ORAL ARGUMENT NOT YET SCHEDULED _____________________________________________________________________________________________________________________

_____________________________________________________________________________________________________________________ 

Nos. 07-5360, 07-5361 _______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

CHRISTOPHER SHAYS, 

Appellee and Cross-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellant and Cross-Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

RESPONSE AND REPLY BRIEF FOR THE 

FEDERAL ELECTION COMMISSION

_______________________________________________ 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Vivien Clair 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

 March 7, 2008 (202) 694-1650 

_____________________________________________________________________________________________________________________ 

_____________________________________________________________________________________________________________________ 
AMENDED RULE 28(a)(1) CERTIFICATE 

 (A) Amici. Although Senator John McCain and Senator Feingold jointly moved to 

participate as amici curiae in this Court (see D.C. Cir. docket entry for 12/31/07), Senator 

McCain apparently is no longer acting as an amicus. His name is not on the amicus brief that 

Senator Feingold filed. 
TABLE OF CONTENTS 

 Page 

ISSUE RAISED BY SHAYS’ CROSS-APPEAL..........................................................1 

STATUTES AND REGULATIONS RELEVANT TO THE CROSS-APPEAL...........1 

STATEMENT OF FACTS RELEVANT TO THE CROSS-APPEAL..........................1 

SUMMARY OF ARGUMENT ......................................................................................4 

ARGUMENT..................................................................................................................7 

I. THE COORDINATION “CONTENT” STANDARD IS LAWFUL.................7 

A. The New Content Regulation Goes Beyond the Minimum 

Congressional Requirements ..................................................................8 

1. The New Provision Regulates More Speech than 

Coordinated Express Advocacy and Electioneering 

Communications .........................................................................8 

2. The Revised Coordination Regulation Covers More 

Content than the Commission’s Pre-BCRA Approach 

and Provides a More Objective and Easily Enforceable 

Test............................................................................................11 

B. The New Content Regulation Satisfies Both Steps of Chevron 

Review .................................................................................................15 

1. Shays Does Not Challenge the District Court’s Finding 

That There Is No Evidence of Abuse of the Commission’s 

Regulation, and the Commission’s Predictive 

Judgment Is Entitled to Deference............................................16 

2. The Anecdotes Upon Which Shays Relies Are 

Unpersuasive.............................................................................19 

C. The New Content Regulation Satisfies APA Review...........................22 

1. The District Court’s APA Analysis Failed to Consider 

Congress’s Limited Regulatory Mandate .................................22 
2. The CMAG Data Are Comprehensive and Reliable, 

and Demonstrate that the Commission’s Line Drawing 

Was Reasonable........................................................................23 

II. THE COORDINATION “CONDUCT” STANDARDS AND THE 

FIREWALL SAFE HARBOR PASS CHEVRON AND APA REVIEW.........29 

A. “Conduct” Standards for Common Vendors and Former 

 Employees............................................................................................29 

B. The Firewall Safe Harbor.....................................................................33 

III. THE DEFINITIONS OF “GET-OUT-THE-VOTE ACTIVITY” 

 AND “VOTER REGISTRATION ACTIVITY” ARE LAWFUL ...................35 

IV. AS THE DISTRICT COURT HELD, THE REGULATION 

GOVERNING APPEARANCES AND SPEECH BY FEDERAL 

OFFICEHOLDERS AND CANDIDATES AT STATE PARTY 

FUNDRAISERS IS LAWFUL.........................................................................38 

 

CONCLUSION.............................................................................................................44 

ii
TABLE OF AUTHORITIES 

 Page 

Cases 

* AFL-CIO v. FEC, 333 F.3d 168, 179 (D.C. Cir. 2003) ................................................16 

American Coke and Coal Chemicals Institute v. EPA, 452 F.3d 930 

 (D.C. Cir. 2006) .......................................................................................................24 

American Public Communications Council v. FCC, 215 F.3d 51 

 (D.C. Cir. 2000) .......................................................................................................24 

* American Trucking Ass’n v. Dep’t of Transportation, 166 F.3d 374 

 (D.C. Cir. 1999) .......................................................................................................33 

Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246 

 (D.C. Cir. 1998) .......................................................................................................22 

AT&T Corp. v. FCC, 349 F.3d 692 (D.C. Cir. 2003) ...................................................44 

* Barnhart v. Thomas, 540 U.S. 20 (2003)......................................................................19 

Bolden v. Blue Cross & Blue Shield Ass’n, Inc., 848 F.2d 201 (D.C. Cir. 1988)...........8 

Branch v. FCC, 824 F.2d 37 (D.C. Cir. 1987)..............................................................16 

Buckley v. Valeo, 424 U.S. 1 (1976).................................................................14, 20, 26 

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

 Council, Inc., 467 U.S. 837 (1984)............ 2-7, 15, 16, 19, 22, 29, 33, 36, 38, 40, 44 

* Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1983)...................................................40 

 

Colorado Republican Federal Camp. Comm. v. FEC, 518 U.S. 604 (1996) ...13, 20, 41 

Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914 (D.C. Cir. 1998).......................28 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ..............................................16 

Connecticut v. Teal, 457 U.S. 440 (1982).....................................................................21 

Covad Communications Co. v. FCC, 450 F.3d 528 (D.C. Cir. 2006) ..........................36 

__________ 

* Cases and authorities chiefly relied upon are marked by an asterisk. 

iii
Donnelly v. F.A.A., 411 F.3d 267 (D.C. Cir. 2005) ......................................................40 

Duncan v. Walker, 533 U.S. 167 (2001).......................................................................39 

Electric Power Supply Ass’n v. FERC, 391 F.3d 1255 (D.C. Cir. 2004) .....................17 

FEC v. Christian Coalition, 52 F.Supp.2d 45 (D.D.C. 1999) ................................10, 15 

FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001) .........41 

FEC v. Colorado Republican Federal Camp. Comm., 59 F.3d 1015 

 (10th Cir. 1995).........................................................................................................13 

Flagg Bros. v. Brooks, 436 U.S. 149 (1978).................................................................30 

* Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965 (D.C. Cir. 1999) .............................17 

Gen. Am. Transp. Co. v. ICC, 872 F.2d 1048 (D.C. Cir. 1989) ...................................22 

Gray Panther Advisory Comm. v. Sullivan, 936 F.2d 1284 (D.C. Cir. 1991) ................8 

Hill v. Colorado, 530 U.S. 703 (2000) .........................................................................14 

Hutchins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999) ...............................17 

* In re Core Communications, Inc, 455 F.3d 267 (D.C. Cir. 2006) ..................................7 

Industrial Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974)...........24 

International Union v. Donovan, 746 F.2d 855 (D.C. Cir. 1984) ..................................9 

Keene Corp. v. United States, 508 U.S. 200 (1993) ...............................................42, 43 

* McConnell v. FEC, 540 U.S. 93 (2003)..........................................2, 5, 9, 11, 23, 26, 29 

McConnell v. FEC, 251 F.Supp.2d 176 (D.D.C. 2003)..........................................10, 24 

Milk Indus. Found. v. Glickman, 132 F.3d 1467 (D.C. Cir. 1998)...............................17 

Natural Resources Defense Council v. Thomas, 805 F.2d 410 (D.C. Cir. 1986) .........31 

Oceana Inc. v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005)............................................28 

* Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)..........................................14, 15, 18, 19 

Overnight Transp. v. NLRB, 140 F.3d 259 (D.C. Cir. 1998)........................................24 

iv
Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 

 495 (1988)................................................................................................................. 9 

Randall v. Sorrell, 126 S.Ct. 2479 (2006) ....................................................................28 

Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981)......................................................28 

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984)...........................................................26 

Senior Resources v. Jackson, 412 F.3d 112 (D.C. Cir. 2005) ......................................42 

Shays v. FEC, 337 F.Supp.2d 28 (D.D.C. 2004) ....................................2, 35, 38, 40, 42 

* Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ..................................15, 16, 18, 22, 23, 42 

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998).............................25 

Teamsters v. United States, 431 U.S. 324 (1977) .........................................................21 

Trout v. Lehman, 702 F.2d 1094 (D.C. Cir. 1983), vacated on other grounds, 

 465 U.S. 1056 (1984)...............................................................................................28 

Statutes and Regulations 

Administrative Procedure Act, 5 U.S.C. § 706(2) .................. 3-7, 22, 29, 30, 33, 38, 44 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 

 116 Stat. 81 (2002)........................................................... 1, 5, 7-9, 13, 18, 19, 23, 32 

BCRA, Title I................................................................................................................19 

* BCRA § 202....................................................................................................................9 

* BCRA § 214..................................................................................................................10 

BCRA § 307..................................................................................................................20 

* Federal Election Campaign Act, 2 U.S.C. §§ 431-455...................... 5-7,14, 20, 22, 23, 

 26, 30, 32, 35, 36, 38, 39 

2 U.S.C. § 431(2)(A)(ii)................................................................................................37 

2 U.S.C. § 431(9)(A)(i).................................................................................................15 

2 U.S.C. § 434(f)(3)(C)...................................................................................................8 

v
2 U.S.C. § 441a(d) ........................................................................................................20 

2 U.S.C. § 441a(d)(3)....................................................................................................13 

2 U.S.C. § 441i(b)...........................................................................................................2 

2 U.S.C. § 441i(e) .....................................................................................................1, 40 

2 U.S.C. § 441i(b)(2)(C).................................................................................................2 

2 U.S.C. § 441i(e)(1)...............................................................................................38, 44 

2 U.S.C. 441i(e)(1)(A)....................................................................................................2 

2 U.S.C. § 441i(e)(1)(B) ....................................................................................... 2-4, 39 

2 U.S.C. § 441i(e)(3)............................................................................ 2-4, 38-40, 42, 43 

2 U.S.C. § 441i(e)(4)(A)...............................................................................................39 

2 U.S.C. § 441i(e)(4)(B) ...............................................................................................39 

26 U.S.C. § 501(c) ........................................................................................................39 

39 U.S.C. § 3210(a)(6)(A) ..............................................................................................9 

11 C.F.R. § 100.23(c)(2) (2001) ...................................................................................10 

11 C.F.R. § 100.24(a)(2).........................................................................................35, 44 

11 C.F.R. § 100.24(a)(3).........................................................................................35, 44 

11 C.F.R. § 100.25........................................................................................................37 

11 C.F.R. § 109.20........................................................................................................15 

11 C.F.R. §§ 109.21(c)(4).....................................................................................7, 8, 44 

11 C.F.R. § 109.21(d)(4).........................................................................................29, 44 

11 C.F.R. § 109.21(d)(4)(iii).........................................................................................31 

11 C.F.R. § 109.21(d)(5).........................................................................................29, 44 

11 C.F.R. § 109.21(d)(5)(ii)..........................................................................................31 

vi
11 C.F.R. § 109.21(h) .......................................................................................33, 34, 44 

11 C.F.R. § 300.2(g) .......................................................................................................2 

11 C.F.R. § 300.2(i) ........................................................................................................2 

11 C.F.R. § 300.2(m) ....................................................................................................42 

11 C.F.R. § 300.2(n) .....................................................................................................42 

11 C.F.R. § 300.31..........................................................................................................2 

11 C.F.R. § 300.32..........................................................................................................2 

11 C.F.R. § 300.64..........................................................................................................2 

11 C.F.R. § 300.64(b) .....................................................................................1, 2, 38, 45 

Administrative Materials 

Candidate Solicitation at State, District, and Local Party Fundraising Events, 

 70 Fed. Reg. 9013 (2005) (NPRM) ......................................................................3, 43 

* Candidate Solicitation at State, District, and Local Party Fundraising Events, 

 70 Fed. Reg. 37,649 (2005) (Revised E&J for final rules).......................... 2-4, 38-41 

* Coordinated Communications, 71 Fed. Reg. 33,190 (2006) ..........23, 25, 30, 31, 33, 34 

* Definition of Federal Election Activity, 71 Fed. Reg. 8,926 (2006) 

 (Final rules and E&J)...................................................................................... 6, 36-38 

Definitions of “Solicit” and “Direct,” 71 Fed. Reg. 13,926 (2006) 

 (Final rules and E&J)................................................................................................42 

Prohibited and Excessive Contributions: Non-Federal or Soft Money, 

 67 Fed. Reg. 49,065 (2002) (Final rules and E&J) .................................................43 

FEC Advisory Opinion 1984-15...................................................................................12 

FEC Advisory Opinion 1985-14...................................................................................13 

FEC Advisory Opinion 1990-5.....................................................................................12 

FEC Advisory Opinion 2003-3.....................................................................................39 

FEC Advisory Opinion 2003-5.....................................................................................39 

vii
viii

FEC Advisory Opinion 2003-36...................................................................................39 

FEC Advisory Opinion 2006-19.............................................................................36, 37 

Miscellaneous 

147 Cong. Rec. S3184-85 (Mar. 30, 2001).....................................................................8 

Rules of the House of Representatives, Rule XXIV(8) ..................................................9 

S. Rep No. 93-461 (1973)...............................................................................................9 

Standing Rules of the Senate, Rule XL(1)......................................................................9 

U.S. Const. amend. I ...............................................................3, 6, 14, 16, 18, 29, 33, 35 
GLOSSARY 

AO = Advisory Opinion 

A.R. = Administrative Record 

BCRA = Bipartisan Campaign Reform Act of 2002 

CCP = Center for Competitive Politics 

CMAG = TNS Media Intelligence/CMAG 

DNC = Democratic National Committee 

E&J = Explanation and Justification 

FECA = Federal Election Campaign Act 

GOTV = Get Out The Vote 

J.A. = Joint Appendix 

MUR = Matter Under Review 

NPRM = Notice of Proposed Rulemaking 

S.J.A. = Supplemental Joint Appendix 

SOR = Statement of Reasons 

 
Oral Argument Not Yet Scheduled 

______________________________ 

Nos. 07-5360, 07-5361 

______________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

______________________________ 

CHRISTOPHER SHAYS, 

Appellee and Cross-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellant and Cross-Appellee. 

