ORAL ARGUMENT NOT YET SCHEDULED

Nos. 15-5016 & 15-5017

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

________________________

CHRISTOPHER VAN HOLLEN,JR.

Plaintiff-Appellee,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee,

CENTER FOR INDIVIDUAL FREEDOM,

Intervenor-Defendant-Appellant,

HISPANIC LEADERSHIP FUND,

Intervenor-Defendant-Appellant.

________________________

On Appeal from the United States District Court for the District of Columbia

Case No. 11-cv-00766-ABJ (Hon. Amy Berman Jackson)

_______________________

BRIEF OF AMICUS CURIAE CAUSE OF ACTION SUPPORTING 

APPELLANTS FOR REVERSAL

________________________

DANIEL Z. EPSTEIN

LEE A. STEVEN

JOSHUA N. SCHOPF

CAUSE OF ACTION INSTITUTE

1919 Pennsylvania Ave., N.W., Suite 650

Washington, D.C. 20006

(202) 499-4232

April 16, 2015 Counsel for Amicus Curiae 

Cause of Action Institute

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Amicus Cause of Action Institute

submits this certificate as to parties, rulings, and related cases.

A. Parties and Amici

Other than Amicus Cause of Action Institute, the briefs of Appellant 

Center for Individual Freedom and Hispanic Leadership Fund have listed all 

parties and participants in the proceedings below.

B. Ruling Under Review

References to the Ruling Under Review appear in the Briefs for Appellants 

Center for Individual Freedom and Hispanic Leadership Fund.

C. Related Cases

This case was previously before this Court, as set forth in the Briefs for

Appellants Center for Individual Freedom and Hispanic Leadership Fund. Cause 

of Action Institute is not aware of any other related case as defined by Circuit 

Rule 28.

D. Statement Regarding Appendix

Amicus Cause of Action Institute adopts the Joint Appendix filed by 

Appellants.

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RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Amicus Cause of Action Institute is a nonprofit corporation. It has no 

parent companies, subsidiaries, or affiliates that have issued shares or debt 

securities to the public.

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ......... i

RULE 26.1 CORPORATE DISCLOSURE STATEMENT................................. ii

TABLE OF CONTENTS..................................................................................... iii

TABLE OF AUTHORITIES................................................................................ v

GLOSSARY OF ABBREVIATIONS................................................................. xi

STATUTES AND REGULATIONS.................................................................. xii

STATEMENT OF IDENTITY, INTEREST AND SOURCE OF 

AUTHORITY TO FILE ....................................................................................... 1

STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTION....... 2

SUMMARY OF ARGUMENT............................................................................ 2

ARGUMENT........................................................................................................ 3

I. Van Hollen Failed to Exhaust Administrative Remedies........................... 3

II. The Case is Unripe and Moot..................................................................... 4

A. This Case is Unripe .......................................................................... 6

B. This Case is Moot............................................................................. 7

III. Chevron Deference is Uniquely Proper Here............................................. 9

IV. The District Court Created An Unnecessary Conflict Between 

BCRA And The First Amendment........................................................... 14

CONCLUSION....................................................................................................20

CERTIFICATE OF COMPLIANCE.................................................................. 21

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ADDENDUM ..................................................................................................... 22

CERTIFICATE OF SERVICE........................................................................... 24

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TABLE OF AUTHORITIES

CASES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)................................................. 6, 7

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) ............................... 7

Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 

429 F.3d 1136 (D.C. Cir. 2005)........................................................................ 4

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003).............................................. 15

Am. For Prosperity Found. v. Harris, 2015 U.S. Dist. LEXIS 21365 

(C.D. Cal. Feb. 23, 2015)......................................................................... 18, 19

Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008).............. 7

Arizona v. Intertribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013)................. 16

Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87 (1982)........... 16

Buckley v. Valeo, 424 U.S. 1 (1976)................................................................... 16

Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984)....................... 3, 11, 12

Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992)...................... 8

Chrysler Corp. v. Brown, 441 U.S. 281 (1979).................................................... 8

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).... 6, 9, 10

*Citizens United v. FEC, 558 U.S. 310 

 (2010).......................................................... 5, 6, 8, 9, 10, 12, 13, 14,16,17, 19

Authorities upon which we chiefly rely are marked with asterisks.

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

 (D.C. Cir. 1988) ........................................................................................ 9, 11

County of Los Angeles v. Davis, 440 U.S. 625 (1979) ..................................... 4, 9

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) ..... 19

Doe v. Reed, 561 U.S. 186 (2010)...................................................................... 16

Eastland v. United States Serviceman’s Fund, 421 U.S. 491 (1975)................. 16

Emily’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009).............................................. 17

FCC v. League of Women Voters, 468 U.S. 364 (1984)..................................... 19

*FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007).......................... 11, 15, 17

Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001)................................... 19

LaRoque v. Holder, 679 F.3d 905 (D.C. Cir. 2012)............................................. 7

McConnell v. FEC, 540 U.S. 93 (2003).............................................................. 13

McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995).................................. 16

*NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)................ 16, 18, 19

Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 251 F.3d 1007 

(D.C. Cir. 2001) ................................................................................................ 7

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015)....................................... 8

State Farm v. Dole, 802 F.2d 474 (D.C. Cir. 1986) ............................................. 7

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725 (1997) ........................... 6

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Tesoro Ref. & Mktg. Co. v. FERC, 552 F.3d 868 (D.C. Cir. 2009) ..................... 4

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952) .................... 4

Van Hollen v. FEC, 851 F. Supp. 2d 69 (D.D.C. 2012)................................. 3, 15

STATUTES

2 U.S.C. § 434(f)........................................................................................... 10, 11

2 U.S.C. § 441b(a), (b)(2)................................................................................... 12

52 U.S.C. § 30104(f)........................................................................................... 10

52 U.S.C. § 30104(f)(2)(F)................................................................................. 17

52 U.S.C. § 30104(f)(3)...................................................................................... 17

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

116 Stat. 81 ....................................................................................................... 2

REGULATIONS

11 C.F.R. § 104.20(c)(9)(2007)........................................ 1, 2, 3, 4, 5, 6, 8, 11, 15

11 C.F.R. § 104.20(c)(9)(2015)............................................................................ 8

11 C.F.R. § 109.10(e)(1)(vi)............................................................................... 14

11 C.F.R. § 114.15................................................................................................ 5

76 Fed. Reg. 36,001 (June 21, 2011).................................................................... 5

76 Fed. Reg. 80,803 (Dec. 27, 2011)................................................................ 5, 9

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79 Fed. Reg. 62,797 (Oct. 21, 2014)......................................................... 4, 5, 6, 8

80 Fed. Reg. 12,079 (Mar. 6, 2015)...................................................................... 7

OTHER AUTHORITIES

Abby K. Blass, Daron Shaw & Brian Robers, ‘Pay to Play’ or Money for 

Nothing? Americans’ Assessment of Money and the Efficacy of the Political 

System, APSA 2010 Annual Meeting Paper, available at 

http://goo.gl/enrnNA....................................................................................... 13

Center for Responsive Politics, Opensecrets.org, http://www.OpenSecrets.org

(last visited Apr. 16, 2015) ............................................................................. 12

