UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CHRIS VAN HOLLEN, 

 Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant,

and 

CENTER FOR INDIVIDUAL 

FREEDOM, 

 Defendant,

and 

HISPANIC LEADERSHIP FUND, 

 Defendant.

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

DEFENDANT CENTER FOR INDIVIDUAL FREEDOM’S 

SUPPLEMENTAL BRIEFING ON REMANDED ISSUES 

May 13, 2013 

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

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As authorized by the Court in its minute order of March 18, 2013, the Center for 

Individual Freedom (“CFIF”) submits this Supplemental Memorandum addressing the issues 

remaining in this case after remand by the Court of Appeals. Consistent with this Court’s 

directive, CFIF will avoid repeating its previous briefing as well as the submissions of the 

Federal Election Commission (“FEC”) and the Hispanic Leadership Fund. Of course, CFIF 

reserves all of those arguments in the event of any further appeal. 

The Court of Appeals ruling pointedly rejected Van Hollen’s argument that the 

challenged regulation, 11 C.F.R. § 104.20(c)(9) (the “Regulation”), contradicted or was narrower 

than the underlying statute. CFIF v. Van Hollen, 694 F.3d 108, 110 (D.C. Cir. 2012). Contrary 

to Van Hollen’s arguments here, the Court of Appeals opinion held that the statutory language 

could “be construed to include a ‘purpose’ requirement,” and this was “especially” so based on 

the relevant statutory language. Id. Thus, Van Hollen is clearly mistaken in arguing that the 

FEC contravened existing law in adopting exactly the sort of regulatory purpose requirement 

authorized by the statute. 

As the FEC explained in promulgating the Regulation, the agency’s use of a purpose 

requirement is wholly consistent with other provisions of federal campaign finance law. Hence, 

the Regulation easily survives the “highly deferential”1

 review authorized by Step 2 of Chevron 

U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), and the “very deferential”2 arbitrary and capricious 

test incorporated into the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Indeed, as this 

Court observed during the January 11, 2012, argument, “once you get to Chevron II[, a 

 

1

 Village of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 665 (D.C. Cir. 2011) (quoting NRA v. 

Reno, 216 F.3d 122, 137 (D.C. Cir. 2000)). 

2

 Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009). See also Nat’l Ass’n of Clean Air 

Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007) (the arbitrary and capricious standard is “[h]ighly 

deferential,” “narrow,” and “presumes the validity of agency action”). 

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challenger’s] burden is much higher because of the level of deference. So the Chevron I decision 

is close to being the outcome determinative decision, or it may very well be the outcome 

determinative decision.” Tr. of Oral Arg. at 73:3-10. Having survived Chevron Step One, there 

should be little doubt that the Regulation is lawful. 

With these general principles in mind, the following first few pages of CFIF’s 

memorandum refute a pair of additional arguments advanced in Plaintiff Van Hollen’s 

Supplemental Brief (“VH Supp. Br.”). The remainder of CFIF’s submission explains why the 

FEC’s unchallenged explanation of the cross-reference to 11 C.F.R. § 114.15 fully resolves the 

ambiguity identified by the Court of Appeals and is necessary to preserve the constitutionality of 

the electioneering communication disclosure regime as a whole. 

I. Van Hollen’s Latest Arguments Directly Contradict Existing Precedent. 

As discussed above, Van Hollen’s first supplemental argument – that the Regulation 

“[f]louts BCRA’s [l]anguage and [p]urpose” – rehashes a claim already foreclosed by the Court 

of Appeals opinion. VH Supp. Br. at 4 (emphasis omitted). Van Hollen argues (at 5) that the 

use of the word “for” in the general disclosure requirements of 2 U.S.C. § 434(f)(1), and the 

absence of this same word in the contributor-specific disclosure requirement, 2 U.S.C. 

§ 434(f)(2)(F), is evidence that Congress did not want to limit the disclosure of funding sources 

for those making electioneering communications. Not only does this assertion contradict the 

explicit reasoning of the Court of Appeals opinion, see CFIF, 694 F.3d at 110 (citing § 434(f)(1) 

in explaining that § 434(f)(2)(F) may very well include a purpose requirement), but it ignores 

additional statutory language critical to understanding the scope of the disclosure provisions. 

