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) 

OPENING BRIEF FOR APPELLANT 

CENTER FOR INDIVIDUAL FREEDOM 

Dated: April 10, 2015

Jan Witold Baran 

Thomas W. Kirby 

Caleb P. Burns 

Samuel B. Gedge 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

E-mail: tkirby@wileyrein.com 

USCA Case #15-5016 Document #1546907 Filed: 04/10/2015 Page 1 of 77
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Appellant Center for Individual Freedom provides the following information 

in accordance with D.C. Circuit Rules 26.1 and 28(a)(1): 

A. Parties and Amici. 

The Center for Individual Freedom (CFIF) intervened as a defendant in the 

district court and is the appellant in Case No. 15-5016. Pursuant to Circuit Rule 

26.1, CFIF certifies that no publicly held company has a ten-percent-or-greater 

ownership interest in CFIF and that CFIF has no parent companies as defined in 

the Circuit Rule. CFIF is a non-partisan, non-profit § 501(c)(4) organization 

whose mission is to protect and defend individual freedoms and individual rights 

guaranteed by the U.S. Constitution. 

The Hispanic Leadership Fund intervened as a defendant in the district court 

and is the appellant in Case No. 15-5017. 

Christopher Van Hollen, Jr., is the plaintiff in the district court and is an 

appellee in this Court. 

The Federal Election Commission is a defendant in the district court and is 

an appellee in this Court. 

No amicus curiae appeared in the district court. CFIF understands that at 

least one party may appear as amicus in this appeal. In addition, in the first appeal 

before this Court, Nos. 12-5117 & 12-5118, Mitch McConnell, U.S. Senator; 

USCA Case #15-5016 Document #1546907 Filed: 04/10/2015 Page 2 of 77
-iiAmerican Civil Rights Union; Base Connect, Inc.; Citizens United; Conservative 

Legal Defense and Education Fund; Downsize DC Foundation; DownsizeDC.org; 

Free Speech Coalition, Inc.; Free Speech Defense and Education Fund, Inc.; Gun 

Owners Foundation; Gun Owners of America, Inc.; Institute on the Constitution; 

Let Freedom Ring USA; National Right to Work Committee; Public Advocate of 

the United States; U.S. Border Control; U.S. Constitutional Rights Legal Defense 

Fund, Inc.; and U.S. Justice Foundation appeared as amici in support of the 

appellants. AARP, Brennan Center for Justice, Center for Media and Democracy, 

Center for Responsive Politics, Citizens for Responsibility and Ethics in 

Washington, Common Cause, League of Women Voters of the United States, 

Progressives United, and Sunlight Foundation appeared as amici in support of 

appellee Van Hollen. 

B. Rulings Under Review. 

On November 25, 2014, the district court (Judge Amy Berman Jackson) 

entered an order in Civil Action No. 1:11-cv-00766-ABJ, granting plaintiff Van 

Hollen’s motion for summary judgment and denying the cross-motions for 

summary judgment of defendant Federal Election Commission and intervenordefendant CFIF. The order has not been published in the Federal Supplement; it is 

located at District Court Docket Number 99 and is reproduced at page JA404 in the 

Joint Appendix. The memorandum opinion accompanying the order is located at 

USCA Case #15-5016 Document #1546907 Filed: 04/10/2015 Page 3 of 77
-iiiDistrict Court Docket Number 100 and will be published at ___ F. Supp. 3d ___, 

2014 WL 6657240 (D.D.C. Nov. 25, 2014). It is reproduced at pages JA405-50 in 

the Joint Appendix. 

C. Related Cases. 

This case was previously before this Court. Those consolidated appeals 

were numbered 12-5117 and 12-5118, and this Court’s resulting judgment is titled 

Center for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) (per 

curiam) (Brown, Edwards, and Randolph, JJ.). The Center for Individual Freedom 

is not aware of any other related case, as defined by Circuit Rule 28.

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-ivTABLE OF CONTENTS 

Page 

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 1

STATUTORY AND REGULATORY PROVISIONS ............................................. 1

STATEMENT OF THE CASE .................................................................................. 2

A. The Federal Election Campaign Act and Independent Spending. ........ 2

B. The FEC’s Disclosure Rule for Corporate and Union Electioneering 

Communications. ................................................................................... 6

C. The District Court Vacates the Disclosure Rule. ................................ 12

D. This Court Reverses. ........................................................................... 12

E. The District Court Vacates the Disclosure Rule on Remand. ............. 13

SUMMARY OF ARGUMENT ............................................................................... 14

STANDARD OF REVIEW ..................................................................................... 18

ARGUMENT ........................................................................................................... 18

I. The FEC Permissibly Determined that Corporations and Unions Making 

“Electioneering Communications” Must Report Only Those Sources of 

Revenue Given to Fund Electioneering Communications. ........................... 18

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

Campaign Act. ..................................................................................... 18

1. The rule is consistent with FECA’s text. .................................. 19

2. The rule fits with FECA’s structure and legislative history. .... 20

3. The rule does not frustrate Congress’s purpose. ....................... 23

B. The FEC’s rule is the product of reasoned decision-making. ............. 30

II. The FEC’s Notice-and-Comment Process Was Sound. ................................ 40

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-vIII. This Court Should Reverse the District Court’s Remedial Order. ................ 42

CONCLUSION ........................................................................................................ 45

CERTIFICATE OF COMPLIANCE 

ADDENDUM 

CERTIFICATE OF SERVICE 

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-viTABLE OF AUTHORITIES 

Page(s) 

Cases 

Advocates for Highway & Auto Safety v. Federal Motor 

Carrier Safety Administration, 

429 F.3d 1136 (D.C. Cir. 2005) .......................................................................... 44 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) ...................................................................... 24, 34 

Agape Church, Inc. v. FCC, 

738 F.3d 397 (D.C. Cir. 2013) ................................................................ 19, 37, 41 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ................................................................. 2, 24, 44 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984) ........................................................................................ 1, 32 

Citizens United v. FEC, 

558 U.S. 310 (2010) ................................................... 2, 24, 25, 29, 32, 38, 39, 44 

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

843 F.2d 1444 (D.C. Cir. 1988) .............................................................. 18, 27, 28 

Davis v. FEC, 

554 U.S. 724 (2008) ............................................................................................ 24 

FCC v. Fox Television Stations, Inc., 

556 U.S. 502 (2009) ............................................................................................ 18 

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

479 U.S. 238 (1986) ........................................................................ 2, 3, 11, 15, 26 

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007) .............................................................................................. 7 

 

* Authorities upon which we chiefly rely are marked with asterisks. 

USCA Case #15-5016 Document #1546907 Filed: 04/10/2015 Page 7 of 77
-viiFox v. Clinton, 

684 F.3d 67 (D.C. Cir. 2012) .............................................................................. 18 

Galliano v. United States Postal Service, 

836 F.2d 1362 (D.C. Cir. 1988) .......................................................................... 43 

Gentiva Healthcare Corp. v. Sebelius, 

723 F.3d 292 (D.C. Cir. 2013) ............................................................................ 18 

Heartland Regional Medical Center v. Sebelius, 

566 F.3d 193 (D.C. Cir. 2009) ............................................................................ 42 

Investment Co. Institute v. Commodity Futures Trading Commission, 

720 F.3d 370 (D.C. Cir. 2013) ............................................................................ 37 

Mary V. Harris Foundation v. FCC, 

776 F.3d 21 (D.C. Cir. 2015) .............................................................................. 35 

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003) .................................................................... 23 

McConnell v. FEC, 

540 U.S. 93 (2003) .................................................................................... 3, 21, 23 

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) ............................................................................ 16, 19, 24 

Motor Vehicle Manufacturers Ass’n of the United States v. 

State Farm Mutual Automobile Insurance Co., 

463 U.S. 29 (1983) .............................................................................. 1, 17, 36, 40

NACS v. Board of Governors of Federal Reserve System, 

746 F.3d 474 (D.C. Cir. 2014) ............................................................................ 31 

National Ass’n of Clean Air Agencies v. EPA, 

489 F.3d 1221 (D.C. Cir. 2007) .................................................................... 17, 31 

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

545 U.S. 967 (2005) ............................................................................................ 32 

National Treasury Employees Union v. Federal Labor Relations Authority, 

754 F.3d 1031 (D.C. Cir. 2014) .......................................................................... 19 

USCA Case #15-5016 Document #1546907 Filed: 04/10/2015 Page 8 of 77
-viiiOwner-Operator Independent Drivers Ass’n, Inc. v. 

Federal Motor Carrier Safety Administration, 

494 F.3d 188 (D.C. Cir. 2007) ............................................................................ 36 

Petit v. United States Department of Education, 

675 F.3d 769 (D.C. Cir. 2012) ............................................................................ 19 

*Public Citizen v. Carlin, 

184 F.3d 900 (D.C. Cir. 1999) ............................................................................ 21 

Republican National Committee v. FEC, 

76 F.3d 400 (D.C. Cir. 1996) ............................................................ 30, 31, 37, 40 

Rodriguez v. United States, 

480 U.S. 522 (1987) (per curiam) ....................................................................... 27 

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005) .............................................................................. 29 

Shays v. FEC, 

528 F.3d 914 (D.C. Cir. 2008) ............................................................................ 27 

Stop This Insanity Inc. Employee Leadership Fund v. FEC, 

761 F.3d 10 (D.C. Cir. 2014) .............................................................................. 24 

Statutes 

52 U.S.C. 

§ 30101 et seq. ...................................................................................................... 2 

§ 30101(4) ............................................................................................................. 2 

§ 30101(8)(A)(i) ............................................................................................. 6, 20 

§ 30104(b) ............................................................................................................. 2 

§ 30104(c)(2)(C) ............................................................................................. 3, 20 

§ 30104(f) .............................................................................................................. 5 

§ 30104(f)(2)(E) .............................................................................................. 5, 38 

§ 30104(f)(2)(F) ................................................................................................ 5, 6 

§ 30104(f)(3)(A)(i) ............................................................................................... 4 

§ 30104(f)(3)(B)(ii) ......................................................................................... 4, 29 

§ 30106(b)(1) ...................................................................................................... 23 

§ 30118(a) ......................................................................................................... 2, 5 

§ 30118(b)(2) ........................................................................................................ 5 

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-ixFederal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, 

93 Stat. 1354 ......................................................................................................... 3 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 .... 3-4 

Regulations 

11 C.F.R. 

§ 104.20(c)(7)(ii) ................................................................................................ 10 

§ 104.20(c)(8) ..................................................................................................... 43 

§ 104.20(c)(9) ..................................................................................................... 11 

§ 109.10(e)(1)(vi) ............................................................................................ 3, 20 

45 Fed. Reg. 15,080 (Mar. 7, 1980) ........................................................................... 3 

67 Fed. Reg. 

64,555 (Oct. 21, 2002) .......................................................................................... 6 

65,190 (Oct. 23, 2002) .......................................................................................... 6 

68 Fed. Reg. 404 (Jan. 3, 2003) ................................................................................. 6 

72 Fed. Reg. 5,595 (Feb. 7, 2007) ............................................................................. 2 

79 Fed. Reg. 62,797 (Oct. 21, 2014) ............................................................ 11, 13, 38 

Legislative Materials 

DISCLOSE 2013 Act, H.R. 148, 113th Cong. (2013) ............................................ 27 

DISCLOSE 2012 Act, H.R. 4010, 112th Cong. (2012) .......................................... 27 

DISCLOSE Act, H.R. 5175, 111th Cong. (2010) ................................................... 27 

144 Cong. Rec. S998 (daily ed. Feb. 25, 1998) ....................................................... 21 

147 Cong. Rec. 

S2455 (daily ed. Mar. 19, 2001) ........................................................................... 4 

S3033 (daily ed. Mar. 28, 2001) ......................................................................... 28 

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-x148 Cong. Rec. 

