ORAL ARGUMENT NOT YET SCHEDULED

Nos. 15-5016 & 15-5017

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHRISTOPHER VAN HOLLEN, JR., 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

CENTER FOR INDIVIDUAL FREEDOM, 

Intervenor-Defendant-Appellant, 

HISPANIC LEADERSHIP FUND, 

Intervenor-Defendant-Appellant,

On Appeal from the United States District Court for the District of Columbia

No. 1:11-cv-00766-ABJ (Hon. Amy Berman Jackson)

REPLY BRIEF OF APPELLANT HISPANIC LEADERSHIP FUND

Dated: May 26, 2015 Jason Torchinsky (D.C. Bar No. 976033)

Michael Bayes (D.C. Bar No. 501845)

Shawn Sheehy 

HOLTZMAN VOGEL JOSEFIAK 

PLLC 

45 North Hill Drive 

Suite 100 

Warrenton, VA 20186 

(540) 341-8808 

Attorneys for Hispanic Leadership Fund

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TABLE OF CONTENTS 

Page 

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

STATUTES AND REGULATIONS ....................................................................... 1 

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

I. THE FEC’S ELECTIONEERING COMMUNICATION 

DISCLOSURE REGULATION IS COMPATIBLE WITH 

CONGRESS’S GOALS ........................................................................ 3 

II. THE FEC HAD SUFFICIENT EVIDENCE TO MAKE A 

PREDICTIVE JUDGMENT ............................................................... 13 

III. THE SEPARATE SEGREGATED FUND IS NOT A VIABLE 

OPTION .............................................................................................. 20 

IV. THE COMMISSION SOUGHT TO PRESERVE THE 

CONSTITUTIONALITY OF THE STATUTE ................................. 21 

CONCLUSION ........................................................................................................ 24 

CERTIFICATE OF COMPLIANCE ....................................................................... 25 

CERTIFICATE OF SERVICE ................................................................................ 26 

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 TABLE OF AUTHORITIES 

CASES 

*Cases chiefly relied upon 

*AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) ................................................................... 20, 21 

AT&T Corp. v. Iowa Utilities Board, 

525 U.S. 366 (1999) ....................................................................................... 4, 9 

*Agape Church, Inc. v. FCC, 

738 F.3d 397 (D.C. Cir. 2013) ................................................................... 14, 15 

American Public Communs. Council v. FCC, 

215 F.3d 51 (D.C. Cir. 2000) ........................................................................... 17 

Bismullah v. Gates, 

551 F.3d 1068 (D.C. Cir. 2009) ................................................................. 12-13 

*Bowman Transport, Inc. v. Arkansas- Best Freight System, Inc., 

419 U.S. 281 (1974) ......................................................................................... 19 

Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2008) ................................................................. 22 

Citizens United v. FEC, 

558 U.S. 310 (2010) ................................................................................... 20, 22 

*Continental Air Lines, Inc. v. Department of Transport, 

843 F.2d 1444 (D.C. Cir. 1988) ................................................................. 4, 7, 9 

Ctr. for Individual Freedom v. Van Hollen, 

694 F.3d 108 (D.C. Cir. 2012) ................................................... 3, 4, 8, 9, 10, 21 

Dart v. United States, 

961 F.2d 284 (D.C. Cir. 1992) ......................................................................... 13 

FEC v. Mass. Citizens for Life, Inc., (MCFL'), 

479 U.S. 238 (1986) ................................................................... 2, 10, 15, 18, 20 

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FEC v. Wis. Right to Life, Inc., (WRTL II'), 

551 U.S. 449 (2007) ................................................................... 2, 10, 17, 18, 19 

Kapral v. United States, 

166 F.3d 565 (3d Cir. 1999) .............................................................................. 8 

Marx v. General Revenue Corp., 

133 S. Ct. 1166 (2013) ....................................................................................... 8 

McConnell v. FEC, 

540 U.S. 93 (2003) ........................................................................... 3, 10, 18, 22 

McConnell v. FEC, 

No. 02-0582 (D.D.C.) ........................................................................................ 6 

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) ..................................................................................... 21 

Minnesota Citizens Concerned for Life, Inc. v. Swanson, 

692 F.3d 864 (8th Cir. 2012) ........................................................................... 16 

National Shooting Sports Foundation, Inc. v. Jones, 

716 F.3d 200 (D.C. Cir. 2013) ....................................................................... 8, 9 

*Nuvio Corp. v. FCC, 

473 F.3d 302 (D.C. Cir. 2006) ............................................................. 13, 17, 19 

Rust v. Sullivan, 

500 U.S. 173 (1991) ................................................................................... 10, 19 

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005) ........................................................................... 11 

Sorenson Communications Inc. v. FCC, 

755 F.3d 702 (D.C. Cir. 2014) ............................................................. 13-14, 19 

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STATUTES AND REGULATIONS 

52 U.S.C. § 30104(f)(2)(F) ........................................................................................ 6 

52 U.S.C. § 30101(8) ................................................................................................ 6 

11 C.F.R. 104.20(c)(1-6) ...................................................................................... 5, 12 

UNITED STATES CONSTITUTIONAL AMENDMENTS 

U.S. Const. amend. I ............................................................................................ 3, 20 

