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 FOR APPELLANT 

CENTER FOR INDIVIDUAL FREEDOM 

Dated: May 26, 2015

Jan Witold Baran 

Thomas W. Kirby 

Caleb P. Burns 

Claire J. Evans 

Samuel B. Gedge 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

E-mail: tkirby@wileyrein.com 

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TABLE OF CONTENTS 

Page 

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

GLOSSARY OF ABBREVIATIONS ...................................................................... vi

STATUTORY AND REGULATORY PROVISIONS .......................................... vii

SUMMARY OF ARGUMENT ................................................................................. 1

ARGUMENT ............................................................................................................. 2

I. The FEC Permissibly Determined that Corporations and Unions Making 

“Electioneering Communications” Must Report Only Those Sources of 

Revenue Given to Fund Electioneering Communications. ............................. 2

A. The FEC’s rule is a reasonable interpretation of the Federal Election 

Campaign Act. ....................................................................................... 2

1. The rule is consistent with FECA’s text. .................................... 2

2. The rule fits with FECA’s structure and legislative history. ...... 3

3. The rule does not frustrate Congress’s purpose. ......................... 8

B. The FEC’s rule is the product of reasoned decision-making. ............. 14

II. The FEC’s Notice-and-Comment Process Was Sound. ................................ 21

III. This Court Should Reverse the District Court’s Remedial Order. ................ 21

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

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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ii 

TABLE OF AUTHORITIES 

Cases*

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) ............................................................................ 11 

Ass’n of Data Processing Service Organizations, Inc. v. Board of Governors of 

Federal Reserve System, 

745 F.2d 677 (D.C. Cir. 1984) ............................................................................ 15 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ........................................................................... 11 

California Medical Ass’n v. FEC, 

453 U.S. 182 (1981) .............................................................................................. 8 

Catawba County, North Carolina v. E.P.A., 

571 F.3d 20 (D.C. Cir. 2009) (per curiam) ....................................................... 4, 5 

Chamber of Commerce of United States v. SEC, 

412 F.3d 133 (D.C. Cir. 2005) ................................................................ 14, 17, 18 

Chemical Manufacturers Ass’n v. EPA, 

217 F.3d 861 (D.C. Cir. 2000) ............................................................................ 13 

Citizens United v. FEC, 

558 U.S. 310 (2010) ........................................................................................ 9, 10 

Crocker v. Piedmont Aviation, Inc., 

49 F.3d 735 (D.C. Cir. 1995) .............................................................................. 21 

CTS Corp. v. E.P.A., 

759 F.3d 52 (D.C. Cir. 2014) .............................................................................. 21 

Dickinson v. Zurko, 

527 U.S. 150 (1999) ............................................................................................ 16 

EchoStar Communications Corp. v. FCC, 

292 F.3d 749 (D.C. Cir. 2002) ............................................................................ 17 

 

*

 Authorities upon which we chiefly rely are marked with asterisks. 

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iii 

F.C.C. v. Fox Television Stations, Inc., 

556 U.S. 502 (2009) .............................................................................................. 7 

*FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ...................................................................... 3, 11, 12, 18, 19

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007) .......................................................................................... 8, 9 

Harborlite Corp. v. I.C.C., 

613 F.2d 1088 (D.C. Cir. 1979) .......................................................................... 16 

Holder v. Martinez Gutierrez, 

132 S. Ct. 2011 (2012) ........................................................................................ 11 

Independent U.S. Tanker Owners Commission v. Dole, 

809 F.2d 847 (D.C. Cir. 1987) ............................................................................ 15 

Karsner v. Lothian, 

532 F.3d 876 (D.C. Cir. 2008) ............................................................................ 22 

Mary V. Harris Found. v. F.C.C., 

776 F.3d 21 (D.C. Cir. 2015) .............................................................................. 21 

McConnell v. FEC, 

540 U.S. 93 (2003) ................................................................................................ 9 

National Ass’n of Regulatory Utility Commissioners v. F.C.C., 

737 F.2d 1095 (D.C. Cir. 1984) (per curiam) ............................................... 16, 17 

*National Cable & Telecommunications Ass’n v. Brand X Internet Services, 

545 U.S. 967 (2005) .................................................................................... 7, 8, 20 

National Shooting Sports Foundation, Inc. v. Jones, 

716 F.3d 200 (D.C. Cir. 2013) ............................................................ 4, 12, 19, 20 

National Wildlife Federation v. Lujan, 

928 F.2d 453 (D.C. Cir. 1991) ............................................................................ 21 

Petit v. United States Department of Education, 

675 F.3d 769 (D.C. Cir. 2012) ........................................................................ 5, 21 

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iv 

Primas v. District of Columbia, 

719 F.3d 693 (D.C. Cir. 2013) ............................................................................ 22 

*Public Citizen v. Carlin, 

184 F.3d 900 (D.C. Cir. 1999) .............................................................................. 5 

Republican National Committee v. FEC, 

76 F.3d 400 (D.C. Cir. 1996) ................................................................................ 9 

Sasol North America Inc. v. N.L.R.B., 

275 F.3d 1106 (D.C. Cir. 2002) .......................................................................... 17 

Stilwell v. Office of Thrift Supervision, 

569 F.3d 514 (D.C. Cir. 2009) ............................................................................ 16 

In re Surface Mining Regulation Litigation, 

627 F.2d 1346 (D.C. Cir. 1980) .......................................................................... 15 

Statutes 

5 U.S.C. § 553(c) ..................................................................................................... 14 

