (“The 

FEC’s definitions fly in the face of [BCRA’s] purpose because they reopen the 

very loophole the terms were designed to close.”). 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 41 of 64
- 30 - 

As the district court put it, “[T]he general legislative purpose here is clearly 

expressed . . . : that Congress intended to shine light on whoever was behind the 

communications bombarding voters immediately prior to elections.” JA 154. See 

supra 5-6. The Supreme Court has said the same—about this very statute. See 

Citizens United v. FEC, 130 S. Ct. 876, 915 (2010) (“[T]he public has an interest 

in knowing who is speaking about a candidate shortly before an election.”). 

CFIF misconstrues BCRA’s legislative history when it points to statements 

by BCRA’s sponsors that “assured fellow legislators that the provision would not 

permit ‘invasive disclosure rules.’” CFIF Br. 35. The assertion that the disclosure 

rules would not be ‘invasive’ is consistent with the scope of limitations Congress 

explicitly provided: (1) persons who do not spend more than $10,000 on 

electioneering communications do not need to disclose any contributors; (2) if a 

person establishes a segregated account, only contributors of $1,000 or more to the 

account need to be disclosed; and (3) only contributors of $1,000 or more need to 

be disclosed without a segregated account. 

CFIF also cites testimony indicating that the provision is aimed at disclosure 

of contributors who donated “toward the ad.” Id. This language does not support 

CFIF’s argument. Donations that go to the pool of money an organization uses for 

electioneering communications are donations “toward the ad” regardless of the 

subjective purpose of the person who gave money. CFIF does not cite any 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 42 of 64
- 31 - 

evidence indicating that Congress intended to limit disclosure to persons who not 

only contribute “toward” electioneering communications, but also subjectively 

intend that their money be used for that specific purpose.

C. CFIF/HLF’s Arguments for Reversing the District Court Lack 

Merit 

1. Congress Has Unambiguously Addressed the Question at 

Issue 

HLF argues that Congress has not spoken to the question at issue here 

because at the time it enacted the disclosure provisions corporations and unions 

were barred from making electioneering communications. HLF Br. 24. That 

argument fails for several reasons. 

First, the statutory language itself is clear. By its plain text, BCRA requires 

every “person” that finances electioneering communications to file disclosure 

reports that include “all contributors.” 2 U.S.C. § 434(f). The definition of 

“person,” as referenced in the E & J, is not limited to particular types of 

corporations or unions. See 2 U.S.C. §§ 431(11) (“the term ‘person’ includes an 

individual, partnership, committee, association, corporation, labor organization, or 

any other organization or group of persons”); 434(f)(1) (reporting requirements for 

every “person” who makes electioneering communications); see also JA 77 

(“[T]he statute requires every ‘person’ (which by definition includes corporations 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 43 of 64
- 32 - 

and labor organizations) funding [electioneering communication]s over the 

reporting threshold to report.” (citing 2 U.S.C. § 431(11)). 

Second, as the FEC conceded below, see FEC Mot. for Summ. J. at 6, Van 

Hollen v. FEC, No. 11-cv-00766-ABJ (D.D.C. Aug. 1, 2011), Dkt. 25, at the time 

Congress enacted BCRA, it was understood that § 201 would apply to some 

corporations. The FEC so construed the statute in the immediate aftermath of its 

passage. See FEC, Notice of Final Rulemaking, 68 Fed. Reg. 404-01, 413 (Jan. 3, 

2003). BCRA’s sponsors “agree[d] that in order for the provision to comply with 

the Supreme Court’s ruling in the MCFL case, the prohibition [on corporations and 

unions paying for electioneering communications with their treasury funds] should 

not apply to qualified nonprofit corporations . . . .”6

 Because the Supreme Court 

decided MCFL long before Congress enacted BCRA, Congress understood that 

MCFL corporations would or might well be subject to the electioneering 

communications reporting rules. See McConnell v. FEC, 540 U.S. 93, 210-211 

(2003), overruled in part on other grounds, 130 S. Ct. 876 (2010). Thus, in 

McConnell, the Supreme Court expressly held that BCRA implicitly permitted 

MCFL corporations to engage in electioneering communications. Id.

