UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CHRIS VAN HOLLEN, ) 

) Civ. No. 1:11-cv-00766 (ABJ) 

 Plaintiff, ) 

 v. ) 

 ) REPLY 

FEDERAL ELECTION COMMISSION, ) 

et al., ) 

 ) 

 Defendants. ) 

___________________________________ ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY 

TO THE MOTIONS OF HISPANIC LEADERSHIP FUND AND 

CENTER FOR INDIVIDUAL FREEDOM 

Pursuant to the Court’s Minute Order of August 1, 2011, the Federal Election 

Commission (“FEC” or “Commission”) files this reply to the motion to dismiss filed by the 

intervenor-defendant Hispanic Leadership Fund (“HLF”) and the motion for summary judgment 

filed by the intervenor-defendant Center for Individual Freedom (“CFIF”), as well as the 

opposition to those motions filed by plaintiff Chris Van Hollen. The Commission agrees with 

CFIF and HLF that 11 C.F.R. § 104.20(c)(9) is lawful, for the reasons the Commission has 

explained in its prior briefs. The Commission files this reply, however, to address several points 

raised by the intervenors and by Van Hollen’s response. 

 The FEC’s regulation is a reasonable interpretation of the Bipartisan Campaign Reform 

Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002) (“BCRA”), but it is not required by either 

the Constitution or BCRA. Although, quite appropriately, the Commission considered the 

possible burdens on speech during its rulemaking, it had considerable discretion to adopt a 

variety of interpretations in the face of an ambiguous statute. In addition, contrary to CFIF’s 

Case 1:11-cv-00766-ABJ Document 42 Filed 09/30/11 Page 1 of 6
2 

arguments, if the Court were to rule against the Commission, neither a stay nor vacatur would be 

an appropriate remedy. The Commission’s motion for summary judgment should be granted. 

I. THE INTERPRETATION OF BCRA IN 11 C.F.R. § 104.20(c)(9) IS 

REASONABLE BUT NOT CONSTITUTIONALLY REQUIRED 

Both HLF and CFIF erroneously argue that the Commission had to promulgate 

11 C.F.R. § 104.20(c)(9) in order to satisfy the Constitution. (See Defendant Center for 

Individual Freedom’s Opposition to Plaintiff Van Hollen’s Motion for Summary Judgment and 

CFIF’s Cross-Motion for Summary Judgment (Docket No. 33) (“CFIF Br.”) at 13-19; 

Memorandum in Support of Motion to Dismiss and in Support of Cross Motion for Summary 

Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment (Docket No. 31) 

(“HLF Br.”) at 11-13.) Van Hollen counters that this argument is foreclosed because the 

Commission did not rely upon constitutional considerations in promulgating the regulation. (See

Reply to Intervenors’ Opposition to Plaintiff’s Motion for Summary Judgment (Docket No. 38) 

(“Pl’s Reply”) at 7-9). Neither argument is correct. 

As the Commission has explained, the agency proposed two basic alternatives in the 

Notice of Proposed Rulemaking it issued following the decision in FEC v. Wisconsin Right to 

Life, Inc., 551 U.S. 449 (2007) (“WRTL”), which eventually led to the promulgation of 11 C.F.R. 

§ 104.20(c)(9). (See Defendant Federal Election Commission’s Memorandum of Points and 

Authorities in Support of Its Motion for Summary Judgment and in Opposition to Plaintiff’s 

Motion for Summary Judgment (Docket No. 24) (“FEC Br.”) at 7-13.) Alternative 1 would have 

required donors to corporations and labor organizations making electioneering communications 

to be disclosed in the same manner as donors to other entities making those communications. 

Alternative 2 would have entirely exempted WRTL-permitted ads from the definition of 

Case 1:11-cv-00766-ABJ Document 42 Filed 09/30/11 Page 2 of 6
3 

electioneering communication in 11 C.F.R. § 100.29 and would thus have eliminated both the 

disclosure requirements and financing restrictions for those ads. See Final Rule and Explanation 

and Justification on Electioneering Communications, 11 C.F.R. Part 104, 114, 72 Fed. Reg. 

72,899, 72,900 (Dec. 26, 2007); Administrative Record Tab 54. Some rulemaking commenters 

argued that the only constitutional interpretation would be the one in Alternative 2, which would 

have “allow[ed] all ECs that qualify for the WRTL II exemption to be run without any 

disclaimers or reporting,” but the Commission explicitly rejected that view. 72 Fed. Reg. 

72,901. Thus, although the Commission may not have explicitly cited the Constitution as 

plaintiff would have preferred (Pl’s Reply at 7-8), the FEC obviously and properly took 

constitutional concerns into account in evaluating the potential burdens on speech and 

association. (See FEC Br. at 12 (summarizing Commission’s concern about the “‘significant 

burden of disclosing the identities of vast numbers’” of donors).) 

