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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CHRIS VAN HOLLEN,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Civil Action No. 1:11-cv-00766 (ABJ)

PLAINTIFF’S OPPOSITION TO 

INTERVENORS’ MOTIONS FOR STAY PENDING APPEAL

Plaintiff Chris Van Hollen respectfully submits this memorandum of points and 

authorities in opposition to motions for stay pending appeal filed by intervenors Hispanic 

Leadership Fund (“HLF”) and the Center for Individual Freedom (“CFIF”).

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

pending appeal. Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 978 (D.C. Cir. 

1985) (per curiam); see also In re Special Proceedings, --- F. Supp. 2d ----, No. 09-0198, 2012 

WL 859578, at *1 (D.D.C. Feb. 27, 2012) (denying stay of order denying motion to permanently 

seal the report regarding the prosecution of Senator Stevens). Intervenors fail to meet their 

burden as to each of the four factors that this Court must consider in determining whether to 

grant a stay: (1) their appeals have little chance of success on the merits; (2) they have not 

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

interested in the proceeding; and (4) the public interest weighs heavily against a stay. See In re 

Special Proceedings, 2012 WL 859578, at *1 (citing Nken v. Holder, 556 U.S. 418, 129 S. Ct. 

1749 (2009)). Indeed, in many of the cases intervenors cite, the courts declined to issue a stay. 

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See, e.g., id.; see also Baker v. Socialist People’s Libyan Arab Jamahirya, 810 F. Supp. 2d 90 

(D.D.C. 2011); Pan Am Flight 73 Liaison Grp. v. Dave, 711 F. Supp. 2d 13 (D.D.C. 2010), aff’d, 

639 F.3d 1102 (D.C. Cir. 2011).

I. THE COURT PROPERLY VACATED THE REGULATION UNDER CHEVRON

STEP ONE

A. The Court Granted Plaintiff’s Motion For Summary Judgment That 

Requested Vacatur

The necessary premise of the intervenors’ motions is that the Court has vacated the 

challenged regulation, 11 C.F.R. §104.20(c)(9). Plaintiff agrees with that premise. The Court’s 

Order and accompanying Memorandum Opinion granted Plaintiff’s motion for summary 

judgment without qualification, citing Docket Number 20. (See Dkt. Nos. 47, 48, 49.) In that 

motion, Docket Number 20, Plaintiff expressly moved the Court to “grant Plaintiff’s motion for 

summary judgment; declare that the challenged regulation, 11 C.F.R. § 104.20(c)(9), is contrary 

to law and arbitrary and capricious; vacate the challenged regulation; and direct the FEC to 

promulgate a revised regulation consistent with this Court’s ruling and declaratory judgment 

with reasonable expediency. . . . [and] to retain jurisdiction until the Court’s judgment is 

satisfied.” (Van Hollen Motion for Summary Judgment [Dkt. No. 20] at 35-36.) The Court 

denied defendant FEC’s cross-motion for summary judgment, which had asked the Court not to 

vacate the challenged regulation if the Court found it unlawful. (See FEC Motion for Summary 

Judgment [Dkt. No. 25] at 43.) It follows that the Court granted the relief requested in Plaintiff’s 

motion—remand with vacatur—and denied the FEC’s request not to vacate the regulation.

B. Vacatur Is The Appropriate Remedy When A Court Invalidates An Agency 

Regulation Under Chevron Step One

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

appropriate when a court concludes that a regulation fails under Chevron Step One. (See Dkt. 

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No. 33 at 20 (citing Emily’s List v. FEC, 581 F.3d 1, 25 (D.C. Cir. 2009); Cal. State Bd. of 

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

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

Court and the D.C. Circuit Court have held that remand, along with vacatur, is the presumptively 

appropriate remedy for a violation of the APA”); but see Shays v. FEC (“Shays I”), 337 F. Supp. 

2d 28, 130 (D.D.C. 2004).