52 U.S.C. § 30104(f)(2)(F) ........................................................................................ 1 

Regulations 

67 Fed. Reg. 65,190 (Oct. 23, 2002) .......................................................................... 6 

Legislative Materials 

148 Cong. Rec. S2141 (daily ed. Mar. 20, 2002) ...................................................... 6 

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v 

Other Authorities 

Brief of Appellant, Citizens United v. FEC, 

558 U.S. 310 (2010) (No. 08-205) ...................................................................... 10 

Brief of Appellee, Citizens United v. FEC, 

558 U.S. 310 (2010) (No. 08-205) ...................................................................... 10 

Van Hollen Brief, CFIF v. Van Hollen, 

694 F.3d 108 (D.C. Cir. 2012) (No. 12-5117) .......................................... 2, 3, 4, 5 

Kenneth Doyle, D.C. Circuit Panel Set to Hear Arguments In Political Ad 

Disclosure Case on Sept. 14, Bloomberg BNA Money and Politics Report 

(June 6, 2012)................................................................................................ 12-13 

Matea Gold, Appeals Court Ruling Lets Donors Stay Secret, The SpokesmanReview (Sept. 19, 2012) ..................................................................................... 13 

NPR Annual Report 2014, 

http://www.npr.org/about/annualreports/FY14_annualreport.pdf ...................... 18 

 

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vi 

GLOSSARY OF ABBREVIATIONS 

APA 

BCRA 

Administrative Procedure Act 

Bipartisan Campaign Reform Act of 2002 

CFIF Center for Individual Freedom 

FEC Federal Election Commission 

FECA Federal Election Campaign Act of 1971, as amended 

JA Joint Appendix 

 

 

 

 

 

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vii 

 

 STATUTORY AND REGULATORY PROVISIONS 

 Pertinent statutes and regulations are reproduced in the addendum to our 

opening brief.

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SUMMARY OF ARGUMENT 

 Section 30104(f)(2)(F) of the Federal Election Campaign Act (FECA) 

provides that speakers who spend more than $10,000 on electioneering 

communications must report to the Federal Election Commission (FEC) “all 

contributors who contributed” $1,000 or more. 52 U.S.C. § 30104(f)(2)(F). This 

Court held in 2012 that Section 30104(f)(2)(F), facially and using traditional tools 

of statutory interpretation, permits a purpose-based disclosure standard. JA385. In 

other words, the Commission can reasonably instruct speakers to disclose only 

those sources of revenue actually intended to bankroll electioneering 

communications. 

 Recycling his Chevron-step-one arguments, plaintiff Van Hollen nonetheless 

asserts that 11 C.F.R. § 104.20(c)(9)—the FEC’s purpose-based interpretation—

breaks with statutory text and structure. Those theories were rejected on the first 

appeal, however, and they cannot be rehabilitated. Similarly, Van Hollen claims 

that the rule frustrates Congress’s purpose, but, like the district court, he wrongly 

elevates disclosure above all other legislative objectives. Even as envisioned by 

Van Hollen, moreover, congressional policy would not be better served by striking 

the Commission’s purpose-based standard; it is undisputed that no other 

interpretation will yield meaningfully greater disclosure. 

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 Van Hollen’s arbitrary-and-capricious theories are equally flawed, all 

premised on substituting his own view of the record for the agency’s. Because the 

Commission’s decision followed from reasoned decisionmaking, the Court should 

reverse the district-court judgment on this score also.

ARGUMENT 

I. The FEC Permissibly Determined that Corporations and Unions 

Making “Electioneering Communications” Must Report Only Those 

Sources of Revenue Given to Fund Electioneering Communications. 

A. The FEC’s rule is a reasonable interpretation of the Federal 

Election Campaign Act. 

1. The rule is consistent with FECA’s text. 

Using “traditional tools of statutory construction,” this Court held in 2012 

that “the words ‘contributors’ and ‘contributed’” in Section 30104(f)(2)(F) can “be 

construed to include a ‘purpose’ requirement.” JA385. Like the district court, Van 

Hollen tries to will away that decision. He again argues that the reference to “all

contributors” in Section 30104 permits “no limitation other than the threshold 

amount.” Br. 28; Van Hollen Br. at 37, CFIF v. Van Hollen, 694 F.3d 108 (D.C. 

Cir. 2012) (No 12-5117). Yet that cannot be squared with this Court’s controlling 

decision. 

Van Hollen now suggests that the problem with the Commission’s 

“‘purpose’ test” is that it is too “narrow” to be supported by FECA’s text. Br. 28. 

