ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 14, 2012 

CASE NOS. 12-5117 & 12-5118 

═══════════════════════════════════════════════

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________ 

Center for Individual Freedom, 

 Defendant-Appellant, 

and 

Hispanic Leadership Fund, 

 Defendant-Appellant, 

v. 

Chris Van Hollen, 

 Plaintiff-Appellee, 

and 

Federal Election Commission, 

 Defendant-Appellee.

1

__________________________________________ 

ON APPEAL FROM THE U.S. DISTRICT 

COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ 

REPLY BRIEF FOR DEFENDANT-APPELLANT 

CENTER FOR INDIVIDUAL FREEDOM __________________________________________ 

August 3, 2012 

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

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

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

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

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

 1

 The Federal Election Commission (“FEC”) deadlocked on the question of whether to authorize an appeal to this Court. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 1 of 30
- i - 

TABLE OF CONTENTS

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

GLOSSARY OF ABBREVIATED TERMS............................................................iv

INTRODUCTION AND SUMMARY OF ARGUMENT........................................1

I. Plaintiff’s Brief Fails to Establish the Clear and Unambiguous 

Statutory Meaning His Chevron Step One Theory Requires. .........................6

A. Compelling Empirical Evidence Demonstrates That 

Plaintiff’s Proposed Statutory Construction Is Not Clear and 

Unambiguous.........................................................................................6

B. The Statutory Language and Structure Are Consistent 

with the 2007 Regulation. .....................................................................8

C. Legislative History Cuts Against Plaintiff’s Interpretation. ........11

D. Plaintiff’s Interpretation Creates an Absurdity............................14

E. Plaintiff’s Interpretation Needlessly Raises Constitutional 

Issues. ..................................................................................................15

II. The 2007 Regulation Was Reasonable and Rational..........................18

CONCLUSION........................................................................................................22

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 2 of 30
- ii - 

TABLE OF AUTHORITIES 

 Page(s) 

FEDERAL CASES

Axiom Resource Management, Inc. v. United States, 

564 F.3d 1374 (Fed. Cir. 2009) ..........................................................................15 

Boardley v. United States Department of Interior, 

615 F.3d 508 (D.C. Cir. 2010)............................................................................21 

Carroll v. President and Commissioners of Princess Anne, 

393 U.S. 175 (1968)............................................................................................21 

*Catawba County v. EPA, 

571 F.3d 20 (D.C. Cir. 2009)..........................................................................8, 10 

Cheney R. Co., Inc. v. ICC, 

 902 F.2d 66 (D.C. Cir. 1990)..............................................................................10

*Chevron U.S.A., Inc. v. NRDC, 

467 U.S. 837 (1984)....................................................... 2, 5, 6, 10, 15, 18, 22, 23 

*Citizens United v. FEC, 

 530 F. Supp. 2d 274 (D.D.C. 2008)......................................................................5

*Citizens United v. FEC,

130 S. Ct. 876 (2010)..............................................................................5, 6, 7, 21 

Earthworks v. United States Department of Interior, 

279 F.R.D. 180 (D.D.C. 2012) ...........................................................................15 

Esch v. Yeutter, 

876 F.2d 976 (D.C. Cir. 1989)............................................................................15 

FCC v. AT&T, 

131 S. Ct. 1177 (2011)..........................................................................................9 

FEC v. Massachusettes Citizens for Life,

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

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007)........................................................................................2, 17 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 3 of 30
- iii - 

IMS, P.C. v. Alvarez, 

129 F.3d 618 (D.C. Cir. 1997)............................................................................15 

Klein v. City of San Clemente, 

584 F.3d 1196 (9th Cir. 2009) ............................................................................21

McConnell v. FEC, 

 540 U.S. 93 (2003)................................................................................................2

Pennsylvania Department of Corrections v. Yeskey, 

 524 U.S. 206 (1998)............................................................................................17 

FEDERAL STATUTES

*2 U.S.C. § 431(8)(A)................................................................................................3 

REGULATORY MATERIALS

*72 Fed. Reg. 72,899 (Dec. 26, 2007)...............................................................11, 20 

68 Fed. Reg. 404 (Jan. 3, 2003).................................................................................7 

OTHER AUTHORITIES

Fed. R. Evid. 201 .....................................................................................................14 

Kenneth Doyle, FEC Issues Guidelines on Disclosure of Donors Funding 

Electioneering Ads, Bloomberg BNA Money & Politics Report (July 30, 

2012) ....................................................................................................................2 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 4 of 30
- iv - 

GLOSSARY OF ABBREVIATED TERMS 

BCRA Bipartisan Campaign Reform Act of 2002, 116 Stat. 81 

BCRA § 201 The electioneering communication disclosure provision 

at issue, codified at 2 U.S.C. § 434(f)(2)(F) 

