UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CHRIS VAN HOLLEN, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

Civil Action No. 1:11-cv-00766 (ABJ) 

REPLY TO INTERVENORS’ OPPOSITION TO 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

AND 

OPPOSITION TO INTERVENOR CENTER FOR INDIVIDUAL FREEDOM’S 

CROSS-MOTION FOR SUMMARY JUDGMENT 

AND 

OPPOSITION TO INTERVENOR HISPANIC LEGAL FUND’S 

CROSS-MOTION TO DISMISS

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TABLE OF CONTENTS 

ARGUMENT...................................................................................................................................1 

I. INTERVENOR HLF’S STANDING ARGUMENT LACKS MERIT..................................................1 

A. Plaintiff Has Informational Standing.......................................................................1 

B. Plaintiff Also Has Competitor Standing ..................................................................4 

II. THE INTERVENORS’ ARGUMENT THAT THE FIRST AMENDMENT REQUIRED THE 

FEC TO PROMULGATE A REGULATION THAT VITIATES BCRA’S DISCLOSURE 

MANDATE LACKS MERIT......................................................................................................5 

A. The Constitutionality Of BCRA’s Reporting Provisions Is Not In Doubt ..............5 

B. The Intervenors May Not In Any Event Defend The Challenged 

Regulation On Grounds Not Invoked By The FEC.................................................7 

C. The FEC May Not In Any Event Promulgate A Regulation That Is 

Inconsistent With BCRA In Order To Cure Supposed Constitutional 

Concerns ..................................................................................................................9 

III. INTERVENORS’ CHEVRON ARGUMENTS LACK MERIT..........................................................10 

A. The Term “Contribute” Does Not Include A Purpose Element.............................10 

B. Congress Understood And Intended That BCRA’s Reporting Provisions 

Would Apply To Corporations That Make Electioneering 

Communications ....................................................................................................11 

CONCLUSION..............................................................................................................................12 

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TABLE OF AUTHORITIES 

CASES 

American Library Association v. FCC, 

406 F.3d 689 (D.C. Cir. 2005)...................................................................................................9 

Arizona Christian School Tuition Organization v. Winn, 

131 S. Ct. 1436 (2011)...............................................................................................................3 

Association of Civilian Technicians v. Federal Labor Relations Authority, 

269 F.3d 1112 (D.C. Cir. 2001).................................................................................................7 

Buckley v. Valeo, 

424 U.S. 1 (1976).......................................................................................................................5 

Center for Individual Freedom, Inc. v. Tennant, 

No. 1:08-cv-00190, 2011 WL 2912735 (S.D.W.Va. July 18, 2011).........................................6 

Citizens for Responsibility & Ethics in Washington v. FEC, 

-- F. Supp. 2d --, No. 10–1350, 2011 WL 3268079 (D.D.C. Aug. 1, 2011)..............................2 

*Citizens United v. FEC, 

130 S. Ct. 876 (2010)...................................................................................................4, 5, 6, 11 

*Common Cause v. FEC, 

906 F.2d 705 (D.C. Cir. 1990)...................................................................................................7 

*FEC v. Akins, 

524 U.S. 11 (1998).............................................................................................................2, 3, 5 

FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986).................................................................................................................11 

Kean for Congress Committee v. FEC, 

398 F. Supp. 2d 26 (D.D.C. 2005).............................................................................................3 

*McConnell v. FEC, 

540 U.S. 93 (2003)..................................................................................................... 4, 6, 11-12 

Public Citizen v. United States Department of Justice, 

491 U.S. 440 (1989)...................................................................................................................3 

*SEC v. Chenery Corp., 

332 U.S. 194 (1947)...................................................................................................................7 

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*Shays v. FEC (“Shays I”), 

414 F.3d 76 (D.C. Cir. 2005).............................................................................................4, 5, 9 

*Shays v. FEC (“Shays III”), 

528 F.3d 914 (D.C. Cir. 2008).......................................................................................1, 2, 3, 5 

Syracuse Peace Council v. FCC, 

867 F.2d 654 (D.C. Cir. 1989)...............................................................................................8, 9 

Weinberger v. Salfi, 

422 U.S. 749 (1975)...................................................................................................................9 

