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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2003 Decided June 20, 2003

No. 02-5069

AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS AND

DNC SERVICES CORPORATION, DEMOCRATIC

NATIONAL COMMITTEE,

APPELLEES

v.

FEDERAL ELECTION COMMISSION,

APPELLANT

–————

Appeal from the United States District Court

for the District of Columbia

(No. 01cv01522)

–————

David B. Kolker, Attorney, Federal Election Commission,

argued the cause for appellant. With him on the briefs was

Richard B. Bader, Associate General Counsel.

Trevor Potter, Lisa J. Danetz and Lawrence M. Noble were

on the brief for amicus curiae Campaign and Media Legal

Center, et al. in support of appellant.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Laurence E. Gold argued the cause for appellees. With

him on the brief were Joseph E. Sandler and Michael B.

Trister.

James Bopp, Jr. and Raeanna S. Moore were on the brief

for amicus curiae James Madison Center for Free Speech in

support of appellees.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit Judge

HENDERSON.

TATEL, Circuit Judge: Unique among federal administrative agencies, the Federal Election Commission has as its sole

purpose the regulation of core constitutionally protected activity—‘‘the behavior of individuals and groups only insofar as

they act, speak and associate for political purposes.’’ FEC v.

Machinists Non-Partisan Political League, 655 F.2d 380, 387

(D.C. Cir. 1981). As a result, Commission investigations into

alleged election law violations frequently involve subpoenaing

materials of a ‘‘delicate nature TTT represent[ing] the very

heart of the organism which the first amendment was intended to nurture and protect: political expression and association

concerning federal elections and officeholding.’’ Id. at 388.

At the close of such investigations, a Commission regulation

has long required public release of all investigatory file

materials not exempted by the Freedom of Information Act.

In this case, the subjects of a now-closed investigation challenge the regulation as inconsistent with both the Federal

Election Campaign Act and the First Amendment. We hold

that the regulation, though not contrary to the plain language

of the statute, is nevertheless impermissible because it fails to

account for the substantial First Amendment interests implicated in releasing political groups’ strategic documents and

other internal materials.

I.

The Federal Election Commission’s administrative enforcement procedures are governed by 2 U.S.C. § 437g(a) of the
3

Federal Election Campaign Act (FECA). When the Commission receives a sworn complaint alleging that an election law

violation has occurred, it must first notify the alleged violator

and give it an opportunity to respond to the accusation. If

four Commission members find ‘‘reason to believe’’ that the

respondent has committed or is about to commit a violation,

the Commission must proceed with an investigation. 2 U.S.C.

§ 437g(a)(1), (2). If the Commission then finds ‘‘probable

cause’’ to believe that a violation has occurred, it must

attempt to reach an informal conciliation agreement with the

respondent. Id. § 437g(a)(4)(A)(i). The Commission may

bring a civil enforcement proceeding in U.S. District Court if

conciliation negotiations fail. Id. § 437g(a)(6). Where the

Commission decides to dismiss a complaint at any stage of the

process, however, the statute allows ‘‘aggrieved’’ parties to

challenge the dismissal in U.S. District Court. Id.

§ 437g(a)(8).

Two parts of section 437g(a) directly address confidentiality

and disclosure of enforcement-related information. Subsection (a)(12)(A)—the provision at issue in this case—states that

‘‘[a]ny notification or investigation made under this section

shall not be made public by the Commission or by any person

without the written consent of the person receiving such

notification or the person with respect to whom such investigation is made.’’ Id. § 437g(a)(12)(A). Subsection (a)(4)(B)

addresses disclosures in post-investigation proceedings:

(i) No action by the Commission or any person, and no

information derived, in connection with any conciliation

attempt by the Commission TTT may be made public by

the Commission without the written consent of the respondent and the Commission.

(ii) If a conciliation agreement is agreed upon by the

Commission and the respondent, the Commission shall

make public any conciliation agreement signed by both

the Commission and the respondent. If the Commission

makes a determination that a person has not violated TTT
4

[election laws], the Commission shall make public such

determination.

Id. § 437g(a)(4)(B).

The Commission promulgated two regulations implementing these provisions, 11 C.F.R. §§ 111.20, 111.21, plus a third

that reconciles FECA with the Freedom of Information Act, 5

U.S.C. § 552. The latter regulation, 11 C.F.R. § 5.4(a)(4),

requires the disclosure of investigatory file materials in closed

cases:

Opinions of Commissioners rendered in enforcement

cases and General Counsel’s Reports and non-exempt 2

U.S.C. 437g investigatory materials shall be placed on

the public record of the Agency no later than 30 days

from the date on which all respondents are notified that

the Commission has voted to close such an enforcement

file.

11 C.F.R. § 5.4(a)(4).

The roots of this case reach back to the mid-1990s when the

National Republican Senatorial Committee, the National Republican Congressional Committee, and an independent political action committee chaired by Oliver North filed eleven

complaints with the Commission alleging, among other things,

that the AFL-CIO and various individual unions had unlawfully coordinated their ‘‘Labor ’96’’ campaign expenditures

with political candidates and party committees. Finding

‘‘reason to believe’’ that FECA violations had occurred, the

Commission embarked on a three-year investigation during

which it subpoenaed approximately 50,000 pages of documents from the AFL-CIO, the Democratic National Committee (DNC), and 150 other respondents, as well as third-party

witnesses. The AFL-CIO turned over documents containing

detailed descriptions of meetings with elected officials, training programs for union activists, convention and get-out-thevote activities, and polling data analyzing union members’

political attitudes and the effectiveness of particular political

messages. The DNC provided memoranda concerning internal deliberations between state and national party leaders, as

well as ‘‘Coordinated Campaign’’ plans describing state offi-
5

cials’ strategies, techniques, and timetables for winning upcoming elections across the country.