BILLS 

H.R. 5175, 111th Cong. § 211(b)(1)(B) (2010) ....................................................... 13 

S.229, 114th Cong., § 2(b)(1)(a)(2)(F) (2015) ........................................................ 13 

S. 2219, 112th Cong., § 324(a)(2)(B) (2012) .......................................................... 13 

S. 2516, 113th Cong., § 2(b)(1)(a)(2)(F) (2014) ..................................................... 13 

S. 3295, 111th Cong., § 211(b)(2) (2010) ............................................................... 13 

S. 3369, 112th Cong., § 324(a)(2)(B) (2012) .......................................................... 13 

OTHER AUTHORITIES 

Brief for Family Research Council et al. as Amicus Curiae Supporting Appellee; 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) 

 (Nos. 06-969 & 06-970) ................................................................................... 18 

Brief for Appellee; 

Citizens United v. FEC, 558 U.S. 310 (2010), No. 08-205 ............................. 22 

Brief of Government Defendants, 

McConnell v. FEC, No. 02-0582 (D.D.C.) .................................................... 6-7 

Final McConnell District Court Brief of BCRA Congressional Sponsors, 

Defendant-Interveners, McConnell v. FEC, No. 02-0582 (D.D.C.) .......................... 6 

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Opening McConnell District Court Brief of BCRA Congressional Sponsors, 

Defendant-Interveners, McConnell v. FEC, No. 02-0582 (D.D.C.) .......................... 7 

 

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GLOSSARY OF ABBREVIATIONS

AFL-CIO: American Federation of Labor-Congress of Industrial 

 Organizations 

BCRA: Bipartisan Campaign Reform Act 

CFIF: Center For Individual Freedom 

FECA: Federal Election Campaign Act 

FEC: Federal Election Commission 

HLF: Hispanic Leadership Fund 

IRS: Internal Revenue Service 

JA: Joint Appendix 

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STATUTES AND REGULATIONS 

All applicable statutes and regulations are contained in the Center for 

Individual Freedom’s (‘CFIF’) opening brief. 

INTRODUCTION AND SUMMARY OF THE ARGUMENT 

1. The FEC’s electioneering communication disclosure regulation is 

compatible with, and fulfills, Congress’s goals and expectations. The term 

‘contribution’ contains a purpose element and disclosure is required of 

those “contributors who contributed” $1,000 or more annually. BCRA’s 

sponsors, both before and after enacting the electioneering communication 

disclosure statute, intended the statute to contain a purpose element that 

parallels the disclosure obligations imposed by the independent expenditure 

disclosure statute. 

2. Appellee contends that Congress intended broader disclosure for 

electioneering communications than for independent expenditures when it 

enacted BCRA. But courts must not attempt to divine the broad purposes of 

the statute because doing so risks unraveling legislative compromises and 

converting those who largely lost in legislation to victors in litigation. 

3. Appellee’s reliance on the Russello cannon of statutory interpretation in 

this Chevron Step II context fails because this Court ruled that the statute is 

susceptible to multiple interpretations. 

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4. The FEC’s 2003 rulemaking is of no import here because the statute 

prohibited all corporations from using their general treasury funds to make 

electioneering communications. Only a relatively small number of nonprofit corporations ever satisfied the MCFL exception1

 and used their 

general treasury funds for political speech. Comparing the two 

rulemakings neglects the “complicated situation” that faced the FEC after 

the Supreme Court’s ruling in FEC v. Wis. Right to Life, Inc., (‘WRTL II’) 

551 U.S. 449 (2007). 

5. The FEC had sufficient evidence to make a predictive judgment that its 

disclosure regulation would be costly and burdensome. Appellee contends 

that HLF did not provide facts or examples demonstrating that the FEC had 

evidence for its judgment. HLF adduced at least two examples 

demonstrating that the FEC’s proposed disclosure regulation was more 

costly than disclosure to the Department of Labor for labor unions or the 

IRS for non-profits. This evidence was uncontroverted. This Court must 

accord the FEC deference for its predictive judgment. 

6. The FEC credited the labor unions’ concern that the segregated fund option 

was not a meaningful alternative because it exacts a prohibitive burden and 

                                                            

1

 The MCFL exception comes from the Supreme Court’s ruling in FEC v. Mass. 

Citizens for Life, Inc., (‘MCFL’) 479 U.S. 238 (1986). 

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cost on the exercise of First Amendment rights. 

7. The McConnell and Citizens United Courts upheld the constitutionality of 

the electioneering communication disclosure statute. BCRA’s sponsors, the 

Government Defendants in McConnell and the Citizens United three-judge 

district court, and the Solicitor General all informed various courts that the 

electioneering communication disclosure provision imposed the same 

obligations as the independent expenditure statute, requiring disclosure 

only of those contributions earmarked for the purpose of furthering the 

communication. Therefore the FEC acted reasonably when it acted to 

preserve the constitutionality of the regulation. 

I. THE FEC’S ELECTIONEERING COMMUNICATION 

DISCLOSURE REGULATION IS COMPATIBLE WITH 

CONGRESS’S GOALS. 