______________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

______________________________ 

 

ISSUE RAISED BY SHAYS’ CROSS-APPEAL 

 In addition to the issues raised by the Commission’s appeal (FEC Br. 1-2), the crossappeal by Shays raises the following issue: Whether 11 C.F.R. 300.64(b), permitting federal 

officeholders and candidates to attend and speak at state, district, and local political party 

fundraising events “without restriction or regulation,” is lawful. See infra pp. 38-44.

STATUTES AND REGULATIONS RELEVANT TO THE CROSS-APPEAL 

 The Addendum to this brief includes 11 C.F.R. 300.64(b) and other relevant provisions. 

STATEMENT OF FACTS RELEVANT TO THE CROSS-APPEAL 

The Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 

81 (2002), regulates solicitations by federal candidates and officeholders. See 2 U.S.C. 441i(e). 
The first part of paragraph (1) of that section “[i]n general” prohibits those individuals from, 

inter alia, soliciting funds “in connection with an election for Federal office, including funds for 

any Federal election activity” unless the funds are federal funds. 2 U.S.C. 441i(e)(1)(A).1 The 

second part of paragraph (1) permits federal candidates and officeholders to solicit nonfederal 

funds in connection with any election for a nonfederal office in amounts that may be contributed 

to federal candidates and political committees and are not from sources the Act prohibits. 

2 U.S.C. 441i(e)(1)(B). Paragraph (e)(3), entitled “Fundraising events,” states that, 

“[n]otwithstanding paragraph (1) and [2 U.S.C. 441i](b)(2)(C),” a federal candidate or 

officeholder “may attend, speak, or be a featured guest at a fundraising event for a State, district, 

or local committee of a political party.” 2 U.S.C. 441i(e)(3). 

 Commission regulation 11 C.F.R. 300.64 implements paragraph (e)(3) and specifies that 

a “fundraising event ... includ[es] but [is] not limited to a fundraising event at which Levin funds 

are raised, or at which non-Federal funds are raised.”2

 Section 300.64(b) states that 

“[c]andidates and individuals holding Federal office may speak at such [fundraising] events [by 

and for state, district, or local party committees] without restriction or regulation.” 

 In Shays v. FEC (Shays I), 337 F.Supp.2d 28, 88, 91-92 (D.D.C. 2004), the district court 

concluded that 11 C.F.R. § 300.64(b) passes Chevron review. See Chevron, U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The court also concluded, 

however, that, “[i]n the absence of any further explanation,” 337 F.Supp.2d at 93, the 

Commission’s Explanation and Justification (“E&J”) failed to provide a “reasoned analysis” in 

 

1

 “Federal funds” are funds subject to the limitations, prohibitions, and reporting 

requirements of the Act. See 11 C.F.R. 300.2(g). 

2

 “Levin funds” may be raised and spent under more lenient restrictions than those 

applicable to federal funds. See 2 U.S.C. 441i(b); 11 C.F.R. 300.2(i), 300.31, 300.32; McConnell 

v. FEC, 540 U.S. 93, 163-64 (2003). 

2
support of the regulation, in violation of the Administrative Procedure Act (“APA”). The 

Commission did not appeal that ruling. To comply with the district court’s decision, the 

Commission on remand issued a Notice of Proposed Rulemaking (“NPRM”) (J.A. 276-79) 

seeking comment on proposed revisions to the E&J or, in the alternative, on proposed revisions 

to the regulation to bar federal candidates and officeholders from soliciting or directing 

nonfederal funds when attending or speaking at state, district, and local party fundraising events. 

(J.A. 278-79.) After considering the comments it received (A.R. Vol. II, Docs. 7-19), both 

written and oral, and “carefully weighing the relevant factors” (J.A. 286), the Commission 

decided to retain the original rule and issued Supplementary Information and a revised E&J 

(J.A. 285-90). 

 In its revised E&J, the Commission explained that its construction of the underlying 

statutory provision rested on the need to harmonize that provision with 2 U.S.C. 441i(e)(1)(B); 

Congress’s inclusion of the “notwithstanding paragraph (1)” phrase in section 441i(e)(3); and 

Congress’s choice — not the Commission’s choice — to single out attendance and speech by 

federal officeholders and candidates at state, district, and local party fundraisers. (J.A. 287.) In 

addition, the Commission described the relationship between state political parties and federal 

officeholders and candidates as “unique” (id.) and explained that First Amendment and practical 

concerns also supported treating attendance and speech by those individuals at state fundraisers 

as a special case. (J.A. 287-89.) Finally, the Commission explained that the regulation is 

“carefully circumscribed,” has not led to corruption or abuse, and further restrictions would 

provide “little, if any, anti-circumvention protection.” (J.A. 289-90). 

 Shays again challenged the regulation. (Compl. ¶¶ 61-66, J.A. 44-46.) In response, the 

district court reaffirmed its earlier determination that the regulation passes Chevron analysis 

3
(J.A. 105) and concluded that, with the revised E&J, the regulation also satisfies APA 

requirements. The court found that the revised E&J “provides a detailed explanation of the 

factors that the Commission believes justifies its regulation ..., and Plaintiff does not 

meaningfully respond to [the Commission’s] concerns.” (J.A. 108). In reaching this 

conclusion, the court emphasized the following considerations: the challenged regulation 

permissibly harmonizes 2 U.S.C. 441i(e)(1)(B) and 441i(e)(3) (J.A. 106); the Commission 

justified its treating state party fundraisers differently from state candidate fundraisers (J.A. 

106-08), especially since “Congress opted to treat” the different kinds of fundraisers differently 

(J.A. 109); and the Commission adequately explained why its regulation does not create a risk of 

abuse or actual corruption — an explanation, the court noted (J.A. 108), that Shays did not even 

attempt to rebut. 

 On October 23, 2007, Shays filed a cross-appeal of the district court’s judgment 

upholding the regulation. (J.A. 120.) 

SUMMARY OF ARGUMENT 

 1. The Commission’s regulation defining the “content” of what constitutes a 

“coordinated communication” satisfies both Chevron and APA review. Congress gave the 

Commission broad discretion, and the Commission’s rule governs more speech than the 

minimum congressional requirement that coordinated “express advocacy” and “electioneering 

communications” be treated as coordinated communications. The legislative history supports the 

Commission’s interpretation, and Shays misleadingly relies on Senate floor statements that 

concerned the “conduct” aspect of coordination, not a communication’s content. 

 The content provision regulates more speech than the Commission’s pre-BCRA 

approach. In the 90/120-day pre-election periods when virtually all election ads are run, 

4
communications directed toward voters in the relevant jurisdictions will meet the new content 

standard simply by containing a reference to a federal candidate or political party. Before 

BCRA, the standard was less clear and comprehensive. 

 The district court correctly found that there is no factual basis for concluding that the 

content regulation has led to actual abuse since it has been in effect or that it otherwise unduly 

compromises the Federal Election Campaign Act (“Act” or “FECA”), 2 U.S.C. 431-455. During 

the rulemaking, no one presented evidence that coordinated spending has shifted to the preelection windows, and the Commission’s predictive judgment is entitled to deference. Shays 

relies on hypothetical and unrepresentative examples, many of which are unlikely to be repeated 

because of intervening changes in the law. The Commission properly relied on comprehensive 

data similar to what the Supreme Court relied on in McConnell. Those data suffer from no 

systematic flaws or biases and amply support the Commission’s line drawing. 

 The district court erred when it held that Congress’s limited regulatory mandate is 

relevant only to Chevron review and not the APA question regarding the rule’s ability to 

rationally separate election-related advocacy from other activity. Shays does not, however, 

dispute that this mandate is integral to both legal questions. Because the Commission regulated 

beyond the minimum congressional mandate and relied upon sound data in its regulatory linedrawing, its coordination content regulation satisfies both Chevron and APA review. 

 2. The revised coordination “conduct” standards for common vendors and former 

employees pass Chevron and APA review. In exercising its policymaking authority, the 

Commission reasonably focused on the 120-day period after a vendor or former employee 

provides services to a candidate’s campaign or a political party. Contrary to Shays’ and the 

district court’s assumption, by the end of that period a candidate’s or party’s campaign 

5
information has little or no remaining “shelf life” or has become public, available for others to 

tap. Also, the 120-day period does not unnecessarily inhibit the use of vendors and former 

employees to produce electoral communications for “outside” spenders — an activity advancing 

First Amendment interests. 

 3. The Commission promulgated its firewall safe harbor provision to prevent improper 

coordination without infringing the statutory and constitutional right of political committees and 

others to make both coordinated and independent expenditures. Under Chevron and the APA, 

the Commission is owed broad deference in selecting the level of generality of its regulations. 

Because the design and effectiveness of a firewall depend on the particular facts about an entity, 

the Commission reasonably chose to promulgate a general regulation, to be augmented by 

advisory opinions and the Act’s enforcement process. To come within the firewall safe harbor 

an entity must provide reliable information about the distribution and implementation of its 

firewall policy. 

 4. The Commission legitimately interpreted the undefined statutory terms “get-out-thevote activity” and “voter registration activity” to exclude mere encouragement to vote or register 

to vote and required that such activity “assist” persons with “individualized means.” Contrary to 

Shays’ assertion, these regulatory definitions are not unlawfully narrow. Shays, like the district 

court, ignores the deference to which the Commission is entitled in framing its regulations and 

assumes — misreading one fact-specific Commission advisory opinion and belittling the 

examples in the regulations’ E&J — that the definitions open up loopholes in the Act. However, 

the Commission has not yet had the opportunity to illustrate further its interpretation of those 

regulatory definitions through additional advisory opinions and enforcement matters. 

6
 5. The district court correctly held that the regulation permitting federal officeholders 

and candidates to speak and appear at state, district, and local fundraising events “without 

restriction or regulation” is lawful under Chevron and the APA. The regulation reasonably 

reconciles two provisions of the Act, and the unique relationship between those individuals and 

state and local parties supports that harmonizing construction. Failing to differentiate between 

the requirements for appearances at state and local fundraisers and the requirements for 

appearances at other fundraisers would nullify Congress’s singling out the party fundraisers. 

Furthermore, additional restrictions on the federal officeholders and candidates would provide 

little, if any, anti-circumvention protection. 

ARGUMENT 

I. THE COORDINATION “CONTENT” STANDARD IS LAWFUL 

 Shays repeatedly argues or assumes that when Congress enacted BCRA it directed 

the Commission to regulate more speech or promulgate stricter regulations than Congress 

actually required. In fact, Congress gave the Commission wide discretion to resolve the 

questions addressed by the regulation at issue, 11 C.F.R. 109.21(c)(4), and that regulation’s 

revised content standard goes far beyond the minimum statutory requirements. The Commission 

properly based its decisions on the available evidence, an accommodation of the competing 

policy interests the Commission is entrusted to implement, and its regulatory experience and 

expert judgment. The Commission’s interpretation is entitled to deference under Chevron and its 

progeny, and its predictive judgments about the behavior of those it regulates are entitled to 

“particularly deferential” review. In re Core Communications, Inc., 455 F.3d 267, 282 (D.C. 