S2135 (daily ed. Mar. 20, 2002) ......................................................................... 28 

S2141 (daily ed. Mar. 20, 2002) ..................................................................... 5, 21 

Other Authorities 

Brief of FEC et al., McConnell v. FEC, 540 U.S. 93 (2003) (Nos. 02-1674 et al.) .. 5 

Brief of Intervenor-Defendants Sen. McCain et al., McConnell v. FEC, 540 

U.S. 93 (2003) (Nos. 02-1674 et al.) .............................................................. 4, 22 

Brief of Amici Curiae Sen. McCain et al., Citizens United v. FEC, 

558 U.S. 310 (2010) (No. 08-205) ...................................................................... 23 

Comment of Sen. McCain et al., Notice 2002-13 (FEC Aug. 23, 2002) ................ 22 

Defendant-Intervenors’ Excerpts of Brief of Defendants, McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003) (No. 02-582) .............................................. 22 

George Zornick, An Appeals Court Strikes Blow to Campaign Finance Reform,

The Nation Blog (Sept. 19, 2012) ....................................................................... 29 

H.L. Pohlman, Constitutional Debate in Action: Civil Rights and Liberties 

(2005) .................................................................................................................. 27 

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)...................................................................................................... 29 

Kenneth Doyle, Money Collected by Candidates Declined In 2014, as PAC 

Money Shot Up, FEC Says, BNA Money & Politics Report (Apr. 6, 2015) ...... 30 

Matea Gold, Appeals Court Ruling Lets Donors Stay Secret, The SpokesmanReview (Sept. 19, 2012) ..................................................................................... 29 

Richard Briffault, Two Challenges for Campaign Finance Disclosure After 

Citizens United and Doe v. Reed, 19 Wm. & Mary Bill of Rts. J. 983 

(2011) .................................................................................................................. 25 

Richard Briffault, WRTL II: The Sharpest Turn in Campaign Finance’s 

Long and Winding Road, 1 Alb. Gov’t L. Rev. 101 (2008) ................................. 7 

USCA Case #15-5016 Document #1546907 Filed: 04/10/2015 Page 11 of 77
-xiRick Hasen, “D.C. Circuit Panel Set to Hear Arguments In Political Ad 

Disclosure Case on Sept. 14”, Election Law Blog (June 5, 2012) .............. 29-30 

Van Hollen Decision Overturned, OpenSecrets Blog (Sept. 18, 2012) .................. 29 

 

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-xiiGLOSSARY OF ABBREVIATIONS 

BCRA 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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JURISDICTIONAL STATEMENT 

This Court has jurisdiction under 28 U.S.C. § 1291. The district court had 

jurisdiction under 28 U.S.C. § 1331 and entered final judgment vacating 11 C.F.R. 

§ 104.20(c)(9) on November 25, 2014. Appellant Center for Individual Freedom 

(CFIF) timely filed its notice of appeal on January 9, 2015. JA451-53. 

STATEMENT OF THE ISSUES 

(1) Whether 11 C.F.R. § 104.20(c)(9) follows from a reasonable 

interpretation of the Federal Election Campaign Act of 1971, as amended (FECA 

or Act), under the second step of the analysis announced in Chevron, U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 

(2) Whether 11 C.F.R. § 104.20(c)(9) is arbitrary and capricious under the 

Administrative Procedure Act, as interpreted by Motor Vehicle Manufacturers 

Ass’n of the United States v. State Farm Mutual Automobile Insurance Co., 463 

U.S. 29 (1983). 

(3) If the Federal Election Commission’s explanation for 11 C.F.R. 

§ 104.20(c)(9) is deficient, whether the proper remedy is remand to the agency, 

without vacating the regulation. 

STATUTORY AND REGULATORY PROVISIONS 

Pertinent statutes and regulations are reproduced in the addendum to this 

brief. 

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STATEMENT OF THE CASE 

A. The Federal Election Campaign Act and Independent Spending. 

1. Until 2010, the Federal Election Campaign Act, 52 U.S.C. § 30101 et 

seq., made it “unlawful ... for any corporation whatever, or any labor organization, 

to make a[n] ... expenditure in connection with any election” for federal office. Id.

§ 30118(a); Citizens United v. FEC, 558 U.S. 310 (2010). “Expenditure” is 

narrowly construed to cover only “express advocacy”—financing speech that 

explicitly advocates the election or defeat of a clearly identified candidate. FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238, 248-49 (1986) (MCFL). To avoid 

unconstitutional vagueness, this category of speech includes only communications 

containing so-called magic words, such as “vote for,” “vote against,” “elect,” or 

“defeat.” Id. at 249; see also Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976) (per 

curiam). 

For those who lawfully fund express advocacy, federal law required—and 

still requires—that they disclose the dollar amounts spent. Entities whose “major 

purpose” is political activity (political committees, that is) also must divulge all 

funds received and the identity of each person who gives more than $200 annually, 

among other information. 52 U.S.C. §§ 30104(b), 30101(4); see also 72 Fed. Reg. 

5,595 (Feb. 7, 2007) (discussing “major purpose” test). But for independent 

speakers who do not cross that major-purpose line, the reporting rules are, 

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appropriately, more modest. Unlike political committees, these speakers do not 

need to itemize every source of income. Instead, they must identify only those 

“person[s] who made a contribution in excess of $200 ... for the purpose of 

furthering an independent expenditure.” 52 U.S.C. § 30104(c)(2)(C) (emphasis 

added); 11 C.F.R. § 109.10(e)(1)(vi). Disclosing those receipts “intended to 

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

information necessary to monitor [a speaker’s] independent spending activity and 

its receipt of contributions.” MCFL, 479 U.S. at 262. Triggered by express 

advocacy, this purpose-based provision has been on the books since the 1979 

FECA amendments. Pub. L. No. 96-187, 93 Stat. 1354; 45 Fed. Reg. 15,080, 

15,087 (Mar. 7, 1980). 

2. For a quarter century, express advocacy was the only type of 

independent speech covered by federal campaign-finance law; all other 

communications could be funded by corporations or labor unions and “without 

disclosing the identity of, or any other information about, their sponsors.” 

McConnell v. FEC, 540 U.S. 93, 127 (2003). This led to a spike in “issue” ads, 

which “eschew[ed] the use of magic words” but otherwise “proved functionally 

identical” to express advocacy. Id.

To address this perceived loophole, Congress amended FECA in 2002 to 

reach spending for a second type of speech. See Bipartisan Campaign Reform Act 

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-4- 

of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81. Termed “electioneering 

communications,” this new category covers any “broadcast, cable, or satellite 

communication” that (1) refers to a clearly identified federal candidate; (2) is aired 

within 30 days of the candidate’s primary election or 60 days of the general 

election; and (3) is “targeted to the relevant electorate.” 52 U.S.C. 

§ 30104(f)(3)(A)(i). 

Electioneering communications and express advocacy are separately 

regulated under mutually exclusive provisions. Id. § 30104(f)(3)(B)(ii). But as 

BCRA’s sponsors confirmed, they were deemed two sides of the same coin. 

Electioneering communications “constitute campaigning every bit as much as ... 

any ad currently considered to be express advocacy and therefore subject to 

Federal election laws.” 147 Cong. Rec. S2455 (daily ed. Mar. 19, 2001) (Sen. 

Snowe). By extension, regulating electioneering communications “serve[s] the 

very purposes that underlie the preexisting independent expenditure provisions: 

bringing campaign spending of the ‘issue’ ad variety within the scope of [the] 

longstanding source and disclosure rules” that already governed express advocacy. 

Br. of Intervenor-Defs. Sen. McCain et al. at 60 n.48, McConnell, 540 U.S. 93 

(Nos. 02-1674 et al.). 

The text of the 2002 amendments highlights these parallels. As it did for 

express advocacy, Congress barred corporations and unions from funding 

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-5- 

electioneering communications. 52 U.S.C. § 30118(a), (b)(2). For other speakers, 

Congress passed a disclosure law akin to the one in place for express advocacy. Id. 

§ 30104(f); see also 148 Cong. Rec. S2141 (daily ed. Mar. 20, 2002) (Sen. 

McCain) (“This bill would simply subject soft money-funded campaign ads that 

masquerade as issue discussion to the same laws that have long governed 

campaign ads.”); Br. of FEC et al. at 119, McConnell, 540 U.S. 93 (Nos. 02-1674 

et al.) (“Th[e] provision simply updates the requirements that have long applied to 

express advocacy ... to reflect BCRA’s adjustment of Section [30118] to apply to 

‘electioneering communications.’”). 

Under this disclosure provision, speakers spending more than $10,000 in a 

calendar year on electioneering communications have two reporting options. If 

they can anticipate their activity ahead of time, speakers can create a “segregated 

bank account which consists of funds contributed solely by individuals ... directly 

to this account for electioneering communications ... .” 52 U.S.C. 

§ 30104(f)(2)(E). Those reporting under this Subparagraph (E) must disclose 

everyone who pays $1,000 or more into the political account. Id.

But planning speech in advance may be difficult and burdensome, so 

Congress offered a second option. Speakers can choose to pay “out of funds not 

described in subparagraph (E)”—out of a personal checking account, for example. 

Id. § 30104(f)(2)(F). Under Subparagraph (F), these speakers must disclose “all 

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contributors who contributed an aggregate amount of $1,000 or more to the person 

making the disbursement [since] the first day of the preceding calendar year and 

ending on the disclosure date.” Id. In turn, FECA defines “contribution” as a 

transfer of value “for the purpose of influencing any election for Federal office.” 

Id. § 30101(8)(A)(i). (“Contributors” and “contributed,” in subparagraph (F), are 

not defined differently.) 

3. Following the 2002 amendments, the FEC promulgated many new 

rules, including one addressing electioneering-communication reporting. 11 

C.F.R. § 104.20(c)(7) and (8) echoed FECA’s subparagraphs 30104(f)(2)(E) and 

(F), detailed above. The regulation essentially restated the statute, except for 

inserting the terms “donor” and “donated” in place of the Act’s “contributors” and 

“contributed.” 68 Fed. Reg. 404, 412-13 (Jan. 3, 2003); 67 Fed. Reg. 64,555, 

64,561 (Oct. 21, 2002). The rule did not define these terms, but the FEC foresaw 

that natural or unincorporated persons triggering 11 C.F.R. § 104.20(c)(8) would 

need to report all “gifts of $1,000 or more from any source.” 68 Fed. Reg. at 414; 

67 Fed. Reg. 65,190, 65,209 (Oct. 23, 2002) (“[T]heir entire donor base.”). 

B. The FEC’s Disclosure Rule for Corporate and Union 

Electioneering Communications. 

1. The 2002 amendments barred unions and corporations from funding 

electioneering communications. But that all changed with the Supreme Court’s 

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decision in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (WRTL II). 

The Court split the ban down the middle. Under the First Amendment, the Court 

held, Congress could curtail only those electioneering communications that 

amounted to “the ‘functional equivalent’ of express advocacy”—a narrow 

standard. Id. at 480 (Opinion of Roberts, C.J.). 

This “abrupt volte-face” by the Supreme Court called for regulatory 

adjustments by the FEC. See Richard Briffault, WRTL II: The Sharpest Turn in 

Campaign Finance’s Long and Winding Road, 1 Alb. Gov’t L. Rev. 101, 105 

(2008). For one thing, WRTL II left a gap in the reporting regime: Neither 

Congress nor the FEC had thought to address how unions and corporations should 

report electioneering communications. As one commenter put it, “it was 

Congress’s explicit design that a union or a corporation acting in compliance with 

FECA would never have occasion to report an [electioneering communication] 

since it could never lawfully undertake one ... .” JA159. 