Indeed, remand without vacatur would produce an entirely illogical result. See, e.g., Fox 

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

where low probability that Commission would be able to justify retaining the rule and disruption 

caused by vacatur would not be substantial); Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 

1086 (D.C. Cir. 2001) (vacating agency action where government had failed to defend its action 

on prior remand); Ill. Pub. Telecomms. Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir. 1997) 

(vacating rule where there was little prospect of agency being able to readopt the regulation with 

a more adequate explanation). In light of the Court’s Chevron Step One ruling, the FEC cannot 

on remand simply offer a new rationale for the stricken regulation, 11 C.F.R. § 104.20(c)(9); it 

must promulgate new disclosure regulations consistent with the Court’s order and the plain 

language of the Bipartisan Campaign Reform Act (“BCRA”).

Thus, vacatur was the appropriate remedy here.

II. THE PUBLIC INTEREST WILL BE HARMED BY A STAY

The public interest is a uniquely important consideration in evaluating a request for the 

extraordinary remedy of a stay pending appeal. See In re Special Proceedings, 2012 WL 

859578, at *5; see also Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68, 77 (D.D.C. 2008) 

(denying stay pending appeal of decision that requirements under Lobbying Disclosure Act were 

constitutional). As the Court recognized, the stricken regulation “does not comport with the 

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Congressional purpose and intent behind campaign finance legislation: to expose the parties 

behind the communications to the light.” (Mem. Op. [Dkt. No. 48] at 28 n.13.) Granting a stay 

and allowing the unlawful regulation to remain in place would thwart what the Court correctly 

found was Congress’s plain intent in enacting BCRA § 201, codified at 2 U.S.C. § 434(f), 

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

As the record reflects and defendant FEC has conceded, the disclosure mandated in plain 

language by BCRA § 201 has sunk to an all-time low. In 2010, persons making electioneering 

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

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

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

summ.php?cycle=2010&disp=O&type=E&chrt=D. The ten persons that reported spending the 

most on electioneering communications (all of them not-for-profit corporations) disclosed the 

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

only three disclosed any information about their funders. Id.

Longstanding Supreme Court precedent recognizes the strong public interest in campaign 

finance disclosure. As the Court held in Buckley v. Valeo, 424 U.S. 1, 67 (1976), disclosure 

requirements “deter actual corruption and avoid the appearance of corruption.” For such 

reasons, the Court has consistently upheld campaign finance disclosure provisions, such as 

BCRA § 201. See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 916 (2010); McConnell v. FEC, 

540 U.S. 93, 201-02, 124 S. Ct. 619 (2003); Buckley, 424 U.S. at 67. Indeed, the Court has said 

that the disclosure requirements of BCRA § 201 serve an important public function because they 

provide the electorate with information about the sources of election-related spending and help 

citizens “make informed choices in the political marketplace.” Citizens United, 130 S. Ct. at 914 

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(quoting McConnell, 540 U.S. at 197 (internal quotation marks omitted)). The Court in Citizens 

United specifically noted the problems that result when groups run ads “while hiding behind 

dubious and misleading names.” Id.

1 Contrary to what the intervenors argue, disclosure 

requirements “do not prevent anyone from speaking,” but they do serve the interests of 

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

2

III. INTERVENORS’ HAVE NOT MET THEIR HEAVY BURDEN IN SEEKING 

THE EXTRAORDINARY REMEDY OF A STAY PENDING APPEAL

A. Likelihood Of Success On The Merits

The intervenors have not persuasively demonstrated that they have a substantial 

likelihood of success on appeal. CFIF and HLF largely rehash the same arguments the Court 

rejected in its fully and correctly reasoned March 30, 2012 Memorandum Opinion. Repetition 

has not made those arguments any stronger. Because the intervenors have provided “no new 

information, authority, or analysis,” there is “no basis to conclude” that they have demonstrated a 

sufficient probability of success on the merits. In re Special Proceedings, 2012 WL 859578, at 

1 CFIF erroneously argues that there is a substantial likelihood that an appellate court could 

find that the holding in Citizens United does not dispose of the First Amendment arguments it 

has presented because, it is contended, Citizens United applies only to the disclosure 

requirements as limited by the FEC regulation. There is no express or implied support for that 

contention in the Supreme Court’s opinion. When the Court referred to disclosure of “certain 

contributors,” it cited the statute, 2 U.S.C. § 434(f)(2), not the regulation, 11 C.F.R. 