Cir. 2006). See also FEC Br. 10-11, 18-19. The ultimate issue is whether the Commission’s 

coordination regulation is within the “permissible range of interpretations” of its delegated 

7
authority. Bolden v. Blue Cross & Blue Shield Ass’n, Inc., 848 F.2d 201, 205 (D.C. Cir. 1988). 

It is. 

A. The New Content Regulation Goes Beyond the Minimum 

Congressional Requirements 

 As we have shown (Br. 20-25), the revised content standard (11 C.F.R. 109.21(c)(4)) 

goes far beyond BCRA’s minimum requirements, and Shays does not dispute our showing that 

Congress expressly delegated broad authority for the Commission to determine what constitutes 

a coordinated expenditure and did not require any particular outcome.3

 Shays’ arguments are 

based largely on the erroneous premise that BCRA requires the Commission’s coordination 

regulation to cover more content overall than it did before BCRA. Cf. Gray Panther Advisory 

Comm. v. Sullivan, 936 F.2d 1284, 1287-88 (D.C. Cir. 1991) (reviewing rulemaking under 

statute requiring new regulation to be “at least as strict” as old one). However, Shays has not 

identified any statutory language or applicable legislative history that would require that result. 

1. The New Provision Regulates More Speech than Coordinated Express 

Advocacy and Electioneering Communications 

As previously explained (FEC Br. 13-14, 24), compared to the “electioneering 

communication” definition, the revised content regulation covers longer pre-election time 

periods (90/120 days); can be met by a reference to a political party (not just a federal 

candidate); applies to any type of public communication (not just radio and television); and does 

not require the “targeted” audience to be 50,000 or more people (compare 2 U.S.C. 

434(f)(3)(C)). The regulation is also supported by the Supreme Court’s finding that “almost all” 

 

3

 See FEC Br. 10-13, 18-19; 147 Cong. Rec. S3184-3185 (Mar. 30, 2001) (statement of 

Sen. Feingold) (“There is one thing I want to make very clear and reiterate: While this 

amendment instructs the FEC to consider certain issues in the new rule-making, it doesn’t 

require the FEC to come out any certain way or come to any definite conclusion one way or 

another.”). 

8
broadcast election ads the Court considered were disseminated within 60 days of the general 

election. McConnell, 540 U.S. at 127.4

 

 The content standard thus regulates far beyond the only content requirement that 

Congress added in BCRA § 202: A disbursement made for a coordinated electioneering 

communication must be treated as a contribution. Shays has not pointed to a single word or 

phrase in BCRA suggesting that the Commission was required to go further.5

 Indeed, the very 

fact that Congress believed it necessary to specify that coordinated electioneering 

communications be treated as contributions indicates that, in the absence of that provision, the 

statute would not have required the Commission to treat them as such. In particular, Shays does 

not refute our showing (Br. 20-22) that BCRA’s legislative history and language demonstrate a 

deliberate congressional choice not to require the Commission to define the content of a 

coordinated communications more broadly than coordinated express advocacy and 

electioneering communications.

 Shays emphasizes (Br. 28) floor statements by Senators McCain and Feingold, but those 

statements, when read in context, clearly address only the collaborative conduct necessary to rise 

to the level of coordination, not the content of what coordinated communications must include. 

 

4

 The 90/120-day periods are consistent with congressional judgments underlying the 

statutory provision and congressional rules on use of the franking privilege during a member’s 

campaign for re-election. See 39 U.S.C. 3210(a)(6)(A); Standing Rules of the Senate, Rule 

XL(1) (60-day rule); Rules of the House of Representatives, Rule XXIV(8) (90-day rule). The 

legislative history for these provisions shows that they were prophylactic measures “to avoid any 

trace of abuse” of the franking privilege for campaign purposes. S. Rep No. 93-461, 1973 WL 

12675, at *2909 (1973). Thus, Congress, like the Commission, concluded that communications 

within the few months before an election are much more likely to be for electoral purposes. 

5

 See Puerto Rico Dep’. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501 

(1988) (“unenacted approvals, beliefs, and desires are not laws”); International Union v. 

Donovan, 746 F.2d 855, 860-61 (D.C. Cir. 1984) (“issue here is not how Congress expected or 

intended the Secretary to behave, but how it required him to behave, through ... the enactment of 

legislation”). 

9
The Senators were addressing BCRA § 214, which repealed a regulation — 11 C.F.R. 

100.23(c)(2) (2001) — that had been inspired in part by FEC v. Christian Coalition, 

52 F.Supp.2d 45 (D.D.C. 1999). See generally S.J.A. 509-10; McConnell v. FEC, 251 F.Supp.2d 

176, 254-58 (D.D.C. 2003) (per curiam) (summarizing coordination issues and the impact of 

Christian Coalition). In turn, the main coordination dispute in that lawsuit had been the extent to 

which a spender had to collaborate and consult with a candidate (or political party) before the 

activity would be deemed “coordinated,” not whether the content of the communication had been 

sufficiently election-related to be a coordinated “expenditure.” See 52 F.Supp.2d at 89-97. 

 In particular, the quotations upon which Shays relies (Br. 28) are misleading. Senator 

McCain actually said (S.J.A. 507; emphasis added), “we expect the FEC to cover ‘coordination’ 

whenever it occurs, not simply when there has been an agreement or formal collaboration,” but 

Shays’ brief omits the second, crucial clause. Moreover, in the sentence immediately preceding 

the one just quoted, Senator McCain talked about behavior, not content: “Informal 

understandings and de facto arrangements can result in actual coordination as effectively as 

explicit agreement or formal collaboration.” Id. Likewise, when Senator Feingold spoke just 

before Senator McCain, he stated his view (S.J.A. 507) that 

[t]he FEC’s narrowly defined standard of requiring collaboration or agreement 

sets too high a bar to the finding of “coordination.” This standard would miss 

many cases of coordination that result from de facto understandings. 

Accordingly, Section 214 states that the Commission’s new regulations “shall 

not require agreement or formal collaboration to establish coordination.” 

Again, Shays quotes (Br. 28) only isolated phrases from these sentences, omitting the language 

that makes it clear that the crux of the Senator’s concern was the level of collaboration necessary 

to establish coordination. None of these remarks about collaborative conduct is relevant to the 

content prong of the regulation, the provision at issue here. 

10
2. The Revised Coordination Regulation Covers More Content 

than the Commission’s Pre-BCRA Approach and Provides a 

More Objective and Easily Enforceable Test 

As we have explained (Br. 12, 20-22; supra pp. 9-10), aside from the new requirement 

that coordinated electioneering communications be treated as contributions, Congress did not 

require or forbid any content change from the prior regulation. Despite the new regulation’s 

clear compliance with this congressional directive, Shays devotes considerable space (Br. 25-27) 

to explaining his view of the Commission’s historical interpretation of what constitutes a 

coordinated expenditure. Because the Commission’s pre-BCRA approach is not the issue before 

this Court, and the statute does not purport to restrict the Commission’s discretion to alter that 

approach, most of Shays’ historical argument is simply irrelevant. Even if it were relevant, 

however, the important point, which Shays overlooks, is that the Commission’s new regulation 

defines more speech as “coordinated communications” than the Commission’s previous 

approach — and with none of the uncertainty about the test that hampered earlier enforcement 

efforts. 

 The record in McConnell and the comprehensive data analyzed by the Commission in 

this rulemaking conclusively demonstrate that the overwhelming majority of campaign ads are 

run in the two months before an election. See J.A. 375-407. Under the Commission’s new 

content standard, any ad that merely refers to a federal candidate or political party is regulable as 

a coordinated expenditure if its meets the other criteria for coordination. Consequently, virtually 

all ads run within the 90/120 day pre-election periods that are even remotely connected with the 

election will be regulable because the rule requires absolutely no parsing of any other content of 

the ad: no analysis is needed about whether the ad contains a lobbying message or an 

electioneering message, whether it promotes or attacks a candidate, whether it exhorts the 

11
audience to vote for or against a candidate, or whether its election advocacy is sufficiently 

explicit. Thus, this part of the regulation alone will cover the vast majority of coordinated 

campaign advertising. 

 In the years leading up to BCRA, however, things were not so simple. There was great 

confusion about the content requirement for coordinated expenditures, and no one could 

seriously argue that, under the earlier regime, during the 90/120-periods leading up to an election 

all that mattered in terms of content was whether the ad contained a reference to a candidate or 

political party. Indeed, the amicus briefs in this case demonstrate this confusion; each presents 

plausible arguments for contradictory views of the test the Commission was applying. See

Feingold Br. 3-9; CCP Br. 2-7. The Court need not, however, resolve their dispute to distill the 

only two points that are important here: The earlier regime (1) employed some sort of content 

standard far more demanding than a mere reference to a clearly identified candidate or political 

party, and (2) created so much uncertainty that it ultimately undermined the Commission’s 

ability to enforce the statute effectively. 

 In a series of advisory opinions addressing coordinated expenditures by political parties, 

the test articulated by the Commission for whether coordinated spending constituted a 

coordinated expenditure turned on whether there was an “electioneering message” — in addition 

to the requirement of clearly identifying a candidate. In Advisory Opinion (“AO”) 1990-5, 

[Transfer Binder] Fed. Election Camp. Guide (CCH) ¶ 5982 (April 27, 1990) (Exh. 7 to FEC 

Summary Judgment Motion), for example, the Commission addressed whether newsletters 

published by a company owned by the candidate might result in such contributions. The 

Commission’s opinion rested on a content criterion that clearly demanded more than just a 

reference to the federal candidate. See id. at 6-7. See also, e.g., AO 1984-15, [Transfer Binder] 

12
Fed. Election Camp. Guide (CCH) ¶ 5766 (May 31, 1984) (Exh. 10 to FEC Summary Judgment 

Motion); AO 1985-14, [Transfer Binder] Fed. Election Camp. Guide (CCH) ¶ 5819 (May 24, 

1985) (Exh. 11 to FEC Summary Judgment Motion). Thus, the Tenth Circuit explained in FEC 

v. Colorado Republican Federal Camp. Comm., 59 F.3d 1015, 1022 (10th Cir. 1995) (emphasis 

added), vacated on other grounds, Colorado Republican Federal Camp. Comm. v. FEC

(“Colorado I”), 518 U.S. 604 (1996): 

Giving deference to the FEC’s interpretation, we hold that § 441a(d)(3) 

applies to coordinated spending that involves a clearly identified candidate 

and an electioneering message, without regard to whether that message 

constitutes express advocacy. 

 By the late 1990s, however, a consensus emerged among the Commissioners that there 

was no clear standard for assessing whether a coordinated communication had been made “for 

the purpose of influencing” an election. In 1999, in the context of audits of the Clinton and Dole 

campaign committees, four of the Commissioners “express[ed their] disagreement with the use 

of ‘electioneering message’ as a test to determine whether communications are ‘for the purpose 

of influencing’ elections and, therefore, constitute expenditures or contributions under the 

[FECA].” Statement of Reasons (“SOR”) of Commissioners Wold, Elliott, Mason, and 

Sandstrom in Audits of Dole and Clinton Campaign Committees (June 24, 1999) at 2 (Exh. 8 to 

McCain Amicus Br. (district court)). See also SOR of Commissioner McDonald in MUR 4553 

et al., at 3 (J.A. 139); SOR of Commissioners Mason and Smith in MUR 4538 (May 23, 2002) 

(summarizing the various Commissioners’ “differing but largely individually consistent positions 

with respect to the threshold for finding a communication to be coordinated contribution”), at 1 

(Exh. 6 to McCain Amicus Br. (district court)). 

 Thus, while there was no clear consensus among the Commissioners during the years 

immediately leading up to BCRA about the content requirement for coordinated 

13
communications, it is indisputable that the Commission required more than a reference to a 

clearly identified candidate or political party, even within 90 or 120 days of an election. In this 

regard, the new content standard captures vastly more speech than the previous standard. Shays’ 

determined focus exclusively on the time outside the 90/120-day pre-election periods causes him 

to lose sight of this critically important, wider breadth of the new regulation during the period 

that matters most — the months leading up to the election when the overwhelming majority of 

campaign advertising occurs. 