Comment of Senators Michael Benet, Barbara Boxer, Sherrod Brown, Al 

Franken, Kirsten E. Gillibrand, Jeffrey Alan Merkley, Bernard Sanders, 

Charles E. Schumer, Jeanne Shaheen, Tom Udall, and Sheldon Whitehouse, 

Reg. 2010-01 Independent Expenditures and Electioneering Communications 

by Corporations and Labor Organizations (Citizens United)(FEC Feb. 21, 

2012), available at http://sers.fec.gov/fosers/showpdf.htm?docid=115034 .... 5

Compl., Rhea Lana, Inc. v. U.S. Dep’t of Labor, 2014 U.S. Dist. LEXIS 163278

(D.D.C. Nov. 21, 2014)................................................................................... 10

Coral Davenport, Taking Oil Industry Cue, Environmentalists Drew Emissions 

Blueprint, N.Y. Times, July 6, 2014, available at 

http://goo.gl/mhOCWs.................................................................................... 14

FEC, Detailed Files About Candidates, Parties and Other Committees: Files By 

Election Cycle, http://www.FEC.gov/disclosure.shtml 

(last visited Apr. 16, 2015) ............................................................................. 12

Cause of Action, CPPW: Putting Politics to Work (2013), available at

http://goo.gl/AwrA8k...................................................................................... 13

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CREW Calls On Congress To Investigate Short Sellers Influencing Government 

to Maximize Profits (March 18, 2015), available at

 http://goo.gl/UShZ4w ............................................................................... 13, 14

FEC, Campaign Finance Disclosure Portal, http://goo.gl/9rHq5 ..................... 17

FEC, Quick Answers to Disclosure Questions, http://goo.gl/7cYo6o 

(last visited Apr. 8, 2015) ............................................................................... 17

Ian Vandewalker, Outside Spending in Senate Races Since Citizens United,

Brennan Center for Justice, http://goo.gl/e886nj............................................ 13

Herbert Kaufman,“The Federal Administrative Procedure Act,” 

26 B.U. L. Rev. 479 (1946) ............................................................................ 10

Mary J. Walker Wilson,“Financing Elections and ‘Appearance of Corruption’: 

Citizen Attitudes and Behavior in 2012,” 63 Cath. U.L. Rev. 953 (2014)..... 12

Lisa Schultz Bressman,“Procedures As Politics in Administrative Law,” 

107 Colum. L. Rev. 1749 (2007).................................................................... 10

Reply Brief of Appellant, LabMD, Inc. v. Fed. Trade Comm’n, 776 F.3d 1275

(11th Cir. 2015)................................................................................................ 10

Rick Cohen, BP Oil Spill Settlements to Nonprofits: Mechanics and Lessons, 

Non-Profit Quarterly, May 9, 2013, http://goo.gl/dp5ABQ........................... 14

Tampa Bay Times, PolitiFact, http://www.PolitiFact.com

(last visited Apr. 16, 2015) ............................................................................. 12

William H. Form & Joan Huber, Income, Race, and the Ideology of Political 

Efficacy, 33 J. POL. 659 (1971)....................................................................... 13

U.S. S. Comm. On Env’t and Pub. Works Minority Staff Report, The Chain of 

Environmental Command: How a Club of Billionaires and Their Foundations 

Control the Environmental Movement and Obama’s EPA

(July 30, 2014), http://goo.gl/osxlWY............................................................ 14

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XP Vehicles, Inc. v. U.S. Dep’t of Energy, No. 13-037 

(D.D.C. filed Jan. 10, 2013)............................................................................ 13

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GLOSSARY OF ABBREVIATIONS

BCRA Bipartisan Campaign Reform Act of 2002

FEC Federal Election Commission

JA Joint Appendix

WRTL II FEC v. Wisconsin Right of Life, 551 U.S. 449 (2007)

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STATUTES AND REGULATIONS

Pertinent statutes and regulations are reproduced in the Addendum.

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STATEMENT OF IDENTITY, INTEREST AND SOURCE OF 

AUTHORITY TO FILE

Amicus curiae Cause of Action Institute (“Cause of Action”) is a 

nonprofit, nonpartisan government oversight organization that, inter alia, works 

to ensure fairness and prevent misuse of discretionary power in the Executive 

Branch by defending small businesses and individuals in administrative, civil, 

and criminal cases and appearing as amicus curiae before this and other federal 

courts. 

Cause of Action has a particular and substantial interest in opposing 

bureaucratic overreach, fighting cronyism, and protecting the rule of law, all to 

promote economic prosperity. To accomplish this mandate, Cause of Action 

advocates for government transparency and citizen privacy. Consequently, it 

brings a unique perspective on the nature of transparency and anonymity in 

relation to political speech and participation, and hence on the issues presented 

in this case.

Cause of Action supports Appellants in seeking reversal of the District 

Court’s decision invalidating 11 C.F.R. § 104.20(c)(9) (2007). On the unique 

facts in this case, judicial deference to the administrative agency is appropriate. 

The Federal Election Commission (“FEC”) struck a proper balance between 

campaign transparency and citizen privacy and the court below should have 

accordingly deferred.

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Cause of Action files this brief with consent of all parties and pursuant to 

Fed. R. App. P. 29 and U.S. Court of Appeals for the D.C. Cir. Rule 29.

STATEMENT OF AUTHORSHIP AND

FINANCIAL CONTRIBUTION

Pursuant to Fed. R. App. P. 29(c)(5), Cause of Action states that no party 

or person other than Cause of Action and its counsel participated in or 

contributed money for the drafting of this brief.

SUMMARY OF ARGUMENT

Plaintiff-Appellee Representative Christopher Van Hollen, Jr. (“Van 

Hollen”) challenged 11 C.F.R. § 104.20(c)(9) (2007), a legislative rule 

promulgated by the FEC pursuant to its delegated authority under the Bipartisan 

Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”) 

regulating “electioneering communications” by corporations and labor unions. 

The District Court vacated this rule, holding that it was inconsistent with BCRA. 

As a threshold matter, Van Hollen has failed to exhaust administrative 

remedies and this case is unripe and moot. Furthermore, the District Court 

erroneously distorted the legislative process by manufacturing from the 

Congressional Record a controlling intent and purpose in a case where Congress 

had no intention on the precise question at issue. By doing this, the District 

Court assumed a policy-making role rightfully resident in the political branches. 

On the unique and narrow facts of this case, Chevron deference was especially 

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appropriate. Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837, 842-43 (1984). Finally, the District Court’s construction of 

BCRA needlessly created a conflict between the statute and controlling First 

Amendment authorities. For these reasons, the District Court should be reversed 

and Van Hollen’s action dismissed.

ARGUMENT

I. Van Hollen Failed To Exhaust Administrative Remedies

The notice of proposed rulemaking for 11 C.F.R. § 104.20(c)(9) was 

published on August 31, 2007. See JA27. Senators John McCain, Russell 

Feingold, Olympia Snowe, and Representative Christopher Shays commented. 

JA101. Van Hollen did not. The rule was promulgated on December 26, 2007. 

JA299.

Van Hollen’s complaint, filed April 21, 2011, alleged that the rule 

infringed his “protected interest in participating in elections untainted by 

expenditures from undisclosed sources for ‘electioneering communications.’” 

