ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 14, 2012 

CASE NOS. 12-5117 & 12-5118 

═══════════════════════════════════════════════

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________ 

Center for Individual Freedom, 

 Defendant-Appellant, 

and 

Hispanic Leadership Fund, 

 Defendant-Appellant, 

v. 

Chris Van Hollen, 

 Plaintiff-Appellee, 

and 

Federal Election Commission, 

 Defendant-Appellee.

1

__________________________________________ 

ON APPEAL FROM THE U.S. DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA __________________________________________ 

OPENING BRIEF OF APPELLANT 

CENTER FOR INDIVIDUAL FREEDOM __________________________________________ 

June 20, 2012 

Jan Witold Baran (D.C. Bar No. 233486) 

Thomas W. Kirby (D.C. Bar No. 915231) 

Caleb P. Burns (D.C. Bar No. 474923) 

Andrew G. Woodson (D.C. Bar No. 494062) 

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

 1

 The Federal Election Commission (“FEC” or “Commission”) deadlocked on the question of whether to authorize an appeal to this Court. 

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CERTIFICATE AS TO PARTIES, RULING, AND RELATED CASES

 Pursuant to D.C. Circuit Rule 28(a)(1), the Center for Individual Freedom 

(“CFIF”) hereby submits this Certificate as to Parties, Rulings, and Related Cases. 

Parties and Amici 

 CFIF, the Hispanic Leadership Fund (“HLF”), Chris Van Hollen, and the 

FEC are the parties that appeared before the district court as well as the parties in 

this Court. (CFIF and HLF were intervenors before the district court.) No amicus 

curiae briefs were filed with the district court, although it is anticipated that one or 

more amici will file such briefs in this Court. 

Corporate Disclosure Statement Pursuant to FRAP 26.1 

 Pursuant to Circuit Rule 26.1, CFIF certifies that no publicly-held company 

owns ten percent or more of CFIF and that CFIF has no parent companies as 

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

organization with the mission to protect and defend individual freedoms and 

individual rights guaranteed by the U.S. Constitution. 

Rulings Under Review 

 On March 30, 2012, the district court (Judge Amy Berman Jackson) issued 

Orders and a Memorandum Opinion, in Civil Action No. 11-0766, granting 

plaintiff Chris Van Hollen’s motion for summary judgment, denying defendant 

FEC’s cross motion for summary judgment, denying defendant HLF’s motion to 

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dismiss, and denying defendant CFIF’s cross motion for summary judgment. See

Van Hollen v. FEC, --- F. Supp. 2d ----, No. 1:11-0766, 2012 WL 1066717 

(D.D.C. Mar. 30, 2012). The decision is not yet available in a federal reporter. On 

April 27, 2012, the district court denied CFIF’s and HLF’s request for a stay 

pending appeal. On May 14, 2012, a divided panel of this Court expedited this 

appeal but denied a stay. 

Related Cases 

 CFIF is not aware of any other “related case” as such term is defined in 

Circuit Rule 28. However, the Federal District Court for the Southern District of 

West Virginia issued an opinion concerning an analogous state law last year. See 

Ctr. for Individual Freedom, Inc. v. Tenant, --- F. Supp. 2d ----, No. 1:08-cv00190, 2011 WL 2912735 (S.D.W.Va. July 18, 2011). This decision has been 

appealed. 

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STATEMENT REGARDING DEFERRED JOINT APPENDIX

Given the expedited schedule, the parties will not use a deferred joint 

appendix and appellants have, after consultation with opposing counsel, included a 

Joint Appendix along with this brief. 

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................vi

GLOSSARY OF ABBREVIATED TERMS..........................................................xvi

STATEMENT OF JURISDICTION..........................................................................1

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

STATUTES AND REGULATIONS.........................................................................1

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF THE FACTS ...............................................................................3

A. FECA and Its Purpose-Based Disclosure Requirements. .....................3

B. Congress Amends FECA in 2002 to Regulate “Electioneering 

Communications.”.................................................................................4

C. The FEC’s 2003 Rulemaking................................................................8

D. The Supreme Court’s McConnell Decision. .........................................9

E. WRTL II Triggers Rulemaking............................................................10

F. The Citizens United Litigation. ...........................................................15

G. Van Hollen Pushes the DISCLOSE Act. ............................................15

SUMMARY OF ARGUMENT ...............................................................................18

ARGUMENT ...........................................................................................................23

I. The Standard of Appellate Review................................................................23

II. The Chevron Framework...............................................................................23

III. Plaintiff’s Challenge Fails Under Step One Of Chevron. .............................25

A. Precedent Supports the FEC’s Construction.......................................25

B. The Language of the Statute Permits – and Compels – 

Consideration of the Giver’s Purpose. ................................................27

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C. The Provision’s Structure Confirms That It Requires 

Consideration of a Giver’s Purpose. ...................................................33

1. The Interpretation Adopted by the District Court 

Needlessly Creates an Absurdity. .............................................33

2. The Legislative History Supports a Reading of 

“Contribute” That Includes a Purpose Requirement. ...............35

3. Constitutional Avoidance Favors Consideration of a 

Giver’s Purpose.........................................................................36

IV. The Regulation Was Reasonable and Should Be Sustained..........................40

CONCLUSION........................................................................................................42

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TABLE OF AUTHORITIES

 Page(s) 

FEDERAL CASES

Advance Transporation Co. v. United States, 

884 F.2d 303 (7th Cir. 1989) ..............................................................................27 

Alexander v. Sandoval, 

532 U.S. 275 (2001)............................................................................................38 

American Federation of Government Employees, 

AFL-CIO, Local 446 v. Nicholson, 

475 F.3d 341 (D.C. Cir. 2007)............................................................................24 

*American Federation of Labor & Congress of Industrial Organizations v. 

FEC, 

333 F.3d 168 (D.C. Cir. 2003)....................................................23, 24, 32, 33, 36 

American Scholastic TV Programming Foundation v. FCC, 

46 F.3d 1173 (D.C. Cir. 1995)............................................................................38 

Association of Private Sector Colleges and Universities v. Duncan, 

No. 11-5174, 2012 WL 1992003 (D.C. Cir. June 5, 2012) ....................23, 24, 36 

Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 

268 F.3d 103 (2d Cir. 2001) ...............................................................................37 

Automated Power Exchange, Inc. v. FERC, 

204 F.3d 1144 (D.C. Cir. 2000)..........................................................................38 

Becker v. FEC, 

230 F.3d 381 (1st Cir. 2000)...............................................................................24 

Brotherhood of Railroad Signalmen v. Surface Transportation Board, 

638 F.3d 807 (D.C. Cir. 2011)......................................................................23, 24 

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

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*Buckley v. Valeo, 

424 U.S. 1 (1976)..................................................................................3, 4, 28, 36

Cablevision System Corp. v. FCC, 

649 F.3d 695 (D.C. Cir. 2011)............................................................................36 

Camp v. Pitts, 

411 U.S. 138 (1973)............................................................................................25 

Cannon v. University of Chicago, 

441 U.S. 677 (1979)............................................................................................38 

*Center for Individual Freedom, Inc. v. Tennant, 

Civ. A. No. 1:08–cv–00190, 2011 WL 2912735 (S.D.W.Va. July 18, 

2011) .............................................................................................................37, 38 

Chamber of Commerce of United States v. FEC, 

69 F.3d 600 (D.C. Cir. 1995)..............................................................................36 

In re Chapman, 

166 U.S. 661 (1897)............................................................................................34 

Chevron U.S.A., Inc. v. NRDC, 

467 U.S. 837 (1984)........................................................................................2, 23 

*Citizens United v. FEC, 

130 S. Ct. 876 (2010)................................................. 5, 15, 19, 25, 26, 36, 37, 38

*Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2008), 

aff’d in relevant part, 130 S. Ct. 876 (2010) ....................................15, 18, 25, 26 

*Citizens United v. FEC, 

Civ. A. No. 07-2240, 2008 WL 2788753 (D.D.C. July 18, 2008) .....................15 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988)............................................................................42 

Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 

365 U.S. 127 (1961)............................................................................................33 

Eaton Corp. v. ZF Meritor LLC, 

504 F. Supp. 2d 217 (E.D. Mich. 2007) .............................................................31 

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Edward J. DeBartolo Corp. v. Florida Gulf Coast Building 

and Construction Trade Council, 

485 U.S. 568 (1988)............................................................................................36 

Elrod v. Burns, 

427 U.S. 347 (1976)............................................................................................37 

Environmental Defense Fund, Inc. v. EPA, 

82 F.3d 451 (D.C. Cir. 1996)..............................................................................34 

Environmental Defense Fund v. Costle, 

657 F.2d 275 (D.C. Cir. 1981)......................................................................24, 25 

In re Espy, 

80 F.3d 501 (D.C. Cir. 1996)..............................................................................31 

FEC v. Democratic Senatorial Campaign Committee, 

454 U.S. 27 (1981)..........................................................................................8, 24 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981)............................................................................11 

FEC v. Massachussets Citizens for Life, Inc., 

479 U.S. 238 (1986)..............................................................................................5 

FEC v. Wisconson Right to Life, Inc., 

551 U.S. 449 (2007)..............................................................................................9 

Fox v. Clinton, 

No. 11-5010, 2012 WL 2094410 (D.C. Cir. June 12, 2012) ..............................23 

Fox v. Standard Oil Co., 

294 U.S. 87 (1935)..............................................................................................29 

Freeman v. Quicken Loans, Inc., 

132 S. Ct. 2034 (2012)........................................................................................32 

GameTech International, Inc. v. Trend Gaming System, L.L.C., 

No. CV-01-540, 2008 WL 4571424 (D. Ariz. Oct. 14, 2008) ...........................31 

General Instrument Corp. v. FCC, 

213 F.3d 724 (D.C. Cir. 2000)............................................................................24 

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Gilbert v. Napolitano, 

670 F.3d 258 (D.C. Cir. 2012)............................................................................23 

Grenada County Supervisors v. Brown, 

112 U.S. 261 (1884)............................................................................................36 

Hayden v. Pataki, 

449 F.3d 305 (2d Cir. 2006) ...............................................................................37 

Hinds Investments, L.P. v. Angioli, 

654 F.3d 846 (9th Cir. 2011) ..............................................................................30 

King v. District of Columbia, 

277 F. 562 (D.C. Cir. 1922)................................................................................27 

McConnell v. FEC, 

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

aff’d in part, 540 U.S. 93 (2003) ..........................................................................5 

*McConnell v. FEC, 

540 U.S. 93 (2003)....................................................................................9, 10, 28 

Mining Energy, Inc. v. Director, Office of Workers’ Compensation 

Programs, 

391 F.3d 571 (4th Cir. 2004) ..............................................................................28 

National Credit Union Administration v. First National Bank & Trust, Co., 

522 U.S. 479 (1998)............................................................................................28 

National Home Equity Mortgage Ass’n v. Office of Thrift Supervision, 

373 F.3d 1355 (D.C. Cir. 2004)..........................................................................32 

National Mining Ass’n v. Kempthorne, 

512 F.3d 702 (D.C. Cir. 2008)............................................................................24 

National Steel & Shipbuilding Co. v. United States, 

419 F.2d 863 (Ct. Cl. 1969)................................................................................31 

In re Nuijten, 

500 F.3d 1346 (Fed. Cir. 2007) ....................................................................27, 28 

O’Neill v. Department of Housing and Urban Deveolpment, 

220 F.3d 1354 (Fed. Cir. 2000) ..........................................................................31 

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Omni Capital International v. Rudolf Wolff & Co., 