This Court ruled that Congress did not speak plainly when it drafted BCRA’s 

electioneering communication disclosure statute. See Ctr. for Individual Freedom v. 

Van Hollen, 694 F.3d 108, 110 (D.C. Cir. 2012); cf. McConnell v. FEC, 540 U.S. 93, 

211 (2003) (reading MCFL exception into statute despite statute prohibiting all 

corporations from speaking). This Court held that the electioneering communication 

statute “[i]s anything but clear...” and especially so when viewed in the light of the 

Supreme Court’s decisions in WRTL II and Citizens United. Van Hollen, 694 F.3d at 

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110. This Court also rejected the district court’s holding that the terms ‘contributor’ 

and ‘contributed’ “cannot be construed to include a ‘purpose’ requirement...” Id. 

Importantly, this Court found that Congress did not have an intention on the 

precise question at issue. Id. at 111. Indeed, this Court considered it “doubtful” that 

Congress anticipated the “complicated situation” that faced the FEC in 2007, when 

the very groups the statute previously explicitly prohibited from speaking—most 

corporations, including non-profits, labor unions—were, once again, permitted to 

speak. Id. Thus, “[C]ongress' specific intent on the question at hand has eluded the 

reviewing court.” Continental Air Lines, Inc. v. Department of Transp., 843 F.2d 

1444, 1449 (D.C. Cir. 1988). The Court has therefore cautioned that when attempting 

to divine the purpose of Congress at Chevron Step II, courts must conduct their 

analysis “[w]ith assiduous care [to avoid] judicial unwinding of deals struck in 

Congress.” Id. at 1451. Accordingly, courts must uphold an agency’s regulation 

where it is “[r]ationally related to the goals of the Act.” AT&T Corp. v. Iowa Utils. 

Bd., 525 U.S. 366, 388 (1999) (emphasis added). 

As HLF previously demonstrated, the FEC’s electioneering communication 

disclosure regulation is rationally related to BCRA’s goals because: 

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1. Legislative history demonstrates that Congress desired disclosure only of 

those donors who donated $1,000 or more annually with the purpose of 

funding the electioneering communication; (HLF Br. 21);2

2. BCRA’s sponsors maintained this position during the McConnell litigation; 

(HLF Br. 40, 54); 

3. A bipartisan group of commenters believed Congress intended a purpose 

element; (HLF Br. 54) (JA-243-44) (Michael Trister); (JA-152-54) 

(Alliance for Justice); 

4. Contrary to Appellee’s position, the FEC’s disclosure regulation demands 

the disclosure of a substantial amount of information about the speaker; 11 

C.F.R. 104.20(c)(1-6); (HLF Br. 55). 

5. On five occasions, Congress has considered and rejected proposals to 

amend the electioneering communication disclosure statute to change the 

FEC’s regulation; (HLF Br. 56); 

6. Congress did not intend disclosure broader than what is required for 

independent expenditures; (HLF Br. 56); 

To Appellee, the FEC’s electioneering communication disclosure regulation is 

unreasonable for three reasons. This Court should reject all of these arguments. 

                                                            

2

 Citations of briefs are to the ECF generated page numbers. 

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First, Appellee contends that the FEC’s disclosure regulation is unreasonable 

because Congress’s electioneering communication disclosure statute did not include 

the ‘purpose’ language that is contained in the independent expenditure disclosure 

statute. (Opp’n. Br. 41-42). 

Rather, Congress required the disclosure of all persons who contributed

$1,000 or more annually. 52 U.S.C. § 30104(f)(2)(F). The term ‘contribution’ is a 

statutorily-defined term of art that contains a purpose element. See id. § 

30101(8)(A)(i). In the aftermath of WRTL II, the FEC reasonably interpreted 

Congress’s use of the phrase “contributor who contributed” to include a purpose 

element. 

Statements from congressional sponsors, both prior to and after the enactment 

of the electioneering communication disclosure statute, support the FEC’s 

interpretation. See (HLF Br. 21-22) (citing Senator Snowe’s statements, including 

that the statute requires disclosure of large contributions designated for such ads); 

see also Brief of Government Defendants at 174, McConnell v. FEC, No. 02-0582 

(D.D.C.) (describing the disclosure statute as modest and imposing the same 

disclosure obligations as required with independent expenditures);3

 Final McConnell

District Court Brief of BCRA Congressional Sponsors, Defendant-Interveners at I-85 

                                                            

3

 The Brief of Government Defendants is located at 

http://campaignfinance.law.stanford.edu/case-materials/mcconnell-v-fec/ and is at 

Government Defendants': Brief of Defendants – Part 11. 

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n.320 (adopting Brief of Defendants at 174);4 Opening McConnell District Court 

Brief of BCRA Congressional Sponsors, Defendant-Interveners at I-76 (describing 

the electioneering communication disclosure statute as imposing the same types of 

rules that FECA has long imposed on independent expenditures).5

 Commenters also 

thought Congress intended a purpose element for disclosure of electioneering 

communications. (JA-153, 243-44); (HLF Br. 54). 