STATUTES, CODES & REGULATIONS

*2 U.S.C. § 431(8)(A)....................................................................................................................10 

*2 U.S.C. § 434(f)..................................................................................................................5, 6, 11 

*2 U.S.C. § 434(f)(2) .......................................................................................................................5 

*2 U.S.C. § 434(f)(2)(F) ............................................................................................................8, 10 

2 U.S.C. § 437d................................................................................................................................9 

2 U.S.C. § 437g(a)(8).......................................................................................................................2 

11 C.F.R. § 104.20(c)(9)..................................................................................................................8 

*Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002).........5, 8, 9 

*Federal Election Campaign Act of 1971, 92-225, 86 Stat. 3 (1972) ...........................................10 

*Final Rule, 72 Fed. Reg. 72899 (Dec. 26, 2007) ...................................................................7, 8, 9 

*Notice of Proposed Rule-Making, 72 Fed. Reg. 50261 (Aug. 31, 2007) ..................................7, 9 

OTHER AUTHORITIES 

147 Cong. Rec. S2845 (Mar. 26, 2001) .........................................................................................12

Merriam-Webster’s Collegiate Dictionary (10th ed. 2001)..................................................... 10-11 

Webster’s Third New Int’l Dictionary (2002) ...............................................................................10 

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Plaintiff Chris Van Hollen respectfully submits this reply and opposition to submissions 

filed by the Hispanic Legal Fund (“HLF”) and the Center for Individual Freedom (“CFIF”) 

(collectively, “Intervenors”). 

ARGUMENT 

I. INTERVENOR HLF’S STANDING ARGUMENT LACKS MERIT

HLF’s submission, styled as a motion to dismiss, asserts that Plaintiff lacks standing [dkt. 

no. 30]. HLF’s arguments are foreclosed by applicable precedent. 

A. Plaintiff Has Informational Standing 

The challenged regulation injures Plaintiff because it deprives him of information to 

which he is entitled under BCRA as a voter, leader and member of a political party, and 

candidate—the names of “all contributors” whose money corporations and labor organizations 

use to fund “electioneering communications” made both in his own district and nationwide. See

Complaint ¶ 11; Declaration of Representative Chris Van Hollen in Support of Motion for 

Summary Judgment [dkt. no. 20-1] (“Van Hollen Decl.”) ¶¶ 3-5; Plaintiff’s Motion for Summary 

Judgment [dkt. no. 20] (“Pl’s Br.”), at 16-17. His injury is traceable to the FEC because the FEC 

promulgated the challenged rule misinterpreting BCRA, and Plaintiff’s injury would be 

redressed, if this Court invalidates that rule. 

In these circumstances, D.C. Circuit precedent makes clear that Plaintiff has 

informational standing. See Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008) (“Shays III”) 

(holding that Member of Congress had informational standing to challenge certain FEC 

regulations under the Administrative Procedure Act). In Shays III, the plaintiff there—a Member 

of Congress like Plaintiff here—alleged that the FEC’s definition of “coordinated 

communications” permitted presidential candidates to avoid BCRA’s reporting obligations, 

illegally denying him information “about who is funding presidential candidates’ campaigns.” 

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Id. Based on this allegation, the D.C. Circuit held that plaintiff “Shays plainly [had] standing[.]” 

Id. (citing FEC v. Akins, 524 U.S. 11 (1998) (holding that plaintiffs had standing to challenge the 

FEC’s determination that an entity was not a “political committee” and therefore not required to 

make disclosures that the Federal Election Campaign Act would otherwise require)). 

Here, as in Shays III, information about who is funding “electioneering communications” 

about presidential and other candidates for federal office would help Plaintiff and others to 

whom he would communicate such information “to evaluate candidates for public office” and 

“to evaluate the role that outside groups’ financial assistance might play in a specific election.” 

Shays III, 528 F.3d at 923 (internal quotation marks and brackets omitted). Thus, as in Shays III, 

Plaintiff “plainly” has standing. See id. 