 

6

 Comments from Senators John McCain, Russell D. Feingold. Olympia 

Snowe, and James Jeffords, and Representatives Christopher Shays and Marty 

Meehan (Aug. 23, 2002) available at

http://www.fec.gov/pdf/nprm/electioneering_comm/comments/us_cong_members.

pdf. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 44 of 64
- 33 - 

Third, Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 

(1998), forecloses HLF’s argument. In Yeskey, the Supreme Court held that, even 

if “Congress did not ‘envision that the ADA would be applied to state prisoners,’” 

that would be “irrelevant” “in the context of an unambiguous statutory text.” Id. at 

212; cf. Massachusetts v. EPA, 549 U.S. 497, 532 (2007) (rejecting agency’s 

argument that it lacked authority to regulate greenhouse gases because Congress 

“might not have appreciated the possibility that burning fossil fuels could lead to 

global warming”). 

HLF maintains that, unlike Yeskey, this case is one where a court leaves in 

place a statutory provision that was specifically designed to work in conjunction 

with another invalidated provision. HLF Br. 31. As the motions panel recognized, 

however, BCRA’s severability provision shows that Congress was well aware that 

certain provisions of the Act might be held unconstitutional.7

 Accordingly, 

“[n]othing in the plain text of section 201 suggests Congress did not mean what it 

said—that section 201’s disclosure requirement applies to all contributors 

regardless of their subjective purpose in contributing.” JA 180-181. 

 

7

 “If any provision of this Act or amendment made by this Act . . ., or the 

application of a provision or amendment to any person or circumstance, is held to 

be unconstitutional, the remainder of this Act and amendments made by this Act, 

and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding.” 2 U.S.C. § 454 note. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 45 of 64
- 34 - 

CFIF claims that Yeskey applies only where Congress did not think about a 

statute’s coverage. CFIF Br. 37. That reading of Yeskey finds no support in the 

Supreme Court’s opinion, whose message is clear: An unambiguous statutory text 

applies as written even in unanticipated circumstances, regardless of how much 

thought Congress may or may not have given to the statute’s expected coverage. 

2. Citizens United Did Not Imply That the Regulation 

Permissibly Construes BCRA 

CFIF erroneously contends that the Citizens United three-judge district 

court’s passing citation to the FEC’s regulation challenged here creates an 

inference that the regulation was a permissible construction of the statute.8

 That 

inference is improper because the three-judge district court was not considering the 

question at issue here, i.e., whether 11 C.F.R. § 104.20(c)(9) was inconsistent with 

BCRA’s plain text. 

CFIF also seeks refuge in the Supreme Court reference in Citizens United to 

disclosure of “certain contributors.” That argument too is unavailing because the 

Supreme Court cited the statute, 2 U.S.C. § 434(f)(2), not the regulation, 11 C.F.R. 

§ 104.20(c)(9). Citizens United, 130 S. Ct. at 914. The reference to “certain 

 

8

 The Solicitor General’s brief did not contend that BCRA § 201’s 

constitutionality turned in any way on the loophole-opening effect of the 

challenged regulation. Brief for Appellee, Citizens United v. FEC, No. 08-205, 

2009 WL 406774, at *40-41 (U.S. Feb. 17, 2009). 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 46 of 64
- 35 - 

contributors” was thus a reference to the limits the statute itself delineated on the 

scope of the disclosures it required. See 2 U.S.C. § 434(f)(2)(E) & (F). 

3. FECA’s Definition of the Term “Contribution” Does Not 

Apply 

CFIF/HLF contend that the FECA definition of “contribution” dictates the 

meaning of the terms “contributor” and “contributed” as used in BCRA’s 

disclosure provisions relating to the funding of electioneering communications. 