The contributor-specific disclosure requirement of § 434(f)(2)(F) includes the phrase 

“contributors who contributed.” The statute elsewhere defines the word “contribution” to 

include a “for the purpose of influencing” element. See 2 U.S.C. § 431(8)(A)(i) (emphasis 

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added). It would have been statutory overkill for Congress to have inserted the word “for” a 

second time within the framework of § 434(f)(2)(F). 

Remarkably, even after the Court of Appeals ruling, Van Hollen’s Supplemental Brief 

continues to rely on recycled citations to the Congressional Record and unsubstantiated 

assertions about alleged congressional intent. See, e.g., VH Supp. Br. at 4, 6-7. But references 

to legislative history run afoul of CFIF, which unequivocally held that Congress lacked “‘any 

intention on the precise question at issue’ in this case.” 694 F.3d at 111. 

Van Hollen’s second supplemental argument about the propriety of considering postrulemaking developments fares no better. A recent ruling by the Court (Dkt. No. 92) 

underscores CFIF’s previous demonstration that review must focus tightly on the record and 

circumstances before the FEC in 2007 when it promulgated the Regulation rather than on 

subsequent developments. See, e.g., Dkt. No. 33 at 5-6. After the FEC declined to initiate a 

rulemaking, either sua sponte or in response to CFIF’s recent petition, CFIF moved to amend its 

answer to permit consideration of whether post-promulgation developments required a further 

rulemaking. See Dkt. No. 81. Plaintiff Van Hollen objected to introducing that issue, see Dkt. 

No. 86, and the Court denied CFIF’s motion, see Dkt. Nos. 91-92. Plaintiff Van Hollen cannot 

have it both ways by asserting post-promulgation developments in his own briefs, but then 

objecting to further rulemaking that could have addressed these developments. In any event, the 

law is clear that judicial review must be “limited to assessing the record that was actually before 

the agency.” Ass’n of Private Sector Colls. and Univs. v. Duncan, 681 F.3d 427, 441 (D.C. Cir. 

2012) (emphasis added). 

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II. The FEC’s Explanation of the Cross-Reference in 11 C.F.R. § 104.20(c)(9) Is 

Correct, Constitutionally Compelled, and Not Challenged by Any Party. 

The FEC’s Supplemental Memorandum makes clear (Dkt. No. 90 at 7-9 & nn.7 & 8) that 

the Regulation, as promulgated and consistently applied since its inception, was intended to 

govern all funding disclosures by corporations and labor organizations making lawful 

electioneering communications. Prior to the Supreme Court’s decision in FEC v. Wisconsin 

Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL II”), only so-called MCFL corporations were 

permitted to make electioneering communications and the applicable disclosure requirements 

applied only to them.3

 In response to WRTL II, the FEC promulgated the Regulation to apply the 

electioneering communication disclosure obligations to all corporations – not just MCFL

corporations – engaged in electioneering communications authorized by WRTL II. The crossreference to 11 C.F.R. § 114.15 in the Regulation simply identified the types of corporate 

electioneering communications then-permitted by WRTL II. Thus, when Citizens United v. FEC, 

130 S. Ct. 876 (2010), expanded the lawful scope of permissible corporate speech, the FEC and 

the regulated community continued to understand and apply the Regulation comprehensively to 

all corporate speakers. See, e.g., FEC Supp. Br. at 8-9 & nn. 7-8 (discussing the Freedom’s 

Watch enforcement matter). 

Significantly, although the parties to this proceeding have conflicting views on many 

matters, no party disputes that the Regulation applies comprehensively to all corporate speakers. 

Several lines of reasoning support that understanding: 

 

3

 An “MCFL corporation” is a narrow type of incorporated organization that is the product of the Supreme 

Court’s decision in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986). Among other things, the 

organization must (1) be formed to promote political ideas and not to engage in business activities; (2) have no 

shareholders or others with claims to the assets; and (3) not be established by a corporation or labor union and have 

a policy against accepting contributions from the same. CFIF is not an MCFL corporation. 

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• Because the evident intent of the cross-reference was merely to identify the thenpermissible types of electioneering communications, the Regulation may continue 

to apply to all corporate electioneering communications even though the wording 

is inapt. See Americans for Safe Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 

2013) (an “agency’s interpretation of its own regulations must [generally] be 

given controlling weight”) (internal quotation omitted); CFIF, 694 F.3d at 111 

(soliciting the FEC’s “expert judgment [on] the meaning and scope of 11 C.F.R. 