Appellee contends that Congress intended disclosure broader than what 

Congress required of independent expenditures. (Opp’n. Br. 44-45). But this Court 

has previously cautioned that courts cannot become anti-democratic agents where 

“[c]arefully wrought compromises on Capitol Hill may be torn asunder in federal 

courthouses.” Continental Air Lines, 843 F.2d at 1450. This risks transforming 

congressmen who largely lost in the congressional debates into the ultimate victors 

in litigation. Id. This is why courts cannot “resort to a single ‘broad purpose’” or 

goals to drive the interpretive process. Id. at 1451. 

 Appellee attempts to shoehorn his statutory argument into the Russello cannon 

of statutory interpretation that Congress acts intentionally when it includes language 

in one section of a statute and excludes it in another. (Opp’n. Br. 42). A statutory 

                                                            

4 Available at http://www.democracy21.org/archives/key-documents-archives/courtcases-opinions-and-briefs/mcconnell-v-fec/briefs-filed-with-district-court-by-bcracongressional-sponsors-defending-bcra/

5 Id. at supra n.4. 

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cannon is not a rule, however, but merely an indication of meaning that must yield 

where contrary indications are present. See Kapral v. United States, 166 F.3d 565, 

579 (3d Cir. 1999) (Alito, J., concurring). 

More fundamentally, the Russello cannon is limited and applies only when the 

statute at issue has a single, obvious meaning and is not susceptible to multiple 

interpretations. See id. The Russello cannon presumes “careful draftsmenship” in 

statutes. Id. But the electioneering communication disclosure statute is “anything but 

clear” and is susceptible to multiple interpretations. Van Hollen, 694 F.3d at 110. 

Additionally, the D.C. Circuit uses the Russello cannon interchangeably with 

the expressio unius est exclusio alterius cannon. See Nat'l Shooting Sports Found., 

Inc. v. Jones, 716 F.3d 200, 211 (D.C. Cir. 2013). The Supreme Court limits the 

application of the expressio unius cannon to those situations where “it is fair to 

suppose that Congress considered the unnamed possibility and meant to say no to it.” 

Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013). This is not the case here. 

In fact, Senator Snowe intended the disclosure statute to contain a purpose element. 

See (HLF Br. 21-22, supra at 6). Additionally, Appellee cannot rely on the expressio 

unius cannon because it cannot be ascertained whether Congress said ‘no’ to 

including a purpose element. See Van Hollen, 694 F.3d at 111 (Congress did not 

have an intention on precise question). 

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Finally, at Chevron Step II the expressio unius cannon is a feeble interpretive aid. 

See Nat'l Shooting Sports Found., Inc., 716 F.3d at 211. This is especially true here 

because Congress could not have anticipated the circumstances facing the FEC after 

the WRTL II decision. See Van Hollen, 694 F.3d at 111. The FEC therefore was 

required to fill the resulting gap in a statute that was anything but clear. See id. 

The fact that Congress did not copy its independent expenditure disclosure 

statute and paste it into the electioneering communication disclosure statute does not 

mean that Congress intended broader disclosure for electioneering communications. 

Rather, the purpose element is contained in the definition of ‘contribution,’ as is 

reflected in both the pre and post-enactment statements from congressional sponsors; 

and the commenter’s comments during the FEC’s rulemaking demonstrates that the 

FEC interpreted Congress’s electioneering disclosure statute in a manner that is 

compatible with the goals of Congress, or, at the very least, rationally related to the 

goals of Congress. See Continental Air Lines, 843 F.2d at 1453; AT&T Corp., 525 

U.S. at 388. 

Second, Appellee contends that the disclosure regulation is unreasonable 

because the 2003 FEC regulation did not include a purpose element. (Opp’n. Br. 43). 

The 2003 rulemaking is irrelevant here. 

The 2003 rulemaking involved a statute that prohibited corporations, including 

non-profit corporations, and labor unions from using their general treasury funds to 

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make electioneering communications. The only incorporated entities that could 

lawfully make electioneering communications were qualified non-profit 

corporations. See WRTL II, 551 U.S. at 455-57; McConnell, 540 U.S. at 211; FEC v. 

Mass. Citizens for Life, Inc., (‘MCFL’) 479 U.S. 238, 263-64 (1986) (narrowly 

defining qualified nonprofit corporations). This is why the WRTL II decision 

presented the FEC with a “complicated situation” requiring a recalibration of the 

electioneering communication regime to accommodate the many entities that 

Congress intended to prohibit from speaking. See Van Hollen, 694 F.3d at 111; See 

Rust v. Sullivan, 500 U.S. 173, 186-87 (1991) (holding that an agency must be given 

ample latitude to adapt its rules to changing circumstances). Comparing disclosure 

considerations in 2003 to 2007 is an exercise in comparing apples to oranges. 

Third, Appellee contends that the disclosure regulation is unreasonable 

because legislative history demonstrates that BCRA was a departure from the old 

campaign finance regime and thus Congress would not have adopted a standard that 

was ineffective and “flouts” the purpose of BCRA. (Opp’n. Br. 33 and 38). 

According to Appellee, adopting the old standard enacts a provision that enables 

“massive evasion” of the disclosure requirements as evidence by the decrease in 

disclosure of contributions; (Opp’n. Br. 34, 36-37, 39-40). 