HLF contends that the Supreme Court’s decision in Akins, which the Shays III court 

cited, should be limited to challenges brought pursuant to 2 U.S.C. § 437g(a)(8) (providing that a 

party “aggrieved” by specified FEC order may seek judicial review). See HLF Br. 2-3. Akins

neither says nor implies any such thing. Moreover, Shays III forecloses this argument. Plaintiff 

in Shays III—like Plaintiff Van Hollen—brought a civil action under the Administrative 

Procedure Act (“APA”), not a petition for review under 2 U.S.C. § 437g(a)(8). The D.C. Circuit 

held that Akins’s holding was applicable to the APA action: “We see no difference between 

[Plaintiff’s] injury and the injury deemed sufficient to create standing in Akins.” Shays III, 528 

F.3d at 923. HLF’s reliance on Citizens for Responsibility & Ethics in Washington v. FEC, -- F. 

Supp. 2d --, No. 10–1350, 2011 WL 3268079 (D.D.C. Aug. 1, 2011), is misplaced: that decision 

adjudicated a challenge pursuant to 2 U.S.C. § 437g(a)(8), and said nothing about whether Akins

should be limited to such challenges. 

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HLF’s reliance on a taxpayer standing case, Arizona Christian School Tuition Org. v. 

Winn, 131 S. Ct. 1436 (2011)), see HLF Br. 4, is also misplaced. The Supreme Court in Akins

specifically distinguished “taxpayer standing” cases from informational standing cases. See 

Akins, 524 U.S. at 21-23. As the Supreme Court held, even though the FEC’s regulation causes 

others voters, party members, and candidates to suffer the same injury, this fact does not 

diminish the concrete injury to Plaintiff Van Hollen because “the informational injury at issue 

here, directly related to voting, the most basic of political rights, is sufficiently concrete and 

specific such that the fact that it is widely shared does not deprive Congress of constitutional 

power to authorize its vindication in the federal courts.” Id. at 24-25; see also Public Citizen v. 

United States Dep’t of Justice, 491 U.S. 440, 449-50 (1989) (holding that the “fact that other 

citizens or groups of citizens might make the same complaint after unsuccessfully demanding 

disclosure under [the Federal Advisory Committee Act] does not lessen appellants’ asserted 

injury[.]”). 

Finally, HLF argues “Plaintiff’s alleged injury is not concrete” because he does not make 

“electioneering communications” and has not yet been identified in a reported “electioneering 

communication.” See HLF Br. 5. This argument confuses informational standing with 

competitor standing (discussed infra). A voter or candidate need not make “electioneering 

communications” or be the subject of “electioneering communications” to claim informational 

standing. See Akins, 524 U.S. at 21 (“[A] plaintiff suffers an ‘injury in fact’ when the plaintiff 

fails to obtain information which must be publicly disclosed pursuant to a statute.”); Shays III, 

528 F.3d at 923 (same); Kean for Congress Comm. v. FEC, 398 F. Supp. 2d 26, 36 (D.D.C. 

2005) (“The Court in Akins did not require the plaintiffs to establish a statutory right to 

information and then further establish an additional concrete and immediate harm.”). 

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B. Plaintiff Also Has Competitor Standing 

The challenged regulation also injures Plaintiff because it infringes his protected interest 

in participating in elections untainted by activities that disregard BCRA’s statutory disclosure 

requirements. Because the challenged regulation permits and encourages corporations and 

unions not to disclose “all contributors” who fund “electioneering communications,” Plaintiff 

cannot—as a voter, party leader, and candidate—draw the voters’ attention to the identity of 

those who may attack him or others. See Complaint ¶ 11; Van Hollen Decl. ¶ 4; Pl’s Br. 17; 

Citizens United v. FEC, 130 S. Ct. 876, 914 (2010) (recognizing that voters are in a better 

position to assess electioneering communications when the speaker does not “‘hid[e] behind 

dubious and misleading names.’” (quoting McConnell v. FEC, 540 U.S. 93, 197 (2003)). This 

injury, too, is traceable to the FEC’s regulation and would be redressed by invalidation of the 

regulation. 

In these circumstances, Plaintiff has competitor standing under Shays v. FEC, 414 F.3d 

76 (D.C. Cir. 2005) (“Shays I”). In that case, the D.C. Circuit held that federal candidates “suffer 

injury to a statutorily protected interest if under FEC rules they must compete for office in 

contests tainted by BCRA-banned practices.” Id. at 85; see id. at 83-96. The Court held that a 

candidate for federal election need not show that he has already been injured by the BCRAbanned practice or that “specific rivals have exploited each challenged rule.” Id. at 90. 