After the U.S. District Court for the District of Columbia

issued a decision narrowing the circumstances under which

the Commission could regulate coordination practices under

FECA, FEC v. Christian Coalition, 52 F. Supp. 2d 45

(D.D.C. 1999), the Commission dismissed the complaints in

this case. At that time, Commission investigators had yet to

review an estimated 10,000 to 20,000 pages of the materials

gathered during the course of the proceedings. FEC General

Counsel’s Report, In re AFL-CIO, et al., at 11 n.6 (June 12,

2000). None of the complainants sought judicial review of the

dismissal under 2 U.S.C. § 437g(a)(8).

Pursuant to 11 C.F.R. § 5.4(a)(4), the Commission then

redacted certain FOIA-exempt materials and made available

an initial 6000 pages of investigatory files in its public records

office. The AFL-CIO and DNC petitioned the Commission

to withdraw the released files from the records office and to

withhold virtually all remaining documents, arguing that the

materials were protected by certain FOIA exemptions and by

section 437g(a)(12)(A)’s prohibition against disclosing ‘‘[a]ny

notification or investigation made under this section’’ without

written consent of the respondent. According to the petitioners, disclosure of the materials would disadvantage them by

revealing political tactics and strategies to their opponents

and by needlessly releasing information identifying hundreds

of officials, employees, and volunteers named in the documents, making it harder for the two organizations to recruit

such personnel in the future. (Like the parties, we shall

refer to the two petitioners as the AFL-CIO.) The Commission denied both the section 437g and FOIA claims.

The AFL-CIO then filed suit against the Commission in the

U.S. District Court for the District of Columbia. Applying

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

Inc., 467 U.S. 837, 842–43 (1984), the district court held that

section 437g(a)(12)(A)’s plain language protects investigatory

files from disclosure. AFL-CIO v. FEC, 177 F. Supp. 2d 48,
6

55–59 (D.D.C. 2001). The court also concluded that the

Commission’s position violated 11 C.F.R. § 111.21 and FOIA

Exemption 7(C), 5 U.S.C. § 552(b)(7)(C). AFL-CIO, 177 F.

Supp. 2d at 59–61.

The Commission appeals, arguing that its longstanding

disclosure policy warrants Chevron deference. In support of

the Commission, the Campaign and Media Legal Center, the

Center for Responsive Politics, and the National Voting

Rights Institute assert in their amicus brief that disclosure of

investigatory files is essential to public oversight of the

Commission. The AFL-CIO defends the district court’s

Chevron analysis and argues that even if FECA is ambiguous,

the Commission deserves no deference because its interpretation raises serious First Amendment problems. Amplifying

the latter point, the James Madison Center for Free Speech

argues in its amicus brief that the Commission’s policy creates an incentive for political groups to file complaints against

their opponents in order to gain access to their strategic

plans, as well as to chill the opponents’ activities. We review

the district court’s grant of summary judgment de novo.

Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 756 (D.C. Cir.

2003).

II.

Because the Commission is charged with administering

FECA, we analyze its regulations under the Chevron framework. See, e.g., Republican Nat’l Comm. v. FEC, 76 F.3d

400, 404 (D.C. Cir. 1996). As usual, we begin by asking

whether Congress has spoken ‘‘directly TTT to the precise

question at issue,’’ since both we and the Commission must

give effect to Congress’s unambiguously expressed intent.

Chevron, 467 U.S. at 842–43. We consider the provisions at

issue in context, using traditional tools of statutory construction and legislative history. FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 132–33 (2000). A statute is

considered ambiguous if it can be read more than one way.

United States v. Nofziger, 878 F.2d 442, 446–47 (D.C. Cir.

1989). We evaluate the statute’s clarity ourselves, giving no

deference to the agency’s interpretation. SBC Communications Inc. v. FCC, 138 F.3d 410, 418–19 (D.C. Cir. 1998).
7

Only if the statute is either silent or ambiguous on the

question at issue do we defer to the agency’s reasonable

interpretation. Chevron, 467 U.S. at 842–43.

Before considering the Commission’s plea for Chevron deference, we must address the AFL-CIO’s argument that it

should prevail at Chevron step one. Echoing the district

court’s reasoning, it argues that subsection (a)(12)(A)—‘‘[a]ny

notification or investigation made under this section shall not

be made public by the Commission or by any person without

the written consent of the person receiving such notification

or the person with respect to whom such investigation is

made’’—speaks directly to the question at issue by prohibiting the release of investigatory file materials in both open and

closed cases. For its part, the Commission asserts that the

term ‘‘investigation’’ refers only to the act of investigating a

complaint, not to the fruits of the inquiry. According to the

Commission, once a pending investigation has closed and later

stages of the enforcement process have implicitly revealed the

fact that the Commission engaged in the act of investigation,

the statute simply does not address the confidentiality of

related files.

As we read subsection (a)(12)(A), we cannot agree with the

AFL-CIO that the term ‘‘investigation’’ unambiguously encompasses files compiled during a Commission proceeding.

All other uses of ‘‘investigation’’ in section 437g(a) refer to a

fact-finding process, not to materials compiled during that

process. See 2 U.S.C § 437g(a)(1) (Commission ‘‘may not

conduct any investigation or take any other action’’ based

solely on anonymous complaints); id. § 437g(a)(2) (Commission ‘‘shall make an investigation of TTT [an] alleged violation,

which may include a field investigation or audit,’’ upon a

finding of ‘‘reason to believe’’); id. § 437g(a)(11) (Commission

may petition to hold a party in civil contempt if it ‘‘determines

after an investigation’’ that the party violated a court order).