See CFIF Br. 27-28; HLF Br. 35-36. But the term “contributor” as used in BCRA 

cannot import the FECA definition of “contribution” because there is a structural 

disconnect between the two terms: a FECA “contribution” is one made for the 

purpose of influencing federal elections, 2 U.S.C. § 431(8), while electioneering 

communications are not so limited: they include communications that are not, or 

may not be, made for the purpose of influencing federal elections. See id.

§ 434(f)(3); FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 457 (2007) 

(drawing line between “issue advocacy” and “express advocacy” and noting that 

“BCRA’s definition of ‘electioneering communication’ is clear and expansive”). It 

would have made no sense for Congress to have defined the term “contributor” in 

BCRA in a way that does not match up with BCRA’s cognate definition of the 

term electioneering communications. CFIF/HLF’s argument cannot support the 

FEC regulation challenged here because a purpose limitation drawn from the 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 47 of 64
- 36 - 

FECA definition would have a scope different from and inconsistent with the 

actual regulatory limitation. 

Moreover, CFIF/HLF’s argument fails because the statutory terms they 

point to are not the same. As the Supreme Court recently confirmed, a statutory 

definition of one form of a word does not determine the meaning of another form 

of the word used elsewhere in the statute in a different context and for different 

purposes. In FCC v. AT&T Inc., 131 S. Ct. 1177 (2011), the Court rejected the 

argument that use of the word “personal” in the Freedom of Information Act 

incorporated the statutory definition of the word “person,” where the statute 

defined “person” but not “personal.” Id. at 1182. The Court explained that “in 

ordinary usage” two words with the same root “may have meanings as disparate as 

any two unrelated words,” and held that when a statute does not define the precise 

term at issue, the Court “‘give[s] the phrase its ordinary meaning.’” Id. (quoting 

Johnson v. United States, 130 S. Ct. 1265, 1267 (2010)). As shown above, the 

ordinary meaning of “contributor” does not turn on purpose. See supra 25-26. 

4. The Language Congress Enacted Rules Out a Purpose 

Requirement 

CFIF argues that Congress could have selected language that would “rule 

out a purpose requirement.” CFIF Br. 30. But Congress did just that. As 

discussed above and as the motions panel recognized, Congress “demonstrated that 

it knew how to limit its word choice based on the actor’s purpose” by using the 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 48 of 64
- 37 - 

phrase “for the purpose of furthering” in the FECA independent expenditures 

disclosure provision, 2 U.S.C. § 434(c)(2)(C). JA 181. “By contrast, in BCRA 

Congress evinced a clear intent not to limit section 434(f)(2)’s reach, and instead to 

cover all contributors,” id. (emphasis in original), when it enacted BCRA’s 

electioneering communications disclosure provision, 2 U.S.C. § 434(f). Similarly, 

in crafting the alternative disclosure options that it provided in subsections 

434(f)(2)(E) and (F), Congress used words that take account of purpose in one but 

not the other. The negative implication of that choice is clear. 

CFIF also suggests that Congress could have ruled out a purpose 

requirement by mandating disclosure of “all receipts.” CFIF Br. 30. But 

disclosure of “contributors” is different from requiring disclosure of “receipts.” 

Contributors are those who give money—not in return for value or ownership 

rights—but to support the organization. See supra 25-26. Requiring disclosure of 

all “receipts” would expand the provision’s reach and would require disclosure of 

payments from customers, lenders, debtors, and shareholders. Congress’ use of 

“contributors” rather than a term like “receipts” thus reflects a clear expression of 

intent to require disclosure of all those who give $1,000 or more to the person 

making the electioneering communication, as opposed to those who do business 

with that person. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 49 of 64
- 38 - 

5. Constitutional Considerations Do Not Require the 

Addition of a Purpose Requirement 

The FEC’s E & J did not articulate or rely on any constitutional concerns 

that required it to adopt the challenged regulation. See JA 87. Under SEC v. 