2. In response, the FEC issued a Notice of Proposed Rulemaking seeking 

comment on, among other topics: “how ... a corporation or labor organization 

[should] report an electioneering communication funded with general treasury 

funds[.]” JA37. Given the complexity of corporate and union revenue streams, the 

Commission asked “how would a corporation or labor organization determine 

which receipts qualify as ‘donations’?” JA37. The Commission proposed two 

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-8- 

extremes—one exempting corporations and unions from disclosure entirely, the 

other imposing wholesale disclosure. JA37-38. The Notice also offered a middle 

course, inviting comment on whether to “limit the ‘donation’ reporting requirement 

to funds that are donated for the express purpose of making electioneering 

communications[.]” JA37.

The Commission received comments from a cross-section of the regulated 

community. Many entities submitted that no revenue sources should be subject to 

reporting; others endorsed a disclosure regime keyed to donor purpose. JA68-69, 

153-54, 164. Even commenters favoring broader disclosure agreed that “[c]learly 

the Commission needs to do something to address the particular anomaly that 

[WRTL II] has created ... .” JA247. 

Regardless of their solutions, commenters speaking for the corporate and 

labor communities made clear that the FEC must weigh the burdens of disclosure 

against the governmental interests to be served. On the burden side, administrative 

costs and privacy concerns featured heavily. Requiring a corporation to sift 

through up to twenty-two months’ worth of revenue to identify “contributors” 

would present “enormous,” “especially great,” and “tremendous” challenges, “far 

exceed[ing] all reporting requirements otherwise applicable to such organizations.” 

JA153, 163, 206. In the labor context, a group of unions explained, “[t]he burden 

on a union to account for and report all sources of receipts of $1,000 or more” 

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would actually be more onerous than that imposed by federal labor law. JA163. 

For smaller, non-profit organizations, “[e]very incremental increase in 

administrative burden w[ould] divert more ... resources from direct pursuit of the 

organization’s mission.” JA166. Without reasonable tailoring, compliance “would 

likely prove difficult, if not impossible.” JA73. 

As if to underscore the problem, the rulemaking proceeding saw pervasive 

uncertainty about what revenue sources would qualify as “contributors” to begin 

with. See, e.g., JA205 (“[Sales] income and receipts, dues, investment income, 

damages awards and other commercial income and the like ought not to be subject 

to disclosure.”); JA220 (“What is a donation? Is it interest? Is it royalties? Is it 

dues?”); JA213 (“The problem I have with membership dues is that there are 

membership dues for union, but then there are membership dues for other types of 

organizations like nonprofit organizations.”); JA241 (“[G]eneral support grants ... 

shouldn’t be included within the definition of donation for at least this purpose.”); 

JA191 (suggesting that any organization “collecting funds” should disclose 

revenue using “some reasonable basis”); JA127 (contrasting reportable 

“donations” with unreportable revenue from “business activities”). In the words of 

one commenter, “[t]he Commission faces these kinds of questions all the time in 

how far back you want to peel the onion to figure out [what] the source of the 

funding for the ad is.” JA186. 

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Mechanics aside, organizations also highlighted constitutional 

considerations; the Commission was bound to balance the government’s interests 

against the law’s intrusion on First Amendment rights. For many, comprehensive 

disclosure “present[ed] significant privacy concerns that are not outweighed by the 

government interests in disclosure.” JA99. In fact, publicizing every donative 

transfer above $1,000 would actually disserve the governmental interests at stake. 

As the labor coalition explained, incoming revenue often bears “no meaningful 

relationship to [electioneering-communication] spending ... .” JA163. Blanket 

disclosure of financial support and membership payments would thus undercut the 

government’s interest in an informed electorate, “misleading ... the public [by] 

suggest[ing] a connection between the revenue sources and the ads when none in 

fact exists.” JA153. 

3. Concluding that “Congress has [not] spoken directly to this issue,” a 

bipartisan majority of the Commission “d[rew] from the reporting requirements 

that apply” to express advocacy, adopting a similar purpose-based standard. 

JA301, 311 n.22. Corporations and unions making electioneering communications 

would need to report either (a) each donor who gave $1,000 or more (since January 

1 of the previous year) to a segregated bank account used to pay for electioneering 

communications, 11 C.F.R. § 104.20(c)(7)(ii); or (b) each donor who gave $1,000 

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or more “for the purpose of furthering electioneering communications,” if the 

corporation did not use a segregated account. Id. § 104.20(c)(9). 

The Commission acknowledged that “current reporting rules for individuals, 

unincorporated entities, and qualified nonprofit corporations” did not include this 

more tailored provision. JA310.

1

 But the FEC had not been asked to revisit those 

rules; nor were they challenged during the rulemaking (or since). For corporations 

and unions, the Commission decided, the final rule struck a fair balance between 

the government’s interest in electoral disclosure and the administrative and 

associational costs to regulated entities. JA301, 310-11. This was particularly true 

because “the general treasury funds of labor organizations and incorporated 

membership organizations are composed of member dues obtained from 

individuals and other members who may not necessarily support the organization’s 

electioneering communications.” JA311. Thus, in the Commission’s judgment, 

“the policy underlying the disclosure provisions of BCRA is properly met by 

requiring corporations and labor organizations to disclose and report only those 

 

1

 “Qualified nonprofit corporations” were a subset of incorporated entities 

“formed for the express purpose of promoting political ideas,” which the Supreme 

Court historically treated differently from other corporations. MCFL, 479 U.S. at 

264. Post-Citizens United, all corporations have an equal right to independent 

political speech—electioneering communications and express advocacy alike—

meaning that the unique status of qualified nonprofit corporations no longer 

obtains. The Commission now treats these entities like all other corporations. 

E.g., 79 Fed. Reg. 62,797, 62,811 (Oct. 21, 2014). 

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persons who made donations for the purpose of funding [electioneering 

communications].” JA311. 

C. The District Court Vacates the Disclosure Rule. 

Congressman Van Hollen sued the FEC three years later, claiming that 11 

C.F.R. § 104.20(c)(9) is “inconsistent with the plain language of the statute,” is 

“manifestly contrary to Congressional intent,” and is the product of arbitrary and 

capricious decision-making. JA318. In Van Hollen’s view, a “donor’s purpose, 

motive, or reason for making the donation is not relevant” for purposes of the 

electioneering-communication disclosure law. Van Hollen Mot. for Summ. J. 20 

(Dist. Ct. Dkt. 20). CFIF and the Hispanic Leadership Fund intervened alongside 

the FEC to defend the regulation. 

In March 2012, the district court vacated 11 C.F.R. § 104.20(c)(9) at 

Chevron step one. Given FECA’s “text, structure, purpose, and legislative 

history,” the court held that the rule’s “purpose or intent” element “directly 

contravened the requirement set forth plainly by Congress that ‘all contributors 

who contributed’ be disclosed.” JA352, 365, 367. 

D. This Court Reverses. 

This Court reversed. Looking to “respected dictionaries,” the Court held 

that the statutory terms “contributor” and “contributed” could be “construed to 

include a ‘purpose’ requirement ... .” JA385. “[T]raditional tools of statutory 

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construction” did not uncover any contrary legislative intent, JA385, so FECA did 

not foreclose 11 C.F.R. § 104.20(c)(9) at Chevron step one.

At the same time, the rule included features—most notably a cross-reference 

to another, outdated provision—that made the Court uncertain as to its precise 

sweep. For this reason, the Court remanded to the district court to give the FEC a 

chance either to pursue a “prompt” rulemaking or to defend the existing regulation. 

If the FEC opted to defend, the district court was to decide Van Hollen’s “claims 

that the regulation cannot survive review under Chevron Step Two or State 

Farm ... .]” JA386. 

E. The District Court Vacates the Disclosure Rule on Remand. 

Six months after this Court’s judgment, the FEC advised that it would 

defend 11 C.F.R. § 104.20(c)(9) as written. FEC Response to Pl.’s Mot. for 

Further Relief 1 (Dist. Ct. Dkt. 80).2

 Twenty months after that, the district court 

again vacated the rule. JA404-50. On the Chevron-step-two question, the court 

recognized that this Court “already stated that the words ‘contributors’ and 

‘contributed’ can, on their face, be construed to include a purpose requirement.” 

JA446. Even so, on reexamining “the language, legislative history, and policies of 

the statute,” the court held for a second time that “[t]he regulation contravenes the 

 

2

 The Commission has since removed the cross-reference that this Court noted 

during the first appeal. FEC Notice of Amendment to Regulations (Oct. 15, 2014) 

(Dist. Ct. Dkt. 97); 79 Fed. Reg. at 62,816. 

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language and the purpose of” FECA. JA445. Anything less than maximum 

disclosure would “override a clear Congressional choice in favor of transparency,” 

the court reasoned. JA449. For “Congress did not call for narrow tailoring; it 

called for just the opposite.” JA447. 

The district court also held that the FEC’s decision-making process failed 

arbitrary-and-capricious review. For example, the FEC should not have credited 

the burdens cited by the regulated community—even though the administrative 

record contained no countervailing material. JA424, 443-44. Nor should the 

Commission have acknowledged “sensitive First Amendment and privacy 

concerns.” JA449. No one during the rulemaking had contested the constitutional 

dimensions of coerced disclosure. But the district court thought the “record 

evidence” on this issue “extremely thin.” JA449. 

CFIF and the Hispanic Leadership Fund each noticed an appeal, which this 

Court consolidated. 

SUMMARY OF ARGUMENT 

I. Say the American Cancer Society (or its advocacy arm) runs a radio 

ad urging listeners to tell their Congressman to vote for a tobacco-marketing bill. 

JA47 (comment from The American Cancer Society Cancer Action Network, Inc.). 

The Congressman is up for reelection, and the ad airs in September, six weeks 

before Election Day. That makes it an “electioneering communication.” It costs 

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$15,000, so the Society needs to file a report with the FEC. The question in this 

appeal is whether that report needs to itemize every donor who gave the Society 

more than $1,000 since January 1 of the previous year. Or did the FEC act 

reasonably when it said that the government’s interests are met by reporting those 

sources of revenue who actually intended to fund the Society’s electioneering 

communications? 

A. In 2012, this Court held that FECA does not unambiguously bar the 

second, more measured approach, either by its terms or when interpreted using 

traditional tools of statutory construction. Yet at Chevron step two, the district 

court seemingly applied a more demanding standard than this Court’s at Chevron 

step one. Disapproving the FEC’s approach for a second time, the district court 

again said the agency interpretation “contravene[d] the language and the purpose 

of the statute.” 

This was error; the FEC’s interpretation is structurally sound, consistent with 

legislative history, and faithful to the agency’s duties under FECA and the 

Constitution. Structurally, 11 C.F.R. § 104.20(c)(9) mirrors the disclosure regime 

for express advocacy. That regime dates almost to FECA’s enactment, and the 

Supreme Court has endorsed it as “provid[ing] precisely the information 

necessary” to serve the government’s interests in electoral disclosure. MCFL, 479 

U.S. at 262. Not only that, BCRA’s sponsors left a decade-long paper trail 

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equating the provisions governing electioneering communications with those 

governing express advocacy. 

Nor does the FEC’s interpretation thwart Congress’s purpose. First, this 

Court has already held that Congress did not command the boundless disclosure 

Van Hollen seeks. In holding otherwise, the district court maintained that 

“Congress did not call for narrow tailoring; it called for just the opposite.” But that 

could not be more wrong. To state the obvious, Congress did not call for “the 

opposite” of narrow tailoring when it amended a law that governs only political 

speech. “In the First Amendment context, fit matters,” McCutcheon v. FEC, 134 

S. Ct. 1434, 1456 (2014) (plurality opinion), and Congress did not break from that 

cardinal principle here. Far from acting unreasonably, the FEC fulfilled its 

statutory and constitutional duties by balancing the burdens and benefits of forced 

disclosure. 