§ 104.20(c)(9)”); United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242 (1989) 

(where “the literal application of a statute will produce a result demonstrably at 

odds with the intentions of its drafters[,] the intention of the drafters” controls).4

• If the cross-reference reflects an unconstitutionally narrow understanding of 

corporate free speech rights, it may be severed and disregarded. See Free Enter. 

Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161 (2010) 

(expressing a general preference for severing constitutional flaws); Dillon v. 

United States, 130 S. Ct. 2683, 2688 (2010) (explaining that an earlier Supreme 

Court decision invalidated a number of cross-references “to remedy [a] 

constitutional problem”). 

• The Regulation supplies the general principle for how corporations making any 

lawful electioneering communications – not just those described by 11 C.F.R. 

§ 114.15 – should disclose their sources of funding. See, e.g., Geneva Steel v. 

United States, 914 F. Supp. 563, 594 (Ct. Int’l Trade 1996) (approving agency’s 

use of regulation “by analogy” to provide a decisional principle where the 

regulation did not apply directly); Union Nat’l Bank of Kan. v. Lamb, 337 U.S. 

39-41 (1949) (congressionally-approved rule of procedure used to supply a 

principle for interpreting a vague statute to which rule did not expressly apply). 

The need for a broad application of the Regulation to all corporations after Citizens 

United is particularly compelling here because the underlying statute has several constitutional 

flaws that the Regulation mitigates. When Congress passed BCRA in 2002, federal law flatly 

 

4

 In cases involving statutory rather than regulatory analysis, courts also have explained that they “are 

willing to correct errant cross-references,” Owner-Operator Independent Drivers Ass’n, Inc. v. United Van Lines, 

LLC, 503 F. Supp. 2d 1200, 1203 n.3 (E.D. Mo. 2007), or “read [them] out” where literal application of the text 

would “produce a result demonstrably at odds with Congressional intent,” Ford Motor Credit Co. v. Dobbins, 35 

F.3d 860, 868 (4th Cir. 1994). See also NRDC v. EPA, 22 F.3d 1125, 1140 & n.19 (D.C. Cir. 1994) (revising crossreference in statute); Colonial Life & Acc. Ins. Co. v. American Family Life Assur. Co. of Columbus, 846 F. Supp. 

454, 463 n.14 (D.S.C. 1994) (a “court may disregard [a] mistaken reference or read it as corrected in order to give 

effect to the legislative intent.”). Courts also will strike “surplusage” from statutes, Nat’l Mining Ass’n v. 

Kempthorne, 512 F.3d 702, 706 (D.C. Cir. 2008) (collecting authority), including “where the surplus words consist 

simply of a numerical cross-reference,” Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001). Since the 

“same rules of construction apply to administrative rules as to statutes,” Exelon Generation Co., LLC v. Local 15, 

Int’l Broth. of Elec. Workers, AFL-CIO, 676 F.3d 566, 570 (7th Cir. 2012), these principles inform the Court’s 

analysis of 11 C.F.R. § 104.20(c)(9). 

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prohibited corporations and labor unions from making electioneering communications. See

2 U.S.C. § 441b (2002). At that time, Congress therefore did not evaluate – much less tailor – 

the disclosure burdens to entities that were expressly prohibited from making electioneering 

communications. 

After the Supreme Court’s decision in WRTL II, the FEC assumed responsibility for 

evaluating the burdens applicable to a new class of speakers. In proposing a post-WRTL II

rulemaking in 2007, the FEC specifically sought comment on “concerns about . . . First 

Amendment rights.” Notice of Proposed Rulemaking on Electioneering Commc’ns, 72 Fed. 

Reg. 50,261, 50,262 (Aug. 31, 2007). The agency received comments addressing the burdens 

and benefits of alternative disclosure requirements. These comments focused on burdens on 

“privacy interests” and “request[s] to remain anonymous,” and the FEC explained that its 

regulations were “narrowly tailored” in a “constitutional way,” using “carefully designed 

reporting requirements [that] do not create unreasonable burdens.” Final Rule and Explanation 

and Justification on Electioneering Commc’ns, 72 Fed. Reg. 72,899, 72,901 (Dec. 26, 2007); see 

also id. at 72,911 (explaining that “to identify those persons who provided funds totaling $1,000 

or more to a corporation or labor union would be very costly and require an inordinate amount of 

effort”). After Citizens United, all of these same principles and concerns apply regardless of 

whether an electioneering communication fits within the specific contours of the crossreferenced 11 C.F.R. § 114.15. 