§ 104.20(c)(9). Citizens United, 130 S. Ct. at 914. The statute already contains a limitation 

warranting the phrase “certain contributors” by only requiring disclosure of those that give 

$1,000 or more (or under the segregated account option—those that give $1,000 or more to that 

account). See 2 U.S.C. § 434(f)(2)(E) & (F). Nor did the Government’s brief contend that 

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

challenged regulation. Brief for Appellee, No. 08-205, 2009 WL 406774, at *40-41 (Feb. 17, 

2009).

2

Polls show that the public overwhelmingly supports disclosure for outside spending 

groups. For example, according to a New York Times article on a New York Times/CBS News 

poll released on October 28, 2010, Americans overwhelmingly “favor full disclosure of spending 

by both campaigns and outside groups.” See Megan Thee-Brenan, Americans Want Disclosure 

and Limits on Campaign Spending, available at

http://thecaucus.blogs.nytimes.com/2010/10/28/americans-want-disclosure-and-limits-oncampaign-spending/. 

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*2. Rather than refuting intervenors’ arguments by repeating what is already in the record, 

Plaintiff respectfully relies on his briefs and argument on the cross-motions for summary 

judgment and the reasoning in the Court’s opinion. 

CFIF argues that the presence of a novel question of law weighs in favor of finding that it 

has satisfied its burden of demonstrating a substantial likelihood of reversal on appeal. (CFIF 

Mot. at 2.) While the Court noted that this case presents “what appears to be the novel question 

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

purpose of curing a perceived ambiguity or change in the statute’s reach that was created by new 

legal precedent” (Mem. Op. at 1), the Court did not say that the question was a close one. 

Rather, it found that the question was readily answered by application of the Chevron doctrine. 

(See, e.g., id. at 2, 19, 31.)

B. Irreparable Harm

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

See Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); F.T.C. v. Church & Dwight Co., 

Inc., 756 F. Supp. 2d 81, 86 (D.D.C. 2010) (denying stay where defendant failed to identify

clearly irreparable harm), aff’d, 665 F.3d 1312 (D.C. Cir. 2011). CFIF claims that compliance 

with the disclosure requirements would impose a heavy burden and result in “First Amendment 

harm.” (CFIF Mot. at 8.) But the Supreme Court has rejected such arguments. Disclosure 

requirements might be unconstitutional as applied to a specific organization but only if that 

organization has demonstrated “a reasonable probability that the group’s members would face 

threats, harassment, or reprisals if their names were disclosed.” Citizens United, 130 S. Ct. at 

916. Neither CFIF nor HLF has made such a factual showing. (See Mem. Op. at 30.) Thus, the 

intervenors fail to show how they will be irreparably harmed by denial of a stay. A stay would 

simply allow them to continue violating the plain language of BCRA § 201.

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C. Harm To Other Interested Parties

Plaintiff, on the other hand, will suffer harm if the Court stays its mandate. See Shays v. 

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

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

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

voting public will be harmed because disclosure of important campaign-related information 

mandated by the plain language of BCRA will not be made. (See Mem. Op. at 12; see also 

Declaration of Representative Chris Van Hollen [Dkt. No. 20-1] at ¶ 5.)

D. The Public Interest

As addressed, see supra Section II, a stay would injure the public interest by depriving 

the citizenry of relevant and useful election-related information which serves important and 

accepted First Amendment values.

CONCLUSION

For these reasons, intervenors’ motions for stay should be denied.

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Dated: April 13, 2012

Fred Wertheimer (Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Ave, N.W.

Washington, D.C. 20036

(202) 355-9610

/s/ Roger M. Witten

Roger M. Witten (Bar No. 163261)

Fiona J. Kaye

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

Donald J. Simon (Bar No. 256388)

SONOSKY CHAMBERS SACHSE

ENDRESON & PERRY, LLP

1425 K Street, N.W.

Suite 600

Washington, D.C. 20005

(202) 682-0240

Trevor Potter (Bar No. 413778)

J. Gerald Hebert (Bar No. 447676)

Paul S. Ryan (Bar No. 502514)

Tara Malloy (Bar No. 988280)

CAMPAIGN LEGAL CENTER

215 E Street N.E.

Washington, D.C. 20002 

(202) 736-2200

Attorneys for Plaintiff Chris Van Hollen

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