 Moreover, Shays does not dispute our showing (Br. 27-28) that the new content standard 

serves fundamental First Amendment interests by eliminating vagueness.6

 In contrast to the 

historical difficulty in applying a consistent coordinated expenditure content standard, the new 

regulation’s clarity serves the Act’s purposes by drastically reducing the possibility that the 

Commission will ever have to dismiss an administrative complaint because of uncertainty about 

the definitional scope of “coordinated communication.” This helps ensure that the new 

regulation’s full breadth will be enforceable — another reason why it does not create a potential 

for abuse. See Orloski v. FEC, 795 F.2d 156, 165 (D.C. Cir. 1986) (“Administrative exigencies 

mandate that the FEC adopt an objective, bright-line test[,]... necessary to enable donees and 

donors to easily conform their conduct to the law and to enable the FEC to take the rapid, 

decisive enforcement action that is called for in the highly-charged political arena.”); Buckley v. 

Valeo, 424 U.S. 1, 41 (1976) (“‘[p]recision of regulation ... must be the touchstone in an area so 

closely touching our most precious freedoms’”) (internal citation omitted). 

 

 

6

 See Hill v. Colorado, 530 U.S. 703, 729 (2000) (“A bright-line prophylactic rule may be 

the best way..., by offering clear guidance and avoiding subjectivity, to protect speech itself.”). 

14
 Finally, Shays emphasizes (Br. 26-27) the Commission’s litigating position in Christian 

Coalition, but that position does not undermine the Commission’s new regulation or current 

arguments before this Court. In briefing that case, the Commission certainly refuted the 

defendant’s arguments that express advocacy was a statutory or constitutional prerequisite for 

treating a disbursement as a coordinated expenditure, and the new regulation’s breadth in the 

90/120-day pre-election periods shows that the Commission’s position on that question has not 

changed. To demonstrate that the disbursements in Christian Coalition were coordinated 

expenditures in that pre-BCRA case, the Commission argued that there was sufficient 

collaboration and sharing of information to constitute “coordination,” and that the disbursements 

met the statutory definition of “expenditure” — 2 U.S.C. 431(9)(A)(i) (“for the purpose of 

influencing any election for Federal office”) — regardless of whether they contained express 

advocacy. See, e.g., J.A. 130-31.7

B. The New Content Regulation Satisfies Both Steps of Chevron Review 

 This Court previously held that “[r]egarding Chevron step one, we agree that Congress 

has not spoken directly to the issue” addressed by the new content regulation. Shays v. FEC

(“Shays I Appeal”), 414 F.3d 76, 98 (D.C. Cir. 2005). Shays does not challenge this holding. 

Similarly, Shays does not challenge the district court’s conclusion (J.A. 93) that the court 

lack[ed] a factual predicate on which to conclude either that actual abuse of 

BCRA has occurred as a result of the Commission’s previous content 

standard, or that the revised content standard “unduly compromises” the Act 

or “create[s] the potential for gross abuse.” Orloski, 795 F.2d at 164. 165. As 

a result, based on this record, the Court must conclude that the revised content 

standard survives Chevron step two analysis. 

 

7

 To the extent the Commission’s argument in Christian Coalition involved coordinated 

spending on equipment or other expenses that were not communications (see J.A. 130-31), the 

Commission was making the obvious point that an express advocacy test makes no sense in that 

context because such spending involves no expression at all. Non-communicative coordinated 

expenditures are addressed in 11 C.F.R. 109.20, not by the regulation now before this Court. 

15
As explained below, Shays cannot point to any evidence in the rulemaking record that the 

content regulation has led to any circumvention or abuse, let alone “gross” abuse. Instead, Shays 

continues to rely on examples that the district court found unpersuasive in its Chevron analysis. 

 This Court previously agreed with the Commission that it has an “obligation to ‘attempt 

to avoid unnecessarily infringing on First Amendment interests.’” Shays I Appeal, 414 F.3d 

at 101 (quoting AFL-CIO v. FEC, 333 F.3d 168, 179 (D.C. Cir. 2003)). Shays essentially wants 

the Commission to ignore this obligation and regulate any communication that could conceivably 

have even a tiny electoral effect, but this Court required no such rule.8

1. Shays Does Not Challenge the District Court’s Finding That 

There Is No Evidence of Abuse of the Commission’s Regulation, 

and the Commission’s Predictive Judgment Is Entitled to 

Deference 

 The district court correctly stated (J.A. 92): 

[T]he Court notes that neither Plaintiff nor any of the written comments 

submitted during the coordinated communications rulemaking adduced 

evidence of actual coordination outside of the pre-election windows while the 

FEC’s 2002 coordination rules were in effect See Def.’s Br. at 40 (citing [J.A. 

425-26]). Indeed, when the Joint Commenters were specifically asked during 

the public hearing about the ads described in the National Journal articles, 

they “acknowledged that there was no evidence that any of these 

 

8

 Shays is mistaken when he argues (Br. 29 n.16) that the “Commission’s First 

Amendment avoidance argument waives its claim to Chevron deference.” An agency “does not 

have jurisdiction to declare statutes unconstitutional” but it “may be influenced by constitutional 

considerations in the way it interprets or applies statutes.” Branch v. FCC, 824 F.2d 37, 47 (D.C. 

Cir. 1987). During the rulemaking, the Commission did not claim that the decision it reached 

was required by the First Amendment or that the statute would be unconstitutional if construed 

more broadly, but simply that, as required under AFL-CIO, its construction was designed in part 

to avoid unnecessarily infringing on First Amendment interests. J.A. 426. In Common Cause v. 

FEC, 842 F.2d 436, 448 (D.C. Cir. 1988), the court deferred to a narrow FEC construction of the 

statute that accommodated the “countervailing consideration[]” of “allow[ing] the maximum of 

first amendment freedom of expression in political campaigns commensurate with Congress’ 

regulatory aims.” The cases relied on by Shays involved statutory interpretations necessary to 

avoid constitutional conflicts or a court’s refusal to defer to an agency’s construction of prior 

judicial precedent. Neither of those situations is present here. 

16
advertisements had been coordinated with a candidate or a political party 

committee.” Id. (citing [J.A. 426]); [J.A. 361-63]. 

Shays does not challenge the district court’s finding that no one has presented any evidence of 

circumvention or abuse of the Commission’s coordination regulation since it has been in effect; 

instead, Shays rests his case on his fear that this is a hypothetical possibility (see, e.g., Br. 7). 

The future is uncertain, but it is the Commission, not Shays, that is entitled to deference for such 

predictive judgments; Shays does not refute this important legal principle. 

When an agency must balance a number of potentially conflicting objectives..., 

judicial review is limited to determining whether the agency’s decision 

reasonably advances at least one of those objectives and its decisionmaking 

process was regular.... [A]n agency’s predictive judgment regarding a matter 

within its sphere of expertise is entitled to “particularly deferential” review. 

Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965, 971 (D.C. Cir. 1999) (quoting Milk Indus. 

Found. v. Glickman, 132 F.3d 1467, 1478 (D.C. Cir. 1998)). Accord Hutchins v. District of 

Columbia, 188 F.3d 531, 542 (D.C. Cir. 1999) (en banc). 

 Lacking evidence that the content regulation has led to any real abuse, Shays attempts 

(Br. 25 & n.11) to excuse his inability to cite any such evidence by arguing both that the 

Commission’s regulation legalizes certain coordinated activity and that such coordinated activity 

would be “secret.” This argument is factually flawed: If certain activity is indeed lawful under 

the Commission’s regulation, there would be no reason for anyone to hide it. This argument is 

also without legal support: Shays relies (id.) upon Electric Power Supply Ass’n v. FERC, 

391 F.3d 1255, 1264 (D.C. Cir. 2004), a case that involved an ex parte regulation that was 

“absurd” because it required affected parties to guess when secret communications had taken 

place. However, because Shays worries about activity that the Commission has supposedly 

deregulated, the activity is not inherently secret and Electric Power Supply is inapposite. 

 Next, Shays falsely characterizes (Br. 22-23) the Commission’s line drawing here as the 

kind of de minimis exception that this Court rejected regarding allocation of certain kinds of 

17
spending with “Levin funds.” Shays I Appeal, 414 F.3d at 112-115. But that analogy is not apt. 

The Commission’s regulation does not affirmatively authorize identifiable spending that a literal 

reading of BCRA prohibits. Instead, the Commission has drawn a rational line to separate, in an 

inherently gray area concerning First Amendment activity, spending that is likely to be for the 

purpose of influencing an election from spending that is not. Rather than creating an exception 

to a “rigid regime,” 414 F.3d at 114, in which Congress has specified exactly what kinds of funds 

have to be allocated for specific types of activity, the Commission here has simply adopted a 

rational construction of the comparatively elastic term “expenditure” in the context of 

coordinated expenditures. 

 The dispositive precedent on this point is Orloski, which Shays attempts (Br. 29-30) to 

diminish by emphasizing the irrelevant fact that the case involved, inter alia, a donation of food. 

Shays makes no attempt, however, to rebut our argument (Br. 25-26) that the coordination 

regulation involves the same sort of line drawing, and is entitled to the same deference, as in 

Orloski. Both here and in Orloski, the Commission was not creating a de minimis exception but 

filling “a large gap between the obviously impermissible and the obviously permissible.” 

Orloski, 795 F.2d at 164. In both situations, the Commission drew a line that distinguished 

campaign spending from non-campaign spending and gave breathing space for First Amendment 

activity, and in both cases there is admittedly an area of potential overlap. As the court noted in 

Orloski, “any corporate funding of congressional events indirectly influences the election.” Id. at 

163 (emphasis added). The Commission’s line drawing in Orloski did not depend upon the size 

of the corporate funding but instead articulated a general principle to distinguish electoral from 

non-electoral spending and relied in part upon the express advocacy standard — the same partial 

reliance to which Shays objects so strongly here. Finally, while the district court found that the 

National Journal articles upon which Shays relies show that some early campaign advertising 

18
exists, the court, citing Orloski, correctly found (J.A. 93) that the content standard does not 

unduly compromise the Act and therefore held that the standard “survives Chevron step two 

analysis.” Shays does not demonstrate why, in his view, that conclusion was wrong. 

 As the Supreme Court explained in Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003), 

when it upheld a narrow regulatory definition of “disability” that relied on an “effective and 

efficient administrative proxy” for determining a person’s ability to work: 

To generalize is to be imprecise. Virtually every legal (or other) rule has 

imperfect applications in particular circumstances.... The proper Chevron inquiry 

is not whether the agency construction can give rise to undesirable results in some 

instances (as here both constructions can), but rather whether, in light of the 

alternatives, the agency construction is reasonable. 

Under this standard, the Commission’s content regulation is reasonable. 

2. The Anecdotes Upon Which Shays Relies Are Unpersuasive 

 Despite the district court’s conclusion (J.A. 92) that “BCRA has dramatically changed the 

legal landscape in which federal candidates and outside spenders interact,” Shays continues to 

rely (Br. 14-15) on the advertising campaign allegedly coordinated between President Clinton’s 

campaign and the Democratic National Committee (“DNC”) in 1995 and 1996. But this 

advertising campaign is irrelevant to the regulation at issue now that BCRA is on the books. 

Even if everything the press reported about this episode is true, the simple fact is that Title I of 

BCRA now prevents the DNC from receiving or spending a dollar of soft money. Thus, to the 

extent that the DNC used large amounts of soft money to do what the Clinton campaign could 

not have done itself, BCRA’s ban on soft money has plugged that “loophole” and the 

Commission’s coordination regulation need not plug it again. With only hard money in its 

coffers, the DNC can use those funds for express advocacy or any other lawful purpose; it thus 

19
has no incentive to find ways to influence federal elections with soft money that it can no longer 

have. 

