UNITED STATES COURT OF APPEALS FOR THE 

DISTRICT OF COLUMBIA CIRCUIT

__________________________ 

Case No. 12-5117 

_________________________ 

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

__________________________________________ 

APPELLANT CENTER FOR INDIVIDUAL FREEDOM’S REPLY TO 

PLAINTIFF-APPELLEE VAN HOLLEN’S OPPOSITION TO 

INTERVENORS’ “EMERGENCY MOTIONS” FOR STAY __________________________________________ 

May 2, 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. 

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Defendant-Appellant Center for Individual Freedom (“CFIF”) submits this 

Reply to Plaintiff-Appellee Van Hollen’s Opposition to Intervenors’ “Emergency 

Motions” for Stay (“Opposition”). CFIF first responds to the Opposition’s 

arguments and then addresses two recent developments noted in the Opposition. 

At the threshold, however, CFIF stresses the Opposition’s failure to deny 

that Congressman Van Hollen could have sued in 2007 but delayed for 31⁄2 years 

and two election cycles, then proceeded on a schedule likely to disrupt the 2012 

elections. Given Plaintiff’s unexplained delay in presenting a novel question with 

broad significance, the orderly course is to grant a stay and allow the 2012 election 

to proceed with the FEC’s 2007 regulation in place. The merits dispute can then 

be resolved. If any regulatory adjustments become necessary, the FEC can 

consider them during a non-election year.2

I. The Opposition Fails to Refute CFIF’s Likelihood of Success. 

The Opposition is notable for what it does not say. First, it does not deny 

that the district court’s ruling compels greater disclosures by corporations engaging 

in certain issue speech than when making independent expenditures for express 

candidate advocacy. The Opposition also does not deny that this result is absurd, 

but rather says (at 9) that the absurdity “was created by Congress, not the District 

 2

 The Opposition makes no claim that expedited briefing is a workable alternative to a stay. Indeed, it objects that CFIF’s suggested briefing schedule is “unreasonabl[e].” Opp. at 15. Because expedited briefing would not prevent extensive injury and could lead to greater disruption of the election, a stay is the preferred remedy here. 

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Court.”3

 But that is the question to be determined, and the fact that the district 

court’s ruling yields an absurd result favors another construction. EDF v. EPA, 82 

F.3d 451, 468 (D.C. Cir. 1996) (per curiam) (applying “a more flexible” statutory 

reading); see also United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940). 

Second, the Opposition does not deny that some dictionaries define 

“contribute” in terms of the giver’s purpose, as did the FEC’s regulation.4

 The 

Opposition (at 7) says the district court correctly preferred other definitions to 

define “contributors who contribute,” the key statutory phrase that describes who 

must be disclosed. But conflicting dictionaries indicate “the statute is open to 

interpretation,” Nat’l R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 

407, 418 (1992), and that “alone suggests an ambiguity that fatally undermines [a 

resolution at] step one” of Chevron, Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 39 

(D.C. Cir. 2009) (conflicting definitions of “contribute” preclude a Step One 

 3

 The Opposition (at 9 n.1) inaccurately asserts that the disclosure of independent expenditures for express advocacy is “not as limited as [CFIF] 

contend[s].” But the Opposition reaches this conclusion only by misstating the relevant statutory provision, which requires the disclosure of “contributions” – not 

“contributors” as Van Hollen suggests. 2 U.S.C. § 434(c)(1). “Contributions” are explicitly defined as transfers of value made “for the purpose of influencing any election for Federal office.” Id. § 431(8)(A)(i) (emphasis added). The statutory disclosure provision itself reinforces this “purpose” element by again stating that disclosures are limited to persons who have contributed “for the purpose of furthering an independent expenditure” for express candidate advocacy. Id.

§ 434(c)(2)(C). 

4

 See CFIF Emergency Mot. for a Stay at 12 & n.5; see also American 

Heritage Dictionary of the English Language, at 399 (5th ed. 2011) (“contribute” means to “give or supply in common with others; give to a common fund or for a 

common purpose”) (emphasis added); Microsoft Encarta College Dictionary, at 313 (2001) (“contribute” means “to give money to something, such as a fund or charity, for a specific purpose, especially along with others”) (emphasis added). 

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decision); see also Medina v. Gonzales, 404 F.3d 628, 634-35 (2d Cir. 2005).5

 

That is doubly true since the district court’s definition created an absurdity. 

Third, the Opposition identifies no evidence Congress ever evaluated the 

First Amendment burdens that would result from demanding sweeping disclosures 

from ordinary corporations and labor unions. Nor does the Opposition deny that 

the FEC’s 2007 rulemaking found that the disclosures Plaintiff seeks here would 

impose unreasonable and unnecessary burdens on political speakers. The 

Opposition asserts (at 8) that the FEC’s evaluation and findings had no basis in the 

First Amendment. But the FEC’s Notice of Proposed Rulemaking raised 

“concerns about . . . First Amendment rights,” 72 Fed. Reg. 50261, 50262 (Aug. 