Candidates “may challenge FEC subversion of BCRA’s guarantees without establishing with any 

certainty ... that the challenged rules will disadvantage their reelection campaigns.” Id. at 91 

(internal quotation marks, citation, and brackets omitted). They may satisfy the constitutional 

requirements for standing by showing that they may be affected by a banned practice because, in 

the context of election law, “regulated parties will seize opportunities created by the challenged 

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rules.” Id. at 90. Plaintiff has made that showing. Compare id. at 84 (quoting declarations of 

Reps. Shays and Meehan), with Van Hollen Decl. ¶ 4. 

HLF argues that Shays I is not controlling here because the challenged regulation does 

not violate BCRA. See HLF Br. 6 (“[I]t cannot be claimed that the [challenged regulation] 

causes elections to be ‘tainted’ by a ‘BCRA-banned practice.’”); see also id. at 7-8 (same). That 

quite circular argument conflates standing with the merits and cannot be squared with the 

reasoning or the outcomes in Akins, Shays I, or Shays III. HLF also seeks to distinguish Shays I

on the ground that certain BCRA-banned practices have since been afforded constitutional 

protection. See HLF Br. 7-8. But Plaintiff does not here contend that he has a statutory right to 

compete in elections untainted by corporate expenditures of the type sanctioned in Citizens 

United, and even if he did, HLF would still confuse jurisdiction with the merits. 

II. THE INTERVENORS’ ARGUMENT THAT THE FIRST AMENDMENT REQUIRED THE FEC

TO PROMULGATE A REGULATION THAT VITIATES BCRA’S DISCLOSURE MANDATE 

LACKS MERIT 

A. The Constitutionality Of BCRA’s Reporting Provisions Is Not In Doubt 

The Supreme Court’s decision in Citizens United provides the full answer to the 

constitutional questions that Intervenors raise. See Citizens United, 130 S. Ct. at 914-16 

(upholding 2 U.S.C. § 434(f) against constitutional challenge by a vote of 8-1). In that case, the 

Court considered and rejected an as-applied challenge by a corporation to 2 U.S.C. § 434(f), the 

statute at issue here. In describing this provision of BCRA, the Court specifically referred to 

§ 434(f)(2) as requiring disclosure of contributors to corporations that make “electioneering 

communications.” 130 S. Ct. at 914. The Court commented that, since Buckley v. Valeo, 424 

U.S. 1 (1976), it had sustained such disclosure provisions “based on the governmental interest in 

‘provid[ing] the electorate with information’ about the sources of election-related spending.” 

Citizens United, 130 S. Ct. at 914 (brackets in Citizens United). The Court further recounted that 

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in McConnell it had rejected facial challenges to § 434(f), based on evidence that “independent 

groups were running election-related advertisements ‘while hiding behind dubious and 

misleading names.’” Id. (quoting McConnell, 540 U.S. at 197). The Court noted that it had 

upheld § 434(f) in McConnell on the ground that it would help citizens “‘make informed choices 

in the political marketplace.’” Id. (quoting McConnell, 540 U.S. at 197). And the Court 

specifically rejected the general contention “that disclosure requirements can chill donations to 

an organization by exposing donors to retaliation.” Id. at 916. 

In concluding that petitioner Citizens United—a non-profit corporation—was obliged to 

disclose its contributors in accordance with BCRA, the Court made explicit that its approval of 

§ 434(f)’s disclosure requirements also applied to for-profit corporations. See Citizens United, 

130 S. Ct. at 916. The Court stressed the importance of BCRA’s disclosure requirements for 

corporations and their shareholders, a term relevant only with respect to for-profit corporations: 

[P]rompt disclosure of expenditures can provide shareholders and citizens with 

the information needed to hold corporations and elected officials accountable for 

their positions and supporters. Shareholders can determine whether their 

corporation’s political speech advances the corporation’s interest in making 

profits, and citizens can see whether elected officials are in the pocket of so-called 

moneyed interests. The First Amendment protects political speech; and 

disclosure permits citizens and shareholders to react to the speech of corporate 

entities in a proper way. This transparency enables the electorate to make 

informed decisions and give proper weight to different speakers and messages. 