 Moreover, Shays ignores another key development since the DNC’s advertising took 

place: the Supreme Court’s decision in Colorado I. That decision was handed down on June 26, 

1996, after the “early” DNC ads had come to an end. Before that case was decided, the 

Commission had a regulation providing that national political parties were incapable of making 

independent expenditures in support of their own candidates, see Colorado I, 518 U.S. at 619-23, 

so the parties were limited for such spending by the coordinated expenditure limits in 

2 U.S.C. 441a(d). Thus, at the time of the 1995-96 DNC ads, there was a much greater incentive 

(from the parties’ perspective) to find ways around the FECA’s restrictions, because the section 

441a(d) limits were assumed to be an absolute cap on hard money expenditures in support of the 

parties’ own candidates. Colorado I completely changed that dynamic by opening the door for 

political parties to make unlimited independent expenditures to support their own candidates, and 

no similar program has been undertaken by any political party since then. This is yet another 

reason why the DNC episode is unlikely to recur, and the Commission’s coordination regulation 

need not, by itself, carry the burden of preventing another similar episode.9

 Shays also relies (Br. 15) on an anecdote about early spending by Steve Forbes in the 

2000 presidential election, but it makes no sense to extrapolate from the spending pattern of an 

extraordinarily wealthy individual — with virtually unlimited money to spend on his own 

campaign at any time — to predict coordinated spending by others. Since Buckley, 424 U.S. 

 

9

 Later, BCRA § 307 substantially raised the limits on contributions of federal funds to 

national party committees. The parties’ ability to accept more federal funds enhances the 

likelihood that they will use independent expenditures to communicate whatever message they 

like and lowers the incentive for them to search for ways to avoid the Act’s restrictions. 

20
at 51-53, candidates have been free to spend as much of their personal fortunes as they like in 

support of their own campaigns. This holding about the First Amendment right of individuals to 

spend their personal wealth on their own campaigns is a matter of constitutional law, not an 

indication that a “loophole” needs to be plugged based on a tenuous extrapolation to the context 

of coordinated expenditures. 

 Although Shays devotes several pages to describing various non-coordinated ads run 

outside the revised pre-election windows during several election cycles, he does not challenge 

the district court’s holding (J.A. 94) that he “present[ed] no evidence of the statistical 

significance of the advertisements described in the National Journal articles, and in light of the 

limited evidentiary value of the alleged Clinton-DNC coordination, the Court lacks a basis on 

which to conclude that this evidence actually undermines” the Commission’s line drawing at 90 

and 120 days before election day. Similarly, although Shays accuses (Br. 21) the Commission of 

comparing apples to oranges when we compared (Br. 19) 236 discrete early ads with more than 

500,000 airings of ads, so did the district court (J.A. 94 n.23) — and for good reason: Shays did 

not present evidence of how often any of these ads were actually aired. And because Shays 

provided only a select group of examples, not a comprehensive methodology that looked both 

inside and outside the revised pre-election windows, we have no way of knowing whether the 

ads Shays chose to highlight represent 1% or .01% of all the election ads run during the election 

cycle. Courts have long recognized that the probative value of statistical evidence varies with 

sample size. See Connecticut v. Teal, 457 U.S. 440, 463 n.7 (1982) (citing Teamsters v. United 

States, 431 U.S. 324, 340 n.20 (1977)). Shays’ limited examples do not undermine the 

Commission’s comprehensive data or reasonable conclusions. 

21
C. The New Content Regulation Satisfies APA Review 

1. The District Court’s APA Analysis Failed to Consider Congress’s 

Limited Regulatory Mandate 

 As previously explained (FEC Br. 22-23), although the district court acknowledged 

(J.A. 98) that the Commission “regulated more broadly” than Congress required, the court erred 

by holding that Congress’s limited regulatory mandate is relevant only to Chevron review and 

not the APA question regarding the rule’s ability to “‘rationally separat[e] election-related 

advocacy from other activity.’” J.A. 98 (citing Shays I Appeal, 414 F.3d at 102).10 Shays offers 

no response to our argument that this limited mandate is highly relevant to the Court’s APA 

review. Specifically, Shays does not dispute our reliance (Br. 22-23) on this Court’s prior 

holding in Shays I Appeal and in several other cases that both Chevron and APA review require 

the courts to determine whether the Commission has “‘rationally considered the factors deemed 

relevant by the Act.’” 414 F.3d at 96-97 (quoting Gen. Am. Transp. Co. v. ICC, 872 F.2d 1048, 

1053 (D.C. Cir. 1989)). Again (see supra pp. 9-10), since Congress only required that the 

Commission treat coordinated express advocacy and electioneering communications as 

coordinated communications, Congress itself explicitly deemed those factors relevant, and its 

limited mandate is highly relevant in evaluating the rationality of the Commission’s decisionmaking under the APA. Indeed, this limited mandate directly indicates Congress’s own 

approach to “separat[ing] election-related advocacy from other activity.” Shays I Appeal, 

 

10 The district court also erred (J.A. 98) when it treated the Commission’s argument about 

Congress’s limited regulatory mandate as a post hoc rationalization. The regulation’s content 

leaves no doubt that the Commission relied on that mandate when it modeled the regulation on 

the criteria that define “electioneering communications” and used the express advocacy standard. 

The argument in our briefs is thus the “same rationale the [Commission] implicitly adopted” in 

its rule and was “not offered as an alternative or supplemental explanation for an agency action 

. . . previously justified on other grounds.” Association of Bituminous Contractors, Inc. v. Apfel, 

156 F.3d 1246, 1252 (D.C. Cir. 1998)

22
414 F.3d at 102. Thus, the Commission’s regulation — which follows Congress’s general 

approach but expands upon it — is reasonable on its own terms and evinces a rational 

consideration of the factors deemed relevant by Congress. 

2. The CMAG Data Are Comprehensive and Reliable, and Demonstrate 

that the Commission’s Line Drawing Was Reasonable 

 Shays misconstrues the guidance from this Court regarding the data relevant to this 

regulation. The Commission merely has to establish that “its rule rationally separates electionrelated advocacy from other activity falling outside FECA’s expenditure definition.” Shays I 

Appeal, 414 F.3d at 102 (emphasis added). When this Court ruled previously, it did not have the 

comprehensive data and analysis that are now before it, but as the record now demonstrates (see

J.A. 361-64, 373-407, 419-30), the revised rule does “not permit substantial coordinated 

expenditure.” 414 F.3d at 102 (emphasis added). 

 As previously discussed (Br. 13-19), the Commission explained how it reasonably relied 

on the CMAG data when it determined that the overwhelming majority of candidates’ campaign 

advertising took place during the 90- and 120-day periods defined in the coordination rule. The 

district court noted (J.A. 80) that Shays did not challenge the “validity of the CMAG data itself” 

and that similar data were relied upon by the district court and the Supreme Court in the 

McConnell litigation.11 As the district court found (J.A. 80), because the parties “agree that 

 

11 In McConnell, Shays championed the use of CMAG data to support the bright-line 

electioneering communication provisions in BCRA. For example, Shays described “the CMAG 

data [as] represent[ing] the most comprehensive body of research on political television 

advertising ever conducted.” Br. of Reps. Shays and Meehan at 66, McConnell v. FEC, No. 

02-1674 (2003). Since 2000, CMAG has added 26 major markets to its coverage, so the data in 

this rulemaking are far more complete than what the Supreme Court relied on in McConnell. 

The CMAG data now cover “more than 560 stations in 101 major markets .... The monitored 

stations constitute the principal stations in each market, typically including the network affiliates 

and major independents.” Vol. III, Doc. 54, A.R. 2187 (from DVD open “CMAG_Read_Me” 

file); see Vol. III, Doc. 55, A.R. 2204-05 (listing 101 major markets). Previously, CMAG only 

23
CMAG is a leading provider of political advertising tracking as well as media analysis services 

to a wide variety of clients, including national media organizations, foundations, academics, and 

Fortune 100 companies,” the CMAG data set comprises the most comprehensive and complete 

available data, and the Commission is entitled to rely upon it. See American Public 

Communications Council v. FCC, 215 F.3d 51, 56 (D.C. Cir. 2000) (“agency necessarily enjoys 

broad discretion to attempt to formulate a solution to the best of its ability on the basis of 

available information”); Industrial Union Dep’t., AFL-CIO v. Hodgson, 499 F.2d 467, 475 n.18 

(D.C. Cir. 1974); American Coke and Coal Chemicals Institute v. EPA, 452 F.3d 930, 942-43 

(D.C. Cir. 2006)). 

 Nevertheless, Shays relies on the limitations inherent in the CMAG data as if these 

limitations were somehow unique to this rulemaking or created by the Commission. Shays fails 

to provide his own analysis of the data or to point to other comparably systematic data that 

would undermine the Commission’s analysis. If a different analysis would have supported 

Shays’ position in this case, it is reasonable to assume that he would have presented it to the 

Court. Cf. Overnight Transp. v. NLRB, 140 F.3d 259, 267 (D.C. Cir. 1998) (adverse inference 

rule is based on theory that “a party will of his own volition introduce the strongest evidence 

available to prove his case”). The district court properly rejected each of Shays’ attacks on the 

Commission’s data analysis. 

 First, the court found (J.A. 81) that the CMAG data’s use of television ads but not radio 

ads was acceptable because Shays “offer[ed] no evidence that the pattern of electoral advocacy 

differs on television and radio.” Second, the court similarly found (id.) that the data’s use of ads 

 

monitored stations “in the top 75 media markets, containing more than 80 percent of U.S. 

residents.” McConnell, 251 F.Supp.2d at 720 (CKK). 

24
run by candidates was satisfactory because Shays also failed to offer any evidence that the 

“pattern of electoral advocacy by non-candidates differs from that of candidates themselves.” 

Shays does not challenge either of those findings on appeal. 

 Third, the district court properly rejected (J.A. 81-82) Shays’ argument, which he repeats 

here (Br. 31-32), that the Commission’s analysis of presidential races was flawed because it 

focused on certain battleground states.12 Despite the fact that all presidential data captured by 

CMAG (not limited to battleground states) are part of the administrative record, Shays chose not 

to perform any analysis of his own with the presidential data.13 In addition, as the district court 

recognized, the Commission’s focus on battleground states in presidential races “may actually 

have been ‘statistically conservative’ because battleground states ‘would be presumed to have 

the most advertising, even if they are not representative of the entire nation,’ such that the 

relative percentages of early advertising might drop if non-battleground states were included.” 

J.A. 81 (citations omitted). 

 In particular, Shays relies heavily (Br. 12-13, 31-32) on Iowa and New Hampshire in the 

presidential race, and argues that the Commission’s analysis is flawed because it did not include 

 

12 It is unclear whether the Court has jurisdiction to rule on Shays’ challenge to the portion 

of the regulation governing the presidential election because he has never been, or stated any 

intention to be, a candidate for president. Although the Commission has not challenged Shays’ 

standing, the Court has its own obligation to determine that it has jurisdiction over each of his 

claims. “The requirement that jurisdiction be established as a threshold matter springs from the 

nature and limits of the judicial power of the United States and is inflexible and without 

exception.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) (internal 

quotation marks, alteration, and citation omitted).

13 As the district court correctly noted (J.A. 82), the Commission’s battleground analysis 

was based on 23 media markets fully contained within 11 states in order to ensure that “all 

presidential primary advertisements within such media markets would relate to the relevant 

battleground state.” See also J.A. 381-87, 424 & n.21. The complete data sets, as delivered to 

the Commission by CMAG, are part of the administrative record. See Administrative Record 

filed on October 31, 2006. 

25
data from New Hampshire. However, none of the media markets CMAG monitors is in New 

Hampshire. See J.A. 82 & n.13. Thus, the Commission simply had no data to include from that 

state, and its analysis did not ignore any data in its possession. (As noted supra p. 23 & n.11, 

both Shays and the courts relied on CMAG data in McConnell, even though that data included no 

information from New Hampshire.) A number of other states also could not be included in the 

Commission’s analysis, but Iowa — the other very early caucus or primary state for the 

presidential race — was included. Overall, Shays presents no evidence that such early states are 

systemically underrepresented, and what matters statistically is whether there is any reason to 

believe that the data are unrepresentative or skewed. In other words, Shays has presented no 

evidence to suggest that if additional data had been captured, the overall pattern of spending 

would have looked any different in a way that would undercut the Commission’s conclusions. 

See Segar v. Smith, 738 F.2d 1249, 1276-77 (D.C. Cir. 1984) (where there was no reason to 

believe that among experienced personnel one racial group was more likely to possess certain 

prior work experience, it did not matter that a statistical analysis failed to control for that 

qualification). 

 Moreover, while it is true that there was a comparatively large amount of early 

advertising in Iowa, the Commission is not required to design its regulation to account for each 

state’s particular characteristics. To the contrary, when the Supreme Court in Buckley upheld the 

Act’s contribution limits, it explained that the “provisions might well have been structured to 

take account of the graduated expenditure limitations for congressional and Presidential 

campaigns[.] Congress’ failure to engage in such fine tuning does not invalidate the legislation.” 

