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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CHRIS VAN HOLLEN,

 Plaintiff, 

v.

FEDERAL ELECTION COMMISSION,

 Defendant,

and

HISPANIC LEADERSHIP FUND,

 Defendant,

and

CENTER FOR INDIVIDUAL 

FREEDOM,

 Defendant.

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Civ. No. 1:11-0766 (ABJ)

DEFENDANT HISPANIC LEADERSHIP FUND’S

SUPPLEMENTAL BRIEFING ON REMANDED ISSUES

The Court should uphold 11 C.F.R. § 104.20(c)(9) as a reasonable agency interpretation

of an ambiguous statute. We urge the Court to reject Plaintiff Van Hollen’s reliance on recent 

statements issued by individual Commissioners of the Federal Election Commission (“FEC”) 

that purport to explain the FEC’s intentions in 2007. These statements are more accurately 

described as the individual views of Commissioners who are dissatisfied with the current 

operation of the existing regulation, despite having voted for its approval in 2007. See Pl’s 

Supplemental Briefing on Remanded Issues (“Pl.’s Supp. Br.”) at 5-6 (Doc. No. 87); see also

Chapman v. U.S., 500 U.S. 453, 464 n.4 (1991) (referring to subsequent legislative history as “an 

unreliable guide to legislative intent”).

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I. Plaintiff Generally Disregards The Fact That This Matter Must Be Resolved Under 

Step Two of Chevron

This Court’s task is to consider 11 C.F.R. § 104.20(c)(9) under Step Two of Chevron 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) [hereinafter 

Chevron]. To the extent that Plaintiff attempts to re-litigate the Chevron Step One inquiry, 

largely by asserting (or reasserting) a variety of alleged Congressional intents and purposes that 

the D.C. Circuit held are not present in, and did not lead to, the statutory language at issue, those 

attempts must necessarily fail. See, e.g., Pl.’s Supp. Br. at 5 (presenting arguments parsing the 

language of 2 U.S.C. § 434(f)).

A. The Appropriate Standard Under Chevron Step Two Is Highly Deferential

The Supreme Court explained the court’s role in reviewing an agency interpretation of a 

silent or ambiguous statute as follows:

If, however, the court determines Congress has not directly addressed the precise 

question at issue, the court does not simply impose its own construction on the 

statute, as would be necessary in the absence of an administrative interpretation. 

Rather, if the statute is silent or ambiguous with respect to the specific issue, the 

question for the court is whether the agency's answer is based on a permissible 

construction of the statute.

Chevron, 467 U.S. at 843 (footnotes omitted). The Court held that it “need not conclude that the 

agency construction was the only one it permissibly could have adopted to uphold the 

construction, or even the reading the court would have reached if the question initially had arisen 

in a judicial proceeding.” Id. at 843 n.11. The D.C. Circuit Court of Appeals subsequently 

explained, “[a]s a practical matter, resolution of an ambiguity in a statute, if it has consequences, 

inevitably requires the agency to consider competing policy objectives; it is the reconciliation of 

such conflicts that is entitled to judicial deference under Chevron.” Wagner Seed Co. v. Bush, 

946 F.2d 918, 923 (D.C. Cir. 1991).

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Under the applicable “arbitrary and capricious” standard that guides this Court’s review 

of the challenged regulation, “[t]he agency action will be upheld if [it] ‘has considered the

relevant factors and articulated a ‘rational connection between the facts found and the choice

made.’’ The review is ‘[h]ighly deferential’ and ‘presumes the validity of agency action.’” Nat'l 

Ass'n of Mfrs. v. NLRB, 846 F. Supp. 2d 34, 49 (D.D.C. 2012) (quoting Nat'l Ass'n of Clean Air 

Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007) (internal citations omitted). Thus, even 

if the court deems the FEC’s 2007 regulation to be a statutory interpretation with which the court 

may disagree as a matter of policy, the court must uphold the regulation so long as it is a 

permissible or reasonable interpretation of an ambiguous statute. 

Plaintiff Van Hollen’s ability to satisfy this weighty standard of review at Step 

Two of Chevron is especially unlikely in light of the Court of Appeals’ conclusion that 

“it is doubtful that, in enacting 2 U.S.C. § 434(f), Congress even anticipated the 

circumstances that the FEC faced when it promulgated 11 C.F.R. § 104.20(c)(9).” Ctr. 

for Individual Freedom “CFIF” v. Van Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012). It 

would be quite extraordinary to find that the FEC acted unreasonably and in an arbitrary 

and capricious manner when filling a “gap” that Congress never anticipated. Indeed, this 

court itself was dubious about the possibility that Van Hollen could satisfy the heightened 

standard of review at Step Two of Chevron. See Tr. of Oral Arg. at 73:8-9 (“[T]he 

Chevron I decision is close to being the outcome determinative decision, or it may very 

well be the outcome determinative decision.”).