484 U.S. 97 (1987)..............................................................................................31 

Owasso Independent School District No. I-011 v. Falvo, 

534 U.S. 426 (2002)............................................................................................33 

PDK Labs., Inc. v. DEA, 

362 F.3d 786 (D.C. Cir. 2004)............................................................................38 

Pennsylvania Department of Corrections v. Yeskey, 

524 U.S. 206 (1998)............................................................................................37 

Petit v. United States Department of Education, 

657 F.3d 769 (D.C. Cir. 2012)............................................................................23 

Prime Time International Co. v. Vilsack, 

599 F.3d 678 (D.C. Cir. 2010)............................................................................27 

R.J. Reynolds Tobacco, Co. v. FDA, 

823 F. Supp. 2d 36 (D.D.C. 2011)......................................................................38 

RNC v. FEC, 

76 F.3d 400 (D.C. Cir. 1996)................................................................................8 

Randall v. Sorrell, 

548 U.S. 230 (2006)............................................................................................28 

Reiter v. Sonotone Corp., 

442 U.S. 330 (1979)............................................................................................31 

Reves v. Ernst & Young, 

507 U.S. 170 (1993)............................................................................................27 

Rosado v. Wyman, 

397 U.S. 297 (1970)............................................................................................32 

Rust v. Sullivan, 

500 U.S. 173 (1991)............................................................................................32 

Serono Laboratories, Inc. v. Shalala, 

158 F.3d 1313 (D.C. Cir. 1998)..........................................................................24 

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Stenberg v. Carhart, 

530 U.S. 914 (2000)............................................................................................29 

*Student Loan Marketing Ass’n v. Riley, 

104 F.3d 397 (D.C. Cir. 1997)......................................................................27, 28 

Tagg Brothers & Moorhead v. United States, 

280 U.S. 420 (1930)............................................................................................40 

Transtech Industries v. A&Z Septic Clean, 

270 F. App’x 200 (3d Cir. 2008)........................................................................31 

United States v. Coleman, 

590 F.2d 228 (7th Cir. 1978) ..............................................................................34 

United States v. Granderson, 

511 U.S. 39 (1994)..............................................................................................27 

United States v. O’Donnell, 

608 F.3d 546 (9th Cir. 2010), 

cert. denied, 131 S. Ct. 1837 (2011)...................................................................30 

United States v. Saenz-Mendoza, 

287 F.3d 1011 (10th Cir. 2002) ..........................................................................29 

United States ex rel. Totten v. Bombardier Corp., 

380 F.3d 488 (D.C. Cir. 2004)............................................................................35 

United Transporation Union v. Lewis, 

711 F.2d 233 (D.C. Cir. 1983)............................................................................35 

Ziegler v. HRB Management, Inc., 

182 F. App’x 405 (6th Cir. 2006).......................................................................31 

FEDERAL STATUTES 

*2 U.S.C. § 431(8)(A)..........................................................................................6, 27 

*2 U.S.C. § 431(8)(A)(i)......................................................................................3, 27 

*2 U.S.C. § 431(9)(A)(i)............................................................................................3 

2 U.S.C. § 431(17) .....................................................................................................4 

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*2 U.S.C. § 434(c)(2)(C) .........................................................................4, 33, 35, 41 

2 U.S.C. § 434(e) .....................................................................................................30 

2 U.S.C. § 434(f)(2) .................................................................................................26 

2 U.S.C. § 434(f)(2)(E) ..............................................................................................5 

*2 U.S.C. § 434(f)(2)(F) ......................................................................5, 6, 25, 31, 36 

2 U.S.C. § 434(f)(3) ...................................................................................................4 

2 U.S.C. § 434(f)(3)(B)(ii)...................................................................................4, 29 

2 U.S.C. § 434(f)(3)(B)(iv) ......................................................................................24 

2 U.S.C. § 437C(b)(1)................................................................................................8 

2 U.S.C. § 437D(a)(8)................................................................................................8 

2 U.S.C. § 441b(a) ...............................................................................................4, 38 

2 U.S.C. § 441b(2) ...............................................................................................4, 38 

20 U.S.C. § 1085(i) ..................................................................................................28 

20 U.S.C. § 1087-2(h)(7) .........................................................................................28 

28 U.S.C. § 1291........................................................................................................1 

28 U.S.C. § 1294........................................................................................................1 

28 U.S.C. § 1331........................................................................................................1 

Bipartisan Campaign Reform Act of 2002 § 101 ....................................................31 

Bipartisan Campaign Reform Act of 2002 § 103 ....................................................30 

Bipartisan Campaign Reform Act of 2002 § 301 ....................................................31 

Bipartisan Campaign Reform Act of 2002 § 303 ....................................................31 

Bipartisan Campaign Reform Act of 2002 § 309 ....................................................31 

Bipartisan Campaign Reform Act of 2002 § 312 ....................................................31 

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Bipartisan Campaign Reform Act of 2002 § 314 ....................................................31 

Bipartisan Campaign Reform Act of 2002 § 318 ....................................................31 

RULES AND REGULATIONS 

11 C.F.R. § 104.20(c)(7)(ii).....................................................................................13 

*11 C.F.R. § 104.20(c)(9)........................................................................1, 13, 25, 36 

11 C.F.R. § 109.10(e)...............................................................................................35 

11 C.F.R. § 109.10(e)(1)(vi) ......................................................................................4 

67 Fed. Reg. 64,555 (Oct. 21, 2002)..........................................................................8 

67 Fed. Reg. 51,131 (Aug. 7, 2002)...........................................................................8 

68 Fed. Reg. 404 (Jan. 3, 2003).................................................................................9 

*72 Fed. Reg. 50,261 (Aug. 31, 2007) ..............................................................10, 11 

*72 Fed. Reg. 72,899 (Dec. 26, 2007).....................................................................14 

FRAP 2.....................................................................................................................42 

LEGISLATIVE MATERIALS

144 Cong. Rec. S994 (daily ed. Feb. 25, 1998)...................................................6, 35 

144 Cong. Rec. S972-01 (daily ed. Feb. 25, 1998) .................................................35 

144 Cong. Rec. S10143 (daily ed. Sept. 10, 1998)....................................................7 

147 Cong. Rec. S3005 (daily ed. Mar. 28, 2001) ......................................................6 

147 Cong. Rec. S3022 (daily ed. Mar. 28, 2001) ......................................................5 

148 Cong. Rec. S2095 (daily ed. Mar. 20, 2002) ......................................................6 

156 Cong. Rec. H4781 (daily ed. June 24, 2010)....................................................18 

156 Cong. Rec. S3015 (daily ed. May 3, 2010).................................................17, 18 

H.R. 4010, 112th Cong. § 2b (2012)........................................................................38 

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S. 1663, 105th Cong (1998).......................................................................................6 

OTHER AUTHORITIES

American Heritage Dictionary 399 (5th ed. 2011) ..................................................29 

Chris Van Hollen and Mike Castle, The Disclose Act is a Matter of 

Campaign Honesty, Washington Post, June 17, 2010, available at

http://www.washingtonpost.com/wpdyn/content/article/2010/06/16/AR2010061604599.html............................16, 17 

Comments, Alliance for Justice (Nov. 8, 2002), 

http://www.fec.gov/pdf/nprm/consolidated_reporting/alliance_for_justice

.pdf.................................................. ......................................................................9 

Comments, National Abortion and Reproductive Rights Action League 

(Nov. 8, 2002), 

http://www.fec.gov/pdf/nprm/consolidated_reporting/naral.pdf..........................9 

Concise Oxford English Dictionary 311 (12th ed. 2011)........................................30 

Eliza Newlin Carney, Rules of the Game: Advocacy Groups Face New Ad 

Rules, Roll Call, May 21, 2012...........................................................................34 

Kenneth Doyle, D.C. Circuit Panel Set to Hear Arguments in Political Ad 

Disclosure Case on Sept. 14, Bloomberg BNA Money and Politics 

Report, June 6, 2012 ...........................................................................................37 

Kenneth Doyle, FEC Deadlocks on Disclosure Obligation for Political Ads 

Targeting ‘White House’, Bloomberg BNA Money & Politics Report, 

June 8, 2012 ........................................................................................................16 

Library of Congress, Bill Summary & Status of H.R. 5175, 111th Cong. 

(2009-2010), available at http://thomas.loc.gov/cgibin/bdquery/z?d111:HR05175:@@@L&summ2=m&......................................18 

Microsoft Encarta College Dictionary 313 (2001) ..................................................29 

New Oxford American Dictionary 378 (3d. ed. 2010)............................................29 

Oxford English Dictionary (2012)...........................................................................30 

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Press Conference, Campaign Spending Rules, Feb. 11, 2010, available at

http://www.c-spanvideo.org/program/SpendingRu&start=204 .........................17 

Press Release, Congressman Chris Van Hollen, Van Hollen Statement on 

Senate Leaders’ Commitment to Act on DISCLOSE (June 22, 2010), 

available at

http://vanhollen.house.gov/News/DocumentPrint.aspx?DocumentID=191

675.......................................................................................................................16 

Press Release, Congressman Chris Van Hollen, Van Hollen Statement on 

Passage of the DISCLOSE Act (June 24, 2010), available at

http://vanhollen.house.gov/News/DocumentSingle.aspx?DocumentID=19

2278.....................................................................................................................16 

Press Release, President Barack Obama, Statement by the President on 

Passage of the DISCLOSE Act in the House of Representatives (June 24, 

2010), available at http://m.whitehouse.gov/the-press-office/statementpresident-passage-disclose-act-house-representatives .......................................17 

Press Release, President Barack Obama, Statement by the President on the 

DISCLOSE Act (Apr. 29, 2010), available at

http://m.whitehouse.gov/the-press-office/statement-president-disclose-act ......17 

Press Release, Senator Harry Reid, Reid Statement on House Administration 

Committee Passage of the DISCLOSE Act (May 21, 2010), available at

http://democrats.senate.gov/2010/05/22/reid-statement-on-houseadministration-committee-passage-of-the-disclose-act/.....................................17 

Webster’s Unabridged Dictionary 442 (2d ed. 2001)..............................................30 

Webster’s Third New International Dictionary 496 (1981) ....................................29 

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GLOSSARY OF ABBREVIATED TERMS

BCRA Bipartisan Campaign Reform Act of 2002, 116 Stat. 81 

BCRA § 201 The electioneering communication disclosure provision 

at issue, codified at 2 U.S.C. § 434(f)(2)(F) 

CFIF Center for Individual Freedom 

FEC or 

Commission 

Federal Election Commission 

FECA Federal Election Campaign Act of 1971 

HLF Hispanic Leadership Fund 

J.A. Joint Appendix 

March 30, 

2012 Order 

Judge Amy Berman Jackson’s March 30, 2012 Order, 

as amended, that is the subject of this appeal 

Mem.Op. Judge Amy Berman Jackson’s Memorandum Opinion 

accompanying the March 30, 2012 Orders 

2007 

Regulation 

The disclosure regulation vacated by the district court, 

11 C.F.R. § 104.20(c)(9) 

2003 

Regulation 

The predecessor to the 2007 regulation, which can be 

found at 11 C.F.R. § 104.20(c)(8) (2003) 

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STATEMENT OF JURISDICTION

This Court has appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 

1294. The district court had jurisdiction pursuant to 28 U.S.C. § 1331. Final 

judgment was entered on March 30, 2012. Appellant CFIF filed its Notice of 

Appeal on April 13, 2012. 

STATEMENT OF ISSUES

1. Does BCRA § 201 unambiguously compel disclosure of all donations 

of $1,000 or more received by an ordinary corporation or labor union that engages 

in electioneering communications, regardless of the purpose of the donations? 

2. Was the FEC’s 2007 Regulation, 11 C.F.R. § 104.20(c)(9), a 

permissible implementation of the disclosure provision contained in BCRA § 201? 

STATUTES AND REGULATIONS

The pertinent statutes and regulations are set forth in the addendum bound 

with this brief. 

STATEMENT OF THE CASE

This is a direct appeal of a March 30, 2012, judgment entered by District 

Judge Amy Berman Jackson vacating the FEC’s 2007 Regulation as contrary to 

law. J.A.133, 165. Plaintiff-appellee Congressman Chris Van Hollen filed his 

complaint on April 21, 2011. Id. at 9-22. He alleged the FEC’s 2007 regulation 

violated and defeated the objectives of a statutory disclosure provision added to 

FECA by BCRA in 2002. Id. The complaint named several speakers, including 

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CFIF, that relied on the regulation. Id. at 19. CFIF intervened as a matter of right 

to defend the 2007 Regulation, as did HLF. Id. at 5. Their standing has not been 

questioned. 