424 U.S. at 30. It was similarly reasonable for the Commission to assess the overall pattern of 

26
campaign advertising and draw lines that would apply nationwide regardless of when particular 

states choose to hold their primaries. 

 Fourth, Shays misses the point when he argues (Br. 30) that “House and Senate data sets 

for some unexplained reason omit all 2003 data with respect to ads broadcast in connection with 

the 2004 campaign.” No such ads appear in the data sets because no such early ads were run in 

the media outlets that CMAG captures. The Commission omitted nothing from the data sets, 

which included all candidate-sponsored ads from stations CMAG monitored for all federal races 

— House, Senatorial, and Presidential — from November 6, 2002, through November 2, 2004. 

Vol. III, Doc. 54, A.R. 2187 (from DVD open “CMAG_Read_Me” file). Although Shays relies 

on National Journal articles and cites a few examples of ads from 2003, these are not ads that 

CMAG would have been expected to capture: Most were radio ads (CMAG only monitors 

television) or were on small local cable channels (CMAG monitors approximately the top 40 

cable channels). Id. The district court reviewed the ads described in the National Journal 

articles and stated (J.A. 82-83) that it “cannot conclude that they reveal an actual discrepancy in 

the CMAG data.... In sum, the Court lacks a basis for concluding that the CMAG data omit 

relevant advertisements or are unreliable as a result.” 

 Contrary to Shays’ rhetoric (Br. 31), the House and Senate data sets are not “worthless.” 

Rather, they reflect advertising that actually aired in major television markets, as observed by an 

independent, reputable organization. The paucity of early advertising in the CMAG data 

supports the Commission’s line drawing, not any problems in the Commission’s methodology. 

Shays does not even attempt to explain any basis for overturning the district court’s finding 

(J.A. 83) that “Plaintiff has provided no evidence demonstrating that the FEC’s analysis of the 

CMAG data is generally skewed or unrepresentative.” In the absence of such evidence, it is 

27
Shays’ anecdotes that are “worthless” in understanding the relative frequency and distribution of 

campaign advertising. 

[U]nquantified, speculative, and theoretical objections to the proffered statistics 

are properly given little weight by the trial court: 

When a plaintiff submits accurate statistical data, and a defendant alleges that 

relevant variables are excluded, defendant may not rely on hypothesis to 

lessen the probative value of plaintiff’s statistical proof. Rather, defendant ... 

must either rework plaintiff’s statistics incorporating the omitted factors or 

present other proof undermining plaintiff’s claims. 

Trout v. Lehman, 702 F.2d 1094, 1102 (D.C. Cir. 1983), vacated on other grounds, 465 U.S. 

1056 (1984) (quoting Segar v. Civiletti, 508 F. Supp. 690, 712 (D.D.C. 1981)). Here, Shays has 

done nothing to “rework” the CMAG data nor presented any other proof that contradicts it. 

 Because the Commission relied on what is indisputably the most comprehensive data 

available — data that measured actual airings of advertisements, not predictions — Shays’ 

reliance (Br. 32) on Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914 (D.C. Cir. 1998), is 

misplaced. In that case, EPA used a model that predicted results “orders of magnitude” less than 

the concentration of certain chemicals actually measured in practice. Id. at 922 (quotation marks 

and citation omitted). Here, in contrast, the only real data issue is whether the small percentage 

of broadcasts that CMAG does not capture systemically skews the data in a manner that would 

undermine the Commission’s findings, and Shays has not presented any evidence of such a 

problem, let alone one that suggests there is a data skew that involves multiple orders of 

magnitude. See Oceana Inc. v. Evans, 384 F.Supp.2d 203, 221 (D.D.C. 2005) (refusing to apply 

the rule from Columbia Falls Aluminum despite “flawed or limited” data that included a number 

of “uncertainties”). 

 Shays’ reliance (Br. 32) on Randall v. Sorrell, 126 S.Ct. 2479 (2006), is also misplaced. 

That case evaluated whether certain contribution limits were so low as to prevent effective 

28
campaigning, and in that context the Court was concerned about the limits’ effect on the most 

competitive races. Here, the Commission was balancing the competing concerns of preventing 

corruption and leaving breathing space for protected First Amendment activity, while at the same 

time drawing a bright line defining the content of speech subject to regulation on a nationwide 

basis. In McConnell, when the Supreme Court analyzed whether the electioneering 

communication provision was overbroad, it did not question whether the provision would be 

more or less overbroad depending upon whether the ads were being run in competitive or 

uncontested elections. That same level of analysis is appropriate in this facial challenge. In any 

event, as explained supra pp. 25-26, by focusing on battleground states for the presidential 

general election, the Commission took a statistically conservative approach because such states 

would be presumed to have the earliest and most advertising, even if they are not representative 

of the entire nation. 

 Finally, Shays makes no attempt to dispute our showing (Br. 27-28) that bright-line rules 

can satisfy APA review even if they are underinclusive to some extent. All told, the Commission 

acted well within its discretion by choosing to rely upon the best available data to promulgate a 

regulation that demonstrably serves the goals of the Act while avoiding unnecessary 

infringement on speech. This is more than enough to satisfy “arbitrary and capricious” review, 

and the coordination content regulation should therefore be upheld. 

II. THE COORDINATION “CONDUCT” STANDARDS AND THE FIREWALL 

SAFE HARBOR PASS CHEVRON AND APA REVIEW 

 A. “Conduct” Standards for Common Vendors and Former Employees 

Shays does not dispute that the Commission’s revised coordination “conduct” standards 

for common vendors and former employees, 11 C.F.R. 109.21(d)(4) and (d)(5), satisfy Chevron

step one. Contrary to his assertion (Br. 34-35), the standards also pass Chevron step two and 

29
APA review. See FEC Br. 29-31. In adopting the 120-day provision, the Commission protected 

against circumvention of the Act without ignoring the practicalities of modern American 

campaigns. 

In its E&J, the Commission noted (J.A. 433) that “[m]any commenters suggested that 

including the entire election cycle ... was overinclusive, especially with regard to six-year Senate 

election cycles.” Only after considering these and other comments, which “reflect[ed] 

experience in the recent election cycles under these [2003] rules,” did the Commission conclude 

that a “current election cycle” limit was “overly broad and unnecessary to the effective 

implementation of the coordination provisions.” (Id.) Shays does not strongly dispute that a 

revision of the election cycle temporal limit was justifiable. For example, he offers no serious 

rebuttal of the Commission’s reasons (J.A. 434) for changing the “current election cycle” 

timeframe in the Senate context. Moreover, he does not challenge the Commission’s adopting a 

“bright line” temporal rule. 

Shays instead focuses on the Commission’s particular temporal “bright line”; he prefers a 

longer period than 120 days. See, e.g., Br. 37 (“[W]hy not use that [180 days] as the 

benchmark?”).14 Because the Commission adequately explained why the limit it chose is 

reasonable, however, the possibility that a different temporal limit may also be reasonable 

 

14 Shays erroneously asserts that the Commission “affirmatively authorizes” candidate 

campaign committees and political party committees to coordinate advertisements with outside 

spenders beyond the 120-day window. Br. 34; emphasis in original. Shays has leaped from the 

premise that a regulation does not prohibit certain conduct to the illegitimate conclusion that the 

regulation therefore authorizes that conduct. Cf. Flagg Bros. v. Brooks, 436 U.S. 149, 164-65 

(1978) (rejecting argument that constitutional restraints can be applied to “private action by the 

simple device of characterizing the [government’s] inaction as ‘authorization’ or 

‘encouragement.’”). 

30
provides no basis for overturning the Commission’s decision. See, e.g., Natural Resources 

Defense Council v. Thomas, 805 F.2d 410, 423 n. 20 (D.C. Cir. 1986). 

 Expert political commenters told the Commission that campaign information has a 

limited useful life. See J.A. 433-34. The Commission used polling data as an example 

supporting those general statements. Although Shays criticizes the Commission’s reference to 

the useful life span of political polls (Br. 37), he overlooks the relevance of that life span on 

actual campaign tactics. Because polling information retains only 5% of its value between 60 

and 180 days after the polling and after that drops to zero, see 11 C.F.R. 106.4(g), campaigns 

using polls and other information like it are unlikely to rely upon them after the 120-day period 

specified in the revised regulation. 

By ignoring the ways that “material” campaign information becomes public during the 

course of a campaign, Shays greatly exaggerates the regulation’s potential for abuse. The 

coordination conduct standards for common vendors and former campaign employees clearly 

state that those standards are not satisfied if those persons obtain material information “from a 

publicly available source.” 11 C.F.R. 109.21(d)(4)(iii), (d)(5)(ii). See J.A. 434 (E&J). Thus, if a 

common vendor or former employee draws on information that has become public during the 

course of a campaign, the coordination conduct standard will not be met. So, for example, once 

candidates or their agents themselves publicly reveal the candidates’ campaign themes through 

campaign materials, debates, speeches, and published interviews, common vendors or former 

employees can create, produce, or distribute a payor’s communication — even one that trumpets 

the same themes a candidate emphasizes — without meeting the coordination conduct standards. 

Similarly, a common vendor or former employee may draw on news stories about a campaign’s 

31
tactics and strategy, without meeting the coordination conduct standards.15 In an age of “horse 

race” political journalism and Internet blogs, the odds are heavily against a campaign’s keeping 

its tactics and strategy secret for very long. Like the district court, Shays fails to give due weight 

to modern conditions and instead merely assumes that campaign information stays “material” 

beyond the 120-day period. 

 Although the earlier version of the conduct standards did not explicitly bar employment 

for an entire election cycle, the Commission explained that “many commenters” had noted that 

the election cycle temporal limit “operated in practice as a ‘period of disqualification.’” 

(J.A. 433.) The concerns of common vendors and former employees are inextricably bound with 

the need to avoid a time limit so restrictive that it could inhibit the production of electoral 

communications — an activity advancing First Amendment interests. See FEC Br. 31. In 

revising the temporal limits, the Commission sought to serve BCRA’s broad goals while also 

addressing these concerns. Shays wrongly minimizes their importance. 

 In sum, political actors must meet changing circumstances, and in four months 

circumstances can greatly change. Shays and the district court overestimate the “shelf life” of 

campaign information and fail to defer to the Commission’s predictive policy judgment that the 

revised conduct standards for common vendors and former employees will not encourage 

evasion of the Act’s coordination rules. They also fail to recognize that unnecessarily restricting 

the opportunities of common vendors and former employees to work for political parties, 

 

15 In addition, publicly available historical data on election results and post-election expert 

analyses show where a particular political party and its candidates are strong or weak. An 

outside spender can tap that public information to make an educated prediction of the strategy a 

party or candidate is likely to adopt. The spender can learn of a campaign’s media buying 

strategies from the publicly available inspection files kept by television stations. (J.A. 434.) 

32
candidates, and “outside” payors ultimately harms First Amendment interests. The revised 

standards pass Chevron analysis and meet APA requirements. 

B. The Firewall Safe Harbor 

 In arguing that the firewall safe harbor regulation, 11 C.F.R. 109.21(h), is unlawful, 

Shays ignores key portions of the Commission’s discussion (Br. 31-38) that anticipate and rebut 

his arguments. His objections rest ultimately on policy disagreements with the Commission. 

Those disagreements cannot, however, overcome the broad deference owed the Commission. 

 Shays fails, most notably, to address directly the Commission’s showing (Br. 34) that 

case law applying Chevron requires courts to accord agencies “very broad deference in selecting 

the level of generality at which they will articulate rules.” American Trucking Ass’n v. Dep’t of 

Transportation, 166 F.3d 374, 379 (D.C. Cir. 1999).16 The APA similarly does not demand a 

particular level of specificity in a rule. See FEC Br. 34-35. The Commission reasonably chose 

to promulgate a general regulation, to be augmented by advisory opinions and the statutory 

enforcement process, because the design and effectiveness of a firewall depend on the particular 

facts about a covered entity’s organization, clients, and personnel. (See FEC Br. 33-35; 

J.A. 435.) As the Commission stated (Br. 33), “one size does not fit all when it comes to 

firewalls” — a proposition that even Shays acknowledges “may be true” (Shays Br. 38). The 

E&J gives an example of a kind of firewall that, according to commenters, some entities have 

used to avoid the possibility of coordination: “[E]mployees are placed on separate teams (or 

‘silos’) within the organization, so that information does not pass between the employees who 

 

16 Shays barely touches on this important principle. He merely attempts in a footnote 

(Br. 39 n.21) to distinguish factually one of the cases the Commission cited. He does not deny 

the broad proposition that an agency has discretion how generally to frame its regulations. 