Moreover, we think it telling that in contrast to subsection

(a)(12)(A), section 437g(a)’s other confidentiality provision expressly protects information revealed in the course of Commission enforcement actions. Specifically, subsection

(a)(4)(B)(i) forbids the disclosure of both ‘‘action[s] by the
8

Commission or any person TTT in connection with any conciliation attempt’’ and ‘‘information derived’’ in connection with

such attempts. Id. § 437g(a)(4)(B)(i). Finally, the fact that

subsection (a)(12)(A) permits disclosure upon written consent

of ‘‘the person with respect to whom such investigation is

made’’ without addressing the interests of third party witnesses who have provided confidential materials to investigators also implies that Congress was concerned about protecting the targets of Commission investigations, not the agency’s

sources of information.

The AFL-CIO argues that its interpretation is supported

by viewing subsection (a)(12)(A) in the context of section

437g(a)’s larger structure, but we think that exercise further

demonstrates that the statute has two possible meanings.

According to the AFL-CIO, section 437g(a)’s express requirement to release Commission no-violation determinations and

signed conciliation agreements, id. § 437g(a)(4)(B)(ii), would

be superfluous if Congress had intended the Commission to

release all investigatory file materials in every closed case.

Thus, except for the limited disclosures required by subsection (a)(4)(B)(ii), the AFL-CIO asserts, subsection (a)(12)(A)’s

confidentiality mandate continues to protect all other investigation-related documents even after an investigation has ended. This argument makes sense, however, only if subsection

(a)(12)(A) in fact protects investigatory files. If, as the

Commission maintains, the statute prohibits only disclosure of

the fact that the Commission is engaged in the act of investigating a complaint, then the provision the AFL-CIO relies on

merely serves to formally terminate that confidentiality requirement at the time the Commission either determines that

no violation occurred or signs a conciliation agreement, since

the release of a no-violation determination or conciliation

agreement will implicitly reveal the fact that an investigation

occurred. For that matter, so will the filing of a civil

enforcement action or a dismissal challenge by an ‘‘aggrieved’’

party, neither of which is required to be litigated under seal.

Id. § 437g(a)(6), (8).

The AFL-CIO next argues that the statute’s legislative

history supports its interpretation of the statute. To the

extent the sparse legislative record provides any clue of
9

Congress’s intent, however, we think it supports the Commission’s interpretation. Congress provided no explanation

when it enacted the original version of subsection (a)(12)(A) in

1974. Pub. L. No. 93-443, § 208(a) (1974). Scattered references in the legislative history of FECA’s 1976 amendments,

which added a civil penalty for subsection (a)(12)(A) violations

and the confidentiality and disclosure requirements in what is

now subsection (a)(4)(B), emphasize the importance of protecting the confidentiality of pending investigations and indicate that some members believed that subsection (a)(12)(A)

helps to prevent political opponents from bringing baseless

charges against each other for purposes of generating negative publicity. See, e.g., H.R. CONF. REP. NO. 94-1057, at 49–50

(1976) (‘‘The conferees’ intent is that a violation within the

meaning of [subsection (a)(12)(A)] occurs when publicity is

given to a pending investigation, but [a violation] does not

occur when actions taken in carrying out an investigation lead

to public awareness of the investigation.’’); H.R. REP. NO. 94-

917, at 66 (1976) (indicating that the penalty for violating

subsection (a)(12)(A) applies to any party who reveals ‘‘the

identity of any person under investigation’’); 122 CONG. REC.

8566 (1976) (comments of Rep. Wayne Hays) (arguing when

presenting the bill on the House floor that subsection

(a)(12)(A) limits unfair publicity by prohibiting disclosure of

‘‘the fact that an individual is being investigated or is about to

be investigated’’ until after the Commission has determined

whether charges have merit). The legislative record, however, contains no references to protecting the confidentiality of

closed Commission files or to the interests of parties who

provide information during the course of an investigation.

Considering all of these factors together, we think the

Commission may well be correct that subsection (a)(12)(A) is

silent with regard to the confidentiality of investigatory files

in closed cases and that Congress merely intended to prevent

disclosure of the fact that an investigation is pending. But

even if the AFL-CIO could convince us that its alternate

construction represents the more natural reading of subsection (a)(12)(A), the fact that the provision can support two
10

plausible interpretations renders it ambiguous for purposes of

Chevron analysis. Nofziger, 878 F.2d at 446–47.

Contrary to the AFL-CIO’s contention, nothing in In re

Sealed Case, 237 F.3d 657 (D.C. Cir. 2001), requires a different result. There we held that the Commission must file

motions to enforce its investigatory subpoenas under seal

because subsection (a)(12)(A) ‘‘plainly prohibit[s] the FEC

from disclosing information concerning ongoing investigations

under any circumstances without the written consent of the

subject of the investigation.’’ Id. at 666–67. In so holding,

we had no need to address the issue we face here, as the

Commission’s disclosures in that case revealed both that an

investigation was pending against a particular party and

several individual file documents compiled during the course

of the agency’s investigation. See id. at 662 (Commission

filed in open court the complaint, a staff analysis detailing the

alleged violations, the Commission’s ‘‘reason to believe’’ finding, and information concerning an unrelated investigation).

Also, we specifically limited our analysis to the context of

ongoing investigations where, because secrecy is needed to

protect an innocent accused from damaging publicity, respondents have a ‘‘strong confidentiality interest’’ analogous to the

interests of targets of grand jury investigations. Id. at 667.

But that analogy breaks down once a Commission investigation closes because FECA expressly requires disclosure of

‘‘no violation’’ findings, 2 U.S.C. § 437g(a)(4)(B)(ii), whereas

Federal Rule of Criminal Procedure 6(e)(6) continues to

protect suspects exonerated by a grand jury. Illinois v.

Abbott & Assocs., 460 U.S. 557, 566 n.11 (1983).

III.