31, 2007), comments were submitted on that issue, and the FEC’s Explanation & 

Justification explained the regulation was “narrowly tailored” to apply in a 

“constitutional way,” 72 Fed. Reg. 72899, 72901 (Dec. 26, 2007). The Opposition 

ignores these statements, just as it ignores the recent federal district court decision 

from West Virginia holding a similar disclosure law unconstitutional. 

The Opposition contends that Citizen United removed constitutional doubt 

by ruling the disclosure statute facially constitutional. The Opposition does not 

 5

 Neglecting other dictionaries identified by CFIF, the district court (at 26) singled out one definition of the verb “contribute” from one dictionary that supported its conclusion, calling that the only “relevant” definition. But even that dictionary provided an alternative definition that includes a purpose requirement. See Oxford English Dictionary, (2d ed. 1989) (online version 2012) (contribute means to “give or furnish along with others towards bringing about a result; to lend (effective agency or assistance) to a common result or purpose”) (emphasis added). 

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deny, however, that the Solicitor General relied on the unchallenged regulation in 

describing the statute’s limited effect to the Supreme Court. See CFIF Emergency 

Mot. for a Stay at 13 & n.8. The Opposition says the Supreme Court cited only the 

statute, but it offers nothing to show that the Court construed the statute differently 

than the Solicitor General. 

Fourth, the Opposition does not deny that both the courts and the FEC can 

and should apply the doctrine of constitutional avoidance. The Opposition says the 

unreasonable burdens found by the FEC may not violate the First Amendment 

because tailored and adequately justified disclosure statutes may require 

comparable disclosure and still be constitutional. However, (a) Congress never 

tailored the underlying statute for application to ordinary corporations and labor 

unions, and (b) burdens on political speech are irreparable injury even if such 

injury sometimes may be justified. 

Lastly, the Opposition does not deny that, if the Step One ruling fails, the 

regulation will survive at Step Two. CFIF thus has a strong likelihood of success 

on appeal. 

II. The Opposition Understates and Misstates the Irreparable Harm to 

CFIF. 

The Opposition proffers no evidence to refute the FEC’s 2007 findings that 

compelling broad disclosures would unreasonably burden speech by corporations 

such as CFIF or to counter the declarations to that effect submitted by CFIF. 

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The urgency of the injury is obvious. Over the next two months, Congress 

will consider bills and formulate legislative strategy on many fronts, including 

comprehensive tax reform, health care, and reducing regulatory burden. See, e.g., 

Jonathan Strong, A Time For Election Year Agendas, Roll Call, Feb. 29, 2012. 

These issues are of particular concern to CFIF. During this same period, 24 states 

will hold congressional primaries, including California, New York, and Texas.6

 

Absent a stay, CFIF will be unable to broadcast its issue speech in those states 

during the 30-day pre-primary windows. See Ex. C to CFIF Emergency Mot. for a 

Stay (Decl. of Jeffrey L. Mazzella), ¶¶ 4, 7. That is irreparable injury.7

 

III. The Opposition Misconstrues the Public Interest. 

The Opposition makes no claim that Plaintiff’s interest in a stay differs from 

that of the general public. Nor does it deny the public interest favors protecting 

core speech until the necessity of doing so is clearly established. The Opposition 

argues the imminent election establishes a countervailing interest, but that is 

backwards. Free speech is more important near elections. 

 6

 See FEC, 2012 Presidential and Congressional Primary Dates in Chronological Order, (Mar. 30, 2012), available at

http://www.fec.gov/pubrec/fe2012/2012pdates.pdf. 

7

 The Opposition asserts (at 10-11) that CFIF does not face violence or other 

reprisals. As CFIF demonstrated at length in its Reply to Plaintiff’s Opposition to 

Motion for Stay Pending Appeal (Dist. Doc. 58), however, compelled disclosures, in themselves, are substantial First Amendment burdens. See, e.g., Buckley v. Valeo, 424 U.S. 1, 60, 64 (1976) (collecting authority); Doe v. Reed, 130 S. Ct. 

2811, 2818 (2010). 

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Courts “should consider the proximity of a forthcoming election and the 

mechanics and complexities of [the] election laws” when assessing the timing of 

judicial relief. Reynolds v. Sims, 377 U.S. 533, 585 (1964). The “interest in 

proceeding with the election [under the existing rules] increases in importance as 

resources are committed and irrevocable decisions are made,” Perry v. Judd, No. 