HLF previously demonstrated that BCRA’s sponsors, both before and after 

BCRA’s passage, intended the disclosure provision to be modest, only requiring 

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disclosure of those contributors whose “[l]arge contributions were designated for 

such ads,” and to parallel the independent expenditure disclosure statute. (HLF Br. 

21-22, 40, supra at 6-7). HLF demonstrated that the legislative comments that 

Appellee and the district court rely on do not contradict these other comments. (HLF 

Br. 22). Appellee still does not adduce any legislative comment that contradicts these 

comments from BCRA’s sponsors. 

Appellee also contends that BCRA was a major departure from FECA’s 

“ineffective” disclosure regime and therefore BCRA’s sponsors did not intend to 

adopt the independent expenditure disclosure standard. (Opp’n. Br. 44).6

 But 

BCRA’s sponsors claimed that the two disclosure statutes imposed the same 

requirements. (HLF Br. 21-22, 40, supra at 6-7). 

Appellee’s assertion of “massive evasion” of the disclosure requirements is 

hyperbole. (Opp’n. Br. 36 and 56).7

 Appellee, however, does not address HLF’s 

                                                            

6

 For this proposition and the proposition that BCRA’s primary purpose was to 

“[i]mprove disclosure of the sources of funding for campaign ads...” Appellee relies 

on Shays v. FEC, 414 F.3d 76, 81-82 (D.C. Cir. 2005) (Opp’n. Br. 38, 44). Those 

citations, however, contain no mention of disclosure. Rather, those pages discuss that 

BCRA was intended to capture sham issue ads and soft money spending. 

7

 Appellee contends that the FEC’s disclosure regulation violates State Farm because 

the FEC did not consider the risk that by taking a narrow approach to disclosure, this 

would lead to “a proliferation of issue ads by entities with misleading names.” 

(Opp’n. Br. 56-57). But the comments Appellee relies upon (JA-43, 114, 118), as 

well as the comments cited at (Opp’n. Br. 24 n.7), were urging the FEC to adopt 

Alternative 1 and reject Alternative 2 which exempted electioneering 

communications from the disclosure requirements entirely. Ultimately, the FEC 

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point that the public still receives substantial information about the speaker, 

including who “actually paid” for the advertisement. See (HLF Br. 55) (citing 11 

C.F.R. § 104.20(c)(1-6)). Appellee also fails to address the First Amendment harm 

imposed when the FEC’s disclosure regulation was vacated in 2012. See (HLF Br. 

44-45). 

Moreover, Appellee claims that the independent expenditure disclosure 

requirement is more demanding than the electioneering communication statute. 

(Opp’n. Br. 44-45). But Appellee focuses merely on the dollar threshold—$200 for 

independent expenditures and $1,000 for electioneering communications. What is 

burdensome is not the amount, but the burden of compiling all of the names, 

addresses, and amounts of each professor, doctor, dentist, airline pilot, and screen 

actor guild member, and other labor union members whose membership dues exceed 

$1,000 annually. Appellee wants all of this for speech that is by definition nonelectoral. (JA-163, 228, 311); (HLF Br. 56). 

Finally, Appellee contends that HLF’s reliance on Bob Jones University v. 

United States is misplaced. (Opp’n. Br. 44 n.17). Legislative inaction is probative 

where congressional inaction is long-standing and where Congress considered and 

failed to act on the precise issue before the court. See Bismullah v. Gates, 551 F.3d 

                                                                                                                                                                                                    

adopted Alternative 1, requiring the disclosure of several pieces of information, 

preventing the speaker from hiding behind misleading names. See 11 C.F.R. § 

104.20(c)(1-6); (JA-311). 

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1068, 1074 (D.C. Cir. 2009). Both before and after Appellee brought this lawsuit in 

2011, Appellee himself attempted to amend BCRA to impose by legislation the 

disclosure regime Appellee now seeks by litigation. (HLF Br. 56). Congress has 

since failed to pass the DISCLOSE Act at least five additional times.8

 Congress has 

therefore rejected Appellee’s interpretation. See Dart v. United States, 961 F.2d 284, 

286 (D.C. Cir. 1992). 

II. THE FEC HAD SUFFICIENT EVIDENCE TO MAKE A 

PREDICTIVE JUDGMENT. 

Approximately 15 million labor union members and several non-profit 

corporations, entities that could not speak prior to WRTL II, provided the 

Commission with sufficient uncontroverted evidence of burden and cost. See, e.g.,

(JA-153 n.8, 156 n.1, 143, 163, 311); (HLF Br. 36). The FEC also had evidence that 

individuals who donate $1,000 or more annually to labor union membership dues 

and to non-profit corporations do not necessarily support the recipient’s 

electioneering communications. (JA-153-54, 163, 311) (HLF Br. 19-20). The FEC 

made a valid predictive judgment based on uncontroverted evidence and its judgment 

is entitled to “[p]articularly deferential treatment.” See Nuvio Corp. v. FCC, 473 

F.3d 302, 306-07 (D.C. Cir. 2006); Sorenson Communications Inc. v. FCC, 755 

                                                            

8 See S.229, 114th Cong. § 2(b)(1)(a)(2)(F) (2015); S. 2516, 113th Cong. § 

2(b)(1)(a)(2)(F) (2014); S. 2219, 112th Cong. § 324(a)(2)(B) (2012); S. 3369, 112th 

Cong. § 324(a)(2)(B) (2012); S. 3295, 111th Cong. § 211(b)(2) (2010); H.R. 5175, 

111th Cong. § 211(b)(1)(B) (2010). 