Second, while the district court harnessed “disclosure and transparency” to 

strike the FEC’s interpretation as too lax, Van Hollen’s dueling interpretation 

would not be any more effective. Accepting Van Hollen’s view, the district court 

vacated the FEC’s limit on reporting only revenue given “for the purpose of 

furthering” electioneering communications. But that same tailored limit still 

applies to express advocacy. So the upshot of more intrusive disclosure rules for 

electioneering communications is that speakers will switch to express advocacy, 

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and they will continue reporting only those sources who gave “for the purpose of 

furthering” the ads. (Citizens United gives corporations and unions their pick of 

express advocacy and electioneering communications.) This happened after the 

district court’s first ruling, and there is every reason to think it will happen again. 

In short, Van Hollen’s interpretation comes to rest at virtually the same level of 

disclosure as the FEC’s. Especially at Chevron step two, it makes very little sense 

to frame one interpretation as reasonable and the other as altogether impermissible. 

B. The same points answer Van Hollen’s arbitrary-and-capricious claim. 

Again, the district court reached the opposite result, but it did so by “substitut[ing] 

its judgment for that of the agency” at every turn. State Farm, 463 U.S. at 43. 

Instead of “presum[ing] the validity of agency action,” Nat’l Ass’n of Clean Air 

Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007) (citation omitted), the 

court overlooked key passages in the Commission’s reasoning and discounted 

uncontroverted record material. Its judgment should be reversed on this score also. 

II. Even if this Court were to find the Commission’s explanation 

inadequate under State Farm, it should still reverse the district court’s remedial 

order. The district court opted for vacatur, but remand to the agency would be far 

more fitting. This Court has already said that FECA does not foreclose the rule 

under Chevron step one, and vacatur leaves the regulated community with no 

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agency guidance and a statute with no plain meaning. The resulting confusion and 

grave constitutional concerns counsel remand without vacatur. 

STANDARD OF REVIEW 

In reviewing the FEC’s regulation, this Court applies the Chevron and State 

Farm standards de novo. Fox v. Clinton, 684 F.3d 67, 74 (D.C. Cir. 2012). 

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. 

During the first appeal, this Court held that “the District Court erred in 

disposing of this case under Chevron Step One.” JA385. Now at Chevron step 

two, the only question is whether the FEC’s interpretation of FECA is “permissible 

under the statute.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). 

Under this analysis, the courts must uphold agency interpretations “as long as they 

are reasonable” and “‘regardless whether there may be other reasonable, or even 

more reasonable, views.’” Gentiva Healthcare Corp. v. Sebelius, 723 F.3d 292, 

296 (D.C. Cir. 2013) (citation omitted). 

A straightforward application of these principles should have yielded 

judgment for the FEC. The Commission’s interpretation was “the essence of 

policymaking.” Cont’l Air Lines, Inc. v. Dep’t of Transp., 843 F.2d 1444, 1451 

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(D.C. Cir. 1988). In 2007, the FEC faced both a federal statute that prohibited 

corporate and union electioneering communications and a Supreme Court decision 

partially invalidating that law. In untangling this “complicated situation,” JA385, 

the Commission addressed how to regulate these new entrants not contemplated by 

the federal statute. And for the disclosure requirements, the FEC tailored the law 

to the governmental interests justifying it. 

This was the right approach. For whatever the level of scrutiny, “[i]n the 

First Amendment context, fit matters.” McCutcheon, 134 S. Ct. at 1456. Put most 

simply, the FEC did exactly what it was supposed to do: It “adapt[ed] [its] rules 

and policies to the demands of changing circumstances,” Agape Church, Inc. v. 

FCC, 738 F.3d 397, 408 (D.C. Cir. 2013), while harmonizing “various, valid 

policy considerations,” Petit v. U.S. Dep’t of Educ., 675 F.3d 769, 789 (D.C. Cir. 

2012). The end-product—11 C.F.R. § 104.20(c)(9)—reflects both FECA’s 

“language, structure, and purpose” and the Act’s constitutional dimensions. Nat’l 

Treasury Emps. Union v. Fed. Labor Relations Auth., 754 F.3d 1031, 1042 (D.C. 

Cir. 2014). 

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

The Commission’s interpretation is permissible as a textual matter. “The 

statute is anything but clear” on the precise sources of revenue to be reported, and 

this Court has already said that the statute’s reference to “contributors” and 

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“contributed” can “be construed to include a ‘purpose’ requirement ... .” JA385. 

This accords with the rest of FECA, which uses “contribution” throughout to mean 

transfers “for the purpose of influencing” federal elections. 52 U.S.C. 

§ 30101(8)(A)(i). 

In holding otherwise, the district court repeated its original error. In the 

district court’s view, “the regulation contravenes the language ... of the statute,” 

because the statutory phrase requiring disclosure of “all contributors who 

contributed” permits “no limitation other than the threshold amount.” JA445, 446. 

But this resuscitates the same analysis this Court rejected in 2012, with the district 

court echoing its first ruling almost verbatim. Compare JA366-67 (district court), 

with JA385 (court of appeals). That should be the end of the matter. If the 

statutory text did not support invalidating the FEC’s interpretation at Chevron step 

one, that is doubly true at Chevron step two. 

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

11 C.F.R. § 104.20(c)(9) also complements FECA’s structure more broadly, 

particularly the Act’s express-advocacy provisions. For more than two decades 

before Congress chose to regulate electioneering communications, federal law 

required express-advocacy speakers to report only revenue given “for the purpose 

of furthering” their communications. 52 U.S.C. § 30104(c)(2)(C); 11 C.F.R. 

§ 109.10(e)(1)(vi). And in promulgating 11 C.F.R. § 104.20(c)(9), the FEC 

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deliberately “dr[ew] from” that existing law. JA311 n.22. Even standing alone, 

these parallels are strong evidence that the rule “does not reflect an unreasonable 

interpretation of the statute.” Public Citizen v. Carlin, 184 F.3d 900, 906 (D.C. 

Cir. 1999). In Public Citizen, for instance, this Court rejected a Chevron-step-two 

argument largely because a “neighboring part” of the statute codified the “very 

approach” the plaintiff challenged. Id.

The FEC’s decision to follow a sibling provision makes especially good 

sense here. Congress regulated electioneering communications for the same 

reasons it regulated express advocacy. McConnell, 540 U.S. at 126. Before the 

Supreme Court, the government styled the electioneering-communication 

disclosure law as synonymous with the existing law governing express advocacy. 

Supra 5. And for the better part of a decade, a chorus of BCRA sponsors—often 

speaking through Van Hollen’s counsel—subscribed to this interpretation before 

all three branches of government: 

 In 2002, Senator McCain said that BCRA “would simply subject soft 

money-funded campaign ads that masquerade as issue discussion to the 

same laws that have long governed campaign ads.” 148 Cong. Rec. S2141 

(emphasis added). This echoed Senator Snowe’s earlier assurance that the 

law would not “have invasive disclosure rules that require the disclosure of 

entire membership lists.” 144 Cong. Rec. S998 (daily ed. Feb. 25, 1998). 

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 Later that year, BCRA’s lead sponsors advised the FEC that “in general, 

reporting for electioneering communications should be analogous to 

reporting for independent expenditures [i.e., express advocacy].” Comment 

of Sen. McCain et al. at 3, Notice 2002-13 (FEC Aug. 23, 2002).3

 Following BCRA’s enactment, they told the district court of this Circuit that 

the disclosure provisions for electioneering communications “are just the 

types of rules that FECA has long imposed on ‘independent expenditures’ 

that ‘expressly advocat[e]’ the election or defeat of a federal candidate.” 

Defendant-Intervenors’ Excerpts of Br. of Defendants at I-96, McConnell v. 

FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) (No. 02-582).4

 The next year, they successfully defended the law before the Supreme Court 

on the same grounds, arguing that BCRA merely extended to electioneering 

communications the same “longstanding ... disclosure rules” that already 

applied to express advocacy. Br. of Intervenor-Defs. Sen. McCain et al. at 

60 n.48, McConnell, 540 U.S. 93 (Nos. 02-1674 et al.). 

 In 2009, they went even further, representing to the Supreme Court that the 

electioneering-communication provision actually had “less onerous 

 

3

 http://www.fec.gov/pdf/nprm/electioneering_comm/comments/us_cong_me

mbers.pdf. 

 

4

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

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reporting requirements” than those for express advocacy. Br. of Amici 

Curiae Sen. McCain et al. at 29-30, Citizens United, 558 U.S. 310 (No. 08-

205) (emphasis in original). 

The federal courts took these representations at face value. E.g., McConnell, 

540 U.S. at 196 n.81 (“The disclosure requirements ... are actually somewhat less 

intrusive than the comparable requirements that have long applied to persons 

making independent expenditures.”); McConnell v. FEC, 251 F. Supp. 2d 176, 641 

n.136 (D.D.C. 2003) (Kollar-Kotelly, J.) (“The disclosure of names and addresses 

of individual contributors is not any more restrictive than the disclosure that the 

corporation in MCFL was forced to make.”). That the FEC followed suit is hardly 

unreasonable. Structurally, the Commission’s interpretation may be the most

reasonable one, though Chevron does not set the bar nearly so high. 

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

a. The rule also accords with the purposes underlying federal campaignfinance law. As this Court has already held, Congress did not have “‘an intention 

on the precise question at issue’ in this case,” JA385, and the FEC’s tailored 

interpretation honored both its statutory duties and its constitutional 

responsibilities. By congressional design, the FEC is charged with “formulat[ing] 

policy with respect to” FECA, 52 U.S.C. § 30106(b)(1), and it must always ensure 

that its acts are carefully drawn “to achieve the desired objective.” McCutcheon, 

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134 S. Ct. at 1457 (citation omitted). For “[u]nique among federal administrative 

agencies, the Federal Election Commission has as its sole purpose the regulation of 

core constitutionally protected activity—‘the behavior of individuals and groups 

only insofar as they act, speak and associate for political purposes.’” AFL-CIO v. 

FEC, 333 F.3d 168, 170 (D.C. Cir. 2003) (citation omitted). 

Moreover, not to have considered tailoring the disclosure rule would have 

raised constitutional concerns of the first order. No less than with any other 

speech-restrictive law, the government must draw disclosure rules “‘in proportion 

to the interest served,’ ... employ[ing] not necessarily the least restrictive means 

but ... a means narrowly tailored to achieve the desired objective.” McCutcheon, 

134 S. Ct. at 1456-57 (citation omitted); see also Davis v. FEC, 554 U.S. 724, 744 

(2008). 

Here, the government’s interests in compelled disclosure are finite. They are 

“based on ... ‘provid[ing] the electorate with information’ about the sources of 

election-related spending,” Citizens United, 558 U.S. at 367 (citation omitted), 

which in turn is material only so far as it “helps voters to define more of the 

candidates’ constituencies,” Buckley, 424 U.S. at 81; see also Stop This Insanity 

Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10, 16 (D.C. Cir. 2014) (“Not every 

intrusion into the First Amendment can be justified by hoisting the standard of 

disclosure.”). 

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Given this delimited interest, a “donor’s purpose, motive, or reason for 

making the donation” is absolutely relevant to the scope of FECA’s disclosure 

laws. See Van Hollen Mot. for Summ. J. 20. Requiring an organization to divulge 

up to twenty-two months’ worth of donor information would impose serious 

burdens on both speakers and their members. JA301, 311. Yet the resulting flood 

of data would not reliably aid voter decision-making. An organization’s general 

donors and members “do not necessarily support the corporation’s electioneering 

communications,” as the Commission remarked, JA311, so linking them pell-mell 

to federal campaigns would be more misleading than informative. To give an 

obvious example, it is hard to imagine a citizen’s reconsidering her vote after 

studying the American Cancer Society’s donor list. JA47. 