CFIF Center for Individual Freedom 

CFIF’s Brief Opening Brief of Appellant Center for Individual 

Freedom 

FEC or 

Commission 

Federal Election Commission 

FECA Federal Election Campaign Act of 1971 

HLF Hispanic Leadership Fund 

J.A. Joint Appendix 

March 30, 

2012 Order 

Judge Amy Berman Jackson’s March 30, 2012 Order, 

as amended, that is the subject of this appeal 

Mem.Op. Judge Amy Berman Jackson’s Memorandum Opinion 

accompanying the March 30, 2012 Order 

Plaintiff’s 

Brief 

Brief for Appellee Chris Van Hollen 

2007 

Regulation 

The disclosure regulation vacated by the district court, 

11 C.F.R. § 104.20(c)(9) 

2003 

Regulation 

The predecessor to the 2007 regulation, which can be 

found at 11 C.F.R. § 104.20(c)(8) (2003) 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 5 of 30
- 1 - 

INTRODUCTION AND SUMMARY OF ARGUMENT 

CFIF’s Brief showed (at 23), and Plaintiff’s Brief does not dispute, that this 

appeal is to be decided de novo, giving no deference to the district court’s ruling. 

Plaintiff’s burden is to establish that the FEC’s presumptively valid 2007 

Regulation should be struck down. Plaintiff’s Brief does not carry that burden. 

The 2007 Regulation requires corporations and labor unions spending more 

than a small amount on electioneering communications to identify and disclose 

contributors who contribute for the purpose of supporting such speech. This 

objective test requires disclosure of those whose donations are linked to the 

recipient’s communications, either because they give in response to solicitations to 

support such speech or because the donations are designated for that use. See CFIF 

Brief at 13-14. 

Plaintiff’s Brief confirms that the 2007 Regulation requires the same scope 

of disclosure for electioneering communications that Congress requires for express 

candidate advocacy. Plaintiff’s Brief does not deny that the district court’s 

judgment has actually led to fewer disclosures as many speakers add express 

advocacy to what otherwise would be regulated as electioneering communications. 

See id. at 33-34. As was just reported: 

Groups that previously reported electioneering 

communications recently have shifted gears to avoid 

disclosure requirements. Some ... have begun filing 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 6 of 30
- 2 - 

reports of “independent expenditures” for message[s] 

explicitly calling for votes for or against candidates.... 

FEC rules for such independent expenditures were not 

affected by the Van Hollen litigation, meaning that ads 

explicitly intended to intervene in campaigns are now 

subject to a lower disclosure standard than electioneering 

communications. 

Kenneth Doyle, FEC Issues Guidelines on Disclosure of Donors Funding 

Electioneering Ads, Bloomberg BNA Money & Politics Report, July 30, 2012. 

These reports can be confirmed by inspection of judicially noticeable FEC files 

available on-line at http://www.fec.gov. Alternatively, many groups have ceased 

engaging in electioneering communications altogether. See CFIF Brief at 36-37. 

The district court’s judgment imposed greater disclosure burdens on 

electioneering communications – both those that can constitute implied candidate 

advocacy and those that do not – than on express candidate advocacy.2

 This has 

silenced and distorted core speech toward express candidate advocacy and its less 

burdensome disclosure obligations. Plaintiff’s Brief never explains why Congress 

would want to produce this absurd result. 

Plaintiff’s primary theory of invalidity, and the sole ground adopted by the 

district court, relies on an analysis under Step One of Chevron U.S.A., Inc. v. 

 2

 References in this brief to “implied candidate advocacy” in connection with electioneering communications simply acknowledge the observations in McConnell v. FEC, 540 U.S. 93, 206 (2003), and FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 476 n.8 (2007) (“WRTL II”), that electioneering communications can – but do not always – imply support for candidates. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 7 of 30
- 3 - 

NRDC, 467 U.S. 837 (1984). Plaintiff’s Brief (at 24-25) acknowledges that, to 

sustain this theory, Plaintiff must show that BCRA’s disclosure provision imposes 

a “clear” and “unambiguous[]” statutory command that the 2007 Regulation 

violates. Plaintiff purports to find the necessary clear command in the statutory 

phrase “contributors who contributed” by stretching its meaning to apply to every 

donation received by a corporation or labor union that makes an electioneering 

communication. Yet Plaintiff’s Brief does not deny any of the following facts that 

undercut this conclusion: 

 The disclosure provision is part of a statute that defines “contribution” to 

require giving “for the purpose of influencing” specific advocacy. 