 

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B. The Court of Appeals Foreclosed Plaintiff’s Attempt to Re-litigate the 

“Purpose Clause” Through Speculation and Inference.

The Court of Appeals determined that Congress did not have an intention on the precise 

question at issue: 

It is doubtful that, in enacting 2 U.S.C. § 434(f), Congress even anticipated the 

circumstances that the FEC faced when it promulgated 11 C.F.R. § 104.20(c)(9). 

It was due to the complicated situation that confronted the agency in 2007 and the 

absence of plain meaning in the statute that the FEC acted pursuant to its 

delegated authority under 2 U.S.C. § 437d(a)(8) to fill “a gap” in the statute. 

CFIF, 694 F.3d at 111, citing Chevron, 467 U.S. at 843 n.9.

Plaintiff Van Hollen nevertheless presents various arguments speculating as to what 

Congress’ intent may have been, Pl.’s Supp. Br. at [4-5], and even asks this Court to “infer[] that 

Congress concluded that a disclosure requirement triggered by an inquiry into subjective intent 

would be prone to evasion.” Id. at 4 (emphasis added). Speculation and inferences about what 

Congress may have intended, coupled with references to statements issued by individual 

Commissioners years after the adoption of the regulation at issue, cannot overcome the high 

hurdle established by Step Two of Chevron, in light of the Court of Appeals’ holding. 

Plaintiff does not demonstrate that five Presidentially-nominated Commissioners acted 

arbitrarily and capriciously when they engaged in an APA rulemaking that resulted in the 

approval of a regulation following notice, written comment, public hearings, and subsequent 

public consideration of a final rule.

II. The Reasonableness of the FEC’s Regulation Is Determined By the 2007 

Rulemaking Alone, and Not By Statements of Commissioners Issued Many Years 

Later

Plaintiff attempts to distract this court’s focus from the 2007 rulemaking record by 

referencing statements issued by individual Commissioners in 2013. Pl’s Supp. Br. at 5-6. Van 

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Hollen cites these individual statements as evidence that the regulation at issue “has been 

erroneously interpreted” by the FEC since its adoption, and that this “result is not what the 

Commission intended when it promulgated the rule.” Id. The cited statements, however, were 

issued by Commissioners who voted to approve the regulation at issue in 20071, but who have 

more recently made no secret of their desire to revise that regulation2

. These Commissioners’ 

votes also prevented the FEC from defending its regulation before the Court of Appeals. See 

CFIF, 694 F.3d at 111 (faulting the FEC for its “failure to participate in this appeal.”).

With all due respect to these Commissioners, these statements – at least as presented by 

the Plaintiff – are analogous to the sort of post-enactment legislative history that the Supreme 

Court has consistently treated as unpersuasive. See Chapman, 500 U.S. at 464 n.4 (referring to 

subsequent legislative history as “an unreliable guide to legislative intent”); Sullivan v. 

Finkelstein, 496 U.S. 617, 631 (1990) (Scalia, J., concurring) (“’Subsequent legislative history’ –

which presumably means the post-enactment history of a statute’s consideration and enactment –

is a contradiction in terms. The phrase is used to smuggle into judicial consideration legislators’ 

expressions not of what a bill currently under consideration means . . . but of what a law 

previously enacted means.”); Western Air Lines v. Bd. of Equalization, 480 U.S. 123, 130 

(“Appellants’ attempt at the creation of legislative history through the post hoc statements of 

interested onlookers is entitled to no weight, however.”).

The court’s review of 11 C.F.R. § 104.20(c)(9) looks not to two Commissioners’ current 

misgivings, but to the Commission’s 2007 rulemaking that reasonably interpreted the underlying 

 1 See Minutes Of An Open Meeting Of The Federal Election Commission, Dec. 14, 2007, 

http://sers.nictusa.com/fosers/showpdf.htm?docid=4981. 2 See Minutes Of An Open Meeting Of The Federal Election Commission, Jan. 20, 2011, 

http://www.fec.gov/agenda/2011/approved2011_06.pdf (recording the Commission’s three-tothree vote deadlock on the Notice of Proposed Rulemaking on Independent Expenditures and 

Electioneering Communications by Corporations and Labor Organizations).