In First Amendment terms, there is no “substantial relation” between 

unchecked donor disclosure and the state interest in an informed electorate. 

Citizens United, 558 U.S. at 366-67. The Commission was right to perceive this 

problem. And at the very least, its solution reasonably accommodated the “conflict 

between values of transparency and privacy,” which admits of “no obvious 

answer.” Richard Briffault, Two Challenges for Campaign Finance Disclosure

After Citizens United and Doe v. Reed, 19 Wm. & Mary Bill of Rts. J. 983, 987 

(2011). Indeed, the final balance is one the Supreme Court has long sanctioned. 

To repeat, disclosing those “contributors who ... intended to influence 

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elections ... provides precisely the information necessary to monitor [a speaker’s] 

independent spending activity and its receipt of contributions.” MCFL, 479 U.S. at 

262 (emphasis added). In the Court’s view, this “less restrictive” approach fully 

meets “[t]he state interest in disclosure.” Id. 

b. The district court recognized the FEC’s effort to balance the burdens 

and benefits of compelled disclosure, but it saw this approach as vice, not virtue. 

The court ascribed to Congress a “policy goal” of “disclosure and transparency”—

to the exclusion of every other consideration. JA446. “Congress did not call for 

narrow tailoring,” the district court declared; “it called for just the opposite.” 

JA447. By extension, any attempt to calibrate the law would “contravene[] ... the 

purpose of the statute.” JA445.5

The district court erred in two ways: by misperceiving Congress’s “goal” 

and by assuming that its preferred disclosure law would yield any greater 

transparency than the FEC’s. First, by couching Congress’s “policy goal” at the 

highest level of abstraction—“disclosure and transparency”—the court displaced 

the FEC as decision-maker. It may be true that Chevron forecloses “administrative 

 

5

 The district court may have misapprehended the scope of 11 C.F.R. 

§ 104.20(c)(9) when it said that “[a] donor can avoid reporting altogether by 

transmitting funds but remaining silent about their intended use.” JA447. The rule 

does not stop at revenue “specifically designated” for electioneering 

communications; it also reaches all donors who gave “in response to solicitations 

specifically requesting funds” to pay for electioneering communications. JA311. 

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constructions ... that frustrate the policy that Congress sought to implement.” 

Shays v. FEC, 528 F.3d 914, 919 (D.C. Cir. 2008) (citation omitted); see also 

JA414. But such “‘purpose-driven’ interpretive methodologies” counsel restraint. 

Cont’l Air Lines, Inc., 843 F.2d at 1451. By “grandly ... resort[ing] to a single 

‘broad purpose,’” id., the courts may wrongly assume that Congress sought to 

“pursue[] its purposes at all costs,” Rodriguez v. United States, 480 U.S. 522, 525-

26 (1987) (per curiam). Not only that, a court shouldering agency duties may 

“distort the legislative process” itself. Cont’l Air Lines, Inc., 843 F.2d at 1450. By 

substituting judicial black-and-white for legislative gray, the courts ignore 

legislative compromise and invite “losers in the Congress” to “eschew[] the 

democratic process and instead enter[] the litigation arena.” Id. 

These cautionary principles apply with full force here. BCRA “emerged 

after years of debate and compromise” a “very lengthy and complex piece of 

legislation.” H.L. Pohlman, Constitutional Debate in Action: Civil Rights and 

Liberties 208 (2005). Since then, campaign-finance reform has become only more 

polarized. Congressman Van Hollen himself has three times tried—without 

success—to amend FECA to require more disclosure. See DISCLOSE 2013 Act, 

H.R. 148, 113th Cong. (2013); DISCLOSE 2012 Act, H.R. 4010, 112th Cong. 

(2012); DISCLOSE Act, H.R. 5175, 111th Cong. (2010). Yet by taking his policy 

preferences to the courts, he has successfully hobbled the discretion of an 

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independent agency and struck a legislative rule approved by that bipartisan body. 

The “anti-democratic dangers” of this outcome cannot be overstated. Cont’l Air 

Lines, Inc., 843 F.2d at 1451. 

Compounding the problem, the district court erred in identifying Congress’s 

purpose. Contrary to the court’s view, Congress did not pass a damn-the-torpedoes 

law mandating “the opposite” of narrow tailoring. JA447. Lawmakers “took great 

care in crafting ... language to avoid violating the important p[]rinciples in the first 

amendment of our Constitution.” 147 Cong. Rec. S3033 (daily ed. Mar. 28, 2001) 

(Sen. Jeffords); 148 Cong. Rec. S2135 (daily ed. Mar. 20, 2002) (Sen. Snowe) 

(“As far back as 1997, I worked to address this thorny issue—how do we ensure 

freedom of speech while also ensuring the integrity of our election laws?”). The 

end-result speaks for itself: a disclosure provision that everyone—from sponsors to 

Solicitor General—understood to be modeled on the tailored, purpose-based 

provisions governing express advocacy. 

Second, even setting aside the district court’s mistaken view of Congress’s 

goals, the court’s chosen interpretation promises no greater “disclosure and 

transparency” than the FEC’s. Since 1980, Congress and the FEC have mandated 

purpose-based disclosure for express advocacy parallel to what 11 C.F.R. 

§ 104.20(c)(9) mandated for electioneering communications. And even though 

there may be little practical difference between express advocacy and 

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electioneering communications, the two concepts remain mutually exclusive. 52 

U.S.C. § 30104(f)(3)(B)(ii). Thus, striking the purpose-based provision for 

electioneering communications simply invites corporations and unions to put their 

money into express advocacy instead. See Citizens United, 558 U.S. at 372. 

Tacking on a “vote for” or “vote against,” “savvy campaign operators” can convert 

their ads from electioneering communications to express advocacy in seconds. 

Shays v. FEC, 414 F.3d 76, 115 (D.C. Cir. 2005). With that tweak, they can 

continue reporting only their election-specific backers, under FECA’s expressadvocacy provision instead of the electioneering-communications provision. 

Van Hollen and the district court ignored this unintended consequence, 

though many commentators observed it after the court’s first bite at the apple.6

 

 

6

 E.g., Matea Gold, Appeals Court Ruling Lets Donors Stay Secret, The 

Spokesman-Review (Sept. 18, 2012) (“[G]roups switched to running explicitly 

political ads, taking advantage of the conflicting patchwork of campaign finance 

rules that did not require disclosure of those doing ‘express advocacy.’”); George 

Zornick, An Appeals Court Strikes a Blow to Campaign Finance Reform, The 

Nation Blog (Sept. 19, 2012) (“[I]ronically, by throwing in a few words at the end 

of a political ad asking voters to take a position on a particular candidate, outside 

groups were able to avoid any potential fallout from Van Hollen vs. FEC ... .”); 

Van Hollen Decision Overturned, OpenSecrets Blog (Sept. 18, 2012) (“Instead, 

these groups ... had been making independent expenditures—political ads that 

expressly advocate for or against a candidate.”); 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) (“[Express-advocacy 

laws are] unaffected by the Van Hollen litigation and paradoxically are now 

subject to less disclosure than the issue ads that do not call for votes”); Rick Hasen, 

“D.C. Circuit Panel Set to Hear Arguments In Political Ad Disclosure Case on 

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There is no reason to think things will be different a second time around; as one 

journalist noted just this week, “The only category of campaign money to show a 

sharp drop since 2010 was spending on electioneering communications.” Kenneth 

Doyle, Money Collected by Candidates Declined In 2014, as PAC Money Shot Up, 

FEC Says, BNA Money & Politics Report (Apr. 6, 2015). At base, Van Hollen’s 

interpretation settles at practically the same level of disclosure as the FEC’s, so it 

makes little sense to say that one frustrates Congress’s purpose while the other 

does not. If anything, it is Van Hollen’s approach that most clearly breaks with 

congressional intent. Not only does his interpretation promise no greater 

disclosure, it breathes life into the precise distinction Congress meant to erase all 

along—the line between electioneering communications and express advocacy. 

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

1. Van Hollen’s arbitrary-and-capricious claim fails for similar reasons. 

Never “particularly demanding,” the State Farm standard “is satisfied if the agency 

enables [the courts] to see what major issues of policy were ventilated ... and why 

the agency reacted to them as it did.” Republican Nat’l Comm. v. FEC, 76 F.3d 

400, 407 (D.C. Cir. 1996) (citations, alterations, and quotation marks omitted). 

This is especially true where, as here, the issue before the agency was “far from an 

 

Sept. 14”, Election Law Blog (June 5, 2012) (“[Speakers] have instead shifted to 

independent expenditures ... .”). 

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exact science and involve[d] policy determinations in which the agency is 

acknowledged to have expertise.” NACS v. Bd. of Governors of Fed. Reserve Sys., 

746 F.3d 474, 489 (D.C. Cir. 2014) (citation omitted). 

The agency action here meets this standard. As discussed, the FEC 

determined that corporations and unions making electioneering communications 

should disclose those revenue sources that intended to fund electioneering 

communications. In the Commission’s judgment, this interpretation “properly 

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

accounting for the privacy concerns and administrative burdens that attend coerced 

disclosure. This measured approach “result[ed] from exactly the kind of agency 

balancing of various policy considerations to which courts should generally defer.” 

Republican Nat’l Comm., 76 F.3d at 408. 

2. Although the district court recited the State Farm standard, JA412-13, 

it intensified the scope of review to something approaching strict scrutiny. Far 

from “presum[ing] the validity of agency action,” Nat’l Ass’n of Clean Air 

Agencies, 489 F.3d at 1228 (citation omitted), the court acted as primary decisionmaker and misapprehended both the administrative record and the Commission’s 

reasoning. Like its substantive Chevron ruling, the court’s decision that the 

Commission acted arbitrarily and capriciously should be reversed. 

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a. To begin with, the court thought it “unreasonable for the FEC to alter 

the statutory reporting requirements on the stated grounds that it was implementing 

the Supreme Court’s decision in WRTL II.” JA422. Because WRTL II “left the 

reporting provisions untouched,” the court saw no cause for the FEC to reassess its 

disclosure rules in light of that decision. JA421. 

This is incorrect. True, WRTL II did not pass on FECA’s reporting laws. 

But the decision still changed the landscape markedly—a point the district court 

recognized in its first ruling. JA353 (“[The FEC] specifically undertook to modify 

existing law to fit the changed circumstances.”). By confirming the right of 

corporate and union speakers to make electioneering communications, WRTL II

traded a simple ban for the “unique and complex” provisions that attach to lawful 

political speech. Citizens United, 558 U.S. at 334. It was neither arbitrary nor 

capricious for the FEC to appraise its regulations in light of these “changed factual 

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

U.S. 967, 981 (2005). Quite the opposite; an agency “must consider varying 

interpretations and the wisdom of its policy on a continuing basis.” Chevron 

U.S.A, Inc., 467 U.S. at 864 (emphasis added); see also JA386 (noting the 

Commission’s “attempt ... to provide regulatory guidance” following WRTL II). 

b. Remarkably, the district court also faulted the Commission for taking 

cognizance of “First Amendment and privacy concerns.” JA449. This view 

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followed from two errors. First, the court believed that “[t]his was not a 

justification advanced in the Explanation and Justification ... .” JA449. But the 

Commission’s basis for decision could not have been clearer. “[U]nder revised 

section 104.20,” the Explanation and Justification stated, “the reporting 

requirements for corporations and labor organizations ... are narrowly tailored to 

address many of the commenters’ concerns regarding individual donor privacy.” 

JA301 (emphasis added); see also JA301 (“[T]he Commission believes that the 

carefully designed reporting requirements detailed below do not create 

unreasonable burdens on the privacy rights of donors to nonprofit organizations.”). 