JA320. His Motion for Summary Judgment, filed July 1, 2011, alleged that the 

rule denied him “disclosure of information mandated by BCRA” and “illegally 

structures a competitive environment” in which he was defending “a ‘concrete 

interest’—retention of elected office.” Pl’s Mot. Sum. J. at 25, Van Hollen v. 

FEC, 851 F. Supp.2d 69 (D.D.C. 2012) (No. 11-0766). No commentator, 

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however, raised any of these concerns to the FEC during the comment period in 

2007.1

Because Van Hollen did not comment, he forfeited his opportunity to sue. 

Tesoro Ref. & Mktg. Co. v. FERC, 552 F.3d 868, 872 (D.C. Cir. 2009); 

Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 

F.3d 1136, 1148-50 (D.C. Cir. 2005).2

II. The Case Is Unripe and Moot

Van Hollen sued to overturn 11 C.F.R. § 104.20(c)(9) (2007) (the “Old 

Rule”) on April 21, 2011. JA316.

 1 The recent amendments to 11 C.F.R. § 104.20(c)7-(c)(9), 79 Fed. Reg. 62,797 

(Oct. 21, 2014), represent “interim relief or events [that] have completely and 

irrevocably eradicated the effects of the alleged violation,” County of Los 

Angeles v. Davis, 440 U.S. 625, 631 (1979), because the new regulations require 

disclosure of all donors solicited by a corporation or labor organization for the 

purpose of contributing to an electioneering communication as well as all donors 

who contribute for any purpose to segregated bank accounts, trusts, partnerships 

and LLCs that make disbursements for electioneering communications,

resolving Van Hollen’s informational injury. Van Hollen’s competitor injury is 

irredressable by the courts under BCRA. Further, as Van Hollen’s challenge is 

not a constitutional challenge of BCRA but is instead brought under the 

Administrative Procedure Act (“APA”), no court can apply the APA to redress 

any of his alleged injuries and, even if it could, Van Hollen’s injuries could only 

be redressed by the APA if he alleged an injury raised in a comment submitted 

before the agency, which he failed to do. 

2 This doctrine, which courts refer to as “issue exhaustion” and “issue waiver,” 

holds that “courts should not topple over administrative decisions unless the 

administrative body not only has erred but has erred against objection made at 

the time appropriate under its practice.” Advocates for Highway & Auto Safety, 

429 F.3d at 1150 (quoting United States v. L.A. Tucker Truck Lines, Inc., 344 

U.S. 33, 37 (1952)).

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On June 21, 2011, the FEC announced a notice of availability for 

statements in support of or in opposition to a petition for rulemaking “to 

conform its regulations regarding independent expenditures and electioneering 

communications by corporations, membership organizations, and labor 

organizations to Citizens United v. FEC,” 558 U.S. 310 (2010). 76 Fed. Reg. 

36,001 (June 21, 2011).

On December 27, 2011, the FEC issued a Notice of Proposed Rulemaking 

stating that Citizens United invalidated BCRA’s prohibitions on independent 

expenditures and electioneering communications by corporations and labor 

unions. 76 Fed. Reg. 80,803, 80,813-14 (Dec. 27, 2011).3

On October 21, 2014, the FEC published a final rule amending, inter alia, 

11 C.F.R. § 104.20(c)(9) (the “New Rule”) to implement Citizens United by 

removing a cross-reference to 11 C.F.R. § 114.15 and adding a disclosure 

requirement if disbursements “were not paid exclusively from a segregated bank 

 3 In response to this Notice, 9 comments were submitted, representing 21 

separate individuals. 79 Fed. Reg. 62,797, 62,798 (Oct. 21, 2014). The FEC 

received a comment from a group of twelve senators. Comment of Senators 

Michael Bennet, Barbara Boxer, Sherrod Brown, Al Franken, Kirsten E. 

Gillibrand, Jeffrey Alan Merkley, Bernard Sanders, Charles E. Schumer, Jeanne 

Shaheen, Tom Udall, and Sheldon Whitehouse, Reg. 2010-01 Independent 

Expenditures and Electioneering Communications by Corporations and Labor 

Organizations (Citizens United) (FEC Feb. 21, 2012), available at 

http://sers.fec.gov/fosers/showpdf.htm?docid=115034. But Representative Van 

Hollen failed to comment.

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account described in paragraph (c)(7) of this section.” 79 Fed. Reg. 62,797, 

62,817 (Oct. 21, 2014).

A. This Case Is Unripe

Ripeness is a function of final agency action. Suitum v. Tahoe Reg’l 

Planning Agency, 520 U.S. 725, 743 (1997); Abbott Labs. v. Gardner, 387 U.S. 

136, 148-49 (1967). The doctrine protects both Article II and Article III 

interests by preventing the courts, through avoidance of premature adjudication, 

from entangling themselves in abstract disagreements over administrative 

policies and by protecting administrative agencies from judicial interference 

until an administrative decision has been formalized and its effects felt in a 

concrete way by the challenging parties. Abbott Labs., 387 U.S. at 148. 

Following Citizens United, and no later than June 21, 2011, 11 C.F.R. 

§ 104.20(c)(9) (2007) was not and could not have been the FEC’s final word on 

electioneering communications by corporations and labor unions because that 

provision was being amended to cure a constitutional deficiency. 76 Fed. Reg. 

at 36,001. The Old Rule was bound to change and so the New Rule had to be 

final before this matter could be ripe.

Ripeness also ensures that a reviewing court gains the benefit of a whole 

record to determine if an agency has acted reasonably, arbitrarily or 

capriciously. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 

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419-20 (1971); Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 243 (D.C. 

Cir. 2008) (Tatel, J., concurring). Given that the New Rule, supported by an 

entirely new administrative record, is now operative, the “whole record” is not 

before the Court and this case presents only a speculative controversy. See State 

Farm v. Dole, 802 F.2d 474, 479 (D.C. Cir. 1986); Abbott Labs., 387 U.S. at 

148.

B. This Case Is Moot

On November 25, 2014, the District Court vacated the Old Rule. By 

January 27, 2015, however, the New Rule became effective. Announcement of 

Effective Date, 80 Fed. Reg. 12,079 (Mar. 6, 2015). The Old and New Rules 

each include the phrase “for the purpose of furthering electioneering 

communications,” but, as explained below, they are not the same provision. 

And the fact that Van Hollen might complain about the New Rule as he did 

about the Old is immaterial. Even if Van Hollen exhausted administrative 

remedies, which he did not, the New Rule has mooted this case. See LaRoque v. 

Holder, 679 F.3d 905, 907-08 (D.C. Cir. 2012); Adarand Constructors, Inc. v. 

Mineta, 534 U.S. 103, 108-110 (2001); see also Nat’l Mining Ass’n v. U.S. 

Dep’t of the Interior, 251 F.3d 1007, 1011 (D.C. Cir. 2001) (“The old set of 

rules, which are the subject of this lawsuit, cannot be evaluated as if nothing has 

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changed. A new system is now in place. We therefore must vacate this aspect of 

the district court’s decision as moot.”).

The Old and New Rules differ in language, purpose, and effect. Compare 

11 C.F.R. §§ 104.20(c)(7)-(c)(9) (2007), with 104.20(c)(7)-(c)(9) (2015). For 

example, the Old Rule was “supposed to be about one narrow subject: what to 

do to implement the Supreme Court’s decision in WRTL II.” JA414. The New 

Rule implements Citizens United. See Final Rules, 79 Fed. Reg. at 62,797-99. 