Van Hollen and the FEC stipulated this case would be decided on the 

administrative record. Id. at 23-24. After submission of that record, all parties 

filed dispositive motions that fully briefed the issues under Steps One and Two of 

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). J.A.4-6. The district court 

ultimately vacated the 2007 Regulation under Step One, holding the regulation 

contrary to unambiguous statutory command. Id. at 133, 164-65. While not 

directly ruling on the Step Two challenge, the district court did not question that 

the regulation was “reasonable” in light of the agency’s findings about speech 

burden. Id. at 135.2

 

Defendants CFIF and HLF appealed. Id. at 166-69. Due to a 3–3 partisan 

deadlock by the commissioners, the FEC did not appeal and is not participating. 

 2

 At oral argument, the district court said the following: 

[THE COURT]: Well, I think the fundamental 

question . . . is the Chevron I question, because . . . once 

you get to Chevron II your burden is much higher 

because of the level of deference. So the Chevron I 

decision is close to being the outcome determinative 

decision, or it may very well be the outcome 

determinative decision.” 

J.A.132 (emphasis added). 

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Id. at 170. On May 14, 2012, a divided panel of this Court expedited this appeal 

but denied a stay. Id. at 178-182.3

STATEMENT OF THE FACTS

A. FECA and Its Purpose-Based Disclosure Requirements. 

This case arises under FECA, which Congress amended in 2002 to include 

the disclosure provision at issue here. Many of FECA’s original requirements 

turned on two closely related concepts, “contributions” and “expenditures.” In 

parallel provisions, FECA defined both terms as transfers of value made “for the 

purpose of influencing any election for Federal office.” 2 U.S.C. § 431(8)(A)(i), 

(9)(A)(i) (emphasis added). 

The Supreme Court’s seminal decision on FECA focused on the purpose 

element, construing it narrowly. See Buckley v. Valeo, 424 U.S. 1, 40-45, 79-81 

(1976). This narrow construction assured FECA’s disclosure requirements, as 

applied to speech independent of candidates and campaigns, were not 

“impermissibly broad” but rather tailored to increasing “the fund of information 

concerning those who support candidates.” Id. at 70-81. In 1976 and 1980, 

Congress incorporated these holdings into FECA by (a) narrowly defining 

“independent expenditures” to require speech that expressly advocated the election 

or defeat of clearly identified candidates (e.g., “vote for,” “reject,” etc.), and 

 3

 The Honorable Karen LeCraft Henderson would have granted a stay. 

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(b) requiring independent speakers to disclose “each person who made a 

contribution . . . for the purpose of furthering an independent expenditure.” 

2 U.S.C. §§ 431(17), 434(c)(2)(C) (emphasis added). See also 11 C.F.R. 

§ 109.10(e)(1)(vi) (incorporating this same purpose element). 

B. Congress Amends FECA in 2002 to Regulate “Electioneering 

Communications.” 

Buckley recognized speakers often could avoid using explicit words of 

express advocacy while their speech still functioned as advocacy for or against 

candidates. 424 U.S. at 45. The 2002 BCRA amendments to FECA expanded 

regulation to a new category of political speech – “electioneering 

communications” – defined in terms of the media used, timing with respect to 

elections, candidate identification, targeting to the electorate for the identified 

candidates, and lack of express advocacy. 2 U.S.C. § 434(f)(3). Importantly, 

speech containing express advocacy (i.e., an “independent expenditure”) was 

excluded from the electioneering communication definition even if it met all other 

criteria. See id. § 434(f)(3)(B)(ii). 

FECA already forbade corporations and labor unions from engaging in 

express advocacy. See id. § 441b(a). BCRA extended the ban to cover 

electioneering communications. See id. § 441b(a), (b)(2). In crafting BCRA’s 

disclosure provision, Congress thus had no occasion to evaluate disclosure burdens 

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that would or should be imposed on ordinary corporations and labor unions if they 

were free to engage in electioneering communications.4

BCRA allowed individuals and unincorporated groups to engage in 

independent electioneering communications – just as they could engage in express 

advocacy under FECA – subject to disclosure requirements similar to those for 

independent expenditures. If such speakers knew in advance they would engage in 

electioneering communications and elected to establish a separate fund for that 

purpose, they could limit disclosure to contributors whose contributions went into 

that account. See id. § 434(f)(2)(E). Otherwise, they were required to disclose “all 

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

making the disbursement [since] the first day of the preceding calendar year.” Id.

§ 434(f)(2)(F). BCRA’s disclosure provision became a part of FECA, which, as 

 4

 FECA permitted corporations and labor unions to organize political action committees that could engage in such advocacy under detailed restrictions and disclosure requirements not at issue here. A very narrow class of entities that were formally incorporated – but lacked the characteristics that led to special regulation of corporations – were exempted from certain of FECA’s requirements in FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”). When BCRA was enacted, however, the so-called “Wellstone Amendment” (i.e., BCRA § 204) “applied § 441b’s expenditure ban to all nonprofit corporations” equally. Citizens 

United v. FEC, 130 S. Ct. 876, 891 (2010) (emphasis added); see also McConnell 

v. FEC, 251 F. Supp. 2d 176, 803 (D.D.C. 2003), aff’d in part, 540 U.S. 93 (2003) (Leon, J.) (the Government “concede[s] that Section 204 does not contain an 

exemption for MCFL organizations”), id. at 373 (Henderson, J.) (“The Wellstone Amendment (BCRA section 204) prevents any [MCFL] corporation, from the ACLU to the NRA to MCFL itself, from making a disbursement for any electioneering communication.”); 147 Cong. Rec. S3022, S3042 (Mar. 28, 2001) (Sen. Wellstone) (explaining his amendment directly challenged the rationale in MCFL and that the case’s fundamental premise was now invalid). 

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noted above, defined “contribution” in terms of the giver’s purpose to influence 

elections. Id. § 431(8)(A). 

The electioneering communication disclosure provision was enacted as part 

of the “Snowe-Jeffords Amendment” to BCRA. Senator Snowe explained her 

amendment would not create “invasive disclosure rules that require the disclosure 

of entire membership lists.” 144 Cong. Rec. S994, S998 (daily ed. Feb. 25, 1998). 

Instead, the provision was tailored to require only disclosure of “contributors who 

donated more than $500 toward the ad.” Id. (emphasis added).5

 See also 148 

Cong. Rec. S2095, S2154 (daily ed. Mar. 20, 2002) (Sen. Feinstein) (disclosure 

required of who is “actually paying” for ads); 147 Cong. Rec. S3005, S3034 (daily 

ed. Mar. 28, 2001) (Sen. Jeffords) (disclosure required of “who is sponsoring and 

paying for an electioneering communication”). Senator Snowe also introduced an 

academic’s analysis explaining that her amendment only “requires disclosure of 

large contributions designated for such ads.” 147 Cong. Rec. at 3038. During the 

debates, she also cited a statement by the Brennan Center for Justice that the 

amendment paralleled existing FECA disclosures by requiring disclosure of 

 5

 The version of the Snowe-Jeffords Amendment debated in 1998 is 

materially similar to the version enacted as part of BCRA in 2002, with the exception that the disclosure threshold for contributors in 1998 was $500 rather 

than $1,000. Compare Amendment No. 1647 to the Paycheck Protection Act, S. 1663, 105th Cong. (1998), with Bipartisan Campaign Reform Act of 2002, 2 U.S.C. § 434(f)(2)(F).

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“individuals who contributed . . . towards the ad.” 144 Cong. Rec. S10143, 

S10152 (daily ed. Sept. 10, 1998) (emphasis added). 

Senators McCain, Feingold, Snowe, and Jeffords, along with 

Representatives Shays and Meehan, concurred that BCRA’s electioneering 

communication disclosure requirements were “just the types of rules that FECA 

has long imposed on ‘independent expenditures’ that ‘expressly advocat[e].’”6

 

They agreed that BCRA’s new disclosure requirements were “modest,” 

“equivalent to requirements the Supreme Court has previously upheld,” and 

“merely impose the same type of disclosure obligations [as FECA’s] wellestablished disclosure requirements for independent expenditures.”7

 As explained 

above, FECA’s independent expenditure (i.e., “express advocacy”) provisions tie 

disclosure to the giver’s purpose. 

 6

 Defendant-Intervenors’ Excerpts of Br. of Defs. at I-96, McConnell v. FEC, Civ. No. 02-0582 (D.D.C.), available at http://www.campaignlegalcenter.org/attachments/BCRA_MCCAIN_FEINGOLD/

McConnell_v_FEC_District_Court/354.pdf. Several of the distinguished counsel representing Plaintiff Van Hollen in this case also represented BCRA’s congressional co-sponsors in the McConnell litigation. 

7

 Final Brief of BCRA Congressional Sponsors at I-84-95 & n.320, McConnell v. FEC, Civ. No. 02-0582 (D.D.C.), available at

http://www.democracy21.org/vertical/sites/%7B3D66FAFE-2697-446F-BB39-

85FBBBA57812%7D/uploads/%7B127BB9C3-9D65-4A05-B74B821EDC4382BC%7D.PDF (adopting Br. of Defs. at 174, McConnell v. FEC, Civ. 

No. 02-0582 (D.D.C.), available at

http://www.democracy21.org/vertical/Sites/%7B3D66FAFE-2697-446F-BB39-

85FBBBA57812%7D/uploads/%7B61EA29B5-66EE-459C-A964-

EB55A54A316A%7D.PDF). 

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C. The FEC’s 2003 Rulemaking. 

The FEC has “extensive rulemaking . . . powers,” FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (“DSCC”), and “broad 

rulemaking authority,” RNC v. FEC, 76 F.3d 400, 404 (D.C. Cir. 1996), to 

“formulate general policy with respect to the administration” of federal campaign 

finance law, DSCC, 454 U.S. at 37; see also 2 U.S.C. §§ 437c(b)(1), 437d(a)(8). 

In response to BCRA, the FEC launched comprehensive rulemakings, including 

one specifically addressing the reporting provisions applicable to electioneering 

communications. See Notice of Proposed Rulemaking: Electioneering 

Communications, 67 Fed. Reg. 51131 (Aug. 7, 2002); Notice of Proposed 

Rulemaking: Bipartisan Campaign Reform Act of 2002; Reporting, 67 Fed. Reg. 

64,555 (Oct. 21, 2002). 

The BCRA disclosure provision was a small part of the overall project, and 

the FEC proposed to simply restate the statute’s text with one tweak. See 67 Fed. 

Reg. at 64,560-61, 64,567. FECA’s definition of “contribution” spoke of a 

purpose to support express advocacy, while BCRA’s new disclosure provision 

dealt with support for electioneering communications, which cannot include 

express advocacy. To avoid confusion that could occur if the FECA definition was 

imported literally, the FEC replaced BCRA’s statutory terms “contributors who 

contributed” with “donor[s] who donated.” Id. 

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Only one comment directly professed a concern with burden, and it was a 

very unusual entity known as an MCFL corporation, whose right to engage in 

electioneering communications was unclear at best.8

 Noting the absence of any 

general concern with the proposed adjustment to the electioneering disclosure 

provision – undoubtedly because BCRA prohibited the vast majority of 

corporations and labor organizations from engaging in electioneering 

communications – the FEC chose not to address the issue of burden. See BCRA 

Reporting; Coordinated and Independent Expenditures; Final Rules, 68 Fed. Reg. 

404, 413 (Jan. 3, 2003). 