33
work on independent expenditures and the employees who work with candidates and their 

agents.” (J.A. 435.) 

 Shays also disregards the Commission’s explanation (FEC Br. 39) of the context for the 

E&J’s statement that “common leadership or overlapping administrative personnel does not 

defeat the use of a firewall” (J.A. 436). The E&J neither states nor implies that a firewall would 

be effective “where the same person is orchestrating independent and coordinated expenditures.” 

Shays Br. 39 (emphasis in original). Indeed, as the E&J notes (J.A. 436), the firewall regulation 

provides that the safe harbor does not apply if, “despite the firewall, information ... material to 

the creation, production, or distribution of the communication was used or conveyed to the 

person paying for the communication.” 11 C.F.R. 109.21(h). 

 Shays largely ignores the Commission’s explanation (Br. 37) of the differences between 

the 2003 rulemaking and the 2006 rulemaking. As the Commission established in its opening 

brief (id.), the Commission did not, as Shays asserts (Br. 40), “‘change its course’”; rather, it 

provided a “‘reasoned analysis’” for its decision to adopt a firewall safe harbor. In 2003, the 

Commission focused on confidentiality agreements, not a firewall safe harbor, and it suggested, 

in the context of former employees, that a firewall might be acceptable. S.J.A. 524, 526. 

Shays also overlooks (Br. 38 n.20) the Commission’s clearly stated interpretation of its 

regulation that a person cannot come within the firewall safe harbor simply by alleging the 

existence of an internal firewall. As the E&J explained (J.A. 436; emphases added), someone 

seeking to use the safe harbor “should be prepared to provide reliable information (e.g., 

affidavits) about an organization’s firewall, and how and when the firewall policy was distributed 

and implemented.” 

34
 Finally, Shays omits the full story of why First Amendment concerns suitably played a 

key role in the Commission’s promulgation of the firewall safe harbor provision. Contrary to 

Shays’ assertion, the Commission did not issue that rule to “‘benefit political consultants or 

lobbyists.’” Shays Br. 39 (citation omitted). The Commission aimed (J.A. 435) to prevent 

improper coordination without infringing the right to make both coordinated and independent 

expenditures that the Act and Supreme Court precedent protect. See FEC Br. 31-32. In the 

Commission’s reasonable judgment, the safe harbor provision achieves that purpose. 

III. THE DEFINITIONS OF “GET-OUT-THE-VOTE ACTIVITY” AND “VOTER 

 REGISTRATION ACTIVITY” ARE LAWFUL 

As previously explained (FEC Br. 38-39, 43-44), the Commission legitimately 

interpreted “get-out-the-vote activity” (“GOTV activity”) and “voter registration activity” — two 

types of “federal election activity” — to exclude mere encouragement to vote or register to vote. 

The Commission therefore retained the “assist” and the “individualized means” requirements in 

the scope of the definitions. (J.A. 367-68.) See 11 C.F.R. 100.24(a)(2), (3). Shays apparently 

now agrees with the Commission that routine or spontaneous exhortations encouraging people to 

vote or register to vote are “innocuous” and may be excluded, consistent with the Act, from 

regulatory definitions of “GOTV activity” and “voter registration activity.” Shays Br. 45 & n.26. 

But see id. at 41, 42 n.24.17

 Shays complains, however, that the definitions the Commission has promulgated are too 

narrow. He asserts (Br. 45) that broader definitions “could surely be crafted” that would exempt 

routine encouragement, but he offers no suggestions for definitions that could achieve that goal 

 

17 Even the district court, which held the definitional regulations unlawful, rejected Shays’ 

contention, repeated in this Court (Br. 41-42), that the Commission’s definitions fail because 

they are inconsistent with common usage, which allegedly includes the notion of encouragement. 

See J.A. 112 n.35; Shays I, 337 F.Supp.2d at 98-99. 

35
without including the terms “assist” or “individualized means.” In any event, a “court need not 

conclude that the agency construction was the only one it permissibly could have adopted ..., or 

even the reading the court would have reached if the question initially had arisen in a judicial 

proceeding.” Chevron, 467 U.S. at 843 n.11. Accord, e.g., Covad Communications Co. v. FCC, 

450 F.3d 528, 537 (D.C. Cir. 2006). 

 To support his claim that the definitions are unlawfully narrow, Shays relies (Br. 42-45) 

on one FEC advisory opinion (“AO”) and the alleged need for the Commission to have included 

additional examples in its E&J. But neither provides the necessary support for his argument. In 

relying on AO 2006-19, Shays dismisses (Br. 43-44) the Commission’s emphatic caution that the 

opinion is fact-dependent and depends on the combination of factors the opinion lists. (J.A. 410-

11.) See also FEC Br. 40-41.18 Instead, Shays and his amicus overgeneralize from the AO and 

assume that the Commission would find that no mass communications constitute “federal 

election activity” subject to the Act’s special financing rules for that activity. They also overlook 

the Commission’s explicit statement that certain telephone bank operations would constitute 

GOTV, see FEC Br. 43, and fail to consider the legal significance of the factual differences 

between their hypothetical scenarios and AO 2006-19. For example, Shays hypothesizes (Br. 43; 

emphasis added) “large-scale efforts encouraging potential supporters to register to vote and 

directing them how they may do so.” Not only is the hypothetical situation factually thin, unlike 

 

18 Contrary to Shays’ assertion, the Commission’s principal brief does not conflict with 

AO 2006-19. For example, Shays wrongfully describes (Br. 45) the brief as a “post hoc

assurance that ... [the] regulations apply without time limitation.” In the pertinent passage (FEC 

Br. 39), our brief referred to the Commission’s own deletion of the phrase “within 72 hours of an 

election” that had been included in the earlier version of the GOTV definition. See J.A. 369 

(E&J) (“No such time limitation exists, and the removal of the 72-hour reference will clarify that 

this has always been the case.”). 

36
the situation in AO 2006-19, but the communications in that AO did not direct the recipients how 

to register to vote. Shays thus has no basis for assuming that the Commission would conclude 

that his hypothetical communications — if made concrete with additional facts — are not “voter 

registration activities.”19 

 In addition, Shays and Senator Feingold ignore the possibility that a communication may 

fall within one of the other categories of “federal election activity” and thus be regulated for 

independent reasons. See FEC Br. 42-43. For example, Senator Feingold’s hypothetical 

communication, which urges recipients to “get-out-and-vote Democratic/Republican!” (Br. 15), 

not only differs markedly from the communications in AO 2006-19, but would fall within the 

“generic campaign activity” category of “federal election activity.” 2 U.S.C. 431(2)(A)(ii); 

11 C.F.R. 100.25. 

 Echoing the district court, Shays characterizes the E&J’s examples as “‘straw men’” that 

only illustrate the obvious. Br. 45. But state and local party committees include thousands of 

legally unsophisticated political activists. See, e.g., J.A. 367; FEC Br. 46. Shays has adduced no 

evidence that the examples are unhelpful to those individuals. In any event, the proposition that 

an agency’s regulation is faulty because some of the examples in its E&J are straightforward 

makes no sense. 

 Shays also finds fault with the Commission’s lack of examples covering so-called “gray 

areas.” Although Shays denies (Br. 45 n.26) that he is objecting to a lack of additional detail in 

 

19 Shays does not counter the Commission’s characterization (FEC Br. 40-41) of his 

primary hypothetical communication (see J.A. 115) as sketchy and unlikely. The same 

characterization applies to another hypothetical situation Shays posits (Br. 43), where state 

parties “blanket the state with automated telephone calls by celebrities identifying the date of the 

election and exhorting recipients to get out the vote.” Shays does not explain why a state party 

committee would be likely to finance the dissemination of a message that does not tout any 

individual candidates, slate of candidates, or even the party itself. 

37
the regulation and the E&J’s examples, his criticism amounts to little more. As a result, he — 

like his amicus and the district court — has rushed to judgment and has condemned the 

regulatory definitions before the Commission has had the opportunity to illustrate further its 

interpretation of those regulations through additional fact-specific advisory opinions and 

enforcement matters. As the Commission explained (Br. 34-35), it enjoys broad deference in 

choosing the level of detail to include in a regulation. 

IV. AS THE DISTRICT COURT HELD, THE REGULATION GOVERNING 

APPEARANCES AND SPEECH BY FEDERAL OFFICEHOLDERS AND 

CANDIDATES AT STATE PARTY FUNDRAISERS IS LAWFUL 

 

The regulation governing appearances and speech by federal officeholders and candidates 

at state and local fundraising events, 11 C.F.R. 300.64(b), permits those individuals to attend and 

speak “without restriction or regulation.” As the district court concluded in Shays I and 

reaffirmed in this case (J.A. 105), section 300.64(b) satisfies Chevron review.20 Furthermore, as 

the district court also found (J.A. 106-09), the Commission’s revised and expanded E&J presents 

a reasonable explanation for the regulation and thus meets APA requirements. Shays presents no 

arguments that undermine these conclusions. 

 Section 300.64(b) implements 2 U.S.C. 441i(e)(3), in which Congress stated that 

“[n]otwithstanding” section 441i(e)(1), federal officeholders and candidates “may attend, speak, 

or be a featured guest” at a state, district, or local political party fundraising event. The provision 

to which section 441i(e)(3) refers, section 441i(e)(1), generally prohibits federal officeholders 

and candidates from soliciting nonfederal funds unless the amounts do not exceed the 

 

20 The provision is “ambiguous,” the court found, and thus passes Chevron step one. 

(J.A. 105, citing Shays I, 337 F.Supp.2d at 88). It also passes Chevron step two, the court 

concluded, because it does not represent an “impermissible construction” of the Act and does not 

“unduly compromise[ ] the Act’s purposes.” (Id.) 

38
permissible contribution limits for federal funds.21 

 The revised E&J explains (J.A. 287) that the Commission’s regulation reconciles section 

441i(e)(3), which singles out speech at state and local fundraisers, with section 441i(e)(1)(B). 

In contrast to assertions by commenters that without section 441i(e)(3) 

candidates would not be able to attend, appear, or speak at State party events 

where soft money is raised, the Commission has determined that under section 

441i(e)(1)(B) alone, Federal officeholders and candidates would be permitted to 

speak and solicit funds at a State party fundraiser for the non-Federal account of 

the State party in amounts permitted by FECA and not from prohibited sources. 

See Advisory Opinions 2003-03, 2003-05 and 2003-36. 

 

Interpreting section 441i(e)(3) merely to allow federal candidates and officeholders to attend or 

speak at a state, district, or local fundraiser but not to solicit funds without restriction fails to 

harmonize the two statutory provisions because the covered individuals “may already solicit up 

to $10,000 per year in non-Federal funds from non-prohibited sources for State parties under 

section 441i(e)(1)(B)” (J.A. 287).22 Worse, this alternative interpretation would make section 

441i(e)(3) “largely superfluous” (J.A. 287), a result that the Commission’s regulation properly 

avoids. See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (It is “a cardinal principle of 

statutory construction ... that a statute ought, upon the whole, to be so construed that, if it can be 

prevented, no clause, sentence, or word shall be superfluous, void, or insignificant”) (internal 

 

21 See also, e.g., 2 U.S.C. 441i(e)(4)(A) (permitting federal candidates or officeholders to 

make general solicitations for certain section 501(c) organizations); 2 U.S.C. 441i(e)(4)(B) 

(permitting federal candidates or officeholders to solicit funds for certain section 501(c) organizations of up to $20,000 from individuals for some types of “federal election activity”). These 

provisions and section 441i(e)(1)(B) establish that Congress did not intend to eliminate all 

solicitation of nonfederal funds by federal officeholders and candidates. 

22 Even opponents of the current regulation have agreed that 2 U.S.C. § 441i(e)(1)(B) 

allows federal officeholders and candidates to solicit nonfederal funds subject to federal limits 

and source prohibitions at state and local party fundraisers. As the district court noted (J.A. 106), 

“Plaintiff [Shays] has not offered an alternative reading of Section 441i(e)(1)(B) ... and appears 

to endorse the Commission’s interpretation.” See also, e.g., Feingold Amicus Br. 19; Doc. 18, 

A.R. 553 (Lawrence Noble), A.R. 608-09 (Donald Simon). (A.R. citations in this part of the 

memorandum are to Volume II of the Record on DVD.) 