Under the Old Rule, a corporation was prohibited from engaging in 

electioneering communications unless it met certain exceptions or established a 

separate segregated fund. Stock corporations were distinguished from qualified 

nonprofit corporations (QNCs), which were excepted from the general 

prohibition on nonprofit entities engaging in electioneering communications. 

The New Rule changes definitions and removes exceptions so that “corporation” 

now includes a tax-exempt corporation and a stock corporation because all 

corporations are permitted to engage in electioneering communications. 79 Fed. 

Reg. at 62,816. Finally, the New Rule was promulgated only after a new notice 

and comment rulemaking procedure, signifying a substantive change to a 

legislative rule with the force of law. Chrysler Corp. v. Brown, 441 U.S. 281, 

282 (1979); see also Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015) 

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(describing a “legislative rule”). On this basis alone, the New Rule should moot 

this case.

Further, Article III of the Constitution requires a live controversy. 

Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). Citizens 

United rendered the Old Rule, together with a host of other interconnected 

regulations, a dead letter. Notice of Proposed Rulemaking, 76 Fed. Reg. at 

80,803. The New Rule substantively changed paragraphs (c)(7) and (c)(9) to 

limit corporate and labor union disclosure obligations. Furthermore, the FEC 

finalized the New Rule only after this Court found BCRA to be ambiguous and 

that it was reasonable to include a purpose requirement. JA384-385. The scope 

of these changes moots Van Hollen’s case because they “completely and 

irrevocably eradicated” the effects of any possible prior alleged BCRA 

violation. County of Los Angeles, 440 U.S. at 631.

III. Chevron Deference Is Uniquely Proper Here

In Cont’l Air Lines, Inc. v. Dep’t of Transp., 843 F.2d 1444, 1449 (D.C. 

Cir. 1988), this Court correctly recognized the anti-democratic dangers inherent 

in judicial distortion of congressional process. For example, the robust judicial 

review provided by the Administrative Procedure Act was a political 

compromise between pro-regulatory and pro-due process congressional factions. 

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See, e.g., Overton Park, 401 U.S. at 410 (describing the scope of review);4

Herbert Kaufman, The Federal Administrative Procedure Act, 26 B.U. L. Rev. 

479, 489-91 (1946) (describing political compromise); Lisa Schultz Bressman, 

Procedures As Politics In Administrative Law, 107 Colum. L. Rev. 1749, 1752 

(2007) (“[T]he Court may enforce administrative procedures in order to help 

ensure that agency decisions track dominant legislative preferences.”).

In a typical case, Cause of Action argues against excessive judicial 

deference to administrative agencies and constricted judicial review, which 

upend this statutory bargain. See, e.g., Reply Brief of Appellant at 3-13, 

LabMD, Inc. v. Fed. Trade Comm’n, 776 F.3d 1275 (11th Cir. 2015) (No. 14-

12144); Compl., Rhea Lana, Inc. v. U.S. Dep’t of Labor, (No. 14-017), 2014 

U.S. Dist. LEXIS 163278 (D.D.C Nov. 21, 2014). This case, however, presents 

that rare instance in which a court was insufficiently deferential to an agency. 

 4

According to the Court:

A threshold question—whether petitioners are entitled to any judicial 

review—is easily answered. Section 701 of the Administrative Procedure 

Act, 5 U. S. C. § 701, provides that the action of “each authority of the 

Government of the United States,” which includes the Department of 

Transportation, is subject to judicial review except where there is a 

statutory prohibition on review or where “agency action is committed to 

agency discretion by law.” In this case, there is no indication that 

Congress sought to prohibit judicial review and there is most certainly no 

“showing of ‘clear and convincing evidence’ of a . . . legislative intent” to 

restrict access to judicial review.

Overton Park, 401 U.S. at 410. 

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11

This Court previously ruled that the District Court erred in holding that 

Congress spoke plainly when it enacted 2 U.S.C. § 434(f) (now codified at 52 

U.S.C. § 30104(f)), thus foreclosing any regulatory construction of the statute by 

the FEC: “The statute is anything but clear, especially when viewed in the light 

of the Supreme Court’s decisions in Citizens United v. FEC, 558 U.S. 310 

(2010), and FEC v. Wis. Right to Life, Inc. (“WRTL II”), 551 U.S. 449 (2007).” 

JA385. Employing traditional tools of statutory construction, this Court could 

not find that “Congress had an intention on the precise question at issue” in this 

case. Id. Indeed:

[I]t is doubtful that, in enacting 2 U.S.C. § 434(f), Congress even 

anticipated the circumstances that the FEC faced when it promulgated 11 

C.F.R. § 104.20(c)(9). It was due to the complicated situation that 

confronted the agency in 2007 and the absence of plain meaning in the 

statute that the FEC acted pursuant to its delegated authority under 2 

U.S.C. § 37d(a)(8) to fill “a gap” in the statute. Chevron, 467 U.S. at 843-

44.

Id.

Chevron deference ought to be most compelling under these unique 

circumstances. On the narrow facts of this case, Congress’s democratic 

prerogative—expressed through its BCRA delegation to the FEC—should have 

caused the court below to defer to the agency’s facially reasonable 

interpretation, even if it would have come to quite a different view if left to its 

own devices. Cont’l Air Lines, Inc., 843 F.2d at 1451. Instead, the District 

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12

Court relied on the Congressional Record—that most gossamer of authorities—

to hold, wrongly, that the Old Rule was “inconsistent with the policies 

underlying the statute.” JA446.

Furthermore, even if the District Court’s characterization of congressional 

purpose was entirely accurate, and even if the Old Rule still applied, the 

Congressional Record is not controlling here. When BCRA was enacted, 

corporations and labor unions could not make electioneering communications 

using general treasury funds. 2 U.S.C. § 441b(a), (b)(2) (now codified at 52 

U.S.C. § 30118(a), (b)(2)); Citizens United, 558 U.S. at 337. This Court has

already held that the congressional intention and purpose under BCRA regarding 

these persons could not be divined. JA 385. Thus, the District Court erred in 

manufacturing such after-the-fact justifications. See Chevron, 467 U.S. at 843-

44.

The District Court’s purported justification for its ruling does not stand 

up. First, there is, in truth, robust financial disclosure with respect to electoral 

politics. See, e.g., FEC, Detailed Files About Candidates, Parties and Other 

Committees: Files By Election Cycle, http://www.FEC.gov/disclosure.shtml (last 

visited April 16, 2015); Center for Responsive Politics, Opensecrets.org, 

http://www.OpenSecrets.org (last visited April 16, 2015); Tampa Bay Times, 

PolitiFact, http://www.PolitiFact.com (last visited April 16, 2015); Mary J. 

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13

Walker Wilson, Financing Elections and “Appearance of Corruption”: Citizen 

Attitudes and Behavior in 2012, 63 Cath. U.L. Rev. 953, 977-78 (noting that 

“[b]ecause money’s influence on politics is controversial, and controversy sells, 

news outlets regularly report on political election spending”); infra note 10.