We turn, then, to the Chevron step two issue—whether the

Commission’s post-investigation disclosure policy reflects ‘‘a

permissible construction of the statute.’’ Chevron, 467 U.S.

at 843. The parties devote many pages of briefing to this

issue: The Commission argues that it deserves particular

deference because its regulation embodies a longstanding

procedural policy, while the AFL-CIO questions the policy’s
11

historical and legal origins. At this stage of our Chevron

analysis, we would normally accord ‘‘ ‘considerable deference’ ’’ to the Commission, United States v. Kanchanalak, 192

F.3d 1037, 1049 (D.C. Cir. 1999) (citation omitted), particularly where, as here, Congress took no action to disapprove the

regulation when the agency submitted it for review pursuant

to 2 U.S.C. § 438(d). See, e.g., FEC v. Democratic Senatorial

Campaign Comm., 454 U.S. 27, 34 (1981). As the AFL-CIO

points out, however, because we are also ‘‘obliged to construe

the statute to avoid constitutional difficulties if such a construction is not plainly contrary to the intent of Congress,’’

we do not accord the Commission deference when its regulations create ‘‘serious constitutional difficulties.’’ Chamber of

Commerce v. FEC, 69 F.3d 600, 604–05 (D.C. Cir. 1995)

(citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &

Constr. Trades Council, 438 U.S. 568, 575 (1988)). This is

just such a case because Congress’s failure to act obviously

cannot be viewed as a clear expression of intent and because,

as we shall show, the Commission failed to tailor its disclosure

policy to avoid unnecessarily infringing upon First Amendment rights.

We begin with a little background. The Supreme Court

has long recognized that compelled disclosure of political

affiliations and activities can impose just as substantial a

burden on First Amendment rights as can direct regulation.

See, e.g., Buckley v. Valeo, 424 U.S. 1, 64–68 (1976) (disclosure

of campaign contributions); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462–63 (1958) (disclosure of membership

lists). When facing a constitutional challenge to a disclosure

requirement, courts therefore balance the burdens imposed

on individuals and associations against the significance of the

government interest in disclosure and consider the degree to

which the government has tailored the disclosure requirement

to serve its interests. Buckley, 424 U.S. at 64–68; Block v.

Meese, 793 F.2d 1303, 1315–16 (D.C. Cir. 1986). Where a

political group demonstrates that the risk of retaliation and

harassment is ‘‘likely to affect adversely the ability of TTT [the

group] and its members to pursue their collective effort to

foster beliefs which they admittedly have the right to advo-
12

cate,’’ for instance, the government may justify the disclosure

requirement only by demonstrating that it directly serves a

compelling state interest. NAACP, 357 U.S. at 462–63. In

contrast, where the burden on associational rights is ‘‘insubstantial,’’ we have upheld a disclosure requirement that provided ‘‘the only sure means of achieving’’ a government

interest that was, though valid, ‘‘not TTT of the highest

importance.’’ Block, 793 F.2d at 1316–18. Furthermore,

even where requiring disclosure of political or speech activities to a government agency may be necessary to facilitate

law enforcement functions, we have held that ‘‘[c]ompelled

public disclosure presents a separate first amendment issue’’

that requires a separate justification. Id. at 1315 (emphasis

added).

In affidavits submitted in the district court, the AFL-CIO

and DNC assert that releasing the names of hundreds of

volunteers, members, and employees will make it more difficult for the organizations to recruit future personnel. The

Commission urges us to dismiss this assertion of a chilling

effect as speculative. Although we agree that the evidence in

this case is far less compelling than the evidence presented in

cases involving groups whose members had been subjected to

violence, economic reprisals, and police or private harassment, see, e.g., Brown v. Socialist Workers ’74 Campaign

Comm. (Ohio), 459 U.S. 87, 99 (1982); NAACP, 357 U.S. at

462, that difference speaks to the strength of the First

Amendment interests asserted, not to their existence. In

Buckley v. Valeo, for example, the Supreme Court concluded—without considering either the popularity of the parties

involved or any specific evidence of retaliation—that disclosure of campaign contributions would chill political activity

and therefore place ‘‘not insignificant burdens’’ on First

Amendment rights. 424 U.S. at 65–66, 68. Although it is

true, as the Commission points out, that a separate part of

the opinion held that minority parties could be exempted from

disclosure requirements by demonstrating ‘‘a reasonable

probability TTT [of] threats, harassment, or reprisals,’’ the

Commission fails to note that the Court required such an

evidentiary showing only after concluding that the disclosure
13

requirements at issue survived strict scrutiny as the least

intrusive means of achieving several compelling government

interests. Id. at 69–74; see also Cmty.–Serv. Broad. of Mid–

Am., Inc. v. FCC, 593 F.2d 1102, 1118 & n.38 (D.C. Cir. 1978)

(en banc) (Wright, C.J., joined by Wilkey, J.) (noting that

Buckley engaged in a full First Amendment analysis despite

the absence of concrete evidence of retaliation).

Moreover, in addition to arguing that disclosure will chill

future individual political activity, the AFL-CIO and DNC

affidavits charge that disclosing detailed descriptions of training programs, member mobilization campaigns, polling data,

and state-by-state strategies will directly frustrate the organizations’ ability to pursue their political goals effectively by

revealing to their opponents ‘‘activities, strategies and tactics

[that] we have pursued in subsequent elections and will likely

follow in the future.’’ Rosenthal Aff. at 2–4; see also Stoltz

Aff. at 3. The Commission does not challenge the factual

basis for this claim. Although we have found no cases

presenting similar facts, the Supreme Court has concluded

that extensive interference with political groups’ internal

operations and with their effectiveness does implicate significant First Amendment interests in associational autonomy.

For example, in Eu v. San Francisco County Democratic

Central Committee, 489 U.S. 214 (1989), the Court held that

California statutes dictating the composition and leadership of

political parties’ governing bodies burdened significant associational rights by ‘‘limit[ing] a political party’s discretion in

how to organize itself, conduct its affairs, and select its

leaders,’’ thereby also potentially ‘‘color[ing] the parties’ message and interfer[ing] with the parties’ decisions as to the

best means to promote that message.’’ Id. at 229–31 & n.21.