Second, the district court rejected privacy considerations because it saw the 

“record evidence” as “extremely thin.” JA449. Yet the record more than sufficed, 

especially under arbitrary-and-capricious review. A range of nonprofit 

organizations affirmed that forcing them to divulge their donor bases would intrude 

on associational privacy. See, e.g., JA99, 109, 139. This in turn would affect 

fundraising for organizations’ missions. As one pair of groups explained, “a 

requirement that § 501(c)(4) organizations disclose [their] donors of $1,000 or 

more if they air exempt electioneering communications will have a significant 

impact on non-profit organizations.” JA139. Faced with intrusive disclosure laws, 

“[n]on-profits ... will see their donor bases shrink, and/or will see donors refusing 

to give more than $1,000.” JA139; see also JA139 (describing litigation brought to 

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“force [a nonprofit group] to disclose the names of its donors ... ”); JA262 (“Many 

donors to my clients value their anonymity and will not give if they know that their 

identities will be disclosed because they have been subjected in the past to reprisal 

and other manifestations of public hostility ... .”). 

It is not clear what more “record evidence” is needed. JA449. The privacy 

implications of forced disclosure have been a staple of campaign-finance law for 

decades—a point many commenters noted and none denied. E.g., JA139. The 

Commission can hardly be censured for acknowledging the impact its actions 

would have on associational privacy. The agency is duty-bound to “tailor its 

policy to avoid unnecessarily burdening ... First Amendment rights ... .” AFLCIO, 333 F.3d at 178. If anything, failing to consider this factor would have been 

arbitrary and capricious. 

c. The district court further opined that insufficient data “quantif[ied]” 

the burdens a broad disclosure law would have on the regulated community. 

JA424. Above all, the court stressed, many commenters “who expressed concerns 

about burdens” advocated against all reporting laws rather than urging the middle 

path the Commission adopted. JA427. In great part for this reason, the court 

found the record “largely devoid of evidence” supporting the Commission’s action. 

JA423. 

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This is doubly wrong. As a factual matter, the district court erred in saying 

that “[n]one of the commenters asked the agency to amend the disclosure rules to 

include a purpose requirement ... .” JA407. At least three written comments 

advocated that approach. JA68-69, 153-54, 164. And at the hearing, even 

commenters who disfavored a wholesale reporting exemption conceded that 

“[t]here might very well be a basis” for the rule the Commission adopted. JA255, 

189-90. 

In any case, the court was mistaken to discount stakeholder insights simply 

because commenters urged interpretations that differed from the Commission’s 

final action. “[T]here is no requirement that [an agency’s] explanation derive from 

the comments it receives.” Mary V. Harris Found. v. FCC, 776 F.3d 21, 27 (D.C. 

Cir. 2015). And as the district court’s survey makes clear, JA424-43, the 

administrative record supported the Commission’s judgment. Commenters 

provided numerous examples of how disclosure laws would adversely affect them. 

A coalition of labor organizations explained that “[t]he burden on a union to 

account for and report all sources of receipts of $1,000 or more” would actually be 

more demanding than under existing labor laws. JA163, 227-28 (identifying 

pilots, professors, doctors, and dentists as union members “whose dues are ... more 

than $1,000 a year”). Other organizations explained that extensive disclosure 

would hinder fundraising efforts, supra 33-34, while still others voiced concern 

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that onerous rules would divert scarce resources, supra 9. Under existing 

campaign-finance law, membership and other nonprofit organizations did not need 

to publicize any donor information; read at its broadest, FECA would have 

required them to itemize nearly two years’ worth of data. 

As against all this, no stakeholder who favored broader disclosure presented 

any contrary evidence—or even disputed that burdens would attend an untailored 

regime. This in itself is a problem, since “[i]t is well established” that courts 

should not consider “issues not raised in comments before the agency.” OwnerOperator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 

211 (D.C. Cir. 2007) (citation omitted). And that the district court could envision 

new lines of inquiry is beside the point. For example, the court thought that the 

record could have been further developed on “how many non-profit organizations, 

if any, collected contributions or dues ... that would exceed the $1000 statutory 

threshold, how many individuals made donations or paid dues in those amounts, or 

how difficult it would be to keep track of them.” JA444. Setting aside the 

obviously sensitive nature of much of this data, it is not clear why the rulemaking 

was arbitrary and capricious without it. The question under State Farm is not 

whether a reviewing court can envision a fuller record (the answer to that question 

will almost always be yes), but whether the Commission’s decision “runs counter 

to the evidence before the agency.” State Farm, 463 U.S. at 43. “Without any 

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contrary evidence” in the record, Agape Church, Inc., 738 F.3d at 410, there was 

nothing unreasonable in the FEC’s crediting the concerns voiced by corporate and 

union commenters. Cf. Investment Co. Inst. v. Commodity Futures Trading 

Comm’n, 720 F.3d 370, 375 (D.C. Cir. 2013) (holding that agency’s “discussion of 

unquantifiable benefits fulfills its statutory obligation to consider and evaluate 

potential costs and benefits”). 

At base, the district court’s difficulty “put[ting] one’s finger upon any data 

that prompted the ... rule” cannot be squared with the record. JA444. The court 

should have had “no trouble seeing ‘what major issues of policy were ventilated’ 

or why the Commission ‘reacted to them as it did.’” Republican Nat’l Comm., 76 

F.3d at 408 (citation omitted). It had no such difficulty the first time around. 

“There is no question,” the court said in its original ruling, “that the agency was 

animated by concerns that the disclosure provision might be too burdensome or too 

broad as a matter of policy when applied to all corporations and labor unions ... .” 

JA353. 

d. Nor do the district court’s residual theories justify holding the 

Commission’s action arbitrary and capricious. First, the court faulted the 

Commission for not “explain[ing] why the segregated bank account was not a 

suitable solution for any of the problems that were identified.” JA445. (Recall 

that corporations and unions can fund their electioneering communications either 

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from a unique political account or from their general treasury. Supra 5.) As the 

Commission acknowledged, however, stakeholders voiced concerns that 

segregated accounts would not be a “meaningful alternative” to general-treasury 

spending. JA311. Likewise, in its most recent update to 11 C.F.R. § 104.20(c)(9), 

the Commission agreed that coercing groups to “use ... such accounts would be 

‘highly burdensome.’” 79 Fed. Reg. at 62,814.7

 

Again, the record supports this view. For example, one commenter testified 

that unions and nonprofit groups “don’t have that kind of money, they can’t raise 

individual money, they have to use their general support money.” JA259. Thus, 

“as a practical matter, these organizations have to use treasury money ... .” JA260. 

No one contradicted this position, and for good cause. By definition, 

“electioneering communications” occur only in the final weeks before elections. 

Supra 4. And “[i]t is well known” that “[t]he need or relevance of the speech will 

often first be apparent at this stage in the campaign.” Citizens United, 558 U.S. at 

334. For this reason, few speakers have the luxury either of budgeting their 

electioneering communications ahead of time or of launching fundraisers to 

 

7

 The district court may have been under the misimpression that these 

accounts can receive funds from natural persons only. JA448 n.13. Although the 

statute provides for “funds contributed solely by individuals,” 52 U.S.C. 

§ 30104(f)(2)(E), the Commission has interpreted WRTL II and Citizens United to 

permit these separate accounts to receive corporate and union money. JA311-12; 

see also 79 Fed. Reg. at 62,814. 

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underwrite their ads. “The decision to speak is made in the heat of political 

campaigns,” id., meaning that “as a practical matter for both unions and for many 

501(c) organizations[,] the money is coming out of the general treasury,” JA259. 

Second, the district court minimized the need to further define the disclosure 

regime at all; in the court’s view, it was perfectly clear what sources of corporate 

and union revenue would need to be reported. JA448. But in fact, the record 

showed rampant confusion regarding which payors would qualify as 

“contributors.” Commenters and Commissioners alike grappled with distinctions 

between membership dues, general-support grants, royalties, investment capital, 

and other income. Even within these revenue streams, stakeholders drew 

distinctions—between dues paid to unions, for example, versus dues paid to trade 

associations. Supra 9. Confusion persists even in this litigation. According to 

Van Hollen, “donations to a non-profit corporation in the form of ‘membership 

dues’” should be subject to reporting, Van Hollen Mot. for Summ. J. 31 n.25, but 

the district court had no qualms assuming that labor-union dues would not, JA448. 

To address this disorder, the district court thought that “further elaboration” 

of the preexisting rule would have better “alleviate[d] any lingering confusion.” 

JA448. Yet this was one of four proposals the FEC formally identified in its 

Explanation and Justification. JA311 (“One commenter argued that the concepts 

of ‘donor’ and ‘donate’ should exclude membership dues, investment income, or 

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other commercial or business income.”). And while that approach may have 

appealed to the district court, codifying bright-line categories of exempt revenue 

presents obvious opportunities for evasion. On top of that, “alleviat[ing] ... 

confusion” was not the only consideration in the mix; as a substantive matter, the 

FEC aimed to strike a reasonable balance between the benefits and burdens of 

compelled disclosure. JA301, 311. The Commission was well within its rights to 

choose the course it did, and in second-guessing that decision the district court 

wrongly “substitute[d] its judgment for that of the agency.” State Farm, 463 U.S. 

at 43. “Congress gave the Federal Election Commission, not th[e] court[s], 

responsibility for determining the most effective techniques for obtaining donor 

information.” Republican Nat’l Comm., 76 F.3d at 408. 

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

Throughout its decision, the court put great stock in the fact that the final 

language of 11 C.F.R. § 104.20(c)(9) did not appear in the Commission’s Notice of 

Proposed Rulemaking. This “procedural history tends to diminish the validity of 

the regulation under the second level of the Chevron analysis,” the court said, 

JA421, and also “has an impact upon [part] of the State Farm analysis,” JA423. 

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The court should not have let this misperception color its reasoning—not 

least because Van Hollen disavowed any claim of inadequate notice: 

The Court: Is there any argument that [the final rule] didn’t flow 

logically from or reasonably develop from the proposed rules 

and therefore a remand is the [sic] appropriate? 

[Plaintiff’s Counsel]: We looked at that. ... But in the end, we weren’t 

particularly moved by that argument. 

* * * 

I don’t think it’s the most evident or soundest or most 

defensible ground for—Let me just continue on this burden 

point ... . 

JA403. 

Van Hollen was right to disclaim this theory. “The final rule need not be the 

one proposed in the NPRM. Rather, ‘[a]n agency’s final rule need only be a 

logical outgrowth of its notice.’” Agape Church, Inc., 738 F.3d at 422 (citation 

omitted). Here, the Notice of Proposed Rulemaking left no doubt that the 

Commission would consider “limit[ing] the ‘donation’ reporting requirement to 

funds that are donated for the express purpose of making electioneering 

communications[.]” JA37. Particularly given this Court’s mandate, JA386, the 

district court had no warrant to apply anything other than the Chevron and State 

Farm standards. 

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

Because the FEC acted reasonably in promulgating 11 C.F.R. 

§ 104.20(c)(9), this Court need not reach the issue of proper remedy. Even if the 

Court were to find the Commission’s explanation inadequate under State Farm, 

however, it should reverse the district court’s remedial order. Finding that the FEC 

failed to provide a reasoned explanation does not alone justify vacating the 

agency’s regulation. Rather, in determining whether vacatur is appropriate, this 

Court considers: “(1) the seriousness of the ... deficiencies of the action, that is, 

how likely it is the [agency] will be able to justify its decision on remand; and (2) 

the disruptive consequences of vacatur.” Heartland Regional Med. Ctr. v. 

Sebelius, 566 F.3d 193, 197 (D.C. Cir. 2009) (quotation marks omitted). 