D. The Supreme Court’s McConnell Decision. 

The Supreme Court in McConnell held that BCRA’s prohibition on 

corporate electioneering communications was not facially overbroad because 

(a) many electioneering communications were “the functional equivalent of 

express advocacy” that have the “purpose” to “influence the voters’ decisions,” 

and (b) precedent sustaining the existing ban on corporate express advocacy thus 

also logically justified banning such functionally equivalent speech. 540 U.S. at 

 8

 That corporation was the National Abortion and Reproductive Rights Action League, whose November 8, 2002, comment is available at 

http://www.fec.gov/pdf/nprm/consolidated_reporting/naral.pdf. (Without any elaboration, the Alliance for Justice joined these comments. See Comments, 

Alliance for Justice (Nov. 8, 2002), 

http://www.fec.gov/pdf/nprm/consolidated_reporting/alliance_for_justice.pdf.) 

See n.4, supra, for an explanation of why there is significant doubt the statute allowed MCFL corporations to make electioneering communications. 

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203-08. McConnell similarly relied on the Court’s express advocacy precedents to 

uphold BCRA’s electioneering communication disclosure provision. See id. at 

196. Because corporations and labor unions were forbidden to engage in the type 

of speech that triggered such disclosure, McConnell had no occasion to consider 

potential disclosure burdens on such speakers or whether the disclosure provision 

would be adequately tailored and justified if applicable to such speakers. 

E. WRTL II Triggers Rulemaking. 

Four years later, the constitutional landscape began to change. FEC v. 

Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL II”), held that 

(a) BCRA’s prohibition on corporate electioneering communications was justified 

only if the particular speech was the “functional equivalent” of express advocacy, 

and (b) many electioneering communications were not the functional equivalent. 

Id. at 469-70. Thus, WRTL II created significant room for previously banned 

corporate electioneering communications. 

In response to WRTL II, the FEC published a Notice of Proposed 

Rulemaking (“NPRM”). See 72 Fed. Reg. 50,261 (Aug. 31, 2007). The NPRM 

expressed concern that the 2003 Regulation failed to consider how “a corporation 

or labor organization [would] determine which receipts qualify as” reportable. Id.

at 50,271. It also sought comments on “concerns about . . . First Amendment 

rights.” Id. at 50,262. The NPRM asked whether the FEC should “limit the 

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‘donation’ reporting requirement to funds that are donated for the express purpose 

of making electioneering communications.” Id. at 50,271. 

Comments said “the agency [was] writing on a blank slate,” J.A.56-59, 

given the “unexpected situation” presented by WRTL II, id. at 70. “Congress’s 

explicit design [was] that a union or a corporation acting in compliance with FECA 

would never have occasion to report an [electioneering communication] since it 

could never lawfully undertake one.” Id. at 67 (emphasis in original). Thus, it was 

“unclear whether, and if so how, Congress would want to apply the reporting 

requirements with respect to the full range of corporations and labor organizations 

which may now pay for electioneering communications.” Id. at 56-59. FEC 

Commissioner Ellen Weintraub – who described herself as a “big advocate of 

transparency and disclosures” – said “Congress may not have thought through 

what it was going to mean for [corporations and unions] to have disclosure because 

they were not anticipating that these entities would be able to make electioneering 

communications.” Id. at 67. 

The Commission was cautioned that unduly broad disclosures would violate 

“established First Amendment principles.” Id. at 56-59. FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 388 (D.C. Cir. 1981), was quoted as 

saying the “[r]eporting of donors represents ‘the very heart of the organism which 

the first amendment was intended to nurture and protect: political expression and 

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association.’” J.A.54. The Commission was reminded that “[t]he constitutionality 

of a statute that implicates First Amendment rights must be examined by 

considering both whether and to what extent it serves the actual governmental 

interests that underlay its enactment.” Id. at 62 (emphasis in original). For many, 

broad donor disclosure requirements “present[ed] significant privacy concerns that 

[simply were] not outweighed by the government interests in disclosure.” Id. at 

51. 

Commenters pointed out that many contributions bear “no meaningful 

relationship to [electioneering communication] spending.” Id. at 61. Disclosing 

those would “mislead . . . the public since it would suggest a connection between 

the revenue sources and the ads when none in fact exists.” Id. at 56-59. This is 

particularly true of “unrestricted grants and contributions[, which] may be used by 

the organization . . . without the permission or approval of the donor.” Id. It 

“would be completely misleading” to link “donors of unrestricted funds to . . . 

electioneering communications with which they may not agree.” Id.

Commenters said that the proposed disclosures would present “significant,”9

“enormous,”10 “especially great,”11 and “tremendous”12 accounting and reporting 

 9

 J.A.52. 

10 Id. at 56-59. 

11 Id. at 63. 

12 Id. at 74. 

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burdens that “would far exceed all reporting requirements otherwise applicable to 

such organizations.”13 They described how the “daunting complexity” of “FEC 

reporting regulations would discourage and effectively prevent” certain nonprofits 

“from running issue ads during election periods,” J.A.51, while other non-profits 

would “see their donor bases shrink, [or] donors refusing to give more than 

$1,000,” id. at 54. Broad donor disclosure requirements “would likely prove 

difficult, if not impossible” for most organizations to implement. Id. at 49. 

The Commission received eight sets of comments generally favoring broad 

disclosures.14 Strikingly, not one of the eight sets of pro-disclosure comments 

argued that the statutory text precluded consideration of purpose. 

The Commission ultimately adopted, on a bipartisan basis, a rule that 

required disclosure of sources of either (a) funds placed in a segregated bank 

account used to pay for electioneering communications, or (b) funds received “for 

the purpose of furthering electioneering communications.” 11 C.F.R. 

§ 104.20(c)(7)(ii), (9). The FEC said the purpose element would be satisfied by 

 13 Id. at 56-59. 

14 The eight sets of comments were submitted by: (1) Senators McCain, Feingold, and Snowe, along with Congressman Shays; (2) Common Cause, Public Citizen, and U.S. PIRG; (3) the Campaign Legal Center, Democracy 21, the Brennan Center for Justice, Common Cause, the League of Women Voters, and U.S. PIRG; (4) the Democratic Senatorial Campaign Committee and the Democratic Congressional Campaign Committee; (5) Public Campaign; (6) Professors Richard Briffault and Richard L. Hasen; (7) the State of 

Washington’s Public Disclosure Commission; and (8) Bob Bauer and the Campaign Legal Center (as an additional joint comment). All are included in the administrative record filed by the FEC with the district court. 

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(i) “funds received in response to solicitations specifically requesting funds to pay 

for” electioneering communications; and (ii) “funds specifically designated for 

[electioneering communications] by the donor.” Final Rule and Explanation and 

Justification on Electioneering Commc’ns, 72 Fed. Reg. 72,899, 72,911 (Dec. 26, 

2007). The required disclosure for electioneering communications thus paralleled 

the contribution disclosures that FECA had required – for over 25 years – from 

speakers engaging in express advocacy. 

In the final analysis, the Commission explained that disclosure without 

regard to purpose “would be very costly and require an inordinate amount of 

effort” to exercise First Amendment rights. Id. at 72,901. The Commission said 

its “carefully designed reporting requirements” were “constitutional,” “narrowly 

tailored to address many of the commenters’ concerns regarding individual donor 

privacy,” and did “not create unreasonable burdens on the privacy rights of donors 

to nonprofit organizations.” Id. at 72,911. And the Commission’s regulation 

would provide “the public with information about those persons who actually

support the message conveyed by the [electioneering communications] without 

imposing on corporations the significant burden of disclosing the identities of the 

vast numbers of customers, investors, or members, who have provided funds for 

purposes entirely unrelated to the making” of electioneering communications. Id.

(emphasis added). 

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F. The Citizens United Litigation. 

Two years after the FEC’s rulemaking, the Supreme Court in Citizens 

United, 130 S. Ct. 876, overruled precedent and held that corporations have a First 

Amendment right to make both independent electioneering communications and 

independent expenditures for express advocacy. As part of the same case, Citizens 

United also had challenged the BCRA disclosure provision at issue here. The 

three-judge district court upheld the disclosure provision as constitutional, 

explaining it only required disclosure of, inter alia, “the names and addresses of 

anyone who contributed $1,000 or more in aggregate to the corporation for the 

purpose of furthering electioneering communications.” Citizens United v. FEC, 

530 F. Supp. 2d 274, 280 (D.D.C. 2008) (per curiam), aff’d in relevant part, 130 S. 

Ct. 876 (emphasis added).15 The Supreme Court affirmed, saying that only 

“certain” contributors were subject to disclosure and this constituted an “effective 

disclosure” regime. Citizens United, 130 S. Ct. at 916. 

G. Van Hollen Pushes the DISCLOSE Act. 

From the FEC’s 2007 rulemaking until shortly before the present suit was 

filed, Plaintiff Van Hollen, his allies in Congress, and his counsel never asserted 

 15 As a procedural matter, the opinion directly appealed from was a short, 

unpublished statement by the district court referencing “the reasoning of our prior opinion” that it had written in ruling on Citizens United’s motion for a preliminary injunction. See Citizens United v. FEC, Civ. A. No. 07-2240, 2008 WL 2788753, 

at *1 (D.D.C. July 18, 2008). The Supreme Court made clear that the earlier 

preliminary injunction opinion was the decision that was substantively “affirmed.” See Citizens United, 130 S. Ct. at 917; see also id. at 888 (quoting portions of the three-judge court’s preliminary injunction ruling on disclosure). 

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that BCRA’s disclosure provision had the sweeping meaning he now portrays as 

unambiguous. See Kenneth Doyle, FEC Deadlocks on Disclosure Obligation for 

Political Ads Targeting ‘White House’, Bloomberg BNA Money & Politics Report, 

June 8, 2012 (noting that the “disclosure requirements for electioneering 

communications . . . have been relatively uncontroversial until this spring”). 

Instead, Van Hollen advocated the “DISCLOSE Act,” a new law that would 

require those engaged in electioneering communications to make the same 

disclosures he now says BCRA always demanded. He heralded the bill as 

“landmark legislation [to] provide unprecedented disclosure.” Press Release, 

Congressman Chris Van Hollen, Van Hollen Statement on Passage of the 

DISCLOSE Act (June 24, 2010).16 See also Press Release, Congressman Chris 

Van Hollen, Van Hollen Statement on Senate Leaders’ Commitment to Act on 

DISCLOSE (June 22, 2010) (“the most transparency and disclosure of political 

expenditures in the history of our elections.”) (emphasis added);17 Chris Van 

Hollen and Mike Castle, The Disclose Act is a Matter of Campaign Honesty, 

 16 Available at

http://vanhollen.house.gov/News/DocumentSingle.aspx?DocumentID=192278. 

17 Available at

http://vanhollen.house.gov/News/DocumentPrint.aspx?DocumentID=191675. 

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Washington Post, June 17, 2010 (“an unprecedented amount of sunlight on 

campaign expenditures.”) (emphasis added).18

Plaintiff Van Hollen and his allies did not claim to be restoring the intended 

effect of existing law. To the contrary, President Obama, Senator Schumer (chief 

sponsor of the DISCLOSE Act in the Senate), Senate Majority Leader Reid, and 

other Members of Congress used phrases to describe the bill like: “the toughestever disclosure requirements,”19 “unprecedented transparency in campaign 

spending,”20 “enhanced [and] unprecedented level of disclosure . . . , not only of an 

organization’s spending, but also of its donors,”21 “a series of new disclosure 

requirements that will create an unprecedented paper trail,” 22 “rigorous new 

disclosure requirements” to “shed new light on spending,”23 “new disclosure 

 18 Available at http://www.washingtonpost.com/wp- dyn/content/article/2010/06/16/AR2010061604599.html. 

19 Press Release, President Barack Obama, Statement by the President on the DISCLOSE Act (Apr. 29, 2010), available at http://m.whitehouse.gov/the-press- office/statement-president-disclose-act (emphasis added). 

20 Press Release, President Barack Obama, Statement by the President on Passage of the DISCLOSE Act in the House of Representatives (June 24, 2010), available at http://m.whitehouse.gov/the-press-office/statement-president-passage- disclose-act-house-representatives (emphasis added). 