But that new argument is undeveloped and would subvert his entire theory of the 

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case. Van Hollen has unfailingly argued that Section 104.20(c)(9) should be 

vacated not because the purpose standard is wrong but because it exists at all. 

“[T]he language Congress enacted rules out a purpose requirement,” he claims. 

Van Hollen Br. at 36, Van Hollen, 694 F.3d 108 (title case altered). This Court 

was right to reject that argument at Chevron step one, and Van Hollen cannot 

resurrect it now. 

2. The rule fits with FECA’s structure and legislative history. 

FECA’s structure reinforces the reasonableness of the Commission’s 

interpretation. The Commission modeled Section 104.20(c)(9) on the related 

provisions that apply to express advocacy. This makes good sense. The Supreme 

Court has said the express-advocacy provisions satisfy “[t]he state interest in 

disclosure.” FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986) 

(MCFL). The Bipartisan Campaign Reform Act (BCRA) simply brought 

electioneering communications “‘within the scope of [those] longstanding source 

and disclosure rules.’” CFIF Br. 4 (citation omitted). 

a. Van Hollen’s primary response is that the express-advocacy provision 

(Section 30104(c)(2)(C)) references donor purpose while the sibling provision for 

electioneering communications does not. Because Congress “included no such 

[purpose] limitation” for electioneering communications, he says, it must have 

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“act[ed] intentionally and purposely” to forestall a purpose-based standard. Br. 30-

31 (citation omitted). 

This is just another repackaged Chevron-step-one theory. See Van Hollen 

Br. at 28-29, Van Hollen, 694 F.3d 108. And “[w]hatever its general force,” this

canon has little purchase “in an administrative setting ... .” Nat’l Shooting Sports 

Found., Inc. v. Jones, 716 F.3d 200, 211 (D.C. Cir. 2013) (citation omitted). 

“When interpreting statutes that govern agency action,” this Court has 

“consistently recognized that a congressional mandate in one section and silence in 

another often ‘suggests not a prohibition but simply a decision not to mandate any 

solution in the second context, i.e., to leave the question to agency discretion.’” 

Catawba Cnty., N.C. v. E.P.A., 571 F.3d 20, 36 (D.C. Cir. 2009) (per curiam) 

(citation omitted). “[T]hat Congress spoke in one place but remained silent” 

elsewhere “‘rarely if ever’” justifies invalidating an agency’s interpretation. Id. 

Tellingly, not one of the decisions Van Hollen cites involved Chevron-step-two

review. 

Section 30104 gives proof to the wisdom of these principles. While Van 

Hollen insists Section 30104(f)(2)(F) must have meant to prohibit a purpose-based 

standard, he does not explain why lawmakers would demand unprecedented 

disclosure for non-express political speech while preserving less intrusive 

requirements for explicit electoral advocacy. Van Hollen Br. 33-34. A more 

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reasonable construction is that Congress’s silence as to donor purpose “signal[ed] 

permission rather than proscription.” Catawba Cnty., N.C., 571 F.3d at 36. 

In fact, the Court has been down this road before, in Public Citizen v. Carlin, 

184 F.3d 900 (D.C. Cir. 1999). In that Chevron case, the Court found it “highly 

persuasive” that a “neighboring part” of the statute codified the interpretive 

approach at issue, id. at 906. Despite thin distinctions, Van Hollen admits the 

necessary import of Carlin’s analysis: that “language in one section of a statute” 

can reasonably “inform” an agency interpretation of “related language in another 

section of the statute.” Br. 31. 

b. BCRA’s sponsors agreed. Both before and after BCRA’s enactment, 

they made clear that the disclosure provisions for electioneering communications 

were “just the types of rules” that have long applied to express advocacy. CFIF Br. 

21-23 (collecting authority). Van Hollen writes off these representations as 

“selectively cite[d],” Br. 31 n.16, but the decade-long pattern of statements speaks 

for itself. 

Doubling down, Van Hollen contends that the legislative history actually 

“refute[s]” the FEC’s effort to fashion complementary rules for the two categories 

of speech. Br. 33. But legislative history does not “refute” agency interpretations 

at Chevron step two. See Petit v. U.S. Dep’t of Educ., 675 F.3d 769, 789 (D.C. Cir. 

2012). In any case, Van Hollen misportrays BCRA’s enactment history. Although 

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the disclosure provisions of federal campaign-finance law may have been “widely 

perceived to be ineffective” (Br. 33), it was not because the law required too little 

disclosure from speakers already within its compass (express-advocacy speakers). 

Rather, lawmakers wanted to expand the law to cover other types of speech, 

beyond just express advocacy. Van Hollen Br. 33; CFIF Br. 4. That is why, on the 

day BCRA passed the Senate, Senator McCain announced that the amendments 

would extend to electioneering communications “the same laws that have long 

governed” express advocacy. 148 Cong. Rec. S2141 (daily ed. Mar. 20, 2002). 