On the other hand, HLF and CFIF incorrectly argue that 11 C.F.R. § 104.20(c)(9) was the 

only possible manner that the regulation could have been drafted consistent with the 

Constitution. When the Commission chose a middle ground between the two proposed 

rulemaking alternatives, however, its own reasoning suggested neither that its choice was 

constitutionally compelled nor that either of the rejected alternatives would have been 

unconstitutional. 72 Fed. Reg. 72,910-11. Of course, the Supreme Court has made clear that the 

disclosure requirements regarding electioneering communications are constitutional, both 

facially and as applied to corporations. See Citizens United v. FEC, 588 U.S. __, 130 S. Ct. 876, 

914-16 (2010); McConnell v. FEC, 540 U.S. 93, 197 (2003). And nothing in these decisions 

suggests that any particular interpretation of the contributor disclosure requirements is 

Case 1:11-cv-00766-ABJ Document 42 Filed 09/30/11 Page 3 of 6
4 

constitutionally required as applied to corporations and unions. The Commission was not 

required to promulgate 11 C.F.R. § 104.20(c)(9) in its exact form to satisfy the Constitution. 

II. BCRA DOES NOT UNAMBIGUOUSLY REQUIRE THE INTERPRETATION 

 IN 11 C.F.R. § 104.20(c)(9) 

CFIF also argues that BCRA requires the interpretation in 11 C.F.R. § 104.20(c)(9), 

asserting that “the statute unambiguously validates the regulation at [Chevron] Step One.” CFIF 

Br. at 7. CFIF is wrong. As the Commission has explained, Congress failed to speak directly to 

the issue in this case, both because corporations and labor organizations were prohibited from 

making electioneering communications at the time BCRA was passed, and due to the ambiguity 

in the most relevant statutory language at 2 U.S.C. § 434(f)(2). (See FEC Br. at 18-28; 

Defendant Federal Election Commission’s Reply in Support of its Motion for Summary 

Judgment (Docket No. 40) (“FEC Reply”) at 6-10.) 

Because Congress’s intent was not “unambiguously expressed,” and the statute has a 

“gap left, implicitly or explicitly, by Congress,” the Commission had the authority to promulgate 

any regulation that was reasonable. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837, 843-44 (1984) (citation omitted). Thus, the Commission had, and continues 

to have, wide discretion to adopt a variety of regulatory approaches to ensure electioneering 

communication disclosure by corporations and unions, as long as it interprets the statute 

reasonably.1

 

Here, for example, the Commission did not reject the alternatives proposed in the NPRM 

on the ground that they would conflict with the statute. See 72 Fed. Reg. 72,910-11. Indeed, 

                                                           

1

 The Commission could decide in the future to modify the regulation due to changed 

circumstances, and it is free do so as long as it provides a reasoned analysis. See Motor Vehicle 

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983). 

Case 1:11-cv-00766-ABJ Document 42 Filed 09/30/11 Page 4 of 6
5 

even plaintiff’s proposed interpretation of the statute might be a permissible one. But just as the 

FEC was not required to adopt a regulation consistent with plaintiff’s policy preferences, the 

agency was not required to adopt one reflecting the intervenors’ preferences. 

III. NEITHER A STAY OF PROCEEDINGS NOR VACATUR WOULD BE AN 

APPROPRIATE REMEDY IN THIS CASE 

CFIF suggests both that this Court might “stay ... this proceeding for a time to allow [a] 

petition [for rulemaking]” and that, if the Court concludes the regulation is unlawful, “vacatur of 

the regulation — with the right of an immediate appeal — would be the appropriate remedy.” 

(See CFIF Br. at 6, 20.) However, these would not be appropriate steps for the Court to take in 

this case. The FEC has explained why a remand, rather than vacatur or retained jurisdiction, 

would be the appropriate remedy if the Court were to find the regulation unlawful. (See FEC Br. 

at 43-45; FEC Reply at 19-23.) 

CFIF’s suggestion that the Court might stay this litigation while Van Hollen files a 

petition for a new rulemaking is also flawed. The Court cannot order plaintiff to file a 

rulemaking petition, and plaintiff has not indicated any plans to do so. Van Hollen has instead 

chosen to litigate. In any case, it would be inappropriate for the Court to retain jurisdiction 

during the pendency of a new rulemaking. (See FEC Br. at 44-45.) If the Commission were to 

adopt a new regulation in response to a petition for rulemaking, a party with standing that 

believes the new regulation is unlawful could bring a new lawsuit at that time. Thus, there is no 

basis for a stay of this matter. 

CONCLUSION 

Because 11 C.F.R. § 104.20(c)(9) is not contrary to law, the Court should grant summary 

judgment to the Commission and deny plaintiff’s motion for relief. 

Case 1:11-cv-00766-ABJ Document 42 Filed 09/30/11 Page 5 of 6
6 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Holly J. Baker 

Attorney 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

September 30, 2011 Fax: (202) 219-0260 

Case 1:11-cv-00766-ABJ Document 42 Filed 09/30/11 Page 6 of 6