21 156 Cong. Rec. S3015, S3029 (daily ed. May 3, 2010) (emphasis added). 

22 Press Conference, Campaign Spending Rules, Feb. 11, 2010, available at

http://www.c-spanvideo.org/program/SpendingRu&start=204 (remarks of Senator Chuck Schumer) (emphasis added). 

23 Press Release, Senator Harry Reid, Reid Statement on House Administration 

Committee Passage of the DISCLOSE Act (May 21, 2010), available at

http://democrats.senate.gov/2010/05/22/reid-statement-on-house-administrationcommittee-passage-of-the-disclose-act/) (emphasis added and omitted). 

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requirements [of] all . . . donors,”24 and “unprecedented transparency and 

disclosure.”25 In short, supporters of the DISCLOSE Act, including Van Hollen, 

unambiguously asked Congress to impose new and unprecedented disclosure 

requirements. 

The DISCLOSE Act failed to win Senate approval in 2010. See Library of 

Congress, Bill Summary & Status of H.R. 5175, 111th Cong. (2009-2010).26 Only 

then did Plaintiff Van Hollen purport to discover that since 2002, BCRA had 

unambiguously mandated the same electioneering communication disclosures 

Congress had just rejected. 

SUMMARY OF ARGUMENT

Four years ago, a three-judge district court in this circuit interpreted BCRA 

to require disclosure only of “the names and addresses of anyone who contributed 

$1,000 or more . . . for the purpose of furthering electioneering communications.” 

Citizens United, 530 F. Supp. 2d at 280 (emphasis added). The court held that 

requirement was adequately tailored and justified to satisfy the First Amendment. 

See id. The Supreme Court affirmed, saying BCRA only required disclosure of 

 24 156 Cong. Rec. at S3031 (emphasis added). 

25 156 Cong. Rec. H4781, H4789 (daily ed. June 24, 2010) (emphasis added). 

26 Available at http://thomas.loc.gov/cgi- bin/bdquery/z?d111:HR05175:@@@L&summ2=m&. 

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“certain” contributors and that this “effective disclosure” regime was 

constitutional. Citizens United, 130 S. Ct. at 916. 

Now, at the urging of Plaintiff Van Hollen, the district court has held that 

BCRA unambiguously requires disclosure of every donor (above a threshold 

amount) to a corporation or labor union that engages in electioneering 

communications without regard for the donor’s purpose. Thus, the FEC’s 2007 

Regulation requiring disclosure of contributions “for the purpose of furthering 

electioneering communications” was vacated under Chevron Step One as contrary 

to law, regardless of how reasonable it might have been on the rulemaking record. 

The district court here is wrong. Read in light of Chevron Step One’s 

traditional tools of statutory construction, BCRA’s disclosure provision permits – 

and indeed requires – consideration of the giver’s purpose in identifying 

contributions for disclosure: 

1. Precedent: As just noted, BCRA’s disclosure provision has been 

judicially construed to require a “purpose of furthering electioneering 

communications.” That construction was material to a constitutional holding that 

the Supreme Court affirmed. 

2. Statutory Language and Structure: The statutory language 

explaining who must be disclosed – “contributors who contributed” – calls for 

consideration of the giver’s purpose. BCRA is part of FECA, which explicitly 

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defines “contribution” in terms of a purpose to further the recipient’s electoral 

advocacy. Moreover, many standard dictionaries define contribution to mean 

giving for a common purpose. Since “contributors” are persons making a 

“contribution,” the statutory language alone strongly supports a purpose element. 

Finally, the obvious statutory purpose – informing voters who is behind 

electioneering communications – is defeated if disclosures include givers who do 

not support the speech. 

3. Avoiding Absurdity: Excluding consideration of purpose also 

produces a needless structural absurdity. Under FECA’s explicit terms, a speaker 

that expressly advocates the election or defeat of an identified candidate is only 

required to disclose contributions for the purpose of supporting such express 

advocacy. But if express advocacy is omitted and the speech otherwise qualifies as 

an electioneering communication because it merely refers to a candidate in preelection periods, the district court’s ruling requires the speaker to disclose all of its 

donors, even if they had no purpose to support or even knowledge of the 

electioneering communication. It makes no sense to require greater disclosures for 

speech that merely mentions a candidate than for speech that expressly advocates 

the candidate’s election or defeat. Nor is this incongruity necessary, since BCRA’s 

disclosure provision easily can be understood to parallel FECA’s provision for 

express advocacy. 

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4. Legislative History: The key sponsors of BCRA’s disclosure 

provision stressed that new disclosures would be limited by the giver’s purpose 

and would parallel FECA’s express advocacy disclosures. 

5. Constitutional Avoidance: Constitutional avoidance requires 

consideration of the giver’s purpose. Even where Congress has the general power 

to burden speech, the First Amendment requires it to evaluate the particular 

burdens imposed and to tailor those burdens to the justifying interests. 

At the time the BCRA disclosure provision was enacted, ordinary 

corporations and labor unions were not understood to have a First Amendment 

right to speech that might affect elections and, indeed, BCRA flatly forbade such 

speech. When the Supreme Court later overruled precedent and held that 

corporations and unions were constitutionally entitled to engage in independent 

electoral advocacy, the BCRA disclosure provision unexpectedly became 

applicable to speakers whose burdens Congress never evaluated. And when the 

FEC made such an evaluation during the 2007 rulemaking, it found that a purpose 

limitation was necessary to avoid unreasonable burden. If the FEC lacked the 

power to make and implement that judgment, then a serious First Amendment 

issue arises because significant, unevaluated, and untailored burdens are being 

imposed on core speech. 

* * * 

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Together, the foregoing considerations demonstrate that the donor’s purpose 

to support electioneering communications not only may, but must be considered. 

For purposes of reversing the district court’s ruling, however, which rested 

exclusively on Chevron Step One, it is enough that the statute does not 

unambiguously preclude consideration of purpose. And each of the preceding 

points is also sufficient to open the door to the FEC’s explicit and broad 

rulemaking power. 

Van Hollen’s alternative claim that the 2007 Regulation was unreasonable 

and an abuse of discretion fails as a matter of law. The district court did not 

explicitly rule on that fully briefed and argued claim but indicated that it was weak. 

The administrative record and the FEC’s explanation and justification of the 2007 

Regulation identified ample reasons for adopting a disclosure rule for 

electioneering communications that parallels the requirement for express advocacy. 

Van Hollen’s attempted reliance on post-adoption data founders at the threshold 

because that data was not in the administrative record and Van Hollen never 

petitioned for a rulemaking or otherwise gave the FEC and other interested parties 

like CFIF a chance to evaluate and respond to it. Rather than prolonging speechchilling uncertainty, this Court can and should resolve this issue as well and direct 

the entry of judgment sustaining the 2007 Regulation. 

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ARGUMENT

I. The Standard of Appellate Review. 

This Court conducts de novo review of a district court’s decision to grant or 

deny summary judgment. See Gilbert v. Napolitano, 670 F.3d 258 (D.C. Cir. 

2012). The district court’s ruling receives no deference. See Fox v. Clinton, No. 

11-5010, 2012 WL 2094410, at *7 (D.C. Cir. June 12, 2012). 

II. The Chevron Framework. 

Judicial review of the FEC’s 2007 Regulation is governed by the two-step 

Chevron framework. Chevron Step One employs all traditional tools of statutory 

construction to determine “whether Congress has directly spoken to the precise 

question at issue,” 467 U.S. at 842, in a manner that “unambiguously forecloses the 

[agency’s] interpretation,” Petit v. U.S. Dep’t of Educ., 657 F.3d 769, 781 (D.C. 

Cir. 2012). Plaintiff bears the “heavy burden,” Ass’n of Private Sector Colls. and 

Univs. v. Duncan, No. 11-5174, 2012 WL 1992003, at *11 (D.C. Cir. June 5, 

2012), of showing the statute “is susceptible of ‘only [one] possible 

interpretation,’” Petit, 657 F.3d at 781. At Step One, courts “giv[e] no deference 

to the agency’s interpretation.” Am. Fed’n of Labor & Cong. of Indus. Orgs. v. 

FEC, 333 F.3d 168, 173 (D.C. Cir. 2003) (“AFL-CIO”). 

If Step One does not establish that the regulation is contrary to unambiguous 

law, Step Two asks whether the regulation “is based on a permissible construction 

of the statute.” Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807, 811 

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(D.C. Cir. 2011). It does not matter “whether there may be other reasonable, or 

even more reasonable, views.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321 

(D.C. Cir. 1998). “[I]f the interpretation is reasonable,” it is permissible. Am. 

Fed’n of Gov’t Emps., AFL-CIO, Local 446 v. Nicholson, 475 F.3d 341, 355 (D.C. 

Cir. 2007); see also Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 709 (D.C. 

Cir. 2008). Chevron Step Two also “overlaps with [the] inquiry under the [APA’s] 

arbitrary and capricious standard. ‘Whether a statute is unreasonably interpreted is 

close analytically to the issue whether an agency’s actions under a statute are 

unreasonable.’” Id. (quoting Gen. Instrument Corp. v. FCC, 213 F.3d 724, 732 

(D.C. Cir. 2000)). 

The FEC is entitled to full Chevron deference. See AFL-CIO, 333 F.3d at 

173. Congress delegated sweeping responsibility to the FEC to promulgate 

binding regulations to “ensure the appropriate implementation” of the complex 

federal election laws consistent with the First Amendment. 2 U.S.C. 

§ 434(f)(3)(B)(iv). This is “precisely” the situation in “which deference should 

presumptively be afforded.” DSCC, 454 U.S. at 37. Compare Becker v. FEC, 230 

F.3d 381, 394 (1st Cir. 2000) (explaining that Congress’s delegation of “broad 

policymaking discretion” extends to the definition of “contribution”). 

Judicial review here is “limited to assessing the record that was actually 

before the agency.” Duncan, 2012 WL 1992003, at *10; see also Envtl. Def. Fund 

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v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981) (this Court is “confined to the full 

administrative record before the agency at the time the decision was made”); Camp 

v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). Indeed, Plaintiff Van Hollen so 

stipulated. See J.A.23. 

III. Plaintiff’s Challenge Fails Under Step One Of Chevron. 

BCRA’s disclosure provision requires disclosure of “all contributors who 

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

disbursement.” 2 U.S.C. § 434(f)(2)(F) (emphasis added). The FEC’s 2007 

Regulation requires reporting only of funds given “for the purpose of furthering 

electioneering communications.” 11 C.F.R. § 104.20(c)(9). Precedent supports 

that reading of the statute, as do the statute’s language, structure, history, and other 

traditional tools of construction. Because the statute does not unambiguously 

preclude consideration of purpose, the regulation survives Step One. 

A. Precedent Supports the FEC’s Construction. 

This is not the first time courts have interpreted BCRA’s disclosure 

provision. It was the target of an as-applied First Amendment challenge in 

Citizens United, 530 F. Supp. 2d at 280 (per curiam) (three-judge court), aff’d in 

relevant part, 130 S. Ct. 876. In evaluating whether the provision imposed 

“burdens that violate the First Amendment,” the three-judge district court said the 

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provision required disclosure only of certain contributors who gave “for the 

purpose of furthering electioneering communications”: 

Section 201 is a disclosure provision requiring that any 

corporation spending more than $10,000 in a calendar 

year to produce or air electioneering communications 

must file a report with the FEC that includes – among 

other things – the names and addresses of anyone who 

contributed $1,000 or more in aggregate to the 

corporation for the purpose of furthering electioneering 

communications. §§ 434(f)(1), (2)(F); 11 C.F.R. 

§ 104.20(c)(9). 

Id. (emphasis added). Citing McConnell, the three-judge court held that this 

provision did not “impose an unconstitutional burden.” Id. at 281. 

The Supreme Court “affirmed” that ruling. Citizens United, 130 S. Ct. at 

917. It did not question the three-judge court’s construction of the law and, indeed, 

said the disclosure provision required “any person who spends more than $10,000 

on electioneering communications [to] identify . . . certain contributors. 