In the same case, the Court applied strict scrutiny to a

section of the statute that prohibited party leaders from

endorsing candidates in primaries because such limitations

‘‘directly hamper[ ] the ability of a party to spread its message.’’ Id. at 223. Similarly, in Tashjian v. Republican

Party, 479 U.S. 208, 224 (1986), where the Court struck down

a closed primary system, it held, ‘‘[t]he Party’s determination

of the boundaries of its own association, and of the structure
14

which best allows it to pursue its political goals, is protected

by the Constitution.’’ Even the Court’s compelled disclosure

decisions emphasize the potential damage to political groups’

effectiveness, in addition to the risk of chilling individual

participation. In Buckley’s analysis of contribution disclosure

requirements, for example, the Court explained, ‘‘[t]he right

to join together ‘for the advancement of beliefs and ideas,’ is

diluted if it does not include the right to pool money through

contributions, for funds are often essential if ‘advocacy’ is to

be truly or optimally ‘effective.’ ’’ 424 U.S. at 65–66 (quoting

NAACP, 357 U.S. at 460) (citation omitted); see also Ripon

Soc’y, Inc. v. Nat’l Republican Party, 525 F.2d 567, 585 (D.C.

Cir. 1975) (en banc) (plurality opinion) (‘‘Speeches and assemblies are after all not ends in themselves but means to effect

change through the political process. If that is so, there must

be a right not only to form political associations but to

organize and direct them in the way that will make them most

effective.’’).

In this case, the AFL-CIO and DNC affidavits indicate that

compelled disclosure of internal planning materials, though

less direct than regulation of political group leadership or

structure, will similarly frustrate those groups’ decisions as to

‘‘how to organize TTT [themselves], conduct TTT [their] affairs,

and select TTT [their] leaders,’’ as well as their selection of a

‘‘message and TTT the best means to promote that message.’’

Eu, 489 U.S. at 230–31 & n.21. Although we do not suggest

that any Commission action that places a political association

at a disadvantage relative to its opponents violates the First

Amendment, where, as here, the Commission compels public

disclosure of an association’s confidential internal materials, it

intrudes on the ‘‘privacy of association and belief guaranteed

by the First Amendment,’’ Buckley, 424 U.S. at 64, as well as

seriously interferes with internal group operations and effectiveness.

Having concluded that the AFL-CIO and DNC have asserted substantial First Amendment interests in the disclosure of

their own internal materials and at least marginal interests in

preventing the chilling of political participation by their members and officials, we proceed to assess the strength of the
15

government’s proffered interest in disclosure. The Commission offers two justifications for 11 C.F.R. § 5.4(a)(4): The

regulation deters FECA violations, and it promotes the agency’s own public accountability. Although we have no doubt

that these interests are valid, we need not engage in a

detailed balancing analysis, for the Commission made no

attempt to tailor its policy to avoid unnecessarily burdening

the First Amendment rights of the political organizations it

investigates. See, e.g., United States v. Popa, 187 F.3d 672,

676 (D.C. Cir. 1999) (declining to determine the precise level

of scrutiny applicable to a particular statute where it was

insufficiently tailored to meet even the least exacting standard). Indeed, the blanket nature of the Commission’s regulation—requiring, as it does, the release of all information not

expressly exempted by FOIA—appears to result in the release of significant amounts of information that furthers

neither goal. For example, the Commission never explains

how releasing investigatory files will deter future violations in

cases where, as here, the respondents have been cleared of

wrongdoing. Nor does the Commission explain how a policy

requiring the release of materials that played no meaningful

role in its decisionmaking process will promote its own accountability. The facts of this case are particularly disturbing because the Commission proposes to release between

10,000 and 20,000 pages of documentation that it has never

examined. The materials therefore cannot shed light on the

Commission’s reasoning, and may not even relate to questionable activities. The fact that the Commission redacts information falling under one or more FOIA exemptions is no

answer, since the Freedom of Information Act does little to

protect the First Amendment interests at issue.

Adding to the First Amendment concerns in this case, the

AFL-CIO and James Madison Center argue—persuasively in

our view—that when combined with the Commission’s broad

subpoena practices, the automatic disclosure regulation ‘‘encourages political opponents to file charges against their

competitors to serve the dual purpose of ‘chilling’ the expressive efforts of their competitor and learning their political

strategy so that it can be exploited to the complainant’s
16

advantage.’’ Madison Amicus Br. at 20. We have no doubt,

as agency counsel explained at oral argument, that the Commission does its best to screen out frivolous complaints at the

‘‘reason to believe’’ stage, but such efforts do nothing to

reduce the incentive for political adversaries to attempt to

turn the Commission’s disclosure regulation to their own

advantage. As this case demonstrates, the release policy

gives parties a large potential ‘‘bonus’’ for filing a complaint

because even if their allegations of wrongdoing are rejected,

they may still obtain access to thousands of pages of their

opponents’ internal strategic information.

The Commission argues that no First Amendment problem

exists here because it is ‘‘merely disclosing its own agency

records to the public TTT, rather than coercing a private party

to produce information.’’ Commission Reply Br. at 24. This

position is quite remarkable. FECA authorizes the Commission to order any person to submit written reports and

answer its questions, to subpoena witnesses to testify or

present documentary evidence, and to seek judicial enforcement of such orders and subpoenas. 2 U.S.C. § 437d(a)(1),

(a)(3), (b). Thus, agency investigators do use ‘‘some actual or

threatened imposition of governmental power or sanction’ ’’ to

obtain information from respondents and other witnesses.

Penthouse Int’l Ltd. v. Meese, 939 F.2d 1011, 1015 (D.C. Cir.