5

 It 

is in the Executive Branch, where there is generally no disclosure at all, that 

dark money and corruption concerns are most intense. See, e.g. XP Vehicles, 

Inc. v. U.S. Dep’t of Energy, No. 13-037 (D.D.C. filed Jan. 10, 2013) (involving 

 5 The only valid social scientific research supporting claims about “perception of 

corruption” is “political efficacy” research to determine if campaign spending 

distorts perceptions and prevents citizens from turning out to vote. See William 

H. Form & Joan Huber, Income, Race, and the Ideology of Political Efficacy, 33 

J. Pol. 659, 670 (1971); McConnell v. FEC, 540 U.S. 93, 144 (2003) (“the 

cynical assumption that large donors call the tune could jeopardize the 

willingness of voters to take part in democratic governance”). To advance the 

counterfactual narrative that more political speech and a more active 

marketplace of ideas threatens the future of our Republic, the Brennan Center 

“analyzed” election spending supposedly caused by Citizens United. See Ian 

Vandewalker, Outside Spending in Senate Races Since Citizens United, Brennan 

Center for Justice, http://goo.gl/e886nj. Though ideologically-committed law 

professors and media rely on these results, social scientists do not because the 

research design fails basic data quality standards for several reasons. First, the 

sample size studied was statistically insignificant and varies, changing from ten 

to eleven “competitive races.” Second, the Brennan study claims “[d]ark money 

in Senate elections has more than doubled since 2010, from $105 million in 

inflation-adjusted dollars, to $226 million in 2014,” id., but does not explore the 

more statistically relevant question, which is whether that increase is significant 

compared to total spending. Further, legitimate social science research shows 

no statistically significant relationship between money in politics and the 

perception of corruption. See Abby K. Blass, Daron Shaw & Brian Roberts, 

‘Pay to Play’ or Money for Nothing? Americans’ Assessments of Money and the 

Efficacy of the Political System, APSA 2010 Annual Meeting Paper, available at 

http://goo.gl/enrnNA.

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14

governmental cronyism and misuse of taxpayer funds); Cause of Action, CPPW: 

Putting Politics To Work (2013), available at http://goo.gl/AwrA8k (detailing 

use of government funds to engage in illegal lobbying); CREW Calls On 

Congress To Investigate Short Sellers Influencing Government To Maximize 

Profits (March 18, 2015), available at http://goo.gl/UShZ4w.

6

And second, the District Court’s decision will create the absurd result that 

a 501(c)(3) organization engaged in issue advocacy will be subjected to more 

onerous disclosure obligations than a 501(c)(4) organization engaged in express 

advocacy, who need disclose only those contributors who specifically earmark 

funds for the purpose of furthering the express advocacy. 11 C.F.R 

§ 109.10(e)(1)(vi).

Accordingly, for all of the above reasons, the District Court should have 

deferred to the FEC in this matter.

 6 See also Coral Davenport, Taking Oil Industry Cue, Environmentalists Drew 

Emissions Blueprint, N.Y. Times,July 6, 2014, available at 

http://goo.gl/mhOCWs; U.S. S. Comm. on Env’t and Pub. Works Minority Staff 

Report, The Chain of Environmental Command: How a Club of Billionaires and 

Their Foundations Control the Environmental Movement and Obama’s EPA

(July 30, 2014), http://goo.gl/osxlWY; Rick Cohen, BP Oil Spill Settlements to 

Nonprofits: Mechanics and Lessons, Non-Profit Quarterly, May 9, 2013, 

http://goo.gl/dp5ABQ.

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IV. The District Court Created An Unnecessary Conflict Between BCRA 

And The First Amendment

The District Court created an unnecessary conflict between BCRA and the 

First Amendment. The Supreme Court applies “exacting scrutiny” to disclosure 

requirements, mandating a “substantial relation” between disclosure and “a 

sufficiently important government interest.” Citizens United, 558 U.S. at 366-

67.7

 Disclosure is justified only on narrow grounds, such as when there is 

“evidence in the record that independent groups were running election-related 

advertisements while hiding behind dubious and misleading names.” Id.

Here, by contrast, the District Court used Congressional Record 

statements to support a construction mandating disclosure.8

 This construction of 

 7 11 C.F.R. § 104.20(c)(9) (2007) had been in effect for more than three years 

when Citizens United was decided.

8 The court below also wrongly failed to account for the interplay of WRTL II

with 11 C.F.R. § 104.20(c)(9) (2007). See AFL-CIO v. FEC, 333 F.3d 168, 179 

(D.C. Cir. 2003) (explaining that “the Commission must attempt to avoid 

unnecessarily infringing on First Amendment interests”). Although WRTL II did 

not specifically invalidate BCRA, it raised critical First Amendment issues the 

FEC had to address. See JA28. For example, the Court rejected the notion that 

the government may regulate issue advocacy because express advocacy may be 

regulated, WRTL II, 551 U.S. at 477, and explained that a “court applying strict 

scrutiny must ensure that a compelling interest supports each application of a 

statute restricting speech.” Id. at 478 (italics in original). The Court also denied 

that a corporation’s issue advocacy could be regulated to avoid corruption or the 

appearance of corruption or on the basis of an anti-distortion interest. Id. at 477-

81. The FEC had to take these admonitions to heart in reexamining each 

restriction, including disclosure obligations, on corporations and labor unions 

and therefore it was proper for the FEC to issue a new regulation including the 

phrase “for the purpose of furthering electioneering communications” so that 

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BCRA, unlike the FEC’s construction, leads BCRA into conflict with the First 

Amendment because the First Amendment bars disclosure when there is a 

“reasonable probability” that it will lead to “threats, harassment, or reprisal from 

either Government officials or private parties.” Id.;9 Doe v. Reed, 561 U.S. 186, 

196 (2010); Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87, 

101-02 (1982) (prohibiting compelled disclosure of members and donors); 

Eastland v. United States Servicemen's Fund, 421 U.S. 491, 498 (1975); NAACP 

v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (recognizing “the vital 

relationship between freedom to associate and privacy in one’s associations”);

see also Buckley v. Valeo, 424 U.S. 1, 66 (1976) (Court has not “drawn fine 

lines between contributors and members but [has] treated them 

interchangeably”).

 

“disclosure of the newly permitted electioneering communications would be 

narrowly tailored . . . .” FEC’s Mem. in Supp. of Mot. for Summ. J. at 10-11, 

Van Hollen v. FEC, 851 F. Supp.2d 69 (D.D.C. 2012) (No. 11-0766) (emphasis 

added). 

9 See also McIntyre v. Ohio Elections Comm., 514 U.S. 334, 342 (1995) 

(“Anonymity thereby provides a way for a writer who may be personally 

unpopular to ensure that readers will not prejudge her message simply because 

they do not like its proponent”). Although McIntyre suggests monetary 

donations deserve less protection because “when money supports an unpopular 

viewpoint it is less likely to precipitate retaliation,” 514 U.S. at 355, that notion 

does not stand up to facts or to later Supreme Court cases requiring only a 

“reasonable probability” that disclosure will lead to threats or retaliation. 

Citizens United, 558 U.S. at 367.

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BCRA should be construed to avoid constitutional problems. Arizona v. 

Intertribal Council of Ariz., Inc., 133 S. Ct. 2247, 2259 (2013). 11 C.F.R. 