Id. (internal quotation marks and citations omitted, emphasis added). 

In light of Citizens United, Intervenors’ citation to a poorly reasoned decision by a 

district court in West Virginia, Center for Individual Freedom, Inc. v. Tennant, No. 1:08-cv00190, 2011 WL 2912735 (S.D.W.Va. July 18, 2011) (notice of appeal filed Sept. 1, 2011), see

HLF Br. 11-13; CFIF Br. 17-18, is unavailing. The decision is contrary to Citizens United, and 

the district court made no attempt to square its ruling with Citizens United. 

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B. The Intervenors May Not In Any Event Defend The Challenged Regulation 

On Grounds Not Invoked By The FEC 

A “fundamental rule of administrative law” is that “a reviewing court, in dealing with a 

determination or judgment which an administrative agency alone is authorized to make, must 

judge the propriety of such action solely by the grounds invoked by the agency.” SEC v. 

Chenery Corp., 332 U.S. 194, 196 (1947); see Common Cause v. FEC, 906 F.2d 705, 707 (D.C. 

Cir. 1990) (reversing on Chenery grounds because the district court “drew inferences for which 

there [was] inadequate support in the reasoning of the [Commission’s decision]” and “suppl[ied] 

reasons that the agency never adopted as its own.”). Even if Intervenors’ constitutional 

arguments had any merit, this Court could not sustain the challenged regulation based on 

constitutional concerns that the FEC did not itself invoke as a decisional ground. 

Intervenors have asserted, incorrectly, that the FEC relied on the First Amendment in 

promulgating the challenged regulation. See HLF Intervention Reply [dkt. no. 23], at 2 n.1; 

CFIF Intervention Reply [dkt. no. 22], at 4-5. They argued that the FEC sought and received 

comments about “‘First Amendment ... concerns’” and considered those comments. CFIF 

Intervention Reply 4 (quoting Notice of Proposed Rule-Making, 72 Fed. Reg. 50261, 50262 

(Aug. 31, 2007), ellipsis in CFIF Br.). And CFIF concluded that “the FEC settled on ‘reporting 

requirements’ that it believed were ‘narrowly tailored’ in a ‘constitutional way’ to ‘not create 

unreasonable burdens on the privacy rights of donors.’” Id. (quoting Final Rule, 72 Fed. Reg. 

72899, 72901(Dec. 26, 2007)). 

In determining whether an agency relied on a particular decisional ground, a court must 

examine what the agency actually said in explaining and justifying the regulation in question. 

See, e.g., Association of Civilian Technicians v. Federal Labor Relations Auth., 269 F.3d 1112, 

1117 (D.C. Cir. 2001) (“Agency decisions must generally be affirmed on the grounds stated in 

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them.”). Here, the Intervenors cannot and do not point to any passage in the FEC’s Explanation 

and Justification (“E & J”) where the FEC, in explaining and justifying its decision, actually 

invoked the First Amendment as a ground for its interpretation of BCRA § 201, 2 U.S.C. 

§ 434(f)(2)(F). The absence of any such text is particularly striking because it would have been 

easy enough for the FEC to invoke the First Amendment. See, e.g., Syracuse Peace Council v. 

FCC, 867 F.2d 654, 658 (D.C. Cir. 1989) (noting that agency had reasoned that “‘the fairness 

doctrine contravenes the First Amendment and thereby disserves the public interest’” (quoting 

agency rationale in record, emphasis in Syracuse Peace Council)); id. at 673 (Starr, J., 

concurring) (“[T]he issue comes to us in an administrative law setting with the agency expressly 

relying upon constitutional considerations and rendering a constitutional judgment.”). 

Far from invoking First Amendment considerations applicable to “contributors” as the 

Intervenors suggest, the FEC’s stated rationale for promulgating the challenged regulation was 

the purported cost and effort—to the recipient, not to the contributor—associated with 

identifying persons who contributed more than $1,000 to a corporation or labor organization. 

See 72 Fed. Reg. 72910-11. It could not be clearer that the FEC was not invoking as a decisional 

ground the asserted First Amendment right of contributors to fund “electioneering 

communications” anonymously. See id.