1991). While it is true, as the Commission asserts, that

political groups could seek protective orders to ensure confidentiality, turning every discovery request and subpoena into

a First Amendment court battle would burden both the

judiciary and the Commission. Furthermore, the considerable time that transpires between an initial subpoena and the

Commission’s ultimate public disclosure of a closed case file

does not somehow convert the materials involved into the

Commission’s ‘‘own agency records.’’ Rather, where the

Commission compiles information relating to speech or political activity for law enforcement purposes, our case law requires that it provide a separate First Amendment justification for publicly disclosing the materials. Block, 793 F.2d at

1315–16.
17

In sum, although we agree that deterring future violations

and promoting Commission accountability may well justify

releasing more information than the minimum disclosures

required by section 437g(a), the Commission must attempt to

avoid unnecessarily infringing on First Amendment interests

where it regularly subpoenas materials of a ‘‘delicate nature

TTT represent[ing] the very heart of the organism which the

first amendment was intended to nurture and protect.’’ Machinists Non–Partisan Political League, 655 F.2d at 388.

Because 11 C.F.R. § 5.4(a)(4) fails to undertake this tailoring,

it creates the ‘‘serious constitutional difficulties’’ outlined

above. Chamber of Commerce, 69 F.3d at 605. We therefore

conclude that the regulation is impermissible.

We end with a comment about the concurring opinion,

which reads Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Construction Trades Council, 438 U.S. 568

(1988), as requiring that we account for the constitutional

concerns at step one of the Chevron analysis. Were there

only one way to read the statute that would avoid constitutional problems, we might well agree, for ‘‘Congress TTT is

bound by and swears an oath to uphold the Constitution[,]

[and] [t]he courts will therefore not lightly assume that

Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.’’ Id. at 575.

But here the statute is susceptible to more than one constitutionally permissible interpretation: As we have indicated, the

Commission could tailor its disclosure policy to avoid unnecessary First Amendment infringements, or, as the concurrence

maintains, it could decline to release any materials other than

those expressly required by section 437g(a). Neither DeBartolo nor Chevron suggest that the court—as opposed to the

agency—should choose between these permissible alternatives. Rather, DeBartolo’s mandate that ‘‘ ‘every reasonable

construction must be resorted to, in order to save a statute

from unconstitutionality,’ ’’ id. (quoting Hooper v. California,

155 U.S. 648, 657 (1895)), suggests merely that an agency acts

unreasonably if, instead of choosing among constitutionally

permissible alternatives, it interprets ambiguous statutory

language as indicating that Congress intended to authorize
18

infringements on constitutional rights. Thus, we think the

constitutional issues raised by the Commission’s disclosure

policy are properly addressed at Chevron step two. See, e.g.,

Chamber of Commerce, 69 F.3d at 604–05 (addressing constitutional problems created by the Commission’s interpretation

of an undefined statutory term at step two of the Chevron

analysis).

The judgment of the district court is affirmed.

So ordered.
1

KAREN LECRAFT HENDERSON, Circuit Judge, concurring in

the judgment:

We are asked in this case, as in so many others, to dance

the Chevron two-step, under which

the court must first exhaust the traditional tools of

statutory construction to determine whether Congress has spoken to the precise question at issueTTTT If the court can determine congressional

intent, then that interpretation must be given effectTTTT If, on the other hand, the statute is silent

or ambiguous with respect to the specific issue, then

the court will defer to a permissible agency construction of the statute.

NRDC v. Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995)

(internal quotations omitted); see Chevron, U.S.A., Inc. v.

NRDC, 467 U.S. 837, 842–43 (1984) (‘‘If the intent of Congress is clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the unambiguously

expressed intent of Congress.’’). Unlike the majority, I

would stop the music at Chevron step one. In my view, a

proper employment of ‘‘the traditional tools of statutory

construction’’ yields a plain and affirmative congressional

response ‘‘to the precise question at issue’’—i.e., whether the

Federal Election Campaign Act (FECA or Act) prohibits the

Federal Election Commission (FEC or Commission) from

disclosing thousands of pages of politically sensitive documents it obtained while investigating the AFL–CIO and the

DNC (collectively, the appellees), now that the investigation

has been completed.

My inquiry into the Congress’s intent proceeds, as it must,

from ‘‘the fundamental canon that statutory interpretation

begins with the language of the statute itself.’’ Butler v.

West, 164 F.3d 634, 639 (D.C. Cir. 1999) (quotation omitted);

see HENRY J. FRIENDLY, BENCHMARKS 202 (1967) (‘‘(1) Read the

statute; (2) read the statute; (3) read the statute!’’ (quoting

Justice Frankfurter’s ‘‘threefold imperative to law students’’)). The Act’s confidentiality provision states, in full,

that
2

[a]ny notification or investigation made under this

section shall not be made public by the Commission

or by any person without the written consent of the

person receiving such notification or the person with

respect to whom such investigation is made.

2 U.S.C. § 437g(a)(12)(A). Stretching the text in hopes of

reaching the deference it enjoys under Chevron step two, the

Commission contends that section 437g(a)(12)(A) ‘‘does not

specifically address closed cases, and its silence about whether and when the confidentiality requirement expires leaves

Congress’s intent on that question ambiguous.’’ Br. of Appellant at 14; see id. at 16–17 (citing United States v. Kanchanalak, 192 F.3d 1037, 1049 (D.C. Cir. 1999) (FEC’s interpretation of FECA deserves ‘‘considerable deference’’ where

statute ambiguous)). I disagree. While the provision does

not state in so many words that ‘‘no completed investigation

shall be made public,’’ that does not mean it is silent on the

matter; whatever the word ‘‘investigation’’ means, section

437g(a)(12)(A) plainly covers ‘‘[a]ny TTT investigation,’’ ongoing or completed. 2 U.S.C. § 437g(a)(12)(A) (emphasis added). Indeed, even though the provision does not explicitly

state that ‘‘the FEC may not file information concerning an

ongoing investigation on the public record when it seeks to

enforce a subpoena,’’ we recently held that it ‘‘unambiguously,’’ ‘‘directly’’ and ‘‘unequivocally’’ prohibits precisely that.