If the Commission’s only error was failing to provide an adequate 

explanation, these two considerations heavily favor remand without vacatur. 

“When an agency may be able to readily cure a defect in its explanation of a 

decision, the first factor ... counsels remand without vacatur.” Id. at 197-98. This 

principle has special purchase here, for this Court has already determined that 

FECA does not foreclose the FEC’s interpretation at Chevron step one. JA385-86. 

Left uncorrected, moreover, the district court’s vacatur will disrupt the 

regulated community. Without 11 C.F.R. § 104.20(c)(9), the FEC rules offer no 

guidance on the reporting duties that accompany general-treasury spending for 

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corporate and union electioneering communications. (One other regulatory 

provision addresses how to report spending from general accounts, but it governs 

only “disbursements ... not made by a corporation or labor organization ... .” 11 

C.F.R. § 104.20(c)(8) (emphasis added).) 

Nor can corporations and unions look to FECA itself. As this Court has 

said, “it is doubtful that, in enacting [52 U.S.C. § 30104(f)], Congress even 

anticipated the circumstances that the FEC faced when it promulgated 11 C.F.R. 

§ 104.20(c)(9).” JA385. It was precisely because of “the absence of plain 

meaning in the statute” that the FEC added that provision in the first place. JA385. 

And the multiplicity of interpretations aired during the 2007 rulemaking is proof 

positive that some regulatory framework is critical. Supra 9. Indeed, as CFIF 

argued in seeking leave to amend its pleadings, “the statutory language is 

unconstitutionally vague unless clarified by valid regulation.” CFIF Mot. and 

Mem. for Leave to File Am. and Supp. Answer & Crossclaims 4 (Dist. Ct. Dkt. 

81).8

 

8

 The FEC has entered an appearance in this appeal to defend the district 

court’s refusal to grant CFIF leave to amend its pleadings. (This brief does not 

independently challenge that order, reproduced at JA396-99.) If the Court believes 

the FEC’s views on the district court’s final judgment would be helpful, it may 

consider inviting the Commission to file a brief addressing “the meaning of the 

statute, the intended reach of the disputed regulation, and the import of the 

Supreme Court’s decisions addressing campaign finance law.” JA386; cf. 

Galliano v. U.S. Postal Serv., 836 F.2d 1362, 1363 (D.C. Cir. 1988). Otherwise, 

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Moreover, Van Hollen’s interpretation of choice invites even more 

constitutional problems. Requiring disclosure without a substantial link to the 

government’s election-related interests raises serious First Amendment issues. 

Supra 24-26. And Van Hollen’s extreme reading of FECA is untailored by design; 

he says outright that Section 30104(f) “must” require speakers to divulge donors 

who gave money “without a purpose to influence elections.” Van Hollen Reply to 

FEC Opp. to Mot. for Summ. Judgment and Opp. to FEC’s Cross-Mot. for Summ. 

Judgment 9 (Dist. Ct. Dkt. 35) (emphasis in original). In no universe would the 

statute, so read, substantially relate to the government’s interest in “help[ing] 

voters to define more of the candidates’ constituencies.” Buckley, 424 U.S. at 81; 

see also Citizens United, 558 U.S. at 367. 

Lastly, notwithstanding Van Hollen’s stance that 11 C.F.R. § 104.20(c)(9) 

falls short, there is no claim that the rule does “affirmative harm.” Advocates for 

Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 

(D.C. Cir. 2005) (“leaving the current rule in place” when challengers agreed that 

the rule did “no affirmative harm, arguing only that it does not go far enough”). 

Given all these considerations, the pressing need for regulatory guidance in the 

upcoming election cycle thus favors preserving the status quo ante. 

 

the FEC’s views are presented in its submissions before the district court and in the 

administrative record. 

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CONCLUSION 

For the reasons discussed above and in the Argument section of Hispanic 

Leadership Fund’s opening brief (adopted under Fed. R. App. P. 28(i)), the district 

court’s judgment should be reversed. 

Respectfully submitted, 

April 10, 2015 

/s/ Thomas W. Kirby 

Jan Witold Baran 

Thomas W. Kirby 

Caleb P. Burns 

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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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 9,949 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: April 10, 2015 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

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Addendum 

USCA Case #15-5016 Document #1546907 Filed: 04/10/2015 Page 60 of 77
TABLE OF CONTENTS 

Federal Statutes Page 

52 U.S.C. 

§ 30101(8)(A)(i) ................................................................................................. 1a

§ 30104(c), (e), (f) ............................................................................................... 1a

§ 30118(a), (b)(2), (c)(1)-(2) & (6) ..................................................................... 8a

Federal Rules 

11 C.F.R. 

§ 104.20 (2014) ................................................................................................. 11a

§ 109.10(b), (e) ................................................................................................. 13a

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1a 

52 U.S.C. § 30101. Definitions 

* * * 

(8)(A) The term “contribution” includes– 

(i) any gift, subscription, loan, advance, or deposit of money or anything of 

value made by any person for the purpose of influencing any election for 

Federal office; or 

* * * 

52 U.S.C. § 30104. Reporting requirements 

* * * 

(c) Statements by other than political committees; filing; contents; indices of 

expenditures 

(1) Every person (other than a political committee) who makes independent 

expenditures in an aggregate amount or value in excess of $250 during a 

calendar year shall file a statement containing the information required 

under subsection (b)(3)(A) for all contributions received by such person. 

(2) Statements required to be filed by this subsection shall be filed in 

accordance with subsection (a)(2), and shall include– 

(A) the information required by subsection (b)(6)(B)(iii), indicating 

whether the independent expenditure is in support of, or in opposition 

to, the candidate involved; 

(B) under penalty of perjury, a certification whether or not such 

independent expenditure is made in cooperation, consultation, or 

concert, with, or at the request or suggestion of, any candidate or any 

authorized committee or agent of such candidate; and 

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2a 

(C) the identification of each person who made a contribution in 

excess of $200 to the person filing such statement which was made for 

the purpose of furthering an independent expenditure. 

(3) The Commission shall be responsible for expeditiously preparing indices 

which set forth, on a candidate-by-candidate basis, all independent 

expenditures separately, including those reported under subsection 

(b)(6)(B)(iii), made by or for each candidate, as reported under this 

subsection, and for periodically publishing such indices on a timely preelection basis. 

* * * 

(e) Political committees 

(1) National and congressional political committees 

The national committee of a political party, any national congressional 

campaign committee of a political party, and any subordinate committee of 

either, shall report all receipts and disbursements during the reporting 

period. 

(2) Other political committees to which section 30125 of this title applies 

(A) In general 

In addition to any other reporting requirements applicable under this 

Act, a political committee (not described in paragraph (1)) to which 

section 30125(b)(1) of this title applies shall report all receipts and 

disbursements made for activities described in section 30101(20)(A) 

of this title, unless the aggregate amount of such receipts and 

disbursements during the calendar year is less than $5,000. 

(B) Specific disclosure by State and local parties of certain nonFederal amounts permitted to be spent on Federal election activity 

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3a 

Each report by a political committee under subparagraph (A) of 

receipts and disbursements made for activities described in section 

30101(20)(A) of this title shall include a disclosure of all receipts and 

disbursements described in section 30125(b)(2)(A) and (B) of this 

title. 

(3) Itemization 

If a political committee has receipts or disbursements to which this 

subsection applies from or to any person aggregating in excess of $200 for 

any calendar year, the political committee shall separately itemize its 

reporting for such person in the same manner as required in paragraphs 

(3)(A), (5), and (6) of subsection (b). 

(4) Reporting periods 

Reports required to be filed under this subsection shall be filed for the same 

time periods required for political committees under subsection (a)(4)(B) of 

this section. 

(f) Disclosure of electioneering communications 

(1) Statement required 

Every person who makes a disbursement for the direct costs of producing 

and airing electioneering communications in an aggregate amount in excess 

of $10,000 during any calendar year shall, within 24 hours of each 

disclosure date, file with the Commission a statement containing the 

information described in paragraph (2). 

(2) Contents of statement 

Each statement required to be filed under this subsection shall be made 

under penalty of perjury and shall contain the following information: 

(A) The identification of the person making the disbursement, of any 

person sharing or exercising direction or control over the activities of 

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such person, and of the custodian of the books and accounts of the 

person making the disbursement. 

(B) The principal place of business of the person making the 

disbursement, if not an individual. 

(C) The amount of each disbursement of more than $200 during the 

period covered by the statement and the identification of the person to 

whom the disbursement was made. 

(D) The elections to which the electioneering communications pertain 

and the names (if known) of the candidates identified or to be 

identified. 

(E) If the disbursements were paid out of a segregated bank account 

which consists of funds contributed solely by individuals who are 

United States citizens or nationals or lawfully admitted for permanent 

residence (as defined in section 1101(a)(20) of Title 8) directly to this 

account for electioneering communications, the names and addresses 

of all contributors who contributed an aggregate amount of $1,000 or 

more to that account during the period beginning on the first day of 

the preceding calendar year and ending on the disclosure date. 

Nothing in this subparagraph is to be construed as a prohibition on the 

use of funds in such a segregated account for a purpose other than 

electioneering communications. 

(F) If the disbursements were paid out of funds not described in 

subparagraph (E), the names and addresses of all contributors who 

contributed an aggregate amount of $1,000 or more to the person 

making the disbursement during the period beginning on the first day 

of the preceding calendar year and ending on the disclosure date. 

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(3) Electioneering communication 

For purposes of this subsection– 

(A) In general 

(i) The term “electioneering communication” means any 

broadcast, cable, or satellite communication which– 

(I) refers to a clearly identified candidate for Federal 

office; 

(II) is made within– 

(aa) 60 days before a general, special, or runoff 

election for the office sought by the candidate; or 

(bb) 30 days before a primary or preference 

election, or a convention or caucus of a political 

party that has authority to nominate a candidate, 

for the office sought by the candidate; and 

(III) in the case of a communication which refers to a 

candidate for an office other than President or Vice 

President, is targeted to the relevant electorate. 

(ii) If clause (i) is held to be constitutionally insufficient by 

final judicial decision to support the regulation provided herein, 

then the term “electioneering communication” means any 

broadcast, cable, or satellite communication which promotes or 

supports a candidate for that office, or attacks or opposes a 

candidate for that office (regardless of whether the 

communication expressly advocates a vote for or against a 

candidate) and which also is suggestive of no plausible meaning 

other than an exhortation to vote for or against a specific 

candidate. Nothing in this subparagraph shall be construed to 

affect the interpretation or application of section 100.22(b) of 

title 11, Code of Federal Regulations. 

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(B) Exceptions 

The term “electioneering communication” does not include– 

(i) a communication appearing in a news story, commentary, or 

editorial distributed through the facilities of any broadcasting 

station, unless such facilities are owned or controlled by any 

political party, political committee, or candidate; 

(ii) a communication which constitutes an expenditure or an 

independent expenditure under this Act; 

(iii) a communication which constitutes a candidate debate or 

forum conducted pursuant to regulations adopted by the 

Commission, or which solely promotes such a debate or forum 

and is made by or on behalf of the person sponsoring the debate 

or forum; or 

(iv) any other communication exempted under such regulations 

as the Commission may promulgate (consistent with the 

requirements of this paragraph) to ensure the appropriate 

implementation of this paragraph, except that under any such 

regulation a communication may not be exempted if it meets 

the requirements of this paragraph and is described in section 

30101(20)(A)(iii) of this title. 

(C) Targeting to relevant electorate 

For purposes of this paragraph, a communication which refers to a 

clearly identified candidate for Federal office is “targeted to the 

relevant electorate” if the communication can be received by 50,000 

or more persons– 

(i) in the district the candidate seeks to represent, in the case of 

a candidate for Representative in, or Delegate or Resident 

Commissioner to, the Congress; or 

(ii) in the State the candidate seeks to represent, in the case of a 

candidate for Senator. 