2 U.S.C. § 431(8)(A); 

 The statutory definition of “contribution” itself reflects a standard 

dictionary definition – i.e., giving for a particular purpose. CFIF Brief at 

29-30 & n.32; 

 The key terms “contributors” and “contribute” are closely related forms 

of the word “contribution,” connoting one who makes a contribution and 

the act of making a contribution; 

 The disclosure provision’s purpose is to inform the public of the 

identities of persons financially supporting the electioneering 

communications that trigger disclosure. Id. at 6, 35; 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 8 of 30
- 4 - 

 Requiring disclosure of donations unrelated to supporting specific 

electioneering communications tends to obscure the information the 

disclosure provision seeks to provide. Id. at 12, 41; 

 The legislative history contains no statement that the disclosure provision 

would or should demand greater disclosures from those making 

electioneering communications than from those engaged in express 

candidate advocacy, and the congressional sponsors represented that the 

disclosure requirements were intended to be the same for both types of 

speech. Id. at 6-7, 35; 

 From 2002 through 2011, the disclosure provision was reviewed by the 

FEC, a three-judge district court, the Solicitor General, and eight sets of 

commenters opposing the 2007 Regulation, and none articulated the 

supposedly clear statutory meaning Plaintiff now asserts. Id. at 15-16, 26 

n.27; 

 In addition to a bipartisan majority of the FEC, the three-judge district 

court and the Solicitor General explicitly construed the statute to 

contemplate the same disclosures as the 2007 Regulation. Id. at 25-27 

& n.27; and 

 The FEC found that including disclosures of the sources of donations not 

made to support regulated speech would needlessly and significantly 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 9 of 30
- 5 - 

burden core First Amendment speech – an analysis Congress never made. 

Id. at 4-5, 21, 38-39. 

Of course, Plaintiff’s Brief offers countervailing arguments. For example, it 

observes (at 35-36) that the defined word “contribution” is not precisely the same 

as the statutory terms “contributors” and “contribute,” and would pose difficulties 

if imported literally. It says (at 29) the purpose element of the 2007 Regulation is a 

loophole that undermines disclosures Congress desired. It says (at 34) that the 

district court’s interpretation of the disclosure provision in Citizens United v. FEC, 

530 F. Supp. 2d 274, 280 (D.D.C. 2008) (per curiam), aff’d in relevant part, 130 S. 

Ct. 876, was not a strict holding. And so on. 

Plaintiff’s arguments are addressed in detail below, and CFIF submits they 

are untenable. But even if they are given maximum credence, the strongest 

conclusion they could support is that the disclosure provision’s meaning is 

arguable and uncertain. Yet anything less than clarity is fatal to Plaintiff’s 

Chevron Step One theory, which is the sole basis of the district court ruling. Thus, 

the appealed judgment must be reversed. 

Plaintiff’s Brief also offers (at 42-48) – but does not strongly press – a 

Chevron Step Two theory, claiming that the FEC’s adoption of the 2007 

Regulation was arbitrary and unreasonable. Although this alternative theory was 

fully briefed and argued, the district court did not embrace it, nor should this Court. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 10 of 30
- 6 - 

The FEC gave a reasonable explanation of its decision in light of the statute, the 

legislative purpose, and the record before it. Plaintiff identifies no comments the 

FEC did not fairly address, nor does it show that the rulemaking record precluded 

the FEC’s views. 

Because the 2007 Regulation was at least permissible and rational, if not 

actually required by statute, the judgment vacating it should be reversed and 

Plaintiff’s challenge should be dismissed with prejudice. 

I. Plaintiff’s Brief Fails to Establish the Clear and Unambiguous Statutory 

Meaning His Chevron Step One Theory Requires. 

A. Compelling Empirical Evidence Demonstrates That Plaintiff’s 

Proposed Statutory Construction Is Not Clear and Unambiguous. 

Plaintiff’s Chevron Step One claim faces a serious empirical difficulty. 

From 2002 through 2011, the disclosure provision was repeatedly reviewed by a 

bipartisan group of FEC Commissioners and those who supported additional 

campaign finance regulation, but neither saw the supposedly clear and 

unambiguous meaning Plaintiff now asserts. See CFIF Brief at 13 & n.14. To the 

contrary, BCRA’s congressional sponsors represented that the electioneering 

communication disclosure provision “merely impos[es] the same type of [purposebased] disclosure obligations” applicable to express advocacy. Id. at 7. Moreover, 

in Citizens United, the three-judge district court and the Solicitor General’s 

Supreme Court brief both construed the disclosure provision as consistent with the 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 11 of 30
- 7 - 

2007 Regulation. CFIF Brief at 25-26 & n.27. The Supreme Court affirmed that 

aspect of the district court’s ruling, describing the disclosure provisions in similar 

but more general terms. Id.

Plaintiff’s Brief responds (at 34-35) that the precise meaning of the 

disclosure provision was not squarely at issue in Citizens United v. FEC, 

130 S. Ct. 876 (2010), and the Supreme Court’s language, viewed in isolation, 

could have several meanings. Even if that is so, it would be surprising if three 

judges on the district court, the Solicitor General, and the congressional sponsors 

of BCRA itself all failed to perceive a provision’s clear meaning when they wrote 

about it. Furthermore, the meaning of the disclosure provision was directly at issue 

in the FEC rulemaking, yet neither the commissioners nor the eight sets of 

comments opposing the 2007 Regulation perceived a statutory barrier.3

 

These considerations may not be determinative of what the disclosure 

provision means. But they certainly provide compelling empirical evidence that 

the statutory meaning is not clear, a conclusion that is confirmed by the arguments 

Plaintiff offers. 