§ 434(f)(2).” Id. at 914 (emphasis added).27 The Court found that such disclosures 

were “effective” and informed the electorate “about the sources of election-related 

spending” without subjecting speakers to a burden that “would impose a chill on 

speech or expression.” Id. at 914, 916. 

 27 The Solicitor General had likewise advised the Supreme Court that disclosures were only required as to “the amount spent on the advertisement and any large contributions earmarked to underwrite it.” Brief for Appellee at 30, 39, Citizens United v. FEC, 130 S. Ct. 876 (2010), No. 08-205 (emphasis added). 

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In short, the district court here perceived an unambiguous statutory meaning 

that is squarely contrary to the reading adopted by the three-judge Citizens United

court en route to a holding the Supreme Court affirmed. The district court here 

erred. 

B. The Language of the Statute Permits – and Compels – 

Consideration of the Giver’s Purpose. 

The purpose-oriented statutory construction adopted in Citizens United

flows directly from BCRA’s text, which is where Step One analysis begins. See

Prime Time Int’l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010). BCRA’s key 

terms are “contributors” and “contribute.” The noun form of “contribute” is 

“contribution,” which is a central concept in FECA and is defined to require the 

giving of funds “for the purpose of influencing any election for federal office.” 

2 U.S.C. § 431(8)(A)(i). Such a statutory definition is “something of an ace” in 

construing statutes. Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397, 407 (D.C. 

Cir. 1997). 

Courts regularly give a similar meaning to noun and verb forms of the same 

term.28 Indeed, a “textual difficulty” arises when a party proposes “to give 

 28 See, e.g., United States v. Granderson, 511 U.S. 39, 46 (1994) (“‘[I]t seems reasonable to give . . . a similar construction’ to a word used as both a noun and a 

verb in a single statutory sentence”) (quoting Reves v. Ernst & Young, 507 U.S. 

170, 177 (1993)); King v. District of Columbia, 277 F. 562, 564-65 (D.C. Cir. 1922) (the verbs “licensed” and “registered” should be given the same meaning as “licensing” and “registration”—“their noun forms in the first part of the act”); Advance Transp. Co. v. United States, 884 F.2d 303, 304 & n.3 (7th Cir. 1989) (the noun form and verb form share a common definition); In re Nuijten, 500 F.3d 

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different constructions to [a] term used both as a noun and a verb in the same” 

statutory framework. Id. (internal quotation marks omitted).29 Furthermore, the 

Supreme Court has consistently treated “contributors” and “contributions” under 

the statute as equivalent descriptors for purposeful support of a candidate or 

issue.30 

Van Hollen and the district court say that, because FECA’s definition poses 

a difficulty if imported wholesale, it should be entirely disregarded. The problem 

arises because FECA’s definition speaks of the purpose of “influencing an 

election,” and that phrase has been construed to require express advocacy. See 

Buckley, 424 U.S. 44 & n.52, 77-80 & n.108. Since electioneering 

 

1346, 1356 (Fed. Cir. 2007); Mining Energy, Inc. v. Dir., Office of Workers’ Comp. Programs, 391 F.3d 571, 575 (4th Cir. 2004). 

29 Student Loan Marketing Ass’n, 104 F.3d at 407, used the existing definition of a noun included within the Higher Education Act, see 20 U.S.C. § 1085(i) (1990), to interpret a related verb incorporated by subsequent legislation into a separate section of the law, see Omnibus Budget Reconciliation Act of 1993, 

§ 4104, 20 U.S.C. § 1087-2(h)(7). 

30 Buckley recognized that a “contribution” serves as the “contributor’s 

support” for a particular “candidate and his views.” 424 U.S. at 21. McConnell

acknowledged that a “contributor’s ability to engage in free communication” is 

impacted by “contribution limits.” 540 U.S. at 134-35. Similarly, “contribution limits” restrict “the contributor’s freedom of political association, namely, the contributor’s ability to support a favored candidate.” Randall v. Sorrell, 548 U.S. 

230, 246 (2006) (internal quotations omitted). The concepts of “contributor” and “contribution” are thus inseparable—a “contributor” necessarily is someone who makes a “contribution” with the purpose of furthering an electoral message. See 

also Nat’l Credit Union Admin. v. First Nat’l Bank & Trust, Co., 522 U.S. 479, 

501 (1998) (describing “the established canon of construction that similar language contained within the same section of a statute must be accorded a consistent 

meaning”). 

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communications do not contain express advocacy, see 2 U.S.C. § 434(f)(3)(B)(ii), 

a literal application of the definition is awkward. 

But totally disregarding the statutory definition goes too far. Definitions are 

an important part of a statute and should not be lightly cast aside.31 At minimum, 

these definitions indicate that forms of the word contribution should be understood 

to take into account the giver’s relevant purpose. 

That understanding is reinforced by other textual considerations. First, a 

litany of standard dictionaries define the verb “contribute” to include a purpose 

element: 

 New Oxford Am. Dictionary 378 (3d. ed. 2010) (emphasis added): 

“contribute” means to “give (something, esp. money) in order to help 

achieve or provide something;” 

 Am. Heritage Dictionary 399 (5th ed. 2011) (emphasis added): 

“contribute” means to “give or supply in common with others; give to a 

common fund or for a common purpose;” 

 Microsoft Encarta College Dictionary 313 (2001) (emphasis added): 

“contribute” means to “give money to something, such as a fund or 

charity, for a specific purpose, especially along with others;” and 

 Webster’s Third New Int’l Dictionary 496 (2002) (emphasis added): 

“contribute” means to “give or grant in common with others (as to a 

 31 “When a statute includes an explicit definition, [courts] must follow that 

definition.” Stenberg v. Carhart, 530 U.S. 914, 942 (2000) (emphasis added); see 

also 2A Sutherland Statutory Construction § 47:7 (“[s]tatutory definitions . . . establish meaning where the terms appear in that same act,” and any such “definition . . . is binding”). See also Fox v. Standard Oil Co., 294 U.S. 87, 95-96 

(1935); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002). 

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common fund or for a common purpose): give (money or other aid) for a 

specified object.”32

And federal courts apply these purpose-based definitions when interpreting the 

definition of “contribute” under FECA, see United States v. O’Donnell, 608 F.3d 

546, 550 (9th Cir. 2010), cert. denied, 131 S. Ct. 1837 (2011), and when analyzing 

other federal statutes, see, e.g., Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th 

Cir. 2011) (analyzing claim under the Resource Conservation and Recovery Act). 

Although other definitions also exist, it is important that an ordinary meaning of 

BCRA’s term “contribution” is consistent with the thrust of the statutory 

definition. 

Second, English is rich with words, and lawmakers easily could have 

selected language that would rule out a purpose requirement. For example, 

Congress could have required entities making electioneering communications to 

disclose “all receipts” in the same manner required of political parties and other 

committees by the subsection codified immediately before the electioneering 

communication disclosure requirements. See BCRA § 103 (codified as 2 U.S.C. 

§ 434(e)). Lawmakers also could have used words such as “donation” or “transfer 

of funds,” terms which were used elsewhere in BCRA and have a different 

 32 Similar definitions exist in other dictionaries. See Webster’s Unabridged Dictionary 442 (2d ed. 2001); Concise Oxford English Dictionary 311 (12th ed. 2011); Oxford English Dictionary, 2d edition (1989) (online version 2012). 

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meaning.33 Congress’s decision not to employ readily available broad terms 

“strongly suggests that Congress intended that provision to have a narrower 

scope,” O’Neill v. Dep’t of Hous. and Urban Dev., 220 F.3d 1354, 1362 (Fed. Cir. 

2000), and “argues forcefully” that Van Hollen’s reading of § 434(f)(2)(F) was not 

the intention of Congress, Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 

106 (1987). 

Van Hollen and the district court see a contrary indication in the statute’s 

reference to “all contributors who contributed.” (emphasis added.) But “all” 

simply requires the whole of the category to which it applies; it does not expand 

that category. See Nat’l Steel & Shipbuilding Co. v. United States, 419 F.2d 863, 

875 (Ct. Cl. 1969).34 The Supreme Court just rejected an attempt to give “any” a 

 33 For example, BCRA pairs the words “contribution” and “donation” together in the disjunctive twelve times, see BCRA §§ 301, 303, 309, 312, 314, 318, and 

also uses the terms “contribution,” “donation,” and “transfer of funds” in tandem 

within the same clause, see id. § 101. Each of these terms has a separate meaning, 

see, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings. . . .”); In re Espy, 80 F.3d 501, 505 (D.C. Cir. 1996) (same), and rather than use terms that did not contain a purpose requirement, Congress specifically chose the one that did. 

34 See also Ziegler v. HRB Mgmt, Inc., 182 F. App’x 405, 407 (6th Cir. 2006) (rejecting argument that “‘all’ must be interpreted to include any stock option that might have vested” because “‘[a]ll’ modifies ‘would have vested’”) (emphasis added); see also Transtech Indus., Inc. v. A&Z Septic Clean, 270 F. App’x 200, 210 (3d Cir. 2008) (finding that “‘all’ modifies ‘claims made,’” so it cannot reach 

“claims which could have been made”); GameTech Int’l, Inc. v. Trend Gaming Sys., L.L.C., No. CV-01-540, 2008 WL 4571424, at *10 (D. Ariz. Oct. 14, 2008) (where “the word ‘all’ is followed by a plural noun, ‘proceedings[,]’ ‘[a]ll’ means the entire components of ‘proceedings’”); Eaton Corp. v. ZF Meritor LLC, 504 

F. Supp. 2d 217, 221 (E.D. Mich. 2007) (“prohibiting all dangerous downshifts is not the equivalent of prohibiting all shifts”). 

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similar “transformative” meaning. Freeman v. Quicken Loans, Inc., 132 S. Ct. 

2034, 2042 (2012). Such an adjective forbids exceptions but “never change[s] in 

the least, the clear meaning of the phrases selected by Congress.” Id. The 

meaning of “contributor who contributes” turns on the meaning of “contribution,” 

not on the word “all.” 

As a separate point, the district court ruled that the FEC’s 2003 Regulation 

precludes the agency from ever again considering the giver’s purpose. That ruling 

overreads what the FEC did, see supra at 8, and it also contradicts the principle 

that the agency “must be given ample latitude to ‘adapt [its] rules and policies to 

the demands of changing circumstances,’” Rust v. Sullivan, 500 U.S. 173, 186-87 

(1991) (emphasis added), and to “unanticipated and undesirable fallout” from a 

change to the existing legal regime, Nat’l Home Equity Mortg. Ass’n v. Office of 

Thrift Supervision, 373 F.3d 1355 (D.C. Cir. 2004). But more fundamentally, at 

Chevron Step One, the agency’s views receive no deference. See AFL-CIO, 333 

F.3d at 173. 

The bottom line is that the statutory language likely compels – and certainly 

permits – consideration of the giver’s purpose. If Congress intended to extensively 

alter the basic structure of FECA’s established disclosure regime, legislators had 

an obligation to clearly state so. See Rosado v. Wyman, 397 U.S. 397, 415 n.17 

(1970). Nothing close to that occurred here, and courts do “not lightly assume that 

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Congress intended to infringe constitutionally protected liberties,” AFL-CIO, 333 

F.3d at 179 (internal quotation omitted), or “[invade] freedoms protected by the 

Bill of Rights,” E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 

U.S. 127, 138 (1961). 

C. The Provision’s Structure Confirms That It Requires 

Consideration of a Giver’s Purpose. 

A “fundamental canon of statutory construction [requires] that the words of 

a statute must be read in their context and with a view to their place in the overall 

statutory scheme.” Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 434 

(2002). Here, three separate contextual and structural factors demonstrate why the 

statute must be read to include a purpose requirement. 

1. The Interpretation Adopted by the District Court 

Needlessly Creates an Absurdity. 