The Intervenors’ references to fragments of the administrative record do not establish that 

the FEC relied on the First Amendment as a ground for promulgating 11 C.F.R. § 104.20(c)(9). 

That an agency may have sought, received, and considered comments on a topic does not equate 

with a conclusion that the topic became a decisional ground on which an agency relied. This is 

particularly the case where, as here, the FEC noted that the “commenters were divided,” 72 Fed. 

Reg. 72900, recounted the conflict among them, and ultimately decided to enact a “revised” 

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regulation whose text had not been the subject of comment, see id. at 72900-01 (E & J); Notice 

of Proposed Rule-Making, 72 Fed. Reg. 50261, 50273 (Aug. 31, 2007) (proposed text of 

amendments to 11 C.F.R. § 104.20 under Alternative 1). 

C. The FEC May Not In Any Event Promulgate A Regulation That Is 

Inconsistent With BCRA In Order To Cure Supposed Constitutional 

Concerns 

The Intervenors maintain that the “FEC’s construction is necessary to save the statute 

from constitutional invalidity.” CFIF Br. 13 (subheading, title case modified); see also HLF Br. 

12. But the FEC has no authority to “save” statutes by promulgating regulations that vitiate 

them. See Weinberger v. Salfi, 422 U.S. 749, 794 (1975) (“Adjudication of the constitutionality 

of congressional enactments has generally been thought beyond the jurisdiction of administrative 

agencies.” (internal quotation marks and citation omitted)); Syracuse Peace Council, 867 F.2d at 

656 (noting “the principle that regulatory agencies cannot invalidate an act of Congress”). The 

Commission “has no constitutional or common law existence or authority, but only those 

authorities conferred upon it by Congress.” American Library Ass’n v. FCC, 406 F.3d 689, 698 

(D.C. Cir. 2005) (internal quotation marks and citation omitted). Congress assuredly did not 

delegate authority to the FEC to promulgate regulations contrary to BCRA. See BCRA, Pub. L. 

No. 107-155, § 402(c)(1), 116 Stat. 81, 113 (2002); Shays I, 414 F.3d at 101-02 

(“Notwithstanding its obligation to attempt to avoid unnecessarily infringing on First 

Amendment interests, ... the Commission must establish, consistent with APA standards, that its 

rule [carries out the statute].” (internal quotation marks and citation omitted)); see also 2 U.S.C. 

§ 437d (powers of commission). 

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III. INTERVENORS’ CHEVRON ARGUMENTS LACK MERIT

A. The Term “Contribute” Does Not Include A Purpose Element 

Making a Chevron Step One argument that the FEC rejected, CFIF argues that the terms 

“contributor” and “contributed” as used in BCRA § 201, 2 U.S.C. § 434(f)(2)(F), should have the 

same meaning as the term “contribution,” as defined in the Federal Election Campaign Act of 

1971, Pub. L. No. 92-225 (“FECA”) § 301, 2 U.S.C. § 431(8)(A). But as both Plaintiff and the 

FEC have explained, “contributor” as used in BCRA cannot logically mean one who makes a 

“contribution” as FECA defines the latter term because the FECA definition is inconsistent with 

the more specific BCRA provision. See Pl’s Br. 20-21; FEC Br. 20; see also Plaintiff’s Reply to 

the FEC [dkt. no. 35], at 9. CFIF does not address this argument. See CFIF Br. 7-8. 

CFIF also contends that Webster’s definition of “contribute” “turns on purpose” because 

it parenthetically indicates that a contributor may “‘give or grant in common with others (as to a 

common fund or for a common purpose)’” or “‘give (money or other aid) for a specified 

object,’” CFIF Br. 8 (quoting Webster’s Third New Int’l Dictionary 496 (2002) (emphasis 

modified)), e.g., “<$10 to the project>,” Webster’s at 496. But this definition does not, upon 

examination, “turn on purpose” because its reference to “purpose” is in the disjunctive and 

because the definition does not limit “contributors” to persons who have announced or otherwise 

made their purpose manifest. The statute makes clear that the term “contribute” means one who 

gives or grants in common with others to a common fund or account, 2 U.S.C. § 434(f)(2)(E) 

(“all contributors who contributed an aggregate amount of $1,000 or more to that account”), or 

common person, id. § 434(f)(2)(F) (“all contributors who contributed an aggregate amount of 

$1,000 or more to the person making the disbursement”). See also Merriam-Webster’s 

Collegiate Dictionary 252 (10th ed. 2001) (defining transitive verb “contribute” as “to give or 

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supply in common with others” and intransitive verb as “to give a part to a common fund or 

store”). 