§ 104.20(c)(9) (2007) did this by limiting disclosure to those who fund 

electioneering communications. The District Court’s construction, however, 

created constitutional doubt. If its decision stands, then every time an 

organization makes an electioneering communication every donor thereto above 

the $1000 threshold from the beginning of the preceding calendar year must be 

disclosed. 52 U.S.C. § 30104(f)(2)(F). This misleads the public about who 

actually funds the electioneering communication, defeating the ostensible 

justification for the rule. It also is constitutionally suspect in several respects. 

First, as statutorily defined, electioneering communications made by a 

corporation or labor union excludes express advocacy and refers only to 

independent speech or issue advocacy. 52 U.S.C. § 30104(f)(3). This does not 

include speech that expressly advocates for the election or defeat of any 

candidate, and so the Supreme Court has held there is no tendency in such 

speech to corrupt or have the appearance of corruption. Citizens United, 558 

U.S. at 356-61; WRTL II, 551 U.S. at 478-79; see also Emily’s List v. FEC, 581 

USCA Case #15-5016 Document #1547777 Filed: 04/16/2015 Page 30 of 46
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F.3d 1, 18 (D.C. Cir. 2009). Therefore, there is no constitutionally cognizable 

basis for regulation under any circumstances.10

Second, the District Court infringes controlling authorities protecting a 

citizen’s anonymous speech and associations. Inviolability of privacy in group 

association often is indispensable to preserve free association, particularly where 

a group espouses dissident beliefs. NAACP, 357 U.S. at 462. To take a recent 

example, the District Court for the Central District of California granted 

Americans for Prosperity Foundation, a 501(c)(3) non-profit organization 

 10 This is all the more true given that, today, information about candidates, 

parties, and campaign contributors is widely available through the Internet. 

Disclosure reports filed by political committees, for example, are now available 

on the FEC’s website within 48 hours and reports filed electronically are 

available “almost instantaneously.” FEC, Quick Answers to Disclosure 

Questions, http://goo.gl/7cYo6o (last visited Apr. 8, 2015). The FEC maintains 

a free on-line database of election contributions, often reported within hours of 

the contribution, and makes available free data downloads for further data 

mining. FEC, Campaign Finance Disclosure Portal, http://goo.gl/9rHq5. 

Perhaps more importantly, there has been an explosion in the development of 

private entities’ searchable systems of contribution disclosure and analysis. The 

Center for Responsive Politics, for example, maintains the web site 

OpenSecrets.org, which provides a “Politicians and Elections” portal, 

http://www.opensecrets.org/elections/, with searchable databases of Presidential, 

Congressional and party contributions, and cross-links that provide data on such 

topics as earmarks, personal finances, and past elections. Many private entities 

also now engage in “opposition research” by covering candidates and campaigns 

closely and awaiting any missteps that can yield political value. In this new 

context, the notion that disclosure of a donor who contributes to an organization 

without any expectation or desire that its money will further electioneering 

communications must nevertheless be disclosed so as to keep the electorate 

properly informed simply is not credible. 

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promoting limited government and free markets, injunctive relief after 

California’s Attorney General (a political opponent) demanded donor names and 

addresses. Am. For Prosperity Found. v. Harris, No. 14-09448, 2015 U.S. Dist. 

LEXIS 21365 (C.D. Cal. Feb. 23, 2015). Americans for Prosperity sued to 

protect these donors because of “[g]rotesque threats” against known supporters 

“ranging from threats to kill or maim, to threats to firebomb buildings.” Compl.

at 1, Am. For Prosperity Found. v. Harris, No. 14-09448, 2015 U.S. Dist. 

LEXIS 21365 (C.D. Cal. Feb. 23, 2015).11

Third, if Van Hollen prevails in this case, the law will be that 

government-funded and approved organizations, their members and donors, 

need not give up any First Amendment rights to qualify for taxpayer funds or to 

engage in political behavior, but privately-funded organizations, their members 

and donors, must give up First Amendment rights to participate in the 

marketplace of political ideas. In other words, Van Hollen apparently is 

prepared to overturn NAACP and create a universe in which privately-funded 

 11 In granting Americans For Prosperity’s motion, the court held that when “an 

ordinance infringes on First Amendment rights of those ‘seeking to express their 

views’ the ‘balance of equities and the public interest . . . tip sharply in favor” of 

an injunction. Harris, No. 14-09448, 2015 U.S. Dist. LEXIS 21365, at *4; see 

also Citizens United, 558 U.S. at 480-85 (Thomas, J., dissenting) (highlighting 

the serious threats, intimidations, and reprisals taken against donors to 

committees formed in opposition to California’s Proposition 8 and the 

documented chilling effect on potential donors to a candidate challenging an 

incumbent state attorney general). 

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20

political speech, perhaps especially speech critical of him, is chilled, but 

government-funded speech, of which he presumably approves, is supported.12

The lower court’s decision accordingly must be reversed, as it improperly 

requires disclosure in a manner that threatens important First Amendment rights 

while failing to meet the rationale of accurately informing the electorate of the 

sources of political speech. This Court should instead uphold the FEC’s 

regulation, to the extent appropriate, which better harmonizes the underlying 

statute’s disclosure requirements with First Amendment protections.

CONCLUSION

Van Hollen has failed to exhaust administrative remedies. Even if he is 

freed from exhaustion, this case is unripe and moot. Furthermore, the District 

Court erred by taking on a policy-making function and distorting congressional 

process, and Chevron deference is especially appropriate here. Finally, there is 

no substantial connection between the District Court’s disclosure obligations 

and that court’s stated rationale, creating a clear, but wholly unnecessary, First 

Amendment conflict.

 12 Compare Brief of Appellee Van Hollen at 23-24, Ctr. for Individual Freedom 

v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) (per curiam) (Nos. 12-5117, 12-

5118) (standing discussion), with Legal Services Corp. v. Velazquez, 531 U.S. 

533, 547 (2001) (authorizing lobbying by government-funded entity on First 

Amendment grounds); FCC v. League of Women Voters, 468 U.S. 364, 401 

(1984) (authorizing editorializing by government-funded broadcasters).

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21

Dated: April 16, 2015 Respectfully submitted,

/s/ Daniel Z. Epstein 

DANIEL Z. EPSTEIN

LEE A. STEVEN

JOSHUA N. SCHOPF

CAUSE OF ACTION INSTITUTE

1919 Pennsylvania Ave., N.W., 

Ste. 650

Washington, D.C. 20006

(202) 499-4232

Counsel for Amicus Curiae

Cause of Action Institute 

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22

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, 

I hereby certify that this brief complies with the type-volume limitation in Rule 

32(a)(5). Prepared in Microsoft Word 2010, the foregoing brief used 

proportionally spaced type in 14-point Times New Roman font. The brief, 

excluding the parts exempted by Federal Rule of Appellate Procedure 

32(a)(7)(B)(iii), contains 4903 words as counted by Microsoft Word 2010.

Dated: April 16, 2015 /s/ Daniel Z. Epstein

Counsel for Amicus Curiae 

Cause of Action Institute

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ADDENDUM

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ADDENDUM TABLE OF CONTENTS

Federal Statutes Page

52 U.S.C. § 30118 (formerly 2 U.S.C. § 441b)................................................ A-1

52 U.S.C. § 30104(f) (formerly 2 U.S.C. § 434(f)).......................................... A-1

Federal Regulations

11 C.F.R. § 104.20(c)(7)-(c)(9) (2007)............................................................. A-4

11 C.F.R. § 104.20(c)(7)-(c)(9) (2015)............................................................. A-5

11 C.F.R. § 114.15 (2007) ................................................................................ A-6

11 C.F.R. § 109.10(e)........................................................................................ A-8

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A-1

52 U.S.C. § 30118 (formerly 2 U.S.C. § 441b). Contributions or expenditures 

by national banks, corporations, or labor organizations.