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F.3d 702, 708 (D.C. Cir. 2014); Agape Church, Inc. v. FCC, 738 F.3d 397, 405-

06, 410 (D.C. Cir. 2013) (holding that FCC did not abuse its discretion when it 

changed its downconverting rule to permit cable operators to provide conversion 

equipment to customers based on uncontroverted evidence from a trade association 

that cable operators were providing the equipment at minimal or no cost). 

First, Appellee contends that the FEC lacked evidence that contributors who 

contributed $1,000 or more annually might disagree with the recipient’s 

electioneering communications. (Opp’n. Br. 48). Appellee, however, never addresses 

the labor union and non-profit comments that adduced evidence demonstrating that 

donors do not necessarily support the recipient’s electioneering communications. 

(HLF Br. 49-50). 

The labor unions were rightly concerned that if the FEC adopted Alternative 1, 

its membership dues would constitute ‘donations’ because that term is broadly 

defined to include gifts, subscriptions, loans, and anything of value. (JA-163). If dues 

were considered donations that would trigger the FEC’s disclosure requirements 

demanding disclosure of union members’ names and addresses. (JA-163, 228). The 

labor unions therefore informed the FEC that these membership dues had no 

“meaningful relationship” to the unions’ electioneering communications and 

disclosure of those names would be misleading. See (JA-163); see also (JA-153-54) 

(Alliance for Justice stating that disclosure of all sources of revenue for a non-profit 

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is misleading and that the non-profit lost grants because the potential for disclosure). 

Appellee fails to cite record evidence to refute this evidence. The FEC therefore 

properly credited the uncontroverted evidence. (JA-311); Agape Church, 738 F.3d at 

410. 

Second, Appellee contends that it is doubtful that any such evidence exists. 

(Opp’n. Br. 48-49) (relying on MCFL, 479 U.S. at 261). Appellee’s reliance on 

MCFL is misplaced and misleading. The cited language in MCFL does not address 

contributions to any non-profit organization. Rather, the Court wrote "Individuals 

who contribute to appellee are fully aware of its political purposes.” Id. at 260. 

(emphasis added) Thus, the Court’s discussion addressed whether the broad 

prohibition against the use of corporate (or labor union) general treasury funds was 

narrowly tailored in the very narrow case of an organization such as MCFL. 

Third, and relatedly, Appellee contends that the FEC misapprehends the 

purpose of disclosure, namely to permit citizens to react appropriately to speech. 

(Opp’n. Br. 49-50). But this argument does not address HLF’s, the labor unions’, and 

the Alliance for Justice’s concern that disclosure of all donors who donated $1,000 or 

more annually is misleading to the public. (JA-153, 163). This undermines the very 

interest Appellee advances, namely, it hinders the public’s effort to discern what 

import to give an entity’s speech. See (JA-163, 311). Such disclosure also disserves 

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First Amendment principles. (JA-160); see, e.g., Minnesota Citizens Concerned for 

Life, Inc. v. Swanson, 692 F.3d 864, 876-77 (8th Cir. 2012). 

Fourth, Appellee contends that the Commission had no evidence concerning 

the costs of compliance; what those costs might entail; that it would be very costly to 

identify donors aggregating $1,000 or more annually; and that HLF relied on 

conclusory statements that did not provide any facts or examples. (Opp’n. Br. 50-53). 

As was stated previously, (HLF Br. 47-49), however, the FEC did have 

uncontroverted evidence from approximately 15 million labor union members, 60 

labor union organizations, and a representative of non-profit organizations that the 

proposed disclosure regime would be costly and burdensome. (JA- JA-153 n.8, 156 

n.1, 163, 206, 311). The labor unions explained how compliance with the proposed 

regulation would be more costly and burdensome than the Department of Labor’s 

disclosure requirements. (JA-163-64, 311). For non-profit organizations, the 

proposed disclosure regulation was far broader than what the IRS required on its 

Form 990. (JA-153 n.1, 311) (noting that the Form 990 only requires the disclosure 

of those donors who donated $5,000 or more annually). These are two 

uncontroverted examples. These are two uncontroverted facts. The labor unions also 

provided another example whereby the FEC’s proposed regulation might require 

disclosure of a local union’s membership because they paid $150 a week for a radio 

show. (JA-207). Furthermore, both labor unions and non-profits explained that the 

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burdens in identifying who must be disclosed would be enormous. (JA-153 n.8,163, 

206, 311); (HLF Br. 31-33). 