Chenery Corp., 332 U.S. 194 (1947), a court generally may not uphold an agency 

rule on grounds the agency did not itself articulate. See id. at 196 (“[A] reviewing 

court, in dealing with a determination or judgment which an administrative agency 

alone is authorized to make, must judge the propriety of such action solely by the 

grounds invoked by the agency.”); see also Association of Civilian Technicians v. 

FLRA, 269 F.3d 1112, 1117 (D.C. Cir. 2001) (“Agency decisions must generally 

be affirmed on the grounds stated in them.”). 

Moreover, the constitutional concerns advanced by CFIF/HLF do not justify 

the distinction drawn by the FEC between unincorporated associations and 

partnerships, which must still report all contributors, and corporations and unions, 

which need not do so. 

In any event, as the district court held and the motions panel concluded, 

HLF/CFIF’s and their supporting amici’s constitutional arguments are meritless. 

See JA 161; see also JA 182. The Supreme Court has consistently upheld 

campaign finance disclosure provisions against constitutional challenges. See, 

e.g., Citizens United, 130 S. Ct. at 916; McConnell, 540 U.S. at 201-202; Buckley 

v. Valeo, 424 U.S. 1, 67 (1976) (per curiam). And, as the district court noted, see 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 50 of 64
- 39 - 

JA 139, the Supreme Court has upheld this particular statute. See Citizens United, 

130 S. Ct. at 914-916. In Citizens United, the Court rejected an as-applied 

challenge by a corporation to 2 U.S.C. § 434(f). Id. at 914. In doing so, the Court 

specifically referred to § 434(f)(2) as requiring disclosure of contributors to 

corporations that make electioneering communications. Id. The Court commented 

that, since Buckley, it had sustained such disclosure provisions “based on the 

governmental interest in ‘provid[ing] the electorate with information’ about the 

sources of election-related spending.” Citizens United, 130 S. Ct. at 914 

(alteration in Citizens United). The Court further recounted that in McConnell it 

had rejected facial challenges to § 434(f), based on evidence that “independent 

groups were running election-related advertisements ‘while hiding behind dubious 

and misleading names.’” Citizen United, 130 S. Ct. at 914 (quoting McConnell, 

540 U.S. at 197). The Court noted that it had upheld § 434(f) in McConnell on the 

ground that it would help citizens “‘make informed choices in the political 

marketplace.’” Citizen United, 130 S. Ct. at 914 (quoting McConnell, 540 U.S. at 

197). The McConnell Court had found that “important state interests” amply 

supported application of the disclosure requirements to the “entire range of 

‘electioneering communications.’” 540 U.S. at 196. And in Citizens United, the 

Court specifically rejected the general contention “that disclosure requirements can 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 51 of 64
- 40 - 

chill donations to an organization by exposing donors to retaliation,” 130 S. Ct. at 

916, and stressed: 

[P]rompt disclosure of expenditures can provide . . . citizens with the 

information needed to hold corporations and elected officials 

accountable for their positions and supporters. . . . [C]itizens can see 

whether elected officials are in the pocket of so-called moneyed 

interests. The First Amendment protects political speech; and 

disclosure permits citizens . . . to react to the speech of corporate 

entities in a proper way. 

Id. (internal quotation marks and citations omitted).9

 

Since Citizens United, the federal courts of appeals, including this Court, 

have repeatedly upheld similar disclosure requirements. See, e.g., The Real Truth 

About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012); see also National Org. 

for Marriage Inc. v. Secretary, No. 11-14193, 2012 WL 1758607 (11th Cir. May 

17, 2012) (unpublished); National Org. for Marriage, Inc. v. McKee, 669 F.3d 34 

(1st Cir. 2012); Farris v. Seabrook, 677 F.3d 858 (9th Cir. 2012); Family PAC v. 