(a) In general. It is unlawful for any national bank, or any corporation 

organized by authority of any law of Congress, to make a contribution or 

expenditure in connection with any election to any political office, or in connection 

with any primary election or political convention or caucus held to select 

candidates for any political office, or for any corporation whatever, or any labor 

organization, to make a contribution or expenditure in connection with any election 

at which presidential and vice presidential electors or a Senator or Representative

in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in 

connection with any primary election or political convention or caucus held to 

select candidates for any of the foregoing offices, or for any candidate, political 

committee, or other person knowingly to accept or receive any contribution 

prohibited by this section, or any officer or any director of any corporation or any 

national bank or any officer of any labor organization to consent to any 

contribution or expenditure by the corporation, national bank, or labor 

organization, as the case may be, prohibited by this section.

(b) Definitions; particular activities prohibited or allowed

* * *

(2) For purposes of this section and section 79l (h) of title 15, [1] the 

term “contribution or expenditure” includes a contribution or expenditure, as 

those terms are defined in section 431 of this title, and also includes any 

direct or indirect payment, distribution, loan, advance, deposit, or gift of 

money, or any services, or anything of value (except a loan of money by a 

national or State bank made in accordance with the applicable banking laws 

and regulations and in the ordinary course of business) to any candidate, 

campaign committee, or political party or organization, in connection with 

any election to any of the offices referred to in this section or for any 

applicable electioneering communication, but shall not include . . .

* * *

52 U.S.C. § 30104(f) (formerly 2 U.S.C. § 434(f)). Reporting Requirements.

(f) Disclosure of electioneering communications.

(1) Statement required. Every person who makes a disbursement for the 

direct costs of producing and airing electioneering communications in an aggregate 

amount in excess of $10,000 during any calendar year shall, within 24 hours of 

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A-2

each disclosure date, file with the Commission a statement containing the 

information described in paragraph (2).

(2) Contents of statement. Each statement required to be filed under this 

subsection shall be made under penalty of perjury and shall contain the following 

information:

(A) The identification of the person making the disbursement, of 

any person sharing or exercising direction or control over the activities of 

such person, and of the custodian of the books and accounts of the person 

making the disbursement.

(B) The principal place of business of the person making the 

disbursement, if not an individual.

(C) The amount of each disbursement of more than $200 during the 

period covered by the statement and the identification of the person to whom 

the disbursement was made.

(D) The elections to which the electioneering communications 

pertain and the names (if known) of the candidates identified or to be 

identified.

(E) If the disbursements were paid out of a segregated bank account 

which consists of funds contributed solely by individuals who are United 

States citizens or nationals or lawfully admitted for permanent residence (as 

defined in section 1101(a)(20) of title 8) directly to this account for 

electioneering communications, the names and addresses of all contributors 

who contributed an aggregate amount of $1,000 or more to that account 

during the period beginning on the first day of the preceding calendar year 

and ending on the disclosure date. Nothing in this subparagraph is to be 

construed as a prohibition on the use of funds in such a segregated account 

for a purpose other than electioneering communications.

(F) If the disbursements were paid out of funds not described in 

subparagraph (E), the names and addresses of all contributors who 

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

disbursement during the period beginning on the first day of the preceding 

calendar year and ending on the disclosure date.

(3) Electioneering communication. For purposes of this subsection—

(A) In general.

(i) The term “electioneering communication” means any 

broadcast, cable, or satellite communication which—

(I) refers to a clearly identified candidate for Federal 

office

(II) is made within—

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A-3

(aa) 60 days before a general, special, or runoff 

election for the office sought by the candidate; or

(bb) 30 days before a primary or preference 

election, or a convention or caucus of a political party 

that has authority to nominate a candidate, for the office 

sought by the candidate; and

(III) in the case of a communication which refers to a 

candidate for an office other than President or Vice President, is 

targeted to the relevant electorate.

(ii) If clause (i) is held to be constitutionally insufficient by 

final judicial decision to support the regulation provided herein, then 

the term “electioneering communication” means any broadcast, cable, 

or satellite communication which promotes or supports a candidate for 

that office, or attacks or opposes a candidate for that office (regardless 

of whether the communication expressly advocates a vote for or 

against a candidate) and which also is suggestive of no plausible 

meaning other than an exhortation to vote for or against a specific 

candidate. Nothing in this subparagraph shall be construed to affect 

the interpretation or application of section 100.22(b) of title 11, Code 

of Federal Regulations.

(B) Exceptions. The term “electioneering communication” does not 

include—

(i) a communication appearing in a news story, commentary, 

or editorial distributed through the facilities of any broadcasting 

station, unless such facilities are owned or controlled by any political 

party, political committee, or candidate;

(ii) a communication which constitutes an expenditure or an 

independent expenditure under this Act;

(iii) a communication which constitutes a candidate debate or 

forum conducted pursuant to regulations adopted by the Commission, 

or which solely promotes such a debate or forum and is made by or on 

behalf of the person sponsoring the debate or forum; or

(iv) any other communication exempted under such 

regulations as the Commission may promulgate (consistent with the 

requirements of this paragraph) to ensure the appropriate 

implementation of this paragraph, except that under any such 

regulation a communication may not be exempted if it meets the 

requirements of this paragraph and is described in section 

30101(20)(A)(iii) of this title.

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A-4

(C) Targeting to relevant electorate. For purposes of this 

paragraph, a communication which refers to a clearly identified candidate 

for Federal office is “targeted to the relevant electorate” if the 

communication can be received by 50,000 or more persons—

(i) in the district the candidate seeks to represent, in the case 

of a candidate for Representative in, or Delegate or Resident 

Commissioner to, the Congress; or

(ii) in the State the candidate seeks to represent, in the case 

of a candidate for Senator.

(4) Disclosure date. For purposes of this subsection, the term “disclosure 

date” means—

(A) the first date during any calendar year by which a person has 

made disbursements for the direct costs of producing or airing electioneering 

communications aggregating in excess of $10,000; and

(B) any other date during such calendar year by which a person has 

made disbursements for the direct costs of producing or airing electioneering 

communications aggregating in excess of $10,000 since the most recent 

disclosure date for such calendar year.

(5) Contracts to disburse. For purposes of this subsection, a person shall 

be treated as having made a disbursement if the person has executed a contract to 

make the disbursement.

(6) Coordination with other requirements. Any requirement to report 

under this subsection shall be in addition to any other reporting requirement under 

this Act.

(7) Coordination with title 26. Nothing in this subsection may be 

construed to establish, modify, or otherwise affect the definition of political 

activities or electioneering activities (including the definition of participating in, 

intervening in, or influencing or attempting to influence a political campaign on 

behalf of or in opposition to any candidate for public office) for purposes of title 

26.

11 C.F.R. § 104.20(c)(7)-(c)(9) (2007). Reporting electioneering 

communications.