 3

 Although the 2003 Regulation adopted the disclosure standard Plaintiff 

supports, it did so as a matter of interpretive judgment rather than an explicit statutory command. See Bipartisan Campaign Reform Act of 2002 Reporting; Coordinated and Independent Expenditures; Final Rules, 68 Fed. Reg. 404, 412-13 (Jan. 3, 2003). 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 12 of 30
- 8 - 

B. The Statutory Language and Structure Are Consistent with the 

2007 Regulation. 

Plaintiff’s Brief points out (at 25-27) that dictionaries can define the key 

statutory terms “contributor” and “contribute” as giving without expectation of a 

return. But Plaintiff never refutes the showing in CFIF’s Brief (at 29-30) that 

dictionaries also provide other definitions that require giving for a particular or 

common purpose, a meaning fully consistent with the 2007 Regulation. Simply 

stated, the ordinary meaning of the statute’s key words is not what Plaintiff has 

suggested because those words incorporate the purpose element contained in the 

definition of “contribution.”4

Plaintiff’s Brief cannot deny that BCRA’s disclosure provision is part of 

FECA, which defines “contribution” as giving for a specified purpose. Plaintiff’s 

Brief argues (at 35) that BCRA’s terms – “contributors” and “contribute” – are not 

precisely the same word as “contribution,” but it does not deny they all are forms 

of the same word, and their meaning depends on the meaning of “contribution.” 

Plaintiff suggests no meaning for “contributors” other than persons who make 

contributions. 

 4

 At best, the presence of conflicting dictionary definitions suggests ambiguity. See Catawba Cnty. v. EPA, 571 F.3d 20, 39 (D.C. Cir. 2009) (“Dueling over dictionary definitions [of the word “contribute”] is pointless, for it fails to produce any plain meaning of the disputed word.”) (internal quotation marks and citation omitted). As explained throughout CFIF’s briefing, however, all of the other factors illustrate why CFIF is entitled to prevail at Step One. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 13 of 30
- 9 - 

Plaintiff’s Brief says (at 36) that courts do not always give all forms of a 

defined statutory term the same meaning, but it considerably overstates its key 

case, FCC v. AT&T, 131 S. Ct. 1177, 1181 (2011). There, the Court rejected a 

claim that by defining a noun “Congress necessarily defined the adjective form.” 

Id. (emphasis by Court). The Court pointed out that the definitions of “corn” and 

“crank” do not define “corny” and “cranky.” Id. Similarly, it held that “personal” 

was not defined by a statutory specification that “person” included corporations. 

Id. at 1181. But the Court stressed that “[a]djectives typically reflect the meaning 

of corresponding nouns” and that statutory “context ... certainly may include the 

definition of related words.” Id. at 1181-82. Because the meaning of “contributor” 

is closely tied to the concept of “contribution,” and the terms serve similar 

functions, the statutory definition is important context here. 

Plaintiff’s Brief says (at 36-37) that, by using the words “contributor” and 

“contribute,” rather than “contribution,” Congress clearly called for a different 

meaning. But that argument can always be made where only one of several forms 

of a word is defined. Plaintiff’s Brief cannot explain why Congress used such 

similar and closely related words for such similar purposes if it intended for the 

definition to be disregarded. 

Plaintiff’s Brief asserts (at 29) that the statutory meaning reflected in the 

2007 Regulation “reopen[s] the very loophole the terms were intended to close.” 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 14 of 30
- 10 - 

But the loophole BCRA sought to close was the ability to avoid regulation 

applicable to express candidate advocacy by resorting to implied candidate 

advocacy. See Plaintiff’s Brief at 48-49. Plaintiff’s Brief offers nothing to show 

Congress was dissatisfied with the scope of disclosure laws that applied to express 

advocacy. To the contrary, the sponsors of BCRA said the new law merely 

subjected electioneering communications to the same disclosure burdens that 

FECA long had imposed on express advocacy. CFIF’s Brief at 6-7. 

Finally, Plaintiff’s Brief (at 27-28) relies on expressio unius est exclusio 

alterius to suggest that Congress’s inclusion of a purpose element in FECA’s 

disclosure provision for express candidate advocacy is evidence of congressional 

intent to exclude a similar purpose requirement in BCRA. But “[s]cholars have 

long savaged [this] canon” of construction, labeling it “an especially feeble helper 

in an administrative setting.” Cheney R. Co., Inc. v. ICC, 902 F.2d 66, 68-69 (D.C. 