Read in full, the legislative history gives no indication that Congress intended to 

decouple Section 30104(f)(2)(F) from its express-advocacy counterpart. 

c. Likewise without merit is Van Hollen’s argument that Section 

104.20(c)(9) is statutorily impermissible because it differs from the FEC’s 2003 

rulemaking. Br. 32-33. That rulemaking addressed reporting by natural and 

unincorporated persons and qualified nonprofit corporations, at the time the only 

speakers who could make electioneering communications. CFIF Br. 6, 11 n.1. 

Because the FEC foresaw that those speakers might report their “entire donor 

base,” 67 Fed. Reg. 65,190, 65,209 (Oct. 23, 2002), Van Hollen argues that the 

more tailored standard for corporate and labor-union speakers fails Chevron step 

two. 

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That is not correct. Foremost, Van Hollen errs in claiming that 

inconsistency is grounds for invalidating an agency interpretation under the 

Chevron framework. “[I]nconsistency bears on whether the Commission has given 

a reasoned explanation for its current position”—an Administrative Procedure Act 

(APA) question—but “not on whether its interpretation is consistent with the 

statute.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 

967, 1001 n.4 (2005). 

Nor does the APA expose an agency’s change in policy “to more searching 

review.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009). 

Rather, “[i]t suffices that the new policy is permissible under the statute, that there 

are good reasons for it,” and that the agency believes the new approach to be 

better, “which the conscious change of course adequately indicates.” Id. at 515. 

Here, the Commission consciously implemented the disclosure rule for 

corporations and unions, aware it would differ from the rule governing other types 

of speakers. The Commission acknowledged “the current reporting rules for 

individuals, unincorporated entities, and qualified nonprofit corporations making 

[electioneering communications].” JA310; JA301 (similar). In the Commission’s 

judgment, however, basing the law for corporations and unions on the expressadvocacy standard “properly met” “the policy underlying the disclosure provisions 

of BCRA ... .” JA311. 

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That the FEC did not simultaneously extend this policy to the universe of 

potentially regulated speakers does not change matters. Van Hollen Br. 32. For 

one thing, no participant in the rulemaking requested such a comprehensive 

overhaul. CFIF Br. 11. This is understandable; the 2007 rulemaking responded to 

a Supreme Court decision that affected corporations and unions only. JA300; FEC 

v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (WRTL II). In the evolving field of 

campaign-finance law, the Commission thus did not need to “apply the policy 

reasoning in the [2007 rulemaking] to all types” of regulated parties. Nat’l Cable 

& Telecomms. Ass’n, 545 U.S. at 1002. This is especially true of rules targeting 

corporations and unions, since (in 2007 at least) those entities occupied a unique 

place in FECA. Cal. Med. Ass’n v. FEC, 453 U.S. 182, 201 (1981) (explaining 

that “differing structures and purposes” justify “[t]he differing restrictions placed 

on individuals and unincorporated associations, on the one hand, and on unions 

and corporations, on the other”). 

3. The rule does not frustrate Congress’s purpose. 

The Commission’s interpretation also honors Congress’s purpose. In light 

of the “constitutional” concerns voiced during the rulemaking, JA301, the 

Commission weighed the burdens of compelled disclosure against the state 

interests to be served—“exactly the kind of agency balancing of various policy 

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considerations to which courts should generally defer.” Republican Nat’l Comm. 

v. FEC, 76 F.3d 400, 408 (D.C. Cir. 1996). 

a. Like the district court, Van Hollen maintains that the Constitution has 

no place in the Commission’s policy judgment. That is incorrect. To start, the 

Commission did not “disclaim[]” FECA’s constitutional dimensions by failing to 

“cite the First Amendment.” Br. 46. Notwithstanding the lack of a Bluebook 

reference to “U.S. CONST.,” there is no question First Amendment considerations 

predominated. JA301. WRTL II—the rulemaking’s impetus—was a “First 

Amendment opinion[]” after all. 551 U.S. at 481 (Opinion of Roberts, C.J.). 

Contrary to Van Hollen’s view, moreover, the Supreme Court’s decisions in 

Citizens United v. FEC, 558 U.S. 310 (2010), and McConnell v. FEC, 540 U.S. 93 

(2003), overruled in part by Citizens United, did not take the First Amendment off 

the table for Section 30104(f)(2)(F). Br. 47-48. Neither opinion suggested—much 

less held—that the Commission could implement that provision without tailoring 

means to end. McConnell, for example, upheld Section 30104(f)(2) against a facial 

challenge. 540 U.S. at 197-99. “Courts do not resolve unspecified as-applied 

challenges in the course of resolving a facial attack ... ,” WRTL II, 551 U.S. at 476 

n.8 (Opinion of Roberts, C.J.), meaning that McConnell did not settle all First 

Amendment issues for all time, McConnell, 540 U.S. at 199. 

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 Nor does Citizens United change matters (not least because it postdates the 

challenged rule by more than two years). The plaintiff in that case—a corporation 

making electioneering communications—claimed First Amendment immunity 

from any disclosure law whatsoever. Br. for Appellant at 51, Citizens United v. 