McKenna, --- F.3d ----, Nos. 10-35832 &10-35893, 2012 WL 266111 (9th Cir. Jan. 

31, 2012); National Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011), cert. 

denied, 132 S. Ct. 1635 (2012); Human Life of Washington Inc. v. Brumsickle, 624 

F.3d 990 (9th Cir. 2010), cert. denied, 131 S. Ct. 1477 (2011); SpeechNow.org v. 

FEC, 599 F.3d 686 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 553 (2010). The 

 

9

 CFIF/HLF’s reliance on Center for Individual Freedom, Inc. v. Tennant, 

Nos. 08-cv-00190 & -01133, 2011 WL 2912735 (S.D. W. Va. July 18, 2011) 

(notice of appeal filed Sept. 1, 2011), CFIF Br. 37 n.36, is unavailing. The district 

court in that case made no attempt to square its ruling with Citizens United. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 52 of 64
- 41 - 

suggestion that the Constitution requires limiting disclosure to funders who 

explicitly intend to support specific types of political expenditures finds no support 

in this broad consensus in favor of disclosure. 

Amici wrongly contend that BCRA’s electioneering communications 

disclosure provisions are unconstitutional under McIntyre v. Ohio Elections 

Commission, 514 U.S. 334 (1995). McIntyre, which upheld the right of a lone, 

self-publishing pamphleteer to speak anonymously, is not applicable here. The 

McIntyre Court expressly distinguished the First Amendment treatment of a 

“personally crafted statement of a political viewpoint” in a “written electionrelated document” at issue there, from mandatory disclosure of campaign-related 

spending at issue in Buckley: “[E]ven though money may ‘talk,’ its speech is less 

specific, less personal, and less provocative than a handbill[,] and as a result, when 

money supports an unpopular viewpoint it is less likely to precipitate retaliation.” 

McIntyre, 514 U.S. at 355. Moreover, McConnell and Citizens United, which 

specifically upheld § 201 against constitutional challenge, came after McIntyre. 

For these reasons, there is no weight to the suggestion that the FEC’s 

addition of a purpose requirement to the statute was necessary to save it from any 

constitutional infirmity. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 53 of 64
- 42 - 

III. THE REGULATION IS ALSO INVALID UNDER CHEVRON STEP TWO AND IS 

ARBITRARY AND CAPRICIOUS, SHOULD THE COURT REACH THE ISSUE

 Because BCRA is unambiguous and the challenged regulation is contrary to 

the statute’s plain language and purpose, this Court, like the district court, need not 

reach the second step of the Chevron analysis and APA review. If, however, this 

Court were to reverse the district court’s Chevron Step One ruling and conclude 

that the statutory provision itself is ambiguous, it could either remand to the 

district court for consideration of the Step Two and APA issues, because typically 

“‘a federal appellate court does not consider an issue not passed upon below,’” 

Bowie v. Maddox, 642 F.3d 1122, 1131 (D.C. Cir. 2011) (quoting Singleton v. 

Wulff, 428 U.S. 106, 120 (1976)), or it could proceed to decide those issues, see, 

e.g., Gas Appliance Manufacturers Association, Inc. v. Department of Energy, 998 

F.2d 1041 (D.C. Cir. 1993) (reaching issue district court did not consider). 

 Where a statute is ambiguous, reviewing courts give deference to 

permissible administrative interpretations, Chevron, 467 U.S. at 844, but only if 

the agency has offered a “reasoned explanation for why it chose that 

interpretation[,]” Village of Barrington, Illinois v. Surface Transportation Board, 

636 F.3d 650, 660 (D.C. Cir. 2011). To merit deference, an agency must “examine 

the relevant data and articulate a satisfactory explanation for its action including a 

‘rational connection between the facts found and the choice made.’” Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 54 of 64
- 43 - 

(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 

The inquiry at Chevron Step Two “overlaps with the arbitrary and capricious 

standard, for whether a statute is unreasonably interpreted is close analytically to 

the issue whether an agency’s actions under a statute are unreasonable,” Shays I, 

414 F.3d at 96 (internal quotation marks and citations omitted), and courts 

frequently consider the Chevron Step Two and APA inquiries together. 