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

vagueness test” than just the “fair notice” that due process requires of all laws. Buckley, 426 

U.S. 1, 40-41, 79 (1976); Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010). 

This is because “[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful 

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zone . . . than if the boundaries of the forbidden areas were clearly marked,” and precious speech 

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

quotations omitted); Reno v. ACLU, 521 U.S. 844, 871-72 (1997). Absent the guidance

contained in the FEC’s regulation, speakers would be subject to a statutory provision under 

which some, but not all, sources of general treasury funds would need to be disclosed. Unless 

11 C.F.R. § 104.20(c)(9) is applied broadly to cover all types of electioneering communications, 

these same vagueness concerns would apply to the large quantity of speech that did not fall 

within the parameters of the cross-referenced 11 C.F.R. § 114.15, causing many corporations and 

labor unions to stand silent rather than risk compliance with a vague law. 

Such a bifurcated disclosure regime for different types of electioneering communications 

is easily avoidable. Reading the Regulation broadly to apply to all electioneering 

communications – as the FEC and regulated community now have done for several years – will 

avoid significant constitutional issues. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. 

Trades Council, 485 U.S. 568, 575 (1988); AFL-CIO v. FEC, 333 F.3d 168, 175-79 (D.C. Cir. 

2003) (constitutional avoidance may apply at either step of the inquiry in Chevron); Diouf v. 

Napolitano, 634 F.3d 1081, 1086 n.7 (9th Cir. 2011) (the doctrine is a “cardinal principle” of 

construction). Such reading also would be consistent with the FEC’s own obligation to “tailor its 

policy to avoid unnecessarily burdening the First Amendment rights.” AFL-CIO, 333 F.3d at 

178. 

III. Under No Circumstances Should the Challenged Regulation Be Vacated. 

For the reasons discussed above and in prior submissions, Van Hollen’s challenge to the 

Regulation must fail. But even if, contrary to CFIF’s expectations, the Court found merit to the 

challenge, the most that should occur is a remand to the agency. 

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“Remand without vacatur is common in this circuit,” In re Core Comm’s, Inc., 531 F.3d 

849, 862 (D.C. Cir. 2008) (Griffith, J., concurring), and such procedure “is often warranted once 

a rule has gone into effect and, as such, there is no apparent way to restore the status quo,” Int’l 

Swaps and Derivatives Ass’n v. CFTC, 887 F. Supp. 2d 259, 284 (D.D.C. 2012). This 

“established administrative practice,” Sugar Cane Growers Co-Op. of Fla. v. Veneman, 289 F.3d 

89, 98 (D.C. Cir. 2002) (quotation omitted), is “normal” when there are deficiencies in the 

record – a significant component of Van Hollen’s allegations here, Cardinal Health, Inc. v. 

Holder, 846 F. Supp. 2d 203, 218 (D.D.C. 2012). Under the umbrella of these guiding 

principles, the question on whether to vacate an existing regulation turns on two criteria: (1) “the 

seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose 

correctly)”; and (2) “the disruptive consequences of an interim change that may itself be 

changed.” Allied-Signal, Inc. v. NRC, 988 F.2d 146, 150-51 (D.C. Cir. 1993). 

As to the first element, “[t]here is a fine line between agency reasoning that is ‘so 

crippled as to be unlawful’ and action that is potentially lawful but insufficiently or 

inappropriately explained.” Radio-Television News Directors Ass’n v. FCC, 184 F.3d 872, 888 

(D.C. Cir. 1999) (citing Checkosky v. SEC, 23 F.3d 452, 464 (D.C.Cir.1994) (opinion of 

Silberman, J.)). In “the former circumstance, the court’s practice is to vacate the agency’s order, 

while in the later the court frequently remands for further explanation (including discussion of 

relevant factors and precedents) while withholding judgment on the lawfulness of the agency’s 

proposed action.” Id. Here, the Court of Appeals ruling explicitly acknowledges that the 

Regulation may be justified or, at the very least, justifiable. See, e.g., CFIF, 694 F.3d at 111 

(“[w]e do not agree with the District Court that the words ‘contributors’ and ‘contributed’ in 

2 U.S.C. § 434(f)(2)(F) cannot be construed to include a ‘purpose’ requirement.”). Nothing in 

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the Court of Appeals opinion precludes the possibility that the FEC will be able to remedy any 

perceived deficiencies in the rulemaking. See, e.g., N. Air Cargo v. USPS, 674 F.3d 852, 861 

(D.C. Cir. 2012) (vacatur not warranted where agency is likely able to “advance reasonable 

interpretations of the provisions at issue”); Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 

950 (D.C. Cir. 2004) (rejecting vacatur where the agency “may be able to explain” its reasoning). 