12-1067, 2012 WL 120076, at *9 n.2 (4th Cir. Jan. 17, 2012) (citing Kay v. Austin, 

621 F.2d 809, 813 (6th Cir. 1980)). With the election season already welladvanced, organizations like CFIF have long since “begun to organize their 

[advertising] campaigns, to raise funds, and to spend those funds in reliance on 

the” law in existence prior to the district court’s order. Johnson v. Mortham, 915 

F. Supp. 1529, 1534 (N.D. Fla. 1995) (internal quotations omitted); see also Ex. D 

to CFIF Emergency Mot. for a Stay, ¶3 (CFIF plans to speak during the present 

election period). A “stay pending appeal will mitigate the likelihood of confusion 

[during the election cycle]” and give the FEC “time to implement new procedures 

that may be required and to communicate those procedures to the stakeholders in 

[the] political process.” Miller v. Brown, 465 F. Supp. 2d 584, 597 (E.D.Va. 

2006). 

Thus, the Supreme Court has handed down its major campaign finance 

decisions either during non-election years, see FEC v. Wisconsin Right to Life, 

Inc., 551 U.S. 449 (June 25, 2007); McConnell v. FEC, 540 U.S. 93 (Dec. 10, 

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2003), or, in special circumstances, by January of an election year, see Citizens 

United v. FEC, 130 S. Ct. 876 (Jan. 21, 2010); Buckley v. Valeo, 424 U.S. 1 (Jan. 

30, 1976). The timing of Citizens United is particularly illuminating. In June of 

2009, the Supreme Court set a second round of argument for a special September 

session, leading “many election-law specialists [to expect] a prompt decision.”8

 

But Senator Edward Kennedy (D-Mass.) passed away and a nationally significant 

special election was called for January 19, 2010. The Court adjourned for its 

winter recess without ruling. See Joan Biskupic, “Why the Delay” on Supreme 

Court’s Campaign-Finance Case?, USA Today, Dec. 29, 2009. Then, less than 48 

hours after the Massachusetts polls closed, the Court issued the Citizens United

opinion. 

Van Hollen also argues that a stay would “thwart Congress’s plain intent in 

enacting” 2 U.S.C. § 434(f)(2) to compel expansive donor disclosures. Opp. at 13. 

That argument really goes to the contested merits, but in any event it is wrong. 

The district court’s ruling rested on the unforeseen meaning of statutory text. 

The disclosure provisions of section 434(f)(2) were added to the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”) via the so-called “Snowe-Jeffords” 

Amendment. When first introduced in 1998, Senator Snowe explained the 

 8

 See Adam Liptik, Court Keeps Campaigns in Suspense, N.Y. Times: The 

Caucus Blog, (Dec. 14, 2009), available at

http://thecaucus.blogs.nytimes.com/2009/12/14/court-keeps-campaigns-insuspense. 

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provision did not create “invasive disclosure rules” but only compelled 

identification “of contributors who donated more than $500 toward the ad.” 144 

Cong. Rec. S997, S998 (daily ed. Feb. 25, 1998) (emphasis added).9

 She 

highlighted a statement by an academic – “who was instrumental in developing 

[the disclosure] provision” – explaining that “Snowe-Jeffords . . . requires 

disclosure of large contributions designated for such ads.” 147 Cong. Rec. S3022, 

S3027-28 (daily ed. Mar. 28, 2001) (emphasis added). She also cited a statement 

by the Brennan Center for Justice that disclosures would be limited to “individuals 

who contributed more than $500 towards the ad,” mirroring the existing reporting 

of “sources and amounts [for] independent expenditures” (i.e., express advocacy). 

144 Cong. Rec. S10145, S10152 (daily ed. Sept. 10, 1998) (emphasis added).10 

Thus, a stay would protect the public’s interest in free speech and would not thwart 

any expressed congressional intent to compel sweeping disclosures. At most, it 

would briefly defer unintended speech burdens under an ambiguous statute. 

 9

 The version of the Snowe-Jeffords Amendment debated in 1998 is 

materially similar to the version enacted as part of the BCRA in 2002, with the exception that the disclosure threshold for contributors in 1998 was $500 rather 

than $1,000. Compare Amendment No. 1647 to the Paycheck Protection Act, S. 1663, 105th Cong. § 200(d)(2)(F) (1998), with Bipartisan Campaign Reform Act of 2002, 2 U.S.C. § 434(f)(2)(F).

10 As previously explained, see supra at n.3, the disclosure requirements for independent expenditures are limited to funds given “for the purpose of furthering an independent expenditure.” 2 U.S.C. § 434(c)(2)(C). See also 11 C.F.R. 

§ 109.10(e) (longstanding FEC regulation provides that reports must include identity of each person “who made a contribution in excess of $200 . . . for the 

purpose of furthering the reported independent expenditure”). 

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IV. Developments Since CFIF’s Motion Was Filed. 