Since labor unions and corporations could not use their general treasury funds 

to make electioneering communications prior to WRTL II, the FEC was forced to 

make a predictive judgment concerning the compliance costs of its proposed 

regulation. See WRTL II, 551 U.S. at 455-57. The labor unions and the Alliance for 

Justice provided uncontroverted evidence that is sufficient for the FEC to make the 

predictive judgment that imposing its proposed disclosure regulation would have 

been costly and burdensome. American Pub. Communs. Council v. FCC, 215 F.3d 

51, 56 (D.C. Cir. 2000) (holding that an agency is not required to enter precise 

predictive judgments where the commenters have not so provided); Nuvio Corp. 473 

F.3d at 306-07; (HLF Br. 48-49). 

Fifth, Appellee engages in a sleight of hand by equating qualified nonprofit 

corporations with non-profits like Wisconsin Right to Life and Alliance for Justice. 

(Opp’n. Br. 50). From this false premise, Appellee contends that the FEC had no 

evidence that compliance with the 2003 version of the disclosure regulation was 

costly or burdensome for—among others—qualified non-profit corporations (Opp’n. 

Br. 50). 

As stated supra and at HLF Br. 22, the 501(c)(4) non-profit corporation 

Wisconsin Right to Life was prohibited from using its general treasury funds to make 

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electioneering communications. See WRTL II, 551 U.S. at 455-57. While the 

Supreme Court in McConnell read the MCFL exception into BCRA’s electioneering 

communication provisions permitting qualified non-profit corporations to use 

general treasury funds to make electioneering communications, Wisconsin Right to 

Life did not qualify for that exception. McConnell, 540 U.S. at 211; WRTL II, 551 

U.S. at 455-57. 

There is a significant distinction between qualified non-profit corporations 

and regular non-profit corporations. Non-profit corporations like Wisconsin Right to 

Life, Alliance for Justice, and HLF, are permitted to accept corporate donations 

whereas qualified non-profit corporations are not. See MCFL, 479 U.S. at 264. 

Thus, Wisconsin Right to Life, HLF, and Alliance for Justice could not use its 

general treasury funds prior to WRTL II. 

This further demonstrates the seismic shift that WRTL II caused in 2007 

where non-profit corporations, for-profit corporations, and labor unions could now 

do what BCRA prohibited them from doing, namely, using general treasury funds to 

make electioneering communications. Between 2003 and 2007 only fourteen entities 

making electioneering communications qualified for the MCFL exception.9

                                                            

9 See Brief for Family Research Council et al. as Amicus Curiae Supporting Appellee 

at 10; FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (Nos. 06-969 & 06-970) 

(“[V]ery few nonprofits ever qualify as MCFL organizations under [the FEC’s] 

draconian rules.”). 

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Therefore, comparing the costs of compliance with the 2003 regulation for qualified

non-profit corporations with the predictive costs of compliance for groups who, post 

WRTL II, were then permitted to speak is comparing apples to oranges. The fact that 

during the 2003 rulemaking the FEC rejected cost and burden concerns from 

qualified non-profits (Opp’n. Br. 20) is irrelevant. The burdens and costs of 

disclosure are not as substantial for qualified non-profits as they are for regular nonprofit corporations that accept corporate contributions and grants. (JA-153-54). 

Given this, the FEC had the discretion to adapt its rules to the post-WRTL II

world. See Rust, 500 U.S. at 186-87. The FEC’s predictive judgment was based on 

the uncontroverted evidence supplied to it. (JA-153 n.8, 163, 206, 311). That 

judgment is entitled to deference and it should be upheld. (supra at 17). 

The FEC made a prediction based on the evidence supplied by the 

commenters. (HLF Br. 47). The FEC made a rational connection between the facts 

found—disclosure broader, burdensome, and more costly than that required by other 

government agencies—to the choice it made—a disclosure provision that paralleled 

the independent expenditure disclosure provision. (JA-311, 311 n.22). The FEC 

therefore satisfied its burden. See Bowman Transp., Inc. v. Arkansas- Best Freight, 

Inc., 419 U.S. 281, 285-86 (1974); See Nuvio Corp. 473 F.3d at 306-07; Sorenson 

Communications Inc., 755 F.3d at 708. 

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III. THE SEPARATE SEGREGATED FUND IS NOT A VIABLE 

OPTION. 

Appellee claims that the FEC failed to explain why the separate segregated 

fund is not a viable option. (Opp’n. Br. 55). Rather, the labor union comment—

representing 15 million members and 60 organizations— contended that the 

segregated bank account was not a “meaningful alternative” because it undermines 

WRTL II’s holding that the labor union could use its general treasury funds to make 

electioneering communications. (JA-163). The FEC credited the labor unions’ 

comment. (JA-311) (HLF Br. 34 and 52). Furthermore, the FEC has a duty to enact 

regulations that do not unnecessarily offend the First Amendment. AFL-CIO v. FEC, 

333 F.3d 168, 179 (D.C. Cir. 2003). Imposing separate segregated fund burdens on 

committees whose major purpose is not the election or defeat of candidates is 

unconstitutionally burdensome. See MCFL, 479 U.S. at 252-54; Citizens United v. 

FEC, 558 U.S. 310, 337-38 (2010). (HLF Br. 52). The government cannot impose a 

prohibitive burden as the price for exercising First Amendment rights. See Citizens 

United, 558 U.S. at 351. 

Appellee again relies on the 2003 Regulation to criticize the FEC for 

“[i]gnor[ing]” the separate segregated fund option “without explanation.” (Opp’n. 