Thus, the first factor cuts strongly against vacatur.5

 

Vacating the existing regulation also would be disruptive. The disclosure statute requires 

corporations and labor unions making electioneering communications to disclose contributors 

who gave as early as “the first day of the preceding calendar year” from the election to which the 

electioneering communications relate. 2 U.S.C. § 434(f)(2)(F) (emphasis added). But for the 

regulation now-in-place, countless prospective donors who wanted to make unearmarked 

donations to corporations like CFIF or labor unions like the AFL-CIO – but who valued their 

ability to do so anonymously – would cease giving to any entity that might conceivably make 

electioneering communications in the future. In other words, if the regulation is vacated, many 

of these scarce financial resources would stop flowing into multi-purpose organizations like 

CFIF. This type of “disruptive” hardship weighs in favor of preserving the existing rule, AlliedSignal, 988 F.2d at 151, particularly since CFIF and others have to budget for their projects and 

programs well in advance. Conversely, Van Hollen would not be disrupted if the regulation 

were left in place during the remand. As a congressional candidate, Van Hollen would only 

begin receiving information about spending on electioneering communications and funding 

 

5

 Van Hollen also argues (at 7) that remand to the FEC again would be pointless. But there is no guarantee 

the agency would deadlock in its efforts to adopt a revised rule. For example, the “administration is vetting two 

candidates and aims to nominate them when the Senate returns from its Memorial Day recess,” and it would only 

take one appointee voting a different way than his or her predecessor to effect a significant change in the outcome of 

the rulemaking process. Jonathan Salant, FEC Expired Terms Prompt Calls for Obama to Keep Promise, 

Bloomberg (Apr. 29, 2013), available at http://www.bloomberg.com/news/2013-04-30/fec-expired-terms-promptcalls-for-obama-to-keep-promise.html. 

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sources shortly before the next election in which he will be a candidate, which is over a year 

away. See Md. State Bd. of Elec., 2014 Gubernatorial Election, available at 

http://www.elections.state.md.us/elections/2014/ (last visited May 10, 2013) (noting that the 

primary is on June 24, 2014). 

Reinstating the old regulation, or simply reverting back to the statute itself, also would 

cause profound constitutional problems. The 2003 regulation was issued before WRTL II and 

Citizens United, and the FEC has already concluded that the prior version of the rule did not 

appropriately respect First Amendment rights. A statute-only disclosure regime would leave in 

place a vague law without any clarifying guidance. Unless the Court intends to narrowly 

construe 2 U.S.C. § 434(f)(2)(F) to avoid vague and unconstitutional applications to corporations 

and labor unions, this remedy would swap minor rulemaking deficiencies for broad 

constitutional violations.6

CONCLUSION 

For the foregoing reasons, and also for the reasons discussed in the earlier legal 

memoranda filed by CFIF and its codefendants, the Court should uphold 11 C.F.R. 

§ 104.20(c)(9) as a reasonable interpretation of 2 U.S.C. § 434(f)(2)(F) under Chevron Step Two. 

The Court also should find that the Regulation is neither arbitrary nor capricious under the 

Administrative Procedure Act. 

 

6

 Van Hollen relies on Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009), to argue that vacatur is the 

appropriate remedy here. See VH Supp. Br. at 7. But this reliance is woefully misplaced, as the two primary criteria 

relied upon in Comcast either are absent in this case or actually support CFIF’s position. First, Comcast found that 

the FCC’s conduct was “particularly egregious” because the agency had ignored a prior court order to consider 

specific data. 579 F.3d at 9. Here, no court has ever remanded this matter to the FEC, much less “expressly 

instructed” the agency to consider particular data or arguments. Id. Second, the Comcast court’s decision to vacate 

the existing rule hinged on whether allowing the regulation to remain in effect “would continue to burden speech 

protected by the First Amendment.” Id. at 9. Because vacating the Regulation here would have a speechsuppressing effect that inhibits “the right of the public to receive suitable access to . . . political . . . and other ideas 

and experiences through the medium of broadcasting,” id., Comcast’s analysis actually supports CFIF’s position. 

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May 13, 2013 

Respectfully submitted, 

 /s/ Thomas W. Kirby 

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

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