FEC, 558 U.S. 310 (No. 08-205). The Court rejected that argument but nowhere 

purported to mark the metes and bounds of Section 30104(f)’s reporting 

program. 558 U.S. at 368-70. Instead, all parties accepted that if the statute could 

constitutionally apply to the plaintiff, it would operate as construed by FEC rules—

including Section 104.20(c)(9). Br. for Appellant at 3, Citizens United, 558 U.S. 

310; Br. for Appellee at 30, 39, Citizens United, 558 U.S. 310. The point is not 

that the Supreme Court was “misled” in Citizens United, Van Hollen Br. 48, but 

that the Court considered only whether—not how much—disclosure could be 

demanded of electioneering-communication speakers. Like McConnell, Citizens 

United does not negate the Commission’s duty to account for the Constitution in 

administering Section 30104(f)(2)(F). 

 Distilled, Van Hollen’s real complaint is that the First Amendment should 

not matter when it comes to coerced disclosure; the Commission should have 

dismissed all burdens as irrelevant and held disclosure an end-point interest in 

itself. Br. 38-39. On the burden side, Van Hollen maintains that “Congress did not 

authorize the FEC to consider the issue of ‘burden’ or to promulgate regulations 

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that take ‘burden’ into account.” JA324 (complaint); Van Hollen Mot. for Summ. 

J. 26 (Dist. Ct. Dkt. 20) (“‘[B]urden’ is not among the ‘factors deemed relevant by 

the Act.’”). The district court embraced that idea unreservedly—“Congress did not 

call for narrow tailoring; it called for just the opposite”—but it is plainly wrong. 

JA447. When Congress has not spoken directly, the FEC must always “tailor” its 

policies “to avoid unnecessarily burdening ... First Amendment rights ... .” AFLCIO v. FEC, 333 F.3d 168, 178 (D.C. Cir. 2003). 

As for state interests, Van Hollen argues that, because Congress must have 

wanted more disclosure, unlimited disclosure is necessary. But Congress did not 

(and constitutionally could not) pursue disclosure “to the nth degree.” Holder v. 

Martinez Gutierrez, 132 S. Ct. 2011, 2019 (2012). In the context of independent 

political speech, the government’s interests extend only so far as disclosure “helps 

voters to define more of the candidates’ constituencies.” Buckley v. Valeo, 424 

U.S. 1, 81 (1976) (per curiam). The Supreme Court’s decision in MCFL—which 

Van Hollen cites for the opposite proposition (Br. 39)—illustrates the point. 479 

U.S. at 262; see infra 12. 

Van Hollen nonetheless claims a “broader” state interest, one reaching any

“sources of funding of electoral messages” regardless of whether the data informs 

voter decisionmaking. Br. 38. Yet that proves too much: If it were true, business 

customers, investors, and union members—all “sources of funding”—could expect 

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to see their names on FEC reports. Even Van Hollen thinks that is a bridge too far. 

Br. 42. But having conceded that the line between material and immaterial 

revenue data must be drawn somewhere, he fails to explain why setting the line at 

donor purpose was not a reasonable policy choice. Cf. Nat’l Shooting Sports 

Found., Inc., 716 F.3d at 214 (“An agency has ‘wide discretion’ in making linedrawing decisions ... .” (citation omitted)). 

b. Van Hollen’s claims of “massive evasion” are equally flawed. Br. 25, 

45-46. Indeed, the Supreme Court rejected this same theory in the related context 

of express-advocacy reporting. MCFL, 479 U.S. at 262. Like Van Hollen, the 

Commission in MCFL argued that the express-advocacy disclosure laws “would 

open the door to massive undisclosed political spending.” Id. The Supreme Court 

“s[aw] no such danger.” Id. Disclosing those “contributors who ... intended to 

influence elections,” the Court said, “provide[s] precisely the information 

necessary to monitor [a speaker’s] independent spending activity and its receipt of 

contributions.” Id.

More fundamentally, Van Hollen still does not dispute that no other 

interpretation of Section 30104(f)(2)(F) will achieve meaningfully greater 

disclosure than the FEC’s rule did. As CFIF has discussed, the parallel, purposebased standard governing express advocacy remains “unaffected by the Van Hollen

litigation.” Kenneth Doyle, D.C. Circuit Panel Set to Hear Arguments In Political 

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Ad Disclosure Case on Sept. 14, Bloomberg BNA Money and Politics Report 

(June 6, 2012). Thus, victory for Van Hollen promises little if any greater 

disclosure. As they did after the district court’s first judgment, electioneeringcommunication speakers will instead “switch[] to running explicitly political ads” 

and continue reporting only their election-specific backers. Matea Gold, Appeals 

Court Ruling Lets Donors Stay Secret, The Spokesman-Review (Sept. 19, 2012). 