(c) Contents of statement. Statements of electioneering communications 

filed under paragraph (b) of this section shall disclose the following information:

* * *

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A-5

(7)(i) If the disbursements were paid exclusively from a segregated bank 

account established to pay for electioneering communications not permissible 

under 11 CFR 114.15, consisting of funds provided solely by individuals who are 

United States citizens, United States nationals, or who are lawfully admitted for 

permanent residence under 8 U.S.C. 1101(a)(20), the name and address of each 

donor who donated an amount aggregating $1,000 or more to the segregated bank 

account, aggregating since the first day of the preceding calendar year; or

(ii) If the disbursements were paid exclusively from a segregated bank 

account established to pay for electioneering communications permissible under 11 

CFR 114.15, the name and address of each donor who donated an amount 

aggregating $1,000 or more to the segregated bank account, aggregating since the 

first day of the preceding calendar year.

(8) If the disbursements were not paid exclusively from a segregated bank 

account described in paragraph (c)(7) of this section and were not made by a 

corporation or labor organization pursuant to 11 CFR 114.15, the name and 

address of each donor who donated an amount aggregating $1,000 or more to the 

person making the disbursement, aggregating since the first day of the preceding 

calendar year.

(9) If the disbursements were made by a corporation or labor organization 

pursuant to 11 CFR 114.15, the name and address of each person who made a 

donation aggregating $1,000 or more to the corporation or labor organization, 

aggregating since the first day of the preceding calendar year, which was made for 

the purpose of furthering electioneering communications.

11 C.F.R. § 104.20(c)(7)-(c)(9) (2015). Reporting electioneering 

communications. [Published in 79 Fed. Reg. 62,797, 62,816-17 (Oct. 21, 2014)]

(c) * * *

(7) If the disbursements were paid exclusively from a segregated bank 

account consisting of funds provided solely by persons other than national banks, 

corporations organized by authority of any law of Congress, or foreign nationals as 

defined in 11 CFR 110.20(a)(3), the name and address of each donor who donated 

an amount aggregating $1,000 or more to the segregated bank account, aggregating 

since the first day of the preceding calendar year.

(8) If the disbursements were not paid exclusively from a segregated bank 

account described in paragraph (c)(7) of this section and were not made by a 

corporation or labor organization, the name and address of each donor who 

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donated an amount aggregating $1,000 or more to the person making the 

disbursement, aggregating since the first day of the preceding calendar year.

(9) If the disbursements were made by a corporation or labor organization 

and were not paid exclusively from a segregated bank account described in 

paragraph (c)(7) of this section, the name and address of each person who made a 

donation aggregating $1,000 or more to the corporation or labor organization, 

aggregating since the first day of the preceding calendar year, which was made for 

the purpose of furthering electioneering communications.

11 C.F.R. § 114.15 (2007). Permissible use of corporate and labor 

organization funds for certain electioneering communications.

(a) Permissible electioneering communications. Corporations and labor 

organizations may make an electioneering communication, as defined in 11 CFR 

100.29, to those outside the restricted class unless the communication is 

susceptible of no reasonable interpretation other than as an appeal to vote for or 

against a clearly identified Federal candidate.

(b) Safe harbor. An electioneering communication is permissible under 

paragraph (a) of this section if it:

(1) Does not mention any election, candidacy, political party, 

opposing candidate, or voting by the general public;

(2) Does not take a position on any candidate's or officeholder's 

character, qualifications, or fitness for office; and

(3) Either:

(i) Focuses on a legislative, executive or judicial matter or 

issue; and

(A) Urges a candidate to take a particular position or 

action with respect to the matter or issue, or

(B) Urges the public to adopt a particular position and 

to contact the candidate with respect to the matter or issue; or

(ii) Proposes a commercial transaction, such as purchase of a 

book, video, or other product or service, or such as attendance (for a 

fee) at a film exhibition or other event.

(c) Rules of interpretation. If an electioneering communication does not 

qualify for the safe harbor in paragraph (b) of this section, the Commission will 

consider whether the communication includes any indicia of express advocacy and 

whether the communication has an interpretation other than as an appeal to vote for 

or against a clearly identified Federal candidate in order to determine whether, on 

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balance, the communication is susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a clearly identified Federal candidate.

(1) A communication includes indicia of express advocacy if it:

(i) Mentions any election, candidacy, political party, 

opposing candidate, or voting by the general public; or

(ii) Takes a position on any candidate's or officeholder's 

character, qualifications, or fitness for office.

(2) Content that would support a determination that a 

communication has an interpretation other than as an appeal to vote for or 

against a clearly identified Federal candidate includes content that:

(i) Focuses on a public policy issue and either urges a 

candidate to take a position on the issue or urges the public to contact 

the candidate about the issue; or

(ii) Proposes a commercial transaction, such as purchase of a 

book, video or other product or service, or such as attendance (for a 

fee) at a film exhibition or other event; or

(iii) Includes a call to action or other appeal that interpreted in 

conjunction with the rest of the communication urges an action other 

than voting for or against or contributing to a clearly identified 

Federal candidate or political party.

(3) In interpreting a communication under paragraph (a) of this 

section, any doubt will be resolved in favor of permitting the 

communication.

(d) Information permissibly considered. In evaluating an electioneering 

communication under this section, the Commission may consider only the 

communication itself and basic background information that may be necessary to 

put the communication in context and which can be established with minimal, if 

any, discovery. Such information may include, for example, whether a named 

individual is a candidate for office or whether a communication describes a public 

policy issue.

(e) Examples of communications. A list of examples derived from prior 

Commission or judicial actions of communications that have been determined to be 

permissible and of communications that have been determined not to be 

permissible under paragraph (a) of this section is available on the Commission's 

Web site, http://www.fec.gov.

(f) Reporting requirement. Corporations and labor organizations that 

make electioneering communications under paragraph (a) of this section 

aggregating in excess of $10,000 in a calendar year shall file statements as required 

by 11 CFR 104.20.

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11 C.F.R. § 109.10(e). How do political committees and other persons report 

independent expenditures?

(e) Content of verified reports and statements and verification of reports 

and statements.

(1) Contents of verified reports and statement. If a signed report or 

statement is submitted, the report or statement shall include:

(i) The reporting person's name, mailing address, 

occupation, and the name of his or her employer, if any;

(ii) The identification (name and mailing address) of the 

person to whom the expenditure was made;

(iii) The amount, date, and purpose of each expenditure;

(iv) A statement that indicates whether such expenditure was 

in support of, or in opposition to a candidate, together with the 

candidate's name and office sought;

(v) A verified certification under penalty of perjury as to 

whether such expenditure was made in cooperation, consultation, or 

concert with, or at the request or suggestion of a candidate, a 

candidate's authorized committee, or their agents, or a political party 

committee or its agents; and

(vi) The identification of each person who made a 

contribution in excess of $200 to the person filing such report, which 

contribution was made for the purpose of furthering the reported 

independent expenditure.

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CERTIFICATE OF SERVICE

I hereby certify that on April 16, 2015, I electronically filed the foregoing 

with the Clerk of the Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system. 

Participants in the case who are registered CM/ECF users will be served by the 

appellate CM/ECF system. I also hereby certify that I will have eight copies 

hand-delivered or sent via Federal Express overnight delivery to the Court 

within two business days, pursuant to Circuit Rule 31(b).

/s/ Daniel Z. Epstein

Counsel for Amicus Curiae

Cause of Action Institute

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