The Opposition notes two developments that occurred after CFIF moved for 

a stay from this Court: (1) the district court denied CFIF’s request for a stay 

pending appeal; and (2) the FEC filed a notice stating it would not appeal.11 The 

district court’s stay order added little to its merits opinion, although the court 

clarified that it had vacated the 2007 rule and resurrected an earlier regulation. The 

Opposition does not question that the district court’s merits ruling is a final, 

appealable order.12 Nor does it question CFIF’s right to appeal that decision.13

On April 27, a partisan 3–3 deadlock led the FEC to give notice it would not 

appeal. See Ex. F. The three Republican commissioners favored appeal. They 

 11 The district court’s opinion denying the stay is attached to the Opposition as Exhibit A. The FEC’s notice of intent not to appeal is attached as Exhibit F to this reply, the statement by the three Republican commissioners supporting an appeal is attached here as Exhibit G, and the statement by the two Democratic commissioners opposing an appeal is attached as Exhibit H. 

12 This is not a situation in which a remand without vacatur has no immediate 

practical effect. Neither the Opposition nor the district court question that such a judgment is final and appealable by private intervenors. See Smoke v. Norton, 252 

F.3d 468, 472 (D.C. Cir. 2001) (Henderson, J., concurring); Colo. River Indian 

Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134, 137 (D.C. Cir. 2006); In re 

St. Charles Pres. Investors, Ltd., 916 F.2d 727, 729 (D.C. Cir. 1990). Nor do the Opposition or the district court question the standing demonstrated in CFIF’s 

intervention papers. 

13 An “intervenor may appeal from all interlocutory and final orders that affect him.” Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 376 (1987) (internal quotation and citation omitted); see also Int’l Union of Mine, Mill and Smelter Workers v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335, 338 

(1945) (an intervenor with Article III standing may appeal); Nat’l Black United 

Fund, Inc. v. Devine, 667 F.2d 173, 177 n.18 (D.C. Cir. 1981) (private intervenor entitled to appeal invalidated regulations where agency did not appeal); Port of N.Y. Auth. v. Baker, Watts & Co., 392 F.2d 497, 498 (D.C. Cir. 1968) (intervenor entitled to appeal invalidated agency regulations where agency did not pursue its appeal). 

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issued a detailed statement explaining that the district court ruling suffered from 

“internal contradictions” that would lead to “absurd results” and would create “a 

maze of uncertainty for many advocacy groups wishing to exercise their First 

Amendment rights.” See Ex. G at 1, 2. They concluded that the decision below 

deprived speakers of adequate guidance and confronted them with a “murky, 

counterintuitive . . . Alice in Wonderland-like experience.” Id. at 7. Two of the 

three Democratic commissioners offered a cursory explanation for opposing an 

appeal. See Ex. H. Their statement did not endorse the district court’s ruling but 

merely asserted that the decision did “not have sufficient weakness” to justify “the 

costs of prolonged defensive litigation.” Id. at 1. They did not deny that speakers 

faced uncertainty but professed to “welcome the opportunity to work with our 

colleagues” to revise the FEC regulations. Id. at 2. The statement did not explain 

what action was anticipated or on what timetable, nor did it hint at why the partisan 

deadlock will ease as the 2012 election advances. This type of “uncertainty about 

enforcement” is a situation that “counsels . . . in favor of temporarily preserving 

the status quo” pending appeal. Nat’l Ass’n of Mfrs. v. NLRB, No. 12-5068 (D.C. 

Cir. Apr. 17, 2012). 

CONCLUSION

CFIF respectfully requests that this Court issue a stay pending appeal. 

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May 2, 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

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CERTIFICATE OF SERVICE

 I hereby certify that on this 2nd day of May 2012, I caused a copy of the 

foregoing APPELLANT CENTER FOR INDIVIDUAL FREEDOM’S REPLY TO 

PLAINTIFF-APPELLEE VAN HOLLEN’S OPPOSITION TO INTERVENORS’ 

“EMERGENCY MOTIONS” FOR STAY to be served on the following counsel 

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

Roger M. Witten 

 E-mail: roger.witten@wilmerhale.com

Fiona Kaye 

 E-mail: Fiona.Kaye@wilmerhale.com 

Wilmer Cutler Pickering Hale and Dorr LLP 

399 Park Avenue 

New York, NY 10022 

212-230-8800 

Jason Brett Torchinsky 

 E-mail: jtorchinsky@hvjlaw.com

Holtzman Vogel Josefiak, PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

540-341-8808 

David Brett Kolker 

 Email: dkolker@fec.gov

Harry Jacobs Summers 

 E-mail: hsummers@fec.gov

Holly Jean Baker 

 E-mail: hbaker@fec.gov

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

202-694-1650 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

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