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(4) Disclosure date 

For purposes of this subsection, the term “disclosure date” means– 

(A) the first date during any calendar year by which a person has 

made disbursements for the direct costs of producing or airing 

electioneering communications aggregating in excess of $10,000; and 

(B) any other date during such calendar year by which a person has 

made disbursements for the direct costs of producing or airing 

electioneering communications aggregating in excess of $10,000 since 

the most recent disclosure date for such calendar year. 

(5) Contracts to disburse 

For purposes of this subsection, a person shall be treated as having made a 

disbursement if the person has executed a contract to make the 

disbursement. 

(6) Coordination with other requirements 

Any requirement to report under this subsection shall be in addition to any 

other reporting requirement under this Act. 

(7) Coordination with Title 26 

Nothing in this subsection may be construed to establish, modify, or 

otherwise affect the definition of political activities or electioneering 

activities (including the definition of participating in, intervening in, or 

influencing or attempting to influence a political campaign on behalf of or in 

opposition to any candidate for public office) for purposes of Title 26. 

* * * 

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52 U.S.C. § 30118. Contributions or expenditures by national banks, 

corporations, or labor organizations 

(a) In general 

It is unlawful for any national bank, or any corporation organized by authority of 

any law of Congress, to make a contribution or expenditure in connection with any 

election to any political office, or in connection with any primary election or 

political convention or caucus held to select candidates for any political office, or 

for any corporation whatever, or any labor organization, to make a contribution or 

expenditure in connection with any election at which presidential and vice 

presidential electors or a Senator or Representative in, or a Delegate or Resident 

Commissioner to, Congress are to be voted for, or in connection with any primary 

election or political convention or caucus held to select candidates for any of the 

foregoing offices, or for any candidate, political committee, or other person 

knowingly to accept or receive any contribution prohibited by this section, or any 

officer or any director of any corporation or any national bank or any officer of any 

labor organization to consent to any contribution or expenditure by the corporation, 

national bank, or labor organization, as the case may be, prohibited by this section. 

(b) Definitions; particular activities prohibited or allowed 

* * * 

(2) For purposes of this section and section 79l(h) of Title 15, the term 

“contribution or expenditure” includes a contribution or expenditure, as 

those terms are defined in section 30101 of this title, and also includes any 

direct or indirect payment, distribution, loan, advance, deposit, or gift of 

money, or any services, or anything of value (except a loan of money by a 

national or State bank made in accordance with the applicable banking laws 

and regulations and in the ordinary course of business) to any candidate, 

campaign committee, or political party or organization, in connection with 

any election to any of the offices referred to in this section or for any 

applicable electioneering communication, but shall not include (A) 

communications by a corporation to its stockholders and executive or 

administrative personnel and their families or by a labor organization to its 

members and their families on any subject; (B) nonpartisan registration and 

get-out-the-vote campaigns by a corporation aimed at its stockholders and 

executive or administrative personnel and their families, or by a labor 

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organization aimed at its members and their families; and (C) the 

establishment, administration, and solicitation of contributions to a separate 

segregated fund to be utilized for political purposes by a corporation, labor 

organization, membership organization, cooperative, or corporation without 

capital stock. 

* * * 

(c) Rules relating to electioneering communications 

(1) Applicable electioneering communication 

For purposes of this section, the term “applicable electioneering 

communication” means an electioneering communication (within the 

meaning of section 30104(f)(3) of this title) which is made by any entity 

described in subsection (a) of this section or by any other person using funds 

donated by an entity described in subsection (a) of this section. 

(2) Exception 

Notwithstanding paragraph (1), the term “applicable electioneering 

communication” does not include a communication by a section 501(c)(4) 

organization or a political organization (as defined in section 527(e)(1) of 

Title 26) made under section 30104(f)(2)(E) or (F) of this title if the 

communication is paid for exclusively by funds provided directly by 

individuals who are United States citizens or nationals or lawfully admitted 

for permanent residence (as defined in section 1101(a)(20) of Title 8). For 

purposes of the preceding sentence, the term “provided directly by 

individuals” does not include funds the source of which is an entity 

described in subsection (a) of this section. 

* * * 

(6) Special rules for targeted communications 

(A) Exception does not apply 

Paragraph (2) shall not apply in the case of a targeted communication 

that is made by an organization described in such paragraph. 

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(B) Targeted communication 

For purposes of subparagraph (A), the term “targeted communication” 

means an electioneering communication (as defined in section 

30104(f)(3) of this title) that is distributed from a television or radio 

broadcast station or provider of cable or satellite television service 

and, in the case of a communication which refers to a candidate for an 

office other than President or Vice President, is targeted to the 

relevant electorate. 

(C) Definition 

For purposes of this paragraph, a communication is “targeted to the 

relevant electorate” if it meets the requirements described in section 

30104(f)(3)(C) of this title. 

* * * 

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11 C.F.R. § 104.20 Reporting electioneering communications (52 U.S.C. 

30104(f)). 

(a) Definitions. 

(1) Disclosure date means: 

(i) The first date on which an electioneering communication is 

publicly distributed provided that the person making the 

electioneering communication has made one or more disbursements, 

or has executed one or more contracts to make disbursements, for the 

direct costs of producing or airing one or more electioneering 

communications aggregating in excess of $10,000; or 

(ii) Any other date during the same calendar year on which an 

electioneering communication is publicly distributed provided that the 

person making the electioneering communication has made one or 

more disbursements, or has executed one or more contracts to make 

disbursements, for the direct costs of producing or airing one or more 

electioneering communications aggregating in excess of $10,000 since 

the most recent disclosure date during such calendar year. 

(2) Direct costs of producing or airing electioneering communications means 

the following: 

(i) Costs charged by a vendor, such as studio rental time, staff salaries, 

costs of video or audio recording media, and talent; or 

(ii) The cost of airtime on broadcast, cable or satellite radio and 

television stations, studio time, material costs, and the charges for a 

broker to purchase the airtime. 

(3) Persons sharing or exercising direction or control means officers, 

directors, executive directors or their equivalent, partners, and in the case of 

unincorporated organizations, owners, of the entity or person making the 

disbursement for the electioneering communication. 

(4) Identification has the same meaning as in 11 CFR 100.12. 

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(5) Publicly distributed has the same meaning as in 11 CFR 100.29(b)(3). 

(b) Who must report and when. Every person who has made an electioneering 

communication, as defined in 11 CFR 100.29, aggregating in excess of $10,000 

during any calendar year shall file a statement with the Commission by 11:59 p.m. 

Eastern Standard/Daylight Time on the day following the disclosure date. The 

statement shall be filed under penalty of perjury, shall contain the information set 

forth in paragraph (c) of this section, and shall be filed on FEC Form 9. Political 

committees that make communications that are described in 11 CFR 100.29(a) 

must report such communications as expenditures or independent expenditures 

under 11 CFR 104.3 and 104.4, and not under this section. 

(c) Contents of statement. Statements of electioneering communications filed 

under paragraph (b) of this section shall disclose the following information: 

(1) The identification of the person who made the disbursement, or who 

executed a contract to make a disbursement, and, if the person is not an 

individual, the person’s principal place of business; 

(2) The identification of any person sharing or exercising direction or control 

over the activities of the person who made the disbursement or who 

executed a contract to make a disbursement; 

(3) The identification of the custodian of the books and accounts from which 

the disbursements were made; 

(4) The amount of each disbursement, or amount obligated, of more than 

$200 during the period covered by the statement, the date the disbursement 

was made, or the contract was executed, and the identification of the person 

to whom that disbursement was made; 

(5) All clearly identified candidates referred to in the electioneering 

communication and the elections in which they are candidates; 

(6) The disclosure date, as defined in paragraph (a) of this section; 

(7) If the disbursements were paid exclusively from a segregated bank 

account consisting of funds provided solely by persons other than national 

banks, corporations organized by authority of any law of Congress, or 

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foreign nationals as defined in 11 CFR 110.20(a)(3), the name and address 

of each donor who donated an amount aggregating $1,000 or more to the 

segregated bank account, aggregating since the first day of the preceding 

calendar year. 

(8) If the disbursements were not paid exclusively from a segregated bank 

account described in paragraph (c)(7) of this section and were not made by a 

corporation or labor organization, the name and address of each donor who 

donated an amount aggregating $1,000 or more to the person making the 

disbursement, aggregating since the first day of the preceding calendar year. 

(9) If the disbursements were made by a corporation or labor organization 

and were not paid exclusively from a segregated bank account described in 

paragraph (c)(7) of this section, the name and address of each person who 

made a donation aggregating $1,000 or more to the corporation or labor 

organization, aggregating since the first day of the preceding calendar year, 

which was made for the purpose of furthering electioneering 

communications. 

(d) Recordkeeping. All persons who make electioneering communications or who 

accept donations for the purpose of making electioneering communications must 

maintain records in accordance with 11 CFR 104.14. 

(e) State waivers. Statements of electioneering communications that must be filed 

with the Commission must also be filed with the Secretary of State of the 

appropriate State if the State has not obtained a waiver under 11 CFR 108.1(b). 

11 C.F.R. § 109.10 How do political committees and other persons report 

independent expenditures? 

* * * 

(b) Every person that is not a political committee and that makes independent 

expenditures aggregating in excess of $250 with respect to a given election in a 

calendar year shall file a verified statement or report on FEC Form 5 in accordance 

with 11 CFR 104.4(e) containing the information required by paragraph (e) of this 

section. Every person filing a report or statement under this section shall do so in 

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accordance with the quarterly reporting schedule specified in 11 CFR 

104.5(a)(1)(i) and (ii) and shall file a report or statement for any quarterly period 

during which any such independent expenditures that aggregate in excess of $250 

are made and in any quarterly reporting period thereafter in which additional 

independent expenditures are made. 

* * * 

(e) Content of verified reports and statements and verification of reports and 

statements. 

(1) Contents of verified reports and statement. If a signed report or statement 

is submitted, the report or statement shall include: 

(i) The reporting person’s name, mailing address, occupation, and the 

name of his or her employer, if any; 

(ii) The identification (name and mailing address) of the person to 

whom the expenditure was made; 

(iii) The amount, date, and purpose of each expenditure; 

(iv) A statement that indicates whether such expenditure was in 

support of, or in opposition to a candidate, together with the 

candidate's name and office sought; 

(v) A verified certification under penalty of perjury as to whether such 

expenditure was made in cooperation, consultation, or concert with, or 

at the request or suggestion of a candidate, a candidate's authorized 

committee, or their agents, or a political party committee or its agents; 

and 

(vi) The identification of each person who made a contribution in 

excess of $200 to the person filing such report, which contribution 

was made for the purpose of furthering the reported independent 

expenditure. 

(2) Verification of independent expenditure statements and reports. Every 

person shall verify reports and statements of independent expenditures filed 

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pursuant to the requirements of this section by one of the methods stated in 

paragraph (e)(2)(i) or (ii) of this section. Any report or statement verified 

under either of these methods shall be treated for all purposes (including 

penalties for perjury) in the same manner as a document verified by 

signature. 

(i) For reports or statements filed on paper (e.g., by hand-delivery, 

U.S. Mail, or facsimile machine), the person who made the 

independent expenditure shall certify, under penalty of perjury, the 

independence of the expenditure by handwritten signature 

immediately following the certification required by paragraph 

(e)(1)(v) of this section. 

(ii) For reports or statements filed by electronic mail, the person who 

made the independent expenditure shall certify, under penalty of 

perjury, the independence of the expenditure by typing the treasurer's 

name immediately following the certification required by paragraph 

(e)(1)(v) of this section. 

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CERTIFICATE OF SERVICE 

I hereby certify that on April 10, 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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