CFIF also contends that Plaintiff has proposed a “purpose” test of his own by contending 

that the term “contributor” does not encompass investors, customers, lenders, and others who 

make payments in exchange for property or services. See CFIF Br. 9 (citing Pl’s Br. 30-31). 

CFIF misstates Plaintiff’s argument. Customers, for example, are not “contributors” within the 

meaning of 2 U.S.C. § 434(f) because they do not “give” or “grant” gratuitously to a fund or 

person. No inquiry into a customer’s “purpose” is necessary to determine that she is not a 

“contributor”; a person is a customer because the nature of the transaction in which she engages 

is not one of gift but of an exchange of money for property or services. Likewise, a person is a 

“contributor” if she does not receive fair market value in return for her donation, whether or not 

the contributor harbors any particular “specific intent” with respect the donation. See Pl’s Br. 20. 

B. Congress Understood And Intended That BCRA’s Reporting Provisions 

Would Apply To Corporations That Make Electioneering Communications 

HLF argues that the “Wellstone Amendment” can be read to bar all corporate 

“electioneering communications” and therefore Congress did not intend for 2 U.S.C. § 434(f) to 

apply to corporations. See HLF Br. 8-10. First, if that were the case, then the Supreme Court’s 

discussion in Citizens United of the applicability of § 434(f)’s contributor disclosure provisions 

to for-profit and non-profit corporations would have been utterly nonsensical. Second, as HLF 

acknowledges, the Supreme Court construed BCRA as permitting MCFL corporations1

 to make 

“electioneering communications.” See HLF Br. 9; McConnell, 540 U.S. at 211 (“Because our 

decision in the MCFL case was on the books for many years before BCRA was enacted, we 

 

1

 “MCFL corporations” are corporations that meet criteria set out in FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986). See Pl’s Br. 5, 24-25. 

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presume that the legislators who drafted [the Wellstone Amendment] were fully aware that the 

provision could not validly apply to MCFL-type entities.”). The statement of Senator Wellstone 

quoted in HLF’s brief shows that Senator Wellstone argued that his amendment would survive 

scrutiny under MCFL. See HLF Br. 9-10 (quoting 147 Cong. Rec. S2845, S2848 (Mar. 26, 

2001) (Statement of Sen. Wellstone)). But even if Senator Wellstone had hoped to bar all 

corporate “electioneering communications,” the hopes of a single Senator are not determinative. 

As the Supreme Court and the FEC both determined, Congress intended to permit such 

communications by MCFL corporations. 

CONCLUSION 

For the reasons stated, we respectfully urge the Court to grant Plaintiff’s motion for 

summary judgment and deny CFIF’s and HLF’s cross motions. 

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Dated this 15th day of September, 2011. 

Respectfully submitted, 

Fred Wertheimer (Bar No. 154211) 

DEMOCRACY 21 

2000 Massachusetts Ave, N.W. 

Washington, D.C. 20036 

(202) 355-9610 

/s/ Roger M. Witten

Roger M. Witten (Bar No. 163261) 

Brian A. Sutherland 

Fiona J. Kaye 

WILMER CUTLER PICKERING

 HALE AND DORR LLP

399 Park Avenue 

New York, NY 10022 

(212) 230-8800 

Donald J. Simon (Bar No. 256388) 

SONOSKY CHAMBERS SACHSE

 ENDRESON & PERRY, LLP

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Trevor Potter (Bar No. 413778) 

J. Gerald Hebert (Bar No. 447676) 

Paul S. Ryan (Bar No. 502514) 

Tara Malloy (Bar No. 988280) 

CAMPAIGN LEGAL CENTER

215 E Street N.E. 

Washington, D.C. 20002 

(202) 736-2200 

Attorneys for Plaintiff Chris Van Hollen 

Case 1:11-cv-00766-ABJ Document 38 Filed 09/15/11 Page 17 of 17