After four rounds of briefing, two district-court hearings, and one appellate 

argument, Van Hollen still has no answer to this hard truth. Beyond tarring 

speakers’ “motivations,” he offers only that his lawsuit’s futility should not excuse 

the FEC’s “unreasonable interpretation.” Br. 35. That misses the point. Even 

showing that an “agency’s approach fails best to promote Congress’ purposes” is 

not enough to invalidate an interpretation at Chevron step two. Chem. Mfrs. Ass’n 

v. EPA, 217 F.3d 861, 867 (D.C. Cir. 2000) (citation and emphasis omitted). Van 

Hollen falls short even of that mark. Without any interpretation that promises 

“be[tter] to promote Congress’ purposes,” id., Van Hollen comes nowhere close to 

establishing that Section 104.20(c)(9) frustrates congressional policy.1

 

 

1

 As discussed in CFIF’s opening brief (at 27-28), Van Hollen and the district 

court also erred in framing Congress’s purpose to begin with. Van Hollen does not 

address this point.

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B. The FEC’s rule is the product of reasoned decision-making. 

The district court also should not have invalidated Section 104.20(c)(9) as 

arbitrary and capricious under the APA. In promulgating the rule, the FEC sought 

to tailor the privacy and administrative burdens associated with forced disclosure 

to the state interests to be served. In the Commission’s judgment, its course 

“properly met” the “policy underlying the disclosure provisions of BCRA,” JA311, 

and the district court should not have upset that decision. Van Hollen nonetheless 

repeats the district court’s primary errors. Inverting the presumption of regulatory 

validity, he ignores Circuit precedent and holds the Commission to impossible 

standards of explanatory detail and empirical proof. 

1. Like the district court, Van Hollen faults the Commission for taking 

account of burdens on the regulated community without calculating “what such 

costs entail, the magnitude of their impact, or how many entities those costs might 

affect.” Br. 39. This sets the bar too high. “[A]n agency need not—indeed 

cannot—base its every action upon empirical data.” Chamber of Commerce of 

U.S. v. SEC, 412 F.3d 133, 142 (D.C. Cir. 2005). Rather, the APA calls only for “a 

concise general statement of ... basis and purpose,” 5 U.S.C. § 553(c), which 

“certainly does not require the agency to supply specific and detailed findings and 

conclusions of the kind customarily associated with formal proceedings,” In re 

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Surface Mining Regulation Litig., 627 F.2d 1346, 1353 (D.C. Cir. 1980) (citation 

omitted). 

That standard is met here. The Commission detailed the “privacy interests” 

and administrative burdens that informed its choice to balance the costs of 

disclosure against competing state interests. JA301, JA311. Its statement 

“[i]ndicate[d] the major issues of policy that were raised ... and explain[ed] why 

the agency decided to respond to these issues as it did, particularly in light of the 

statutory objectives that the rule must serve.” Indep. U.S. Tanker Owners Comm. 

v. Dole, 809 F.2d 847, 852 (D.C. Cir. 1987). This is not a close question. 

Reviewing the Commission’s explanatory statement in its first ruling, the district 

court identified all the relevant policy considerations with ease. JA353. 

There is likewise no merit to Van Hollen’s contentions that the 

Commission’s “‘burden’ rationale” lacked factual support. Br. 39. Van Hollen 

complains that the commenters who addressed the issue—all “self-serving”—

offered limited “facts, data, or examples.” Br. 41. This argument suffers from 

numerous difficulties. Foremost, Van Hollen invites this Court to serve as primary 

factfinder, even though factual support for an informal rulemaking is reviewed 

only for “substantial evidence.” Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. 

of Governors of Fed. Reserve Sys., 745 F.2d 677, 683 (D.C. Cir. 1984) (explaining 

that arbitrary-and-capricious standard incorporates substantial-evidence inquiry). 

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That standard is met if a “‘reasonable mind might accept’ a particular evidentiary 

record as ‘adequate to support a conclusion.’” Dickinson v. Zurko, 527 U.S. 150, 

162 (1999) (citation omitted). Here, numerous commenters wrote and testified 

about the burdens that would follow from untailored disclosure laws—heightened 

compliance costs, reduced donor support, and intrusion on supporters’ 

associational privacy. CFIF Br. 8-9, 33-37. The FEC’s concerns about the 

burdens of forced disclosure were amply supported.2

Moreover, notwithstanding Van Hollen’s allusion to “facts” and “data,” Br. 

41, “[t]he APA imposes no general obligation on agencies to produce empirical 

evidence,” Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 519 (D.C. Cir. 

2009). That is particularly true where, as here, an agency addresses “‘legislative’ 

and policy questions.” Harborlite Corp. v. I.C.C., 613 F.2d 1088, 1093 n.11 (D.C. 

Cir. 1979). Given the nature of the rulemaking, “[t]he Commission was entitled to 

rely on ... representations by parties who were uniquely in a position” to offer 

insights on the costs of overbroad disclosure laws. Nat’l Ass’n of Regulatory Util. 

Comm’rs v. F.C.C., 737 F.2d 1095, 1125 (D.C. Cir. 1984) (per curiam). 