Cir. 1990); see also id. at 69 (collecting other authority). Instead, courts “have 

consistently recognized that a congressional mandate in one section and silence in 

another [suggests] a decision not to mandate any solution in the second context” 

but “to leave the question to agency discretion.” Catawba Cnty., 571 F.3d at 36 

(internal quotation omitted). That “Congress spoke in one place but remained 

silent in another, as it did here, rarely if ever suffices for the direct answer that 

Chevron Step One requires.” Id.

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 15 of 30
- 11 - 

In short, the statutory language and structure easily harmonize with the 2007 

Regulation, and certainly do not clearly and unambiguously forbid it. 

C. Legislative History Cuts Against Plaintiff’s Interpretation. 

According to Plaintiff’s Brief (at 5-6), the legislative history shows the 

disclosure provision seeks to inform voters “who is trying to influence the 

election[,] ... who is sponsoring and paying for [the ads,] ... who is financing these 

ads[, and] ... who is actually paying for them.” This purpose clearly calls for 

identifying persons who give in response to solicitations to support such ads or 

who earmark their giving for that purpose, which is what the 2007 Regulation 

requires. By contrast, disclosing donors who manifest no support for such speech 

or who specifically give for unrelated purposes is too remote from such a purpose. 

Indeed, mixing in disclosures of donations that reflect no support of a 

speaker’s ads obscures the very information the provision seeks to provide. For 

example, a restaurant may donate to support a non-profit corporation’s project to 

feed the homeless. If the non-profit corporation which, like many, is a multipurpose organization, also makes electioneering communications supporting a 

candidate’s proposals for mortgage assistance, Plaintiff’s theory would compel 

disclosures falsely suggesting the restaurant supported the mortgage assistance ads. 

In promulgating the 2007 Regulation, the FEC made just this distinction. See 72 

Fed. Reg. 72,911. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 16 of 30
- 12 - 

These problems also are readily apparent in the hypothetical from Plaintiff’s 

Brief (at 27) that originated during argument in the district court. Plaintiff’s 

counsel asserted that if he gave money “to the Do-Re-Mi Music Festival,” then, 

whether his subjective motive was love of music, desire for publicity, or to please a 

fund-raiser, “I’m still a contributor.” The district court found this hypothetical 

persuasive, J.A. 160, but it has significant and illuminating shortcomings. 

First, counsel’s hypothetical gift was earmarked to provide support for the 

Do-Re-Mi Music Festival itself. Thus, the situation is analogous to giving to a 

specific ad campaign, rather than for the general support of a corporation engaged 

in many activities. Such targeting would establish an objective purpose to support 

the speech and, hence, would require disclosure under the 2007 Regulation. 

Second, the hypothetical fails to say why “contributors” to the Festival are 

being identified. This matters. Suppose the Festival was a project of 

Corporation, Inc. and that, after receiving counsel’s generous contribution to fund 

the Festival, the corporation later decided to launch a series of electioneering 

communications promoting positions counsel did not support, or even found 

abhorrent, but that still triggered application of BCRA’s disclosure provision. 

According to Plaintiff’s Brief (at 5-6), the purpose of disclosure would be to reveal 

“who is trying to influence the election[,] ... who is sponsoring and paying for [the 

ads,] ... who is financing these ads[, and] ... who is actually paying for them.” For 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 17 of 30
- 13 - 

those purposes, counsel would not be a “contributor” of Corporation, Inc. because 

his support of the Festival was not support for the ads. 

In short, all that the Do-Re-Mi Music Festival hypothetical shows is that the 

word “contributor” has several meanings and that its inherent ambiguity must be 

resolved by consideration of other traditional tools of statutory construction.5

Plaintiff’s Brief further states (at 28-29) that the disclosure provision’s 

purpose requires disclosing all donations to avoid circumvention and because any 

money that flows to a speaker helps finance its ads in some sense. But Plaintiff’s 

Brief offers no evidence that Congress intended such a strained and attenuated 

meaning or intended to deny the FEC discretion to implement a regulation to 

balance many competing considerations, including those raised here by Plaintiff. 

Nor does Plaintiff’s Brief acknowledge the First Amendment issues that would 

arise from imposing broad burdens on core speech. See infra at 15-18. 

The legislative history shows that Congress wanted to inform voters who 

was paying for electoral advocacy, implied and express. Plaintiff’s brief cites no 

history of dissatisfaction with statutory provisions requiring disclosure only of 

 5

 Furthermore, the hypothetical does not address any constitutional concerns, nor does it take into account the pre-existing statutory definition of “contribution.” And although counsel’s hypothetical was skillfully constructed, other hypotheticals easily are imagined that point the other way. Suppose a moderator of a town 

meeting, after praising Corporation, Inc. for its successful recent campaign to preserve local green space, said: “Will the Corporation, Inc. contributors please rise so we can thank them with a round of applause.” Would counsel think that his earlier contribution to the Do-Re-Mi Music Festival clearly and unambiguously authorized him to stand and be thanked? CFIF suggests that the term “contributors” means donors to the green space project. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 18 of 30
- 14 - 

donations for the purpose of supporting express candidate advocacy. Indeed, 

congressional sponsors said the disclosure provision subjected implied candidate 

advocacy through electioneering communications to the same disclosure standards 

as express advocacy. CFIF Br. at 7, 35. The disclosure provision does not clearly 

command the FEC to determine otherwise. 