The district court’s ruling needlessly creates an absurdity. FECA is explicit 

that, if an ad includes words expressly advocating the election or defeat of a 

candidate, the speaker is only required to disclose contributions given for the 

purpose of supporting that speech. See 2 U.S.C. § 434(c)(2)(C). Under the district 

court’s ruling, however, deleting express advocacy dramatically expands the 

required disclosure to encompass all donors to the speaker, regardless of their 

purpose. Indeed, speakers that traditionally employed “issue ads” now are 

including words of express advocacy to avoid expanded disclosure burdens. In the 

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restrained words of one observer, that is an “odd effect.” Eliza Newlin Carney, 

Rules of the Game: Advocacy Groups Face New Ad Rules, Roll Call, May 21, 

2012. It also is an inexplicable content-based discrimination burdening core 

speech. 

Plaintiff Van Hollen says the absurdity “was created by Congress, not the 

District Court.” J.A.177. But “nothing is better settled than that statutes should 

receive a sensible construction” and will be read “if possible, so as to avoid . . . an 

absurd conclusion.” In re Chapman, 166 U.S. 661, 667 (1897). Where statutory 

text permits a harmonious reading that avoids absurdity, it is preferred. See Envtl. 

Def. Fund, Inc. v. EPA, 82 F.3d 451, 468 (D.C. Cir. 1996) (per curiam). Thus, the 

Seventh Circuit interpreted the word “property” to include “services” to avoid an 

incongruous interpretation under which misapplication of things purchased with 

government funds would be forbidden while misapplication of services paid for 

with such funds would be allowed. United States v. Coleman, 590 F.2d 228, 231 

(7th Cir. 1978). 

Here the statutory text not only permits, but actually calls for, a harmonious 

and sensible construction. All that is necessary is to read the phrase “contributors 

who contributed” to include the same purpose element that is explicitly required by 

the definition of contribution applicable to express advocacy and that is included in 

standard dictionary definitions. 

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2. The Legislative History Supports a Reading of 

“Contribute” That Includes a Purpose Requirement. 

Where a statutory text is clear, “legislative history is unnecessary to interpret 

the statute.” United Transp. Union v. Lewis, 711 F.2d 233, 245 (D.C. Cir. 1983). 

See also United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 494 (D.C. 

Cir. 2004) (internal quotation omitted). But if there were doubt here, the 

legislative history would resolve it. 

As is detailed above (at 6-7), legislators who were instrumental in 

developing BCRA’s electioneering communication disclosure provision assured 

fellow legislators that the provision would not permit “invasive disclosure rules.” 

144 Cong. Rec. at S998 (Statement of Sen. Snowe). The provision would only 

require disclosure “of contributors who donated more than $500 toward the ad.” 

Id. (emphasis added). The requirements would mirror the existing reporting 

requirements for independent expenditures containing express advocacy, i.e., of 

funds given “for the purpose of furthering an independent expenditure.” 2 U.S.C. 

§ 434(c)(2)(C); see also 11 C.F.R. § 109.10(e) (emphasis added). And Senator 

Snowe emphasized that the general approach “we are taking in [BCRA § 201] is to 

draw it as narrowly as possible so that we do not affect . . . first amendment 

rights.” 144 Cong. Rec. S972-01, S973 (daily ed. Feb. 25, 1998). 

In short, the legislative history supports a purpose element. 

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3. Constitutional Avoidance Favors Consideration of a Giver’s 

Purpose. 

Another traditional tool of statutory construction is the presumption that a 

statute should not create constitutional difficulties. Duncan, 2012 WL 1992003, at 

*23; Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995).35 

Subjecting core political speech to significant burdens that Congress never 

assessed, tailored, or determined to be justified violates this presumption, as does 

requiring disclosures so broad that the identity of speech supporters is obscured. 

A law that conditions the right to free political speech on disclosure of the 

speaker’s supporters or funding sources imposes significant burdens on that 

speech, regardless of whether those who are disclosed face retaliation. See

Citizens United, 130 S. Ct. at 914, 916; Buckley, 424 U.S. at 64-71. Both the FEC 

regulation challenged by Plaintiff, 11 C.F.R. § 104.20(c)(9), and the statutory 

provision it implements, 2 U.S.C. § 434(f)(2)(F), place such burdens on political 

speech, a fact that is borne out by the absence of any “new spending for 

electioneering communications by any sponsor since . . . Judge Jackson’s decision 

 35 Because Congress is presumed to intend to respect the Constitution, the practice of construing statutes to avoid serious constitutional doubt is a traditional 

tool for determining statutory intent. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Constr. Trade Council, 485 U.S. 568, 575 (1988); Grenada Cnty. Supervisors v. Brown, 112 U.S. 261, 269 (1884). If application of the doctrine identifies a controlling statutory intent, it operates at the first step of the Chevron 

analysis; otherwise it may operate at the second step to show that the agency’s view is unreasonable. AFL-CIO v. FEC, 333 F.3d 168, 175-79 (D.C. Cir. 2003) (applying the doctrine at Step Two but acknowledging it also may apply at Step One); Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 709 (D.C. Cir. 2011) (considering possible avoidance at Step One).

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was handed down.” Kenneth Doyle, D.C. Circuit Panel Set to Hear Arguments in 

Political Ad Disclosure Case on Sept. 14, Bloomberg BNA Money and Politics 

Report, June 6, 2012. Before the government may impose such burdens, the First 

Amendment requires that it satisfy “exacting scrutiny” to assure the burdens are 

tailored to serve sufficiently important interests. See Citizens United, 130 S. Ct. at 

914; Elrod v. Burns, 427 U.S. 347, 362 (1976) (plurality opinion).36

Citing Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 212 

(1998), and BCRA’s severability provision (§ 401), the district court found that the 

breadth of the statutory disclosure provision nevertheless meant that the law “can 

be applied in situations not expressly anticipated by Congress.” Id. at 212. But 

this principle only applies where there “was no reason to believe that Congress . . . 

had given any thought whatsoever to the [statute’s] coverage.” Hayden v. Pataki, 

449 F.3d 305, 324 (2d Cir. 2006) (en banc) (plurality opinion); see also Att’y Gen. 

of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 129-30 (2d Cir. 

2001). The present situation is “easily distinguishable,” Hayden, 449 F.3d at 324, 

because Congress believed that ordinary corporations would be unable to fund 

 36 The seriousness of the constitutional issue is underscored by Center for Individual Freedom, Inc. v. Tennant, Civ. A. No. 1:08-cv-00190, 2011 WL 

2912735 (S.D.W.Va. July 18, 2011), where a federal court narrowly construed a similar state electioneering communication statute to require disclosure only of “those individuals who respond to a solicitation for electioneering communications or earmark their contributions for such use.” Id. at *49. 

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electioneering communications. See also Am. Scholastic TV Programming 

Foundation v. FCC, 46 F.3d 1173, 1178-81 (D.C. Cir. 1995).37

Moreover, the legislation in Yeskey did not burden core speech in a way that 

triggered Congress’s duty to actually evaluate and tailor the burden. There is a big 

difference between deferring to an actual congressional determination, on the one 

hand, and merely pretending such a judgment was made.38 Compare R.J. Reynolds 

Tobacco, Co. v. FDA, 823 F. Supp. 2d 36, 52 (D.D.C. 2011) (enjoining speech 

restriction where “Congress did not specifically contemplate the First Amendment 

implications when formulating its statute”). Moreover, the pretense ignores that, 

 37 By contrast, in Alexander v. Sandoval, 532 U.S. 275, 287-88 (2001), the Court faced a situation where Congress was enacting laws and then relying “to a large extent on the courts to decide whether there should be a private right of action” to enforce them “rather than determining this question for itself.” Cannon 

v. Univ. of Chicago, 441 U.S. 677, 718 (1979) (Rehnquist, J., concurring) (emphasis added and omitted). Here, Congress already decided the key question for itself by explicitly prohibiting corporations from making electioneering communications. 

 In a best-case scenario for Plaintiff Van Hollen, application of the Yeskey principle results in a finding that the statute is ambiguous and should be left to the agency’s discretion at Step Two. When an alleged “problem” emerges “only years later” – here, after WRTL II – this “is at least some indication that Congress . . . did not directly address the precise question at issue,” PDK Labs., Inc. v. DEA, 362 

F.3d 786, 796 (D.C. Cir. 2004) (internal quotation marks and brackets omitted), sufficient to justify resolution at Step One. See also Automated Power Exchange, Inc. v. FERC, 204 F.3d 1144, 1151 (D.C. Cir. 2000) (while the non-existence of a particular entity at the time of a law’s enactment did “not foreclose the possibility that Congress enacted language directed at the precise issue at hand, it makes that possibility unlikely”). 

38 Plaintiff Van Hollen himself appears to recognize the constitutional concerns inherent in mandating wide-ranging disclosure of an organization’s donors. The DISCLOSE Act he recently introduced contains an option for corporations to create a separate account and to limit the disclosure only to those entities that contribute to that account. See H.R. 4010, 112th Cong. § 2(b) (2012). BCRA did not contain such an option for corporations. 

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when the FEC made an actual evaluation, it found that ignoring the giver’s purpose 

created an unreasonable and unnecessary burden. 

When Congress enacted BCRA’s disclosure provision, federal law flatly 

prohibited corporations and unions from using general treasury funds to make 

electioneering communications or independent expenditures that expressly 

advocated the election or defeat of a candidate in federal elections. See Citizens 

United, 130 S. Ct. at 887; 2 U.S.C. § 441b(a), (b)(2) (criminalizing such speech).39 

Thus, Congress had no occasion to evaluate and tailor the disclosure provision with 

respect to such speech. And where the First Amendment requires an assessment 

and tailoring of burdens, that must actually occur. A fictional assessment of 

unforeseen consequences will not do. 

* * * 

BCRA intended to require speakers engaging in electioneering 

communications to make the same disclosure of financial supporters that was and 

is required of speakers engaging in express electoral advocacy. That intent is 

clearly shown in the provision’s language, structure, and history, was understood 

and adopted in the Citizens United opinions, and minimizes constitutional 

 39 As noted above, see supra n.4, there was one non-statutory exception for so- called MCFL corporations, although there is considerable doubt that Congress intended such exception to survive post-BCRA. And, in any event, “very few nonprofits ever qualify as MCFL organizations under [the FEC’s] draconian rules.” 

Brief for Family Research Council et al. as Amicus Curiae Supporting Appellee at 10, FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (Nos. 06-969 & 06-970) (collecting and citing FEC data). 

USCA Case #12-5117 Document #1379891 Filed: 06/20/2012 Page 56 of 74
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difficulties. Plaintiff’s claim to have belatedly discovered a clear contrary meaning 

is untenable and must be rejected. The district court’s Step One invalidation of the 

2007 Regulation is itself contrary to law and must be reversed. 

IV. The Regulation Was Reasonable and Should Be Sustained. 

Van Hollen’s Chevron Step Two challenge, which portrays the regulation as 

unreasonable and an abuse of discretion, rests primarily on post-promulgation 

reporting data that was not in the rulemaking record and that the FEC had been 

given no opportunity to address.40 Because Van Hollen correctly stipulated that his 

challenge was limited to the administrative record, see J.A.23, that material was 

irrelevant. The district court certainly was not impressed. Its Memorandum 

Opinion said that the FEC’s regulation “may have been reasonable,” id. at 135, and 

at oral argument the district court observed that, in light of the “level of deference” 

owed the FEC, resolving the Chevron Step One issue “may very well be the 

outcome determinative decision.” Id. at 132. 

The Memorandum Opinion identifies two grounds on which the FEC based 

its 2007 Regulation: 

 40 Post-enactment experience must be presented to the agency via a petition for rulemaking. See supra at 24-25. Plaintiff certainly is free to “apply for a rehearing before [the agency] or to institute new proceedings” to present new facts and legal theories. See Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 445 (1930). But this Court should refuse to consider new factual materials and be very skeptical of legal arguments that have not yet been presented to the FEC, particularly when such claims went unrecognized for nearly a decade. 