Br. 55). As is noted supra, the FEC did not ignore the separate segregated fund 

option, it simply credited the labor unions’ concerns that it was not a ‘meaningful 

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alternative’ (JA-311). The FEC was required to recalibrate its disclosure regime to 

adapt to this new “complicated situation,” Van Hollen, 694 F.3d at 111, where 

entities who could not previously speak could now make electioneering 

communications. 

IV. THE COMMISSION SOUGHT TO PRESERVE THE 

CONSTITUTIONALITY OF THE STATUTE. 

Appellee is incorrect when he states that “The Commission did not cite the 

First Amendment as a reason for adopting the purpose requirement.” (Opp’n. Br. 57). 

In fact, the FEC did state that the purpose requirement ensured that the regulation 

was “narrowly tailored to address” the many commenters’ concerns about donor 

privacy. (JA-301) see also (JA-154); (HLF Br. 35). First Amendment regulations 

must be narrowly tailored and must not needlessly infringe First Amendment rights. 

AFL-CIO, 333 F.3d at 179; McCutcheon v. FEC, 134 S. Ct. 1434, 1456-57 (2014). 

Rather than address the substance of HLF’s constitutional arguments, (HLF 

Br. 57-59), Appellee, like the district court (JA-427 n.9, 449), contends that First 

Amendment concerns are foreclosed to the FEC because of the Supreme Court’s 

decisions in McConnell and Citizens United. (Opp’n. Br. 58). Although true that 

McConnell and Citizens United upheld the electioneering communication disclosure 

statute (and the implementing regulations referenced in Citizens United), in its 

opening brief, HLF demonstrated that what the Supreme Court said in McConnell

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and Citizens United is not necessarily what Appellee believes it says. See (HLF Br. 

40-41). In fact, the McConnell interveners and sponsors informed the court that the 

disclosure provision imposed the same requirements as those imposed for 

independent expenditures. (Supra at 6-7). The Supreme Court followed, holding that 

the electioneering communication disclosure requirements are “comparable” to the 

independent expenditure disclosure requirements. McConnell, 540 U.S. at 196-97 

and n.81 (relying on Buckley’s approval of the independent expenditure disclosure 

provision to uphold BCRA’s electioneering communication disclosure provision). 

Then, in determining the constitutionality of the electioneering 

communications disclosure statute, the district court in Citizens United understood 

the statute to contain a purpose element. See Citizens United v. FEC, 530 F. Supp. 

2d 274, 280 (D.D.C. 2008) (three-judge court) (HLF Br. 40-41). On direct appeal to 

the Supreme Court, the Solicitor General advised the Court that the electioneering 

disclosure provision required the disclosure of “[a]ny large contributions earmarked 

to underwrite it.” Brief for Appellee at 30, 39; Citizens United v. FEC, 558 U.S. 

310 (2010), No. 08-205 (emphasis added). The Supreme Court then said that the 

statute only required disclosure of “certain” contributors. Citizens United, 558 U.S. 

at 367-68. The Supreme Court did not elaborate any further. 

HLF presents these facts to refute the notion that the Supreme Court has 

blessed Appellee’s wish that the disclosure statute demands broader disclosure than 

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23

what is required of independent expenditures, speech that is electoral by definition. 

(HLF Br. 56). The Supreme Court has said no such thing and, in fact, the 

Government told the Court that the provision paralleled the independent expenditure 

disclosure statute. The FEC’s interpretation is therefore reasonable.

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Dated: May 26, 2015 Respectfully submitted, 

 /s/_Jason Torchinsky 

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjlaw.com

Michael Bayes (D.C. Bar No. 501845) 

jmbayes@hvjlaw.com 

Shawn Toomey Sheehy 

ssheehy@hvjlaw.com

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive 

Suite 100 

Warrenton, VA 20186 

Tel: (540) 341-8808 

Fax: (540) 341-8809 

Counsel for Hispanic Leadership Fund

CONCLUSION

For the foregoing reasons, and the reasons articulated in HLF’s opening brief, 

this Court should reverse the district court’s judgment. HLF adopts CFIF’s opening 

and reply briefs under Fed. R. App. P. 28(i).

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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following: 

This brief complies with the type-volume limitations set forth in this Court’s 

February 26, 2015 order because it contains 4,923 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

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 it has 

been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 

Times New Roman 14-point font. 

/s/ Jason Torchinsky 

Jason Torchinsky 

USCA Case #15-5017 Document #1554131 Filed: 05/26/2015 Page 32 of 33
26

CERTIFICATE OF SERVICE

I hereby certify that on May 26, 2015, I electronically filed the foregoing 

document with the Clerk of Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system, thereby 

serving all persons required to be served. 

Dated: May 26, 2015 Respectfully submitted,

/s/ Jason Torchinsky

Jason Torchinsky (D.C. Bar No. 976033) 

jtorchinsky@hvjlaw.com

HOLTZMAN VOGEL JOSEFIAK PLLC 

45 North Hill Drive 

Suite 100 

Warrenton, VA 20186 

Tel: (540) 341-8808 

Fax: (540) 341-8809 

Counsel for Hispanic Leadership Fund

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