Van Hollen’s qualms about commenters’ “self-serving” motives are 

similarly misplaced. Br. 41. Unavoidably, most commenters in rulemakings are 

 

2

 Van Hollen insists that the Commission “was not free” to recognize First 

Amendment associational interests at all. Br. 41 n.18. That is wrong. Supra 9-12; 

CFIF Br. 23-26.

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interested parties, and this is not a case where the agency accepted submissions 

“uncritically.” Nat’l Ass’n of Regulatory Util. Comm’rs, 737 F.2d at 1125. To the 

contrary, the Commission rejected the regulatory alternative advocated by many 

“commenters who expressed concerns about ... burdens.” JA427; JA301. At base, 

“an agency’s credibility decision normally enjoys almost overwhelming deference 

... ,” Sasol N. Am. Inc. v. N.L.R.B., 275 F.3d 1106, 1112 (D.C. Cir. 2002), and both 

Van Hollen and the district court erred in substituting their own views for those of 

the Commission. 

Of course, all this distracts from a more obvious point: Van Hollen’s tacit 

concession that nothing in the administrative record controverted the material on 

which the Commission relied. Br. 41 n.19. This imbalance in the record is highly 

relevant. The notice-and-comment process depends on interested parties’ 

“bring[ing] relevant information quickly to the agency’s attention.” Chamber of 

Commerce of U.S., 412 F.3d at 142 (citation omitted). Without any “contradictory 

evidence,” EchoStar Commc’ns Corp. v. FCC, 292 F.3d 749, 753 (D.C. Cir. 2002), 

the Commission was entitled to rely on its expertise and to credit stakeholder 

comments about the burdens of mandated disclosure, CFIF Br. 36-37. 

2. For similar reasons, the Commission did not misstep in trying to align 

Section 104.20(c)(9) with those sources of revenue most closely tied to 

electioneering communications. Van Hollen again presumes a stricter standard of 

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review. In his view, the Commission propounded insufficient “evidence” and 

“findings” to establish that general-support donors might not intend to underwrite 

the electioneering communications of nonprofit organizations. Br. 37. But that 

argument fails for reasons already discussed: Stakeholders addressed this issue 

explicitly, CFIF Br. 10, and no commenters disagreed. 

In any case, the point is self-evident and could have been the subject of 

“informed conjecture” even without record support. Chamber of Commerce of 

U.S., 412 F.3d at 142. MCFL, Van Hollen’s lone authority, does not counsel 

otherwise. As his quoted passage makes clear, so-called MCFL corporations were 

unique because they were “political organization[s].” MCFL, 479 U.S. at 261. It 

makes sense that people who give to a political organization mean to bankroll the 

organization’s “political purposes.” Id. 

Distorting that premise, Van Hollen extrapolates that all (or “most”) not-forprofit organizations thus “share[] political purposes” with their donor bases writ 

large. Br. 37-38. That does not follow. Recall the American Cancer Society, for 

example. CFIF Br. 14-15. Or consider National Public Radio, whose 

institutional donors and pledging listeners certainly do not share a homogenous 

political purpose. E.g., NPR Annual Report 2014, http://www.npr.org/about/annua

lreports/FY14_annualreport.pdf. Van Hollen’s logic does not square even with 

MCFL itself. Notwithstanding its political-advocacy program, even Massachusetts 

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Citizens for Life did not need to report all its donors—just those who “intended to 

influence elections.” 479 U.S. at 262. 

3. Van Hollen advances a number of other arguments, all unconvincing. 

First, Van Hollen says the FEC should have better analyzed the segregatedaccount alternative. Again, this holds the Commission to a false standard. An 

agency “need not consider every alternative proposed nor respond to every 

comment made.” Nat’l Shooting Sports Found., Inc., 716 F.3d at 215. And the 

availability of segregated bank accounts was not a “significant problem[] raised by 

the comments.” Id. For example, while one commenter testified that the accounts 

“shouldn’t be undervalued,” JA215, Van Hollen points to none who said the 

alternative must operate to the exclusion of the purpose-based disclosure standard 

later adopted. For obvious reasons, purpose-specific bank accounts are often not a 

“meaningful alternative” to general-treasury spending, JA311—a point the 

Commission noted but Van Hollen ignores, Br. 45; CFIF Br. 38 (discussing lastminute nature of electioneering-communication decisions). In fact, one of the few 

commenters who mentioned segregated accounts conceded that “[t]here might very 

well be a basis” for a purpose standard. JA255. 

Second, Van Hollen assumes the Commission could “simply [have] 

clarif[ied]” which types of revenue were subject to reporting. Br. 43. But as the 

rulemaking illustrated, codifying categories of exempt revenue was hardly a 

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“significant and viable” solution. Nat’l Shooting Sports Found., Inc., 716 F.3d at 

215. Not only that, such a civil-code approach would have answered none of the 

constitutional objections of donors who did not intend to fund electioneering 

communications. CFIF Br. 40. 