See In re Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001).

Taken to its logical conclusion, the FEC’s argument would

render every prohibition in the United States Code susceptible of ambiguity. ‘‘Thou shall not kill’’ is a mandate neither

silent nor ambiguous about whether murder is permissible if

committed after 5.00 p.m.—or, for that matter, if committed

in the billiard room with the candlestick—but the FEC’s

reasoning would lead one to conclude otherwise.

Moreover, the fact that the provision does not specify

‘‘when the confidentiality requirement expires’’ suggests to

me that it never expires. Resisting this logic, the Commission contends that the ‘‘disclosures TTT required by other

provisions of section 437g(a) when the administrative proceeding concludes TTT make section 437g(a)(12)(A) inapplicable to
3

closed cases.’’ Br. of Appellant at 20–21. In doing so, the

FEC again neglects the plain language of the statute; section

437g(a)(12)(A)’s prohibition against disclosure of an ‘‘investigation’’ or a ‘‘notification’’ admits of no textual exceptions.

See Sealed Case, 237 F.3d at 667. True, section 437g(a)

elsewhere states that ‘‘the Commission shall make public any

conciliation agreement signed by both the Commission and

the respondent.’’ 2 U.S.C. § 437g(a)(4)(B)(ii) (emphasis added). True, it also provides that ‘‘[i]f the Commission makes a

determination that a person has not violated this Act TTT [it]

shall make public such determination.’’ Id. (emphasis added). But section 437g(a) nowhere requires or permits the

FEC to disclose an ‘‘investigation’’ or a ‘‘notification.’’ Nor

should we be willing, in the face of well-settled principles of

statutory construction, to equate the distinct terms—‘‘investigation’’/‘‘notification’’ on the one hand and ‘‘conciliation agreement’’/‘‘determination’’ on the other—such that disclosure of

an ‘‘investigation’’ is permitted under the circumstances enumerated in section 437g(a)(4)(B)(ii). See Barnhart v. Sigmon

Coal Co., 534 U.S. 438, 452 (2002) (‘‘[W]hen Congress includes

particular language in one section of a statute but omits it in

another section TTT , it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or

exclusion.’’ (quotations omitted)); Russello v. United States,

464 U.S. 16, 23 (1983) (‘‘We refrain from concluding TTT that

the differing language in the two subsections has the same

meaning in each.’’); see also 2A NORMAN J. SINGER, SUTHERLAND’S STATUTES AND STATUTORY CONSTRUCTION § 46.06, at 194

(6th ed. 2000) (‘‘[W]hen the legislature uses certain language

in one part of the statute and different language in another,

the court assumes different meanings were intended.’’). If

the Congress had meant to exclude the majority1

 of ‘‘investigation[s]’’ from the otherwise comprehensive shelter of section 437g(a)(12)(A), it would have done so more obviously than

the FEC suggests—either by including ‘‘investigation’’ in

section 437g(a)(4)(B)(ii), as it did in section 437g(a)(12)(A), or

1 There are far fewer open cases at any given time than there

are closed ones—a disparity that will inevitably grow over time as

ongoing investigations are completed.
4

by removing completed ‘‘investigation[s]’’ from the latter’s

coverage explicitly. See Russello, 464 U.S. at 23 (‘‘We would

not presume to ascribe this difference [in the subsections’

language] to a simple mistake in draftsmanship.’’); cf. Cal.

Med. Ass’n v. FEC, 453 U.S. 182, 191 (1981) (‘‘If Congress

had intended to remove a whole category of constitutional

challenges from the purview of § 437h, thereby significantly

limiting the usefulness of that provision, it surely would have

made such a limitation explicit.’’). In my view, therefore,

section 437g(a)(12)(A) plainly prohibits publication of any

‘‘investigation,’’ whether it is ongoing or completed.

In a belated nod to ordinary meaning, and in the absence of

a statutory definition, the Commission claims that ‘‘investigation’’ refers to ‘‘a process for discovering facts, not a file of

documents.’’2

 Br. of Appellant at 22 (citing BLACK’S LAW

DICTIONARY 825 (6th ed. 1990); 8 OXFORD ENGLISH DICTIONARY

47 (2d ed. 1989); RANDOM HOUSE DICTIONARY OF THE ENGLISH

LANGUAGE, UNABRIDGED 1004 (2d ed. 1983)) (emphasis in original). It argues that section 437g(a)(12)(A) prohibits disclosure of the fact that an investigative process is occurring or

has occurred but does not cover the documents generated

during the process. Once again, I disagree.

Although we observed in Sealed Case that the main purpose of section 437g(a)(12)(A) is ‘‘to protect [an] TTT accused

who is exonerated from disclosure of the fact that he has been

under investigation,’’ Sealed Case, 237 F.3d at 667 (quoting

United States v. Proctor & Gamble Co., 356 U.S. 677, 682 n.6

(1958)) (emphasis added), we suggested as well that the

‘‘investigation[s]’’ to be kept confidential include all documen2 As the appellees point out, the FEC did not articulate this

proposition ‘‘in its administrative dispositions of [the appellees’]

objections to public release of the investigative file, where the

Commission otherwise extensively analyzed FECA, its legislative

history, the FEC’s regulations and FOIA.’’ Br. of Appellees at 19

n.11. ‘‘Rather,’’ they note, ‘‘this argument first surfaced in the

FEC’s briefs on the cross-motions for summary judgment.’’ Id.
5

tary materials gathered during the ‘‘process’’ to which the

FEC refers:

When the FEC issues a subpoena as part of an

investigation, § 437g mandates those subpoenas, like

other components of the investigation, ‘‘shall not be

made public.’’TTTT Even if we assume that the

FEC’s argument is correct (which it is not) and the

Commission could disclose the subpoenas themselves

(which it cannot), the Commission would still lack

the authority to divulge information pertaining to

the underlying investigationTTTT

Sealed Case, 237 F.3d at 667–68 (emphases altered); see id.

at 668 (‘‘We cannot fathom why the FEC’s issuance of a

subpoena in furtherance of an ongoing investigation would not

be considered part of that ‘investigation’ within the meaning

of § 437g.’’). Indeed, we stated without qualification that the

FEC cannot ‘‘under any circumstances TTT introduce evidence concerning an ongoing investigation on the public record’’ without the written consent of the subject of the investigation.3

 Id. at 667, 669 (emphasis added).