D. Plaintiff’s Interpretation Creates an Absurdity. 

Plaintiff’s Brief does not deny that the district court’s adoption of its 

position has simply led many speakers to insert a few words of express candidate 

advocacy into issue ads that would have otherwise qualified as electioneering 

communications. Nor does Plaintiff’s Brief attempt to show that the purposes of 

FECA, as amended by BCRA, require such a topsy-turvy result. 

Plaintiff’s Brief asserts (at 12 n.4) that CFIF cannot properly mention the 

absurd consequences that have resulted from the judgment adopting Plaintiff’s 

statutory construction if CFIF continues to object to Plaintiff’s assertions about 

post-promulgation effects of the 2007 Regulation. But the two situations are very 

different. For purposes of determining what the law is, this Court may take notice 

of any information it finds helpful. See Fed. R. Evid. 201, Advisory Committee 

Note (discussing notice of so-called “legislative facts”). On the other hand, the 

FEC was required to base its regulation on the administrative record before it, and 

that judgment may not be impeached by assertions about extra-record facts that 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 19 of 30
- 15 - 

neither the agency nor other interested parties have had the opportunity to develop 

in a rulemaking context.6

Plaintiff’s Brief says (at 24-25) that only a strong showing of absurdity can 

vary a statute’s “plain meaning.” That is so. But where, as here, a statute requires 

interpretation, courts strive to avoid absurd or incongruous results. CFIF Br. at 34. 

This Court should resist the notion that Congress clearly and unambiguously 

commanded such a result. 

E. Plaintiff’s Interpretation Needlessly Raises Constitutional Issues. 

Plaintiff’s Brief does not dispute that Chevron Step One analysis must take 

account of the presumption that Congress does not raise needless constitutional 

issues. Instead, Plaintiff’s Brief argues (at 38-41) that the settled lawfulness of 

disclosure requirements in the campaign finance context eliminates any ground for 

constitutional concern. 

But all of the cases cited in Plaintiff’s Brief recognize that compelled 

disclosures constitute a First Amendment burden that must be justified under 

exacting judicial scrutiny. This includes an assessment of whether the particular 

 6

 Neither of the cases Plaintiff cites as a basis for supplementing the record supports his position. The cited portions of the first case, Esch v. Yeutter, 876 F.2d 

976, 991 (D.C. Cir. 1989), are mere dicta, see, e.g., Earthworks v. U.S. Dep’t of Interior, 279 F.R.D. 180, 185-86 (D.D.C. 2012), and “of limited ‘probative value,’” Axiom Resource Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 n.3 

(Fed. Cir. 2009). Plaintiff’s second case, IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997), actually rejected an attempt to supplement the record, reaffirming that “ex post supplementation of the record [is generally] not consistent with the prevailing standards of agency review.” 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 20 of 30
- 16 - 

speech burdens that are imposed sufficiently advance the statute’s justifying 

interests. CFIF Br. at 36-37, 41. Yet, Plaintiff’s Brief makes no showing that 

Congress ever evaluated the benefits and burdens of imposing on ordinary 

corporations and labor unions a requirement to disclose all donations they receive, 

including those with no relation to the speech that triggers the disclosure 

requirement. 

Plaintiff’s Brief argues (at 32) that Congress knew that the disclosure 

provision might be held to apply to a few so-called MCFL corporations and, 

therefore, contemplated application of the disclosure provision to all corporations. 

But CFIF’s Brief demonstrated (at 5 n.4) that the named sponsor of the so-called 

“Wellstone Amendment” was emphatic that MCFL corporations were not exempt 

from the prohibition on electioneering communications. Moreover, the Supreme 

Court created the MCFL exemption for entities that were formally incorporated but 

were so different from ordinary corporations that they could not be regulated as 

corporations. See FEC v. Massachussets Citizens for Life, Inc., 479 U.S. 238, 254-

55, 259 (1986). Thus, even if Congress had evaluated the potential impact the 

disclosure provision might have had on the tiny number of MCFL entities – and it 

did not – the burdens threatened to ordinary corporations and labor unions were not 

evaluated. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 21 of 30
- 17 - 

Plaintiff’s Brief does not deny that the Supreme Court’s holding in 

WRTL II – i.e., that ordinary corporations and labor unions were entitled to make 

electioneering communications – came as a surprise to Congress. It argues 

(at 33-34), however, that because the disclosure provision was broad enough to 

include ordinary corporations and labor unions, it must be read to have that reach, 

regardless of what Congress expected, citing Pa. Dep’t of Corrections v. Yeskey, 

524 U.S. 206, 212 (1998). But that is a red herring. The question here is not 

whether the disclosure provision applies to corporations and labor unions; CFIF 

agrees that it does. Instead, the primary issue is whether Congress ever actually 

assessed the burdens and benefits of that unforeseen and previously prohibited 

application. Plaintiff’s Brief makes no attempt to show that such an assessment 

ever occurred. 