Van Hollen disregards these shortcomings, but his brief drives home the 

point. It is still a puzzle, for example, why he would exempt dues payments to 

labor unions (organized under 26 U.S.C. § 501(c)(5)) at the same time he would 

demand reporting of dues payments to trade associations (§ 501(c)(6)) and to civic 

leagues (§ 501(c)(4)) as well as general-support donations to charities 

(§ 501(c)(3)). Br. 42-43; CFIF Br. 39. Given the potential for these arbitrary 

distinctions, it is not surprising that the lead commenter to mention a codification 

approach also gave a nod to the purpose-based standard ultimately adopted. JA164 

(“[W]hatever public purposes are served by ... disclosure are served by revealing 

only the actual ‘contributors’ or ‘donors’ for that purpose.”). 

Third, Van Hollen argues that the FEC unreasonably promulgated 

Section 104.20(c)(9) because WRTL II did not “require[]” the agency to do so. Br. 

36. Even though “WRTL II did not pass on FECA’s reporting laws,” CFIF Br. 32, 

the Commission acted reasonably in responding to “changed factual 

circumstances,” Nat’l Cable & Telecomms. Ass’n, 545 U.S. at 981. 

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II. The FEC’s Notice-and-Comment Process Was Sound. 

Finding little support in Chevron and the APA, Van Hollen salts his 

footnotes with more forgiving standards. Setting aside the irregularity of these 

arguments, CTS Corp. v. E.P.A., 759 F.3d 52, 64 (D.C. Cir. 2014), all are 

unavailing. For example, Van Hollen contends that the notice-and-comment 

“chronology” has an “impact upon ... the State Farm analysis.” Br. 41 n.19 

(quoting district court). But this Court disapproves couching “procedural 

challenge[s]” as “objection[s] to the reasoning underlying the substance of the Rule 

and not to the notice-and-comment process by which the Rule was promulgated.” 

Mary V. Harris Found. v. F.C.C., 776 F.3d 21, 27 (D.C. Cir. 2015). 

Van Hollen also says it is “questionable” whether Chevron deference applies 

at all. Br. 26 n.13. If this remark qualifies as argument, it is forfeited by failure to 

properly raise it in the district court or on appeal, Petit, 675 F.3d at 782; it is barred 

by law of the case, Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 

1995); JA385-86; and it is foreclosed by precedent, Nat’l Wildlife Fed’n v. Lujan, 

928 F.2d 453, 456 (D.C. Cir. 1991). 

III. This Court Should Reverse the District Court’s Remedial Order. 

Because the FEC acted reasonably, this Court need not reach the issue of 

remedy. If the Commission’s only error was not providing adequate explanation 

under the APA, however, Circuit law counsels remand without vacatur. This Court 

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has already reversed the district court’s Chevron-step-one ruling, and Van Hollen 

still cannot identify any alternative interpretation that would better effectuate his 

vision of congressional intent. It is at least likely, therefore, that the same rule 

would be achievable on a remand. 

Van Hollen asks this Court to review the district court’s summary vacatur 

for abuse of discretion. Br. 49. But because the district court “gave no reasons at 

all” for its decision, there is nothing to review. Primas v. District of Columbia, 

719 F.3d 693, 699 (D.C. Cir. 2013). In the ordinary course, that might counsel 

remand to the district court for explanation. Id. The question having been fully 

briefed in both courts, however, judicial economy would favor this Court’s putting 

the matter to rest. Cf. Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008). 

The issue is all the more pressing because vacatur would leave the regulated 

community without guidance while magnifying constitutional concerns. Van 

Hollen assumes that the district-court judgment “restored the prior 2003 version of 

the regulation.” Br. 50. Yet that is not correct, since the court vacated only one 

part of the 2007 amendments while leaving other, interlocking changes to the 

“2003 version” untouched. JA311. Nor would the pre-2007 regulations answer 

the constitutional problems that attend an intrusive disclosure regime unmoored 

from election-related state interests. CFIF Br. 43-44. 

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Van Hollen’s fallback argument is that the regulation causes harm by not 

achieving “full disclosure.” Br. 51. But this is another way of saying that the rule 

“does not go far enough,” which is hardly “affirmative harm” counseling vacatur. 

CFIF Br. 44 (citation omitted). In any event, Van Hollen does not dispute that 

removing Section 104.20(c)(9) promises little, if any, added disclosure. In keeping 

with the rest of his case, vacating the rule would breed confusion and constitutional 

doubt while achieving none of the policy goals Van Hollen imputes to Congress. 

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CONCLUSION 

For the reasons discussed above and in CFIF’s opening brief, the district 

court’s judgment should be reversed. CFIF adopts the Hispanic Leadership Fund’s 

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

Respectfully submitted, 

May 26, 2015 

/s/ Thomas W. Kirby 

Jan Witold Baran 

Thomas W. Kirby 

Caleb P. Burns 

Claire J. Evans 

Samuel B. Gedge 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

E-mail: tkirby@wileyrein.com 

Counsel for Center for Individual 

Freedom 

 

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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 4,998 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. 

Dated: May 26, 2015 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

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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. 

/s/ Thomas W. Kirby 

 Thomas W. Kirby 

 

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