Here, the FEC failed to make such a rational connection between the facts 

and its decision. Rather, the agency’s decision rested on a misunderstanding of the 

consequences of requiring corporations to report all contributors, on unsupported 

factual assertions about the extent of the burdens the agency supposed would result 

from disclosure, and on a failure to consider the fact that corporations could avoid 

all those supposed burdens by using the segregated account option. 

A. The FEC’s Burden Rationale Is Arbitrary and Capricious 

 CFIF/HLF contend, as the FEC did below, that § 104.20(c)(9) properly 

accommodates the burdens corporations and unions would face in complying with 

BCRA’s disclosure requirements for electioneering communications. See CFIF 

Br. 41; HLF Br. 41; see also JA 100-104. But the FEC’s burden rationale is 

arbitrary and capricious. 

First, the burden rationale is premised entirely on the erroneous—indeed, 

absurd—notion that the term “contributors” could include corporate customers, 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 55 of 64
- 44 - 

shareholders, and/or lenders. Under the generally accepted definition of 

“contributor”—someone who gives money without an expectation of or right to 

receive services or property in return, see supra 25-26—the entire premise for the 

FEC’s burden rationale vanishes. Alternatively, even if the Court were to 

conclude that there was some degree of ambiguity in the term, “contributor,” the 

premise of the FEC’s burden rationale still would fail because there is no 

reasonable construction of the term that includes customers, shareholders, or 

creditors. 

Second, even apart from the linguistic absurdity of the FEC’s premise, the 

agency did not have before it a sufficient evidentiary basis to find that identifying 

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

generally would impose undue burdens on corporations and unions. The FEC’s E 

& J cited no data and made no specific fact-based findings estimating the likely 

costs and difficulties corporations and unions would purportedly incur. Section 

501(c) organizations already must distinguish donations from unrelated business 

taxable income and other revenue sources on their tax returns in order to maintain 

their tax exempt status. See 26 U.S.C. § 6033(b)(5); Treas. Reg. § 1.6033-

2(a)(2)(ii)(f). Rather, the FEC’s E & J uncritically accepted conclusory comments 

to the effect “that the effort necessary to identify those persons who provided 

$1,000 or more to a corporation or labor organization would be very costly and 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 56 of 64
- 45 - 

require an inordinate amount of effort.” JA 87. The E & J cited only two 

commenters’ specific remarks on burden,10 as well as one witness’s testimony on 

the subject.11 The FEC’s E & J also did not rely on or identify any evidence 

suggesting that corporations and labor unions do not already track contributors at 

certain monetary levels, so the agency had no basis to assume that disclosing 

contributors who contribute $1,000 or more would require these organizations to 

compile information they do not currently maintain. 

 The FEC’s failure to provide a reasoned, fact-based explanation for its 

conclusions about potential burden renders its decision unreasonable, arbitrary, and 

capricious. See State Farm, 463 U.S. at 48-49 (invalidating agency rescission of 

regulation for failure to provide reasoned analysis supporting rescission); National 

Gypsum Co. v. EPA, 968 F.2d 40, 44, 47 (D.C. Cir. 1992) (agency was not 

required to perform further tests to support contested finding, but “must at least 

give a reasoned explanation for its assumption” that the finding was correct); see 

 

10 The E & J stated that one commenter “asserted that segregated bank 

accounts are not a meaningful alternative for labor organizations, and argued that 

disclosing the sources of their general treasury funds would impose a heavy burden 

on labor organizations,” and another commenter “argued that more extensive 

reporting requirements would far exceed all other reporting requirements that 

currently apply to nonprofit organizations, such as reporting to the Internal 

Revenue Service.” JA 87. 