Plaintiff’s Brief argues (at 10, 38, 48) that the burden of unlimited disclosure 

must not be significant since the FEC continues to require such disclosures with 

respect to individuals and partnerships. This overlooks, however, the differences 

in resulting burden shown in the 2003 and 2007 Rulemakings. As CFIF’s Brief 

showed (at 8-9), during the 2003 Rulemaking the expected subjects of BCRA’s 

disclosure provision – individuals and unincorporated groups – made no showing 

that unrestricted disclosure would burden them. By contrast, corporations and 

labor unions made an extensive showing of burden during the 2007 rulemaking, 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 22 of 30
- 18 - 

CFIF Brief at 12-13, and the FEC found these burdens to be unnecessary and 

significant enough to warrant an adjustment to the original regulation, id. at 14-15. 

Plaintiff’s construction of the disclosure provision would require the FEC to 

impose burdens that (a) Congress never evaluated and (b) the FEC found were 

significant and needless. This would raise First Amendment questions that are 

easily avoided by reading the statute to allow the FEC leeway to evaluate such 

burdens and tailor them. 

* * * 

When the statutory definition, the legislative history, the structural absurdity, 

and avoidance of constitutional doubt are given proper weight, the electioneering 

communication disclosure provision clearly contemplates consideration of purpose 

when identifying who must be disclosed. At the very least, the provision is unclear 

and ambiguous. Thus, Plaintiff’s Chevron Step One argument fails and the 

judgment based on that argument must be reversed. 

II. The 2007 Regulation Was Reasonable and Rational. 

Plaintiff’s Brief asserts (at 42-47) that, even if the meaning of the disclosure 

provision were unclear or ambiguous, the 2007 Regulation would be so arbitrary 

and unreasonable as to be invalid. Plaintiff’s burden is challenging because the 

FEC merely subjected implied candidate advocacy to the same disclosure 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 23 of 30
- 19 - 

requirements that Congress itself, in the same statute and for similar purposes, 

specified for express candidate advocacy. 

CFIF’s Brief (at 42) pointed out that the FEC’s district court papers provide 

an extensive explanation of its rulemaking and proposed that because a deadlock 

has deprived the Court of agency briefing, it would be desirable for this Court to 

consider those filings. Plaintiff’s Brief does not object to this proposal. Given the 

comprehensive presentation by the FEC, CFIF’s discussion need not be extensive. 

Plaintiff’s Brief asserts (at 29), that this decision perpetuated a “loophole” 

that the disclosure provision was intended to close. As discussed above (at 10), 

however, there is no evidence Congress regarded the existing disclosure standard 

as a loophole. Instead, BCRA’s sponsors said their purpose was to subject 

electioneering communications to the same disclosure requirements as express 

advocacy. CFIF Brief at 6-7, 35. 

Plaintiff’s Brief asserts (at 48-49) that it should have been “foreseeable” that 

the result of requiring disclosures for the purpose of supporting electioneering 

communications would be circumvention. It phrases its argument this way 

because, unable to point to substantial support in the rulemaking record, it seeks to 

open the door to post-promulgation experience. Of course that is improper, as 

CFIF’s Brief (at 40) already demonstrated. See also supra at 15 n.6. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 24 of 30
- 20 - 

Moreover, Plaintiff’s presentation is simplistic and untenable, assuming that 

a broader disclosure requirement inevitably produces more disclosure. Yet the 

district court’s demand for broader disclosures in connection with all 

electioneering communications – including those that do not even imply express 

advocacy – has either silenced such advocacy or prompted a shift to express 

advocacy. 

On the question of disclosure burden, Plaintiff makes no claim the FEC 

overlooked record evidence that any burden would be slight. Instead, Plaintiff’s 

Brief asserts (at 43-44) that the FEC’s entire burden rationale was premised on a 

requirement that payments from “corporate customers, shareholders, and/or 

lenders” must be reported. Plaintiff fails to point out, however, that the FEC also 

considered payments from “donors” and reached the same conclusion that their 

payments are unlikely to show support for electioneering communications. 72 Fed. 