Even if Sealed Case does not give an all-encompassing

interpretation to ‘‘investigation’’—and I acknowledge that it

(properly) does not—the thoroughgoing First Amendment

analysis in today’s majority opinion, in my view, removes any

doubt that the term covers the documents at issue here. The

majority quite justifiably echoes the concern of amicus curi3 Even if the Commission’s reading of ‘‘investigation’’ were

correct, section 437g(a)(12)(A) would nonetheless prohibit the FEC

from disclosing several of the documents it planned to (and initially

did) publicize in April 2001. The written correspondence among

and between the appellees, their counsel and the Commission, for

example, would inevitably reveal upon publication the fact that the

appellees had been investigated. Because the correspondence is

neither a ‘‘conciliation agreement signed by both the Commission

and the [appellees],’’ 2 U.S.C. § 437g(a)(4)(B)(ii), nor a ‘‘determination that [the appellees have] not violated this Act,’’ id., the Act

would plainly foreclose publication of the correspondence even

under the Commission’s ‘‘process’’ interpretation of ‘‘investigation.’’
6

ae, the James Madison Center for Free Speech, that the

Commission’s automatic disclosure policy ‘‘encourages political opponents to file charges against their competitors to

serve the dual purpose of ‘chilling’ the expressive efforts of

their competitor and learning their political strategy so that it

can be exploited to the complainant’s advantage.’’ Maj. op. at

15–16 (quoting Br. of Amicus Curiae James Madison Center

at 20). I agree that the Commission has failed to show that

the speech-chilling disclosure regulation set forth in 11 C.F.R.

§ 5.4 bears a ‘‘relevant correlation or substantial relation’’ to

a ‘‘substantial governmental interest[ ].’’ Buckley v. Valeo,

424 U.S. 1, 64, 68 (1976) (per curiam) (quotations omitted);

see maj. op. at 14–15. But I believe the majority commits an

error—if only a minor one—in holding that the ‘‘serious

constitutional difficulties’’ raised by the regulation preclude

the court from deferring to the Commission’s interpretation

at Chevron step two. Chamber of Commerce v. FEC, 69 F.3d

600, 605 (D.C. Cir. 1995); see maj. op. at 10–11. In my view,

those very same difficulties vindicate, at Chevron step one,

the appellees’ contention that the Act ‘‘unambiguously’’ prohibits the FEC from publicizing the documents at issue.

Chevron, 467 U.S. at 843; see Br. of Appellees at 12–27; see

also AFL–CIO v. FEC, 177 F. Supp. 2d 48, 59 (D.D.C. 2001)

(‘‘[T]he plain meaning of § 437g(a)(12)(A) prohibits the FEC

from disclosing the investigative file.’’).

Among the ‘‘traditional tools of statutory construction’’ ‘‘the

court must first exhaust’’ under Chevron and its progeny are

the linguistic and substantive canons of interpretation, one of

which—the canon of ‘‘constitutional avoidance’’—is particularly useful in resolving the dispute before us. Invoking the

canon in Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Construction Trades Council, 485 U.S. 568

(1988), the United States Supreme Court held that ‘‘where an

otherwise acceptable [agency] construction of a statute would

raise serious constitutional problems, the Court will construe

the statute to avoid such problems unless such construction is

plainly contrary to the intent of Congress.’’ Id. at 575.

Language like this might suggest that the canon operates at
7

Chevron step two or even displaces Chevron altogether. But

the Court in DeBartolo made clear that the avoidance canon

not only reflects the prudential concern that constitutional issues [should] not be needlessly confronted,

but also recognizes that Congress, like this Court, is

bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume

that Congress intended to infringe constitutionally

protected liberties or usurp power constitutionally

forbidden it.

DeBartolo, 485 U.S. at 575 (emphasis added); see Grenada

County Supervisors v. Brogden, 112 U.S. 261, 269 (1884) (‘‘It

ought never to be assumed that the law-making department

of the government intended to usurp or assume power prohibited to it.’’ (quotation omitted)). In other words, the canon

assists us in determining the Congress’s intent and, accordingly, it operates at Chevron step one. Circuit precedent

supports this proposition; we recently reaffirmed that ‘‘[i]f

employment of an accepted canon of construction illustrates

that Congress had a specific intent on the issue in question,

then the case can be disposed of under the first prong of

Chevron.’’ Halverson v. Slater, 129 F.3d 180, 184 (D.C. Cir.

1997) (emphasis and quotations omitted); see Mich. Citizens

for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292–93

(D.C. Cir.), aff’d by equally divided Court, 493 U.S. 38 (1989).

In sum, I do not believe the Congress intended section

437g(a)(12)(A) to apply so narrowly as to permit the Commission to publicize the documents at issue, in light of the

‘‘serious constitutional difficulties’’ attending such publication.

* * *

For the foregoing reasons, I would hold that section

437g(a)(12)(A) plainly prohibits the FEC from disclosing investigative records pertaining to a completed investigation if

the investigated party does not consent to disclosure. While

I disagree somewhat with the reasoning of my colleagues, I

do agree that the district court’s December 19, 2001 judgment
8

should be affirmed because the Commission’s interpretation

of the Act is ‘‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,’’ 5 U.S.C. § 706(2)(A).