11 The E & J stated, “one witness noted that labor organizations would have to 

disclose more persons to the Commission under the [electioneering 

communications] rules than they would disclose to the Department of Labor under 

the Labor Management Report and Disclosure Act.” JA 87. 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 57 of 64
- 46 - 

also Missouri Pub. Serv. Comm’n v. FERC, 337 F.3d 1066, 1070 (D.C. Cir. 2003) 

(agency action was arbitrary and capricious where agency failed to “fully explain 

the assumptions it relied on to resolve unknowns and the public policies behind 

those assumptions” (citations omitted)). 

Third, Congress already carefully considered and mitigated the burden of 

complying with BCRA’s electioneering communications disclosure requirements. 

BCRA does not require a corporation or union, or any other person, making 

electioneering communications to disclose its contributors unless the 

disbursements total an “aggregate amount in excess of $10,000 during any 

calendar year.” 2 U.S.C. § 434(f)(1). Additionally, like other persons subject to 

the statutory requirements, a corporation or union making electioneering 

communications must disclose only contributors who individually contribute “an 

aggregate amount of $1,000 or more” during the period beginning on the first day 

of the preceding calendar year and ending on the disclosure date. See id. 

§ 434(f)(2)(E)-(F). Nothing in the statute invites the FEC to substitute its 

judgment for that of the Congress. 

Fourth, and importantly, a corporation or union wishing to make 

electioneering communications without disclosing all those who have donated 

money to its general treasury funds may perform the simple step of establishing a 

segregated bank account under § 434(f)(2)(E) and use money contributed to that 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 58 of 64
- 47 - 

account by individuals to pay for electioneering communications. Absent any 

cogent explanation for effectively disregarding the segregated account option in its 

burden calculus, the FEC’s decision was unreasonable, arbitrary, and capricious. 

B. The FEC’s Desire to Limit Disclosure to Contributors Who 

Actually Support Particular Electioneering Communications Is 

Arbitrary and Capricious 

 The FEC’s E & J also attempted to justify the challenged regulation on the 

ground that the agency wanted to limit disclosure to only “those persons who 

actually support the message conveyed by the [electioneering communications].” 

JA 87. That rationale is arbitrary and capricious for several reasons. 

First, this rationale is not much different from the FEC’s burden rationale, 

since it too is based in part on the implausible notion that the term “contributor” 

could include customers, shareholders, and creditors. See supra 43-44.12 

Second, the record does not sustain the hypothesis that many “contributors” 

give money to corporations making electioneering communications the 

contributors do not support. The FEC had no evidence before it and made no fact-

 

12 The FEC stated that in its judgment, “requiring disclosure of funds received 

only from those persons who donated specifically for the purpose of furthering 

[electioneering communications] appropriately provides the public with 

information about those persons who actually support the message conveyed by 

the [electioneering communications] without imposing on corporations and labor 

organizations the significant burden of disclosing the identities of the vast numbers 

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

entirely unrelated to the making of [electioneering communications].” JA 87 

(emphasis added).

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 59 of 64
- 48 - 

based findings demonstrating that this supposed problem exists, let alone that any 

such problem is big enough to justify the challenged regulation. See generally JA 

86-88. 

Third, if this problem did exist, it would presumably also affect contributors 

to partnerships, unincorporated associations, or individuals that make 

electioneering communications, yet the FEC has not added a purpose requirement 

to the parallel regulations governing electioneering communications disclosures by 

those parties. See 11 C.F.R. § 104.20(c)(8). 

Fourth, by promulgating § 104.20(c)(9), the FEC advanced a policy not 

legitimate under BCRA’s terms. The challenged regulation assumes that the goal 

of disclosure is to identify only contributors who agree with an organization’s 

electioneering activity. But as the statutory language, see supra 25-29, 

Congressional members’ stated reasons for enacting BCRA, see supra 4-6, and 

Citizen United, see supra 38-40, make clear, the point of disclosure is to identify 

the sources of funding for electoral messages, not to identify individuals who do or 

do not share a particular political view. 