Reg. 72,911. The FEC likewise recognized that digging through all sources of 

general treasury funds, including funds from “donors,” to identify those few that 

arguably might be disclosable would “be very costly and require an inordinate 

amount of effort.” Id. Instead, the FEC found that the statutory disclosure 

requirements were “properly met by requiring corporations and labor organizations 

to disclose and report only those persons who made donations for the purpose of 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 25 of 30
- 21 - 

funding ECs.” Id. Having failed to recognize the FEC’s actual analysis, Plaintiff’s 

Brief entirely fails to show that the analysis was contrary to the rulemaking record. 

Plaintiff also argues that the issue of burden is illusory because any 

corporation or labor union can establish a separate fund to support electioneering 

communications and report only the sources of donations to that fund. The 

Supreme Court has been highly resistant, however, to the notion that such a 

separate fund provision eliminates burdens on the ability of a speaker to use its 

own general funds. See, e.g., Citizens United, 130 S. Ct. at 897-98. 

One obvious reason is that the use of such a separate fund can require 

substantial delay in a context that moves very swiftly and calls for nimble 

responses. See, e.g., Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 

175, 182 (1968); Boardley v. U.S. Dep’t of Interior, 615 F.3d 508, 523 (D.C. Cir. 

2010); Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009). Under 

Plaintiff’s approach, a corporation that decides an electioneering communication is 

called for must consult a lawyer, set up a fund, solicit contributions to that fund, 

and then speak. By that time, the occasion for the desired speech may well have 

passed. Moreover, both Plaintiff (at 46-47) and the district court (J.A.153) have 

stated that this option is only available to funds received from individuals; 

corporate funds may not be placed into the separate account, though they are 

entirely lawful. 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 26 of 30
- 22 - 

Finally, Plaintiff’s Brief argues (at 48) that, unless the burdens for 

corporations and labor unions are illusory, the FEC must have acted arbitrarily in 

failing to establish a purpose-based standard for individuals and unincorporated 

groups. But such groups made no showing that they faced burden during the 

proceeding that led to the 2003 Regulation or thereafter. By contrast, during 

rulemaking leading to the 2007 Regulation, corporations and labor unions 

demonstrated the burdens they faced, and the FEC responded. It was not arbitrary 

for the FEC to fail to reach out to fix other provisions that, so far as appeared, were 

not broken. 

A bipartisan majority of the FEC evaluated the rulemaking record and made 

a considered judgment of how to achieve the disclosure required by the statute 

without imposing needless burdens on speech. They made a common-sense 

judgment that had the imprimatur of Congress, which had established a purposebased standard for similar disclosures relating to express advocacy. That is all the 

law requires. 

CONCLUSION 

Plaintiff has not carried his burden. The Court should reject Plaintiff’s 

claims and declare the 2007 Regulation valid under Chevron Steps One and Two 

or, alternatively, vacate the district court’s decision and remand the case for 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 27 of 30
- 23 - 

evaluation under Chevron Step Two. Given the few weeks that remain before the 

November election, the Court should consider acting as soon as possible. 

August 3, 2012 Respectfully submitted, 

 /s/ Thomas W. Kirby 

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

 E-mail: jbaran@wileyrein.com

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

 E-mail: tkirby@wileyrein.com

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

 E-mail: cburns@wileyrein.com

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

 E-mail: awoodson@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 28 of 30
- 24 - 

CERTIFICATE OF COMPLIANCE

 1. This brief complies with the limitation of the Court’s May 25, 2012, 

Order because this brief contains 5,000 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Circuit R. 32(a)(1). 

 2. This brief complies with the typeface requirements of Fed. R. 

App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) 

because this brief has been prepared in a proportionally spaced typeface using 

Microsoft Word 2003 in Times New Roman, 14-point type. 

 /s/ Thomas W. Kirby 

Thomas W. Kirby 

Counsel for Defendant-Appellant CFIF

Date: August 3, 2012 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 29 of 30
- 25 - 

CERTIFICATE OF SERVICE

 I hereby certify that on this 3rd day of August 2012, I caused a copy of the 

foregoing REPLY BRIEF FOR DEFENDANT-APPELLANT CENTER FOR 

INDIVIDUAL FREEDOM to be served on the following counsel through this 

Court’s electronic filing system and/or by electronic mail: 

Roger M. Witten 

Wilmer Cutler Pickering Hale and 

Dorr LLP 

399 Park Avenue 

New York, NY 10022 

212-230-8800 

roger.witten@wilmerhale.com 

Harry Jacobs Summers 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

202-694-1650 

hsummers@fec.gov 

Holly Jean Baker 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

202-694-1650 

hbaker@fec.gov

David Brett Kolker 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

202-694-1650 

dkolker@fec.gov 

Jason Brett Torchinsky 

Holtzman Vogel Josefiak, PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

540-341-8808 

jtorchinsky@hvjlaw.com 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

USCA Case #12-5117 Document #1387604 Filed: 08/03/2012 Page 30 of 30