39
quotation marks and citations omitted); Donnelly v. F.A.A., 411 F.3d 267, 271 (D.C. Cir. 2005) 

(same). 

 Congress’s inclusion of the “notwithstanding paragraph (1)” phrase in section 441i(e)(3) 

further supports this reading. As the Commission’s revised E&J notes (J.A. 287), the Supreme 

Court has observed that “the Courts of Appeals generally have ‘interpreted similar 

“notwithstanding” language ... to super[s]ede all other laws, stating that a clearer statement is 

difficult to imagine.’” Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1983). 

 Shays (Br. 48) and amicus Feingold (Br. 18) argue that “speak” is not the same as 

“solicit” and that Congress used “solicit” or “solicitation” in other provisions of section 441i(e). 

But under the same logic, Congress knows how to ban activity it decides to prohibit. The district 

court properly held that, “‘if Congress had wanted to adopt a provision allowing Federal 

officeholders and candidates to attend, speak, and be featured guests at state party fundraisers but 

denying them permission to speak about soliciting funds, Congress could have easily done so’” 

(J.A. 287 (E&J), quoting Shays I, 337 F.Supp.2d at 89, which in turn quoted the Commission). 

Even if the interpretation favored by Shays and Feingold were reasonable, under Chevron the 

Commission’s reasonable reading must be upheld. 

 In sum, Congress — not the Commission — singled out speech and attendance by federal 

officeholders and candidates at state or local party fundraising events. In the regulation Shays 

challenges, the Commission has permissibly construed that special statutory provision to 

harmonize it with another provision in the same subsection. 

 In addition to discussing the Commission’s construction of the statute, the revised E&J 

explains (J.A. 287-89) that regulating federal officeholders’ and candidates’ speech at state and 

local fundraising events raises particularly vexing constitutional concerns. The regulation avoids 

40
these constitutional problems and “effectuates the careful balance Congress struck between the 

appearance of corruption engendered by soliciting sizable amounts of soft money, and preserving 

the legitimate and appropriate role Federal officeholders and candidates play” at the state and 

local level (J.A. 287). 

 As the E&J explains, the relationship between federal officeholders and candidates and 

state, district, and local parties is “unique” (J.A. 287-88), and the testimony before the 

Commission supports that conclusion. Representatives of both major political parties 

commented that these state and local party fundraising events are essential to engage volunteers 

in the political process and to motivate them. See, e.g., Vol. II, Doc. 18, A.R. 523-26; A.R. 675. 

The E&J notes (J.A. 287) that “party fundraising events ... energize grass roots volunteers vital 

to the political process.” The relationship between federal officeholders or candidates and state 

and local party committees is ongoing and rests on a long-term affinity of interests. See J.A. 288 

(federal officeholders’ and candidates’ “special identification with” those party committees). 

Unlike a state or local candidate, whose relationship with federal officeholders or candidates is 

individualized and often short-lived, state and local parties are institutions with long histories and 

futures. Their existence and vitality do not depend on any one individual, and federal 

officeholders and candidates have an interest in supporting their continued health and 

development. See FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 449 

(2001) (“There is no question about the closeness of candidates to parties.”). Moreover, unlike 

state and local candidates, state party committees generally have a role in selecting federal 

candidates. See, e.g., Colorado I, 518 U.S. at 613-14. In these circumstances, a speech by a 

federal officeholder or candidate at a fundraising event for a state party committee will be 

41
understood as reflecting the close, unique relationship between that speaker and the party 

committee. 

Consequently, as the Commission found (J.A. 288), that relationship makes “parsing 

speech” at state fundraising events “more difficult than in other [fundraising] contexts,” 

especially given the Commission’s broadened definitions of “solicit” and “direct,” which 

encompass even indirect solicitations, as determined by objective criteria such as context, and 

not by the speaker’s intent. See Shays I, 337 F.Supp.2d at 73-80 and Shays I Appeal, 414 F.3d at 

102-07; 71 Fed. Reg. 13,926 (March 20, 2006); 11 C.F.R. 300.2(m), (n). Especially given the 

statute’s explicit recognition that the candidate or officeholder may serve as the “featured guest” 

at an event whose central purpose is fundraising, all of their speech will necessarily be 

understood in that context. Commenters on the 2005 NPRM were therefore understandably 

concerned about the possible “chilling effect” of a broader notion of “solicit” at those events. 

See, e.g., Doc. 15, A.R. 505, 509; Doc. 18, A.R. 526-27, 585-87, 608; Doc. 23, A.R. 675. 

 Thus, contrary to Shays’ assertion (Br. 49), the appearance and speech by federal 

officeholders and candidates at state and local party fundraisers is indeed different from their 

appearance and speech at state or local candidate fundraisers. If the permissible scope of a 

federal officeholder’s activities were the same for all state and local fundraising, as Shays 

suggests, that would amount to removing Congress’s limiting phrase (“State, district, or local 

committee”) from section 441i(e)(3). As noted supra pp. 39-40, “read[ing a] term ... out of the 

statute” is “a result contrary to basic principles of statutory interpretation.” Senior Resources v. 

Jackson, 412 F.3d 112, 117-18 (D.C. Cir. 2005). “Where Congress includes particular language 

in one section of a statute but omits it in another . . . , it is generally presumed that Congress acts 

intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp. v. United 

42
States, 508 U.S. 200, 208 (1993) (internal quotation marks and citation omitted).23 

 The Commission also concluded that additional restrictions would provide little, if any, 

anti-circumvention protection. Commenters explained that, in their experience, “the ask [for 

funds] has already been made” before a fundraising event, and those present have already made 

their contribution before arriving. J.A. 289; Doc. 18, A.R. 525, 605. Thus, a state or local party 

often receives contributions before a fundraising event. J.A. 289-90. Indeed, the cost of 

admission to the event often serves as the contribution (J.A. 289). In these circumstances, it is 

not the role of the speaker who is a federal candidate or officeholder actively to solicit 

contributions, but he or she may well thank the attendees for their support. See, e.g., Doc. 15, 

A.R. 506. Several commenters also noted that local party fundraisers in particular typically raise 

their contributions from individuals and not from corporations or other entities and in low-dollar 

amounts, usually $100 or less, well within federal limits (J.A. 290; Doc. 18, A.R. 523, 559). In 

sum, the record indicates that the challenged provision does not present a significant opportunity 

for corruption or the appearance of corruption. See J.A. 289-90.24

 

23 As the district court observed, “the fact [that] Section 441i(e)(3) singled out state, district, 

and local party fundraisers for special treatment undercuts any suggestion that the Commission is 

required to treat them in the same manner it treats other fundraising events.” (J.A. 108 n.32 

(emphasis in original).) 

24 The E&J observes (J.A. 289) that none of the commenters could cite any evidence that 

this provision had undermined BCRA in the last election cycle. See also, e.g., Doc. 18, A.R. 

542, 545, 596; Doc. 6 (2005 NPRM), A.R. 467 (seeking public comment on whether any 

potential for abuse). The E&J also notes (J.A. 289) that the “safe harbor” provided by the 

regulation “only extends to what Federal candidates and officeholders say at the State party 

fundraising events themselves” (J.A. 289.), and “in no way applies to what ... [those individuals] 

do outside of State party fundraising events” (id.). See also id. at 289 (“[T]he regulation does not 

affect the prohibition on Federal candidates and officeholders from soliciting non-Federal funds 

for State parties in fundraising letters, telephone calls, or any other fundraising appeal made 

before or after the fundraising event.”); 67 Fed. Reg. 49065, 49108 (July 29, 2002) (original E&J 

for final rule) (same). 

43
 Shays argues (Br. 49-50), and amicus Feingold concurs (Br. 21), that the Commission 

should have included a disclaimer requirement in its regulation similar to the disclaimer that 

several AOs suggest federal officeholders and candidates should provide at other fundraising 

events, including fundraisers for state and local candidates. (Shays and Feingold do not question 

the legality of the disclaimers recommended in those AOs.) Their argument fails. As discussed 

above, Congress expressly singled out state, district, and local party fundraising events for an 

exemption from the generally applicable prohibition of 2 U.S.C. 441i(e)(1); if federal 

officeholders and candidates were subject to the same requirements at those party fundraisers as 

at other fundraisers that Congress excluded from the exception, then Congress’s special 

treatment of those party events would be nullified. 

 As the district court stated, “[w]hile it is quite clear that Plaintiff disagrees with the 

Commission’s fundraising regulation, ‘at bottom,’ his ‘arbitrary-and-capricious challenge boils 

down to a policy disagreement.’” (J.A. 109; citation omitted.) Thus, in accordance with 

Chevron deference and APA requirements, this Court should affirm judgment of the district 

court upholding the state and local fundraiser regulation. 

CONCLUSION 

 This Court’s task is to “ask whether the Commission made choices reasonably within the 

pale of statutory possibility.” AT&T Corp. v. FCC, 349 F.3d 692, 699 (D.C. Cir. 2003) (citation 

and quotation marks omitted). The Commission has shown that its choices are reasonable, 

sufficiently explained, and do not contradict the statute as reasonably construed. The Court 

should, therefore, reverse the district court’s summary judgment for Shays on 11 C.F.R. 

109.21(c)(4), (d)(4)-(d)(5), (h), and 100.24(a)(2)-(3), grant the Commission summary judgment 

44
45

on those provisions, and affirm the summary judgment for the Commission on 11 C.F.R. 

300.64(b). 

 Respectfully submitted, 

 

 ___________________________________________________________________________________________________________________

Thomasenia P. Duncan __________ 

General Counsel 

 

______________________________________________________________________________________________________

 David Kolker _______________________ 

Associate General Counsel 

 

________________________________________________________________________________________________

 Vivien Clair _____________________________ 

Attorney 

 

March 7, 2008 FOR APPELLANT AND CROSS-APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CHRISTOPHER SHAYS, ) 

) 

 Appellee and Cross-Appellant, ) 

) Nos. 07-5360, 07-5361 

) 

v. ) 

) 

CERTIFICATE OF COMPLIANCE 

FEDERAL ELECTION COMMISSION, ) 

) 

 Appellant and Cross-Appellee. ) 

CERTIFICATE OF COMPLIANCE WITH Fed.R.App.P. 32(a)(7) 

As required by Fed.R.App.P. 32(a)(7)(C)(i), I hereby certify that the foregoing brief 

complies with the length requirements of Fed.R.App.P. 32(a)(7)(B). I have relied upon the word 

count feature of the Microsoft Word software application; the brief contains 13,950 words. 

 I further certify that the foregoing brief complies with the typeface requirements of 

Fed.R.App.P. 32(a)(5)(A), as modified by D.C. Cir. R.32(a)(1), and the type style requirements 

of Fed.R.App.P. 32(a)(6). The brief has been prepared in a proportionately space typeface using 

Microsoft Word 2003 in Times New Roman font size 12. 

_____________/s_______________________ 

Vivien Clair 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

March 7, 2008 







THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

CHRISTOPHER SHAYS, ) Nos. 07-5360, 07-5361 

 ) (Consolidated) 

Appellee and Cross-Appellant, ) 

 ) CERTIFICATE OF 

v. ) SERVICE 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

Appellant and Cross-Appellee. ) 

____________________________________________ 

CERTIFICATE OF SERVICE 

 I hereby certify that on this 7th day of March, 2008, I caused to be served by handdelivery two copies of the Federal Election Commission’s Response and Reply Brief on the 

following counsel for Christopher Shays: 

Donald J. Simon 

Sonosky, Chambers, Sachse, 

 Endreson & Perry, LLP 

1425 K Street, N.W., Suite 600 

Washington, D.C. 20005. 

 I further certify that on this same date, I caused to be served by commercial carrier (next 

business day delivery) a courtesy copy of the same document on the following additional counsel 

for Shays: 
Charles G. Curtis, Jr. 

Michelle M. Umberger 

David L. Anstaett 

Lissa R. Koop 

Heller Ehrman, LLP 

One East Main Street, Suite 201 

Madison, Wisconsin 53703. 

 /s 

March 7, 2008 ______________________________ 

 Vivien Clair 

 Attorney 

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, D.C. 20463 

 (202) 694-1650