Fifth, and most importantly, the FEC’s rationale does not take into account 

the foreseeable loophole-opening effect of engrafting the purpose requirement onto 

the statute. “BCRA reflects ‘the hard lesson of circumvention’ Congress has 

learned from ‘the entire history of campaign finance regulation,’” Shays III, 528 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 60 of 64
- 49 - 

F.3d at 927. The FEC did not even consider this risk. Disregarding the “hard 

lesson of circumvention,” the FEC adopted a regulation that effectively invites 

evasion of BCRA’s disclosure requirements. See State Farm, 463 U.S. at 43 

(noting that an agency rule would be arbitrary and capricious if the agency 

“entirely failed to consider an important aspect of the problem.”). The FEC’s 

decision to promulgate an easily circumvented regulation was arbitrary and 

capricious. 

CONCLUSION 

For these reasons, the Court should affirm the district court’s ruling. 

Respectfully submitted, 

/s/ Roger M. Witten 

FRED WERTHEIMER

DEMOCRACY 21 

2000 Massachusetts Ave, N.W. 

Washington, D.C. 20036 

(202) 355-9610 

ROGER M. WITTEN

FIONA J. KAYE

CHRISTINE ELY

WILMER CUTLER PICKERING

 HALE AND DORR LLP

7 World Trade Center 

New York, New York 10007 

(212) 230-8800 

DONALD J. SIMON

SONOSKY CHAMBERS SACHSE

 ENDRESON & PERRY, LLP

1425 K Street, N.W., Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

EDWARD C. DUMONT

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Avenue, N.W. 

Washington, D.C. 20006 

(202) 663-6000 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 61 of 64
- 50 - 

SCOTT L. NELSON

PUBLIC CITIZEN

 LITIGATION GROUP

1600 20th Street, N.W. 

Washington, D.C. 20009 

(202) 588-1000 

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 

July 20, 2012 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 62 of 64
- 51 - 

CERTIFICATE OF COMPLIANCE 

 This brief complies with the type-volume limitation of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because the brief contains 11,382 words, 

excluding parts of the brief exempted by Federal Rule Appellate Procedure 

32(a)(7)(B)(iii) and D.C. Circuit Rule 32(a)(1). This brief complies with the 

typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the 

type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because 

the brief has been prepared in a proportionally spaced typeface in 14-point Times 

New Roman. 

/s/ Roger M. Witten 

ROGER M. WITTEN

July 20, 2012 

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 63 of 64
- 52 - 

CERTIFICATE OF SERVICE 

I certify that on July 20, 2012, the foregoing Plaintiff-Appellee Chris Van 

Hollen’s Opposition To Intervenors’ Appeal was filed using the Appellate 

CM/ECF system and service accomplished through the CM/ECF system on all 

participants in this case and by electronic mail upon the following counsel: 

JASON BRETT TORCHINSKY

HOLTZMAN VOGEL JOSEFIAK, PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

jtorchinsky@hvjlaw.com 

(540) 341-8808 

Attorney for Intervenor-Appellant 

Hispanic Leadership Fund 

JAN WITOLD BARAN

CALEB PAUL BURNS

THOMAS W. KIRBY

ANDREW GILLUM WOODSON

WILEY REIN LLP 

1776 K Street, N.W. 

Washington, D.C. 20006-2359 

JBaran@wileyrein.com 

CBurns@wileyrein.com 

TKirby@wileyrein.com 

AWoodson@wileyrein.com 

(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 

dkolker@fec.gov 

hbaker@fec.gov 

hsummers@fec.gov 

(202) 694-1650 

Attorneys for Defendant 

/s/ Roger M. Witten 

ROGER M. WITTEN

USCA Case #12-5117 Document #1384827 Filed: 07/20/2012 Page 64 of 64