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statute. The fact that the regulation may operate in a manner in which certain Commissioners 

now object, in light of more recent judicial decisions that yielded a changed legal regime and a 

very different political dynamic regarding the issue of disclosure, does not change the meaning

(or lack of meaning) of the statutory language at issue or the reasonableness of the regulation 

adopted in 2007. 

The question before this Court is not how much disclosure the challenged regulation 

yields, whether this amount is the right amount, or even how much disclosure the regulation 

should yield. Moreover, the appropriate question is not whether the regulation being challenged

is the best possible regulation, or whether it operates to the satisfaction of certain 

Commissioners. Rather, the Court is tasked with reviewing the FEC’s judgments as reflected in 

the 2007 rulemaking. The FEC’s judgments and policy decisions need only be plausible and 

consistent with the evidence before the Commission in 2007, or a reasonable interpretation of 

statutory language that the Court of Appeals held was, as a matter of law, “anything but clear.” 

CFIF, 694 F.3d at 110. The court’s deference to the FEC’s reasonable policy judgment is 

particularly critical here given that “it is doubtful that, in enacting 2 U.S.C. § 434(f)(1), Congress 

even anticipated the circumstances” faced by the FEC in 2007, in addition to the fact that the 

statute itself suffers from “the absence of plain meaning.” Id. at 111.

Plaintiff Van Hollen’s reliance on one Commissioner’s recent assertion that the 

regulation at issue has been “widely misconstrued” is also unfounded. The FEC’s understanding 

and application of 11 C.F.R. § 104.20(c)(9) has remained consistent since 2007. During the 

Citizens United litigation, for instance, the FEC advised the Supreme Court that “[t]he 

challenged disclosure provisions require the sponsor of an electioneering communication to 

identify itself to the Commission, disclose the amount spent on the advertisement and any large 

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contributions earmarked to underwrite it . . . .”). Brief for the Appellee at 39, February 2009, 

Citizen’s United v. FEC, 558 U.S. 310 (2010) (No. 08-205). Thus, the regulation at issue has not 

been “widely misconstrued” – it has been construed consistently since its adoption. What has 

changed is the ability of certain types of organizations to actually make electioneering 

communications, and the desire of some Commissioners to rewrite the regulation in light of these 

changed circumstances. There is no evidence to support a claim that the FEC has acted 

inconsistently, and therefore arbitrarily and capriciously, with respect to its interpretation or 

application of the regulation at issue.

III. Conclusion

The challenged regulation is the product of the deliberative rulemaking process, 

conducted in accordance with all provisions and requirements of the APA, and approved by a 

majority of the FEC in 2007. This court should grant the Commission the deference it is due

under Chevron where an agency acts pursuant to authority delegated by Congress to adapt or 

revise regulations in response “to the demands of changing circumstances.” Rust v. Sullivan, 500 

U.S. 173, 187 (1991); see CFIF, 694 F.3d at 111 (quoting Chevron, 467 U.S. at 843-44) (“It was 

due to the complicated situation that confronted the agency in 2007 and the absence of plain 

meaning in the statute that the FEC acted pursuant to its delegated authority under 2 U.S.C. § 

437d(a)(8) to fill “a gap” in the statute.”)

The Commission’s 2007 rulemaking reflects a policy determination of the FEC and is a 

reasonable interpretation of an ambiguous statute. If the Commission or Congress deem

11 C.F.R. § 104.20(c)(9) to be ineffectual in its present application, the appropriate solution is 

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Congressional or regulatory action, rather than judicial intervention declaring a federal agency’s 

policy decision to be unreasonable or arbitrary and capricious.

Dated: May 13, 2013 Respectfully Submitted,

 /s/ Jason Torchinsky

 

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

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

Christopher Winkelman

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

Case 1:11-cv-00766-ABJ Document 94 Filed 05/13/13 Page 8 of 9
CERTIFICATE OF SERVICE

I hereby certify that on May 13, 2013, I electronically filed the foregoing Hispanic 

Leadership Fund’s Supplemental Briefing on Remanded Issues, with the Clerk of the Court

using the CM/ECF system. 

The following were served via electronic mail:

Counsel for the Plaintiff:

Roger Michael Witten - roger.witten@wilmerhale.com 

Fiona J. Kaye - fiona.kaye@wilmerhale.com 

Counsel for Defendant Federal Election Commission:

Harry Jacobs Summers - hsummers@fec.gov 

Holly Jean Baker - hbaker@fec.gov 

Kevin Deeley - kdeeley@fec.gov 

Seth E. Nesin – snesin@fec.gov

Counsel for Defendant Center for Individual Freedom:

Thomas W. Kirby - tkirby@wileyrein.com 

/s/ Jason Torchinsky

 Jason Torchinsky

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