USCA Case #12-5117 Document #1379891 Filed: 06/20/2012 Page 57 of 74
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 First, requiring disclosure of all contributions to a corporation, regardless 

of purpose, would identify contributors that “may not support the 

corporation’s electioneering communications.” Id. at 140. By limiting 

disclosure to contributors who support the corporation’s speech, the 

regulation best informed the public of who was speaking and helped 

tailor the burdens of the statute to its justifying purpose. If the law 

required broader disclosure, the information disseminated would mislead 

and confuse citizens as to those actually sponsoring the ads by diluting 

the identities of those responsible with the names of many other persons. 

 Second, because ordinary corporations and labor unions often have many 

sources of funding that are unrelated to electioneering communications, 

compelling disclosure of all contributions without regard to the giver’s 

purpose “would impose a heavy burden on corporations and labor 

unions.” 

Moreover, in FECA, Congress already had provided that persons engaged in 

express advocacy should be required to disclose only contributions for the purpose 

of supporting such speech. See 2 U.S.C. § 434(c)(2)(C). The FEC was entitled to 

be guided by that judgment and to avoid distorting public discourse by creating a 

needless incentive to engage in express advocacy rather than issue speech. 

Furthermore, consistency between definitions in the electioneering communication 

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and independent expenditure reporting requirements aids the public by 

“establish[ing] a coherent means,” Common Cause v. FEC, 842 F.2d 436, 443 

(D.C. Cir. 1988), by which citizens may obtain the same information about 

speakers and their contributors regardless of the type of speech. 

All parties, including the FEC, briefed the Step Two issues in the district 

court. Given the partisan deadlock precluding appellate briefs from the 

Commission here, CFIF urges the Court to exercise its authority under Fed. R. 

App. P. 2 to consider these earlier filings, which are included in the Joint 

Appendix, as well as the participating parties’ briefing in this Court. At bottom, 

given the high level of deference the FEC’s decision merits, the 2007 Regulation 

cannot be condemned as unreasonable or an abuse of discretion. 

CONCLUSION

This Court should reverse the district court’s ruling, immediately reinstate 

the 2007 Regulation, and direct entry of judgment dismissing the complaint with 

prejudice. 

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June 20, 2012 Respectfully submitted, 

 /s/ Thomas W. Kirby 

Jan Witold Baran (D.C. Bar No. 233486) 

 E-mail: jbaran@wileyrein.com

Thomas W. Kirby (D.C. Bar No. 915231) 

 E-mail: tkirby@wileyrein.com

Caleb P. Burns (D.C. Bar No. 474923) 

 E-mail: cburns@wileyrein.com

Andrew G. Woodson (D.C. Bar No. 494062) 

 E-mail: awoodson@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

USCA Case #12-5117 Document #1379891 Filed: 06/20/2012 Page 60 of 74
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CERTIFICATE OF COMPLIANCE

 1. This brief complies with the limitation of the Court’s May 25, 2012, 

Order because this brief contains 9,992 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

 2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Word 

2003 in Times New Roman, 14-point type. 

 /s/ Thomas W. Kirby 

Thomas W. Kirby 

Counsel for Defendant-Appellant CFIF

Date: June 20, 2012 

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CERTIFICATE OF SERVICE

 I hereby certify that on this 20th day of June 2012, I caused a copy of the 

foregoing OPENING BRIEF OF APPELLANT CENTER FOR INDIVIDUAL 

FREEDOM to be served on the following counsel through this Court’s electronic 

filing system and/or by electronic mail: 

Roger M. Witten 

 roger.witten@wilmerhale.com 

Fiona J. Kaye 

 fiona.kaye@wilmerhale.com

Christine D. Ely 

 christine.ely@wilmerhale.com

Wilmer Cutler Pickering Hale and 

 Dorr LLP 

399 Park Avenue 

New York, NY 10022 

212-230-8800 

Edward C. DuMont 

 edward.dumont@wilmerhale.com

Wilmer Cutler Pickering Hale and 

 Dorr LLP 

1875 Pennsylvania Avenue, N.W. 

Washington, DC 20006 

202-663-6000 

Fred Wertheimer 

 fwertheimer@democracy21.org

Democracy 21 

2000 Massachusetts Avenue, N.W. 

Washington, DC 20036 

202-355-9610 

Donald J. Simon 

 DSimon@sonosky.com

Sonosky Chambers Sachse 

 Endreson & Perry, LLP 

1425 K Street, N.W., Suite 600 

Washington, DC 20005 

202-682-0240 

Scott L. Nelson 

 snelson@citizen.org

Public Citizen 

 Litigation Group 

1600 20th Street, N.W. 

Washington, DC 20009 

202-588-1000 

USCA Case #12-5117 Document #1379891 Filed: 06/20/2012 Page 62 of 74
- 46 - 

Trevor Potter 

 TPotter@campaignlegalcenter.org

J. Gerald Hebert 

 GHebert@campaignlegalcenter.org

Paul S. Ryan 

 PRyan@campaignlegalcenter.org

Tara Malloy 

 TMalloy@campaignlegalcenter.org

Campaign Legal Center 

215 E Street, N.E. 

Washington, DC 20002 

202-736-2200 

Harry Jacobs Summers 

 hsummers@fec.gov

Holly Jean Baker 

 hbaker@fec.gov

David Brett Kolker 

 dkolker@fec.gov 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

202-694-1650

Jason Brett Torchinsky 

 jtorchinsky@hvjlaw.com 

Michael Bayes 

 jmbayes@hvjlaw.com

Christopher Winkelman 

 cwinkelman@hvjlaw.com 

Holtzman Vogel Josefiak, PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

540-341-8808 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

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ADDENDUM OF STATUTES AND REGULATIONS

TABLE OF CONTENTS

Federal Statutes Page 

2 U.S.C. § 431(8)(A)(i), (9)(A)(i), (17).......................................... A-2 

2 U.S.C. § 434(c)(2)(C), (e), (f)(1), (2)(E), (2)(F), (3) ........................ A-3 

2 U.S.C. § 437c(b)(1).............................................................. A-7 

2 U.S.C. § 437d(a)(8).............................................................. A-7 

2 U.S.C. § 441b(a), (b)(2), (c)(1), (2), (6)......................................... A-8 

Federal Rules Page 

11 C.F.R. § 104.20(c)(7)(ii), (c)(9)............................................... A-10 

11 C.F.R. § 109.10(e)(1)............................................................. A-11 

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2 U.S.C. § 431. Definitions

* * * 

(8)(A) The term “contribution” includes-- 

(i) any gift, subscription, loan, advance, or deposit of money or anything of 

value made by any person for the purpose of influencing any election for 

Federal office; or 

* * * 

(9)(A) The term “expenditure” includes-- 

(i) any purchase, payment, distribution, loan, advance, deposit, or gift of 

money or anything of value, made by any person for the purpose of 

influencing any election for Federal office; and 

* * * 

(17) Independent expenditure 

The term “independent expenditure” means an expenditure by a person-- 

(A) expressly advocating the election or defeat of a clearly identified 

candidate; and 

(B) that is not made in concert or cooperation with or at the request or 

suggestion of such candidate, the candidate’s authorized political committee, 

or their agents, or a political party committee or its agents. 

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2 U.S.C. § 434. Reporting requirements

* * * 

(c) Statements by other than political committees; filing; contents; indices of 

expenditures 

* * * 

(2) Statements required to be filed by this subsection shall be filed in 

accordance with subsection (a)(2) of this section, and shall include-- 

* * * 

(C) the identification of each person who made a contribution in 

excess of $200 to the person filing such statement which was made for 

the purpose of furthering an independent expenditure. 

* * * 

(e) Political committees 

(1) National and congressional political committees 

The national committee of a political party, any national congressional 

campaign committee of a political party, and any subordinate committee of 

either, shall report all receipts and disbursements during the reporting 

period. 

(2) Other political committees to which section 441i applies 

(A) In general 

In addition to any other reporting requirements applicable under this 

Act, a political committee (not described in paragraph (1)) to which 

section 441i(b)(1) of this title applies shall report all receipts and 

disbursements made for activities described in section 431(20)(A) of 

this title, unless the aggregate amount of such receipts and 

disbursements during the calendar year is less than $5,000. 

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(B) Specific disclosure by State and local parties of certain nonFederal amounts permitted to be spent on Federal election activity 

Each report by a political committee under subparagraph (A) of 

receipts and disbursements made for activities described in section 

431(20)(A) of this title shall include a disclosure of all receipts and 

disbursements described in section 441i(b)(2)(A) and (B) of this title. 

* * * 

(f) Disclosure of electioneering communications 

(1) Statement required 

Every person who makes a disbursement for the direct costs of producing 

and airing electioneering communications in an aggregate amount in excess 

of $10,000 during any calendar year shall, within 24 hours of each 

disclosure date, file with the Commission a statement containing the 

information described in paragraph (2). 

(2) Contents of statement 

Each statement required to be filed under this subsection shall be made 

under penalty of perjury and shall contain the following information: 

* * * 

(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. 

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(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-- 

(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. 

* * * 

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(B) Exceptions 

The term “electioneering communication” does not include-- 

* * * 

(ii) a communication which constitutes an expenditure or an 

independent expenditure under this Act; 

* * * 

(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 

431(20)(A)(iii) of this title. 

(C) Targeting to relevant electorate 

For purposes of this paragraph, a communication which refers to a 

clearly identified candidate for Federal office is “targeted to the 

relevant electorate” if the communication can be received by 50,000 

or more persons-- 

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

a candidate for Representative in, or Delegate or Resident 

Commissioner to, the Congress; or 

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

candidate for Senator. 

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2 U.S.C. § 437c. Federal Election Commission

* * * 

(b) Administration, enforcement, and formulation of policy; exclusive jurisdiction 

of civil enforcement; Congressional authorities or functions with respect to 

elections for Federal office 

(1) The Commission shall administer, seek to obtain compliance with, and 

formulate policy with respect to, this Act and chapter 95 and chapter 96 of 

Title 26. The Commission shall have exclusive jurisdiction with respect to 

the civil enforcement of such provisions. 

2 U.S.C. § 437d. Powers of Commission

(a) Specific authorities 

The Commission has the power-- 

* * * 

(8) to develop such prescribed forms and to make, amend, and repeal such 

rules, pursuant to the provisions of chapter 5 of Title 5, as are necessary to 

carry out the provisions of this Act and chapter 95 and chapter 96 of Title 

26; and 

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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, 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 (A) 

communications by a corporation to its stockholders and executive or 

administrative personnel and their families or by a labor organization to its 

members and their families on any subject; (B) nonpartisan registration and 

get-out-the-vote campaigns by a corporation aimed at its stockholders and 

executive or administrative personnel and their families, or by a labor 

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A-9 

organization aimed at its members and their families; and (C) the 

establishment, administration, and solicitation of contributions to a separate 

segregated fund to be utilized for political purposes by a corporation, labor 

organization, membership organization, cooperative, or corporation without 

capital stock. 

* * * 

(c) Rules relating to electioneering communications 

(1) Applicable electioneering communication 

For purposes of this section, the term “applicable electioneering 

communication” means an electioneering communication (within the 

meaning of section 434(f)(3) of this title) which is made by any entity 

described in subsection (a) of this section or by any other person using funds 

donated by an entity described in subsection (a) of this section. 

(2) Exception 

Notwithstanding paragraph (1), the term “applicable electioneering 

communication” does not include a communication by a section 501(c)(4) 

organization or a political organization (as defined in section 527(e)(1) of 

Title 26) made under section 434(f)(2)(E) or (F) of this title if the 

communication is paid for exclusively by funds provided directly by 

individuals who are United States citizens or nationals or lawfully admitted 

for permanent residence (as defined in section 1101(a)(20) of Title 8). For 

purposes of the preceding sentence, the term “provided directly by 

individuals” does not include funds the source of which is an entity 

described in subsection (a) of this section. 

* * * 

(6) Special rules for targeted communications 

(A) Exception does not apply 

Paragraph (2) shall not apply in the case of a targeted communication 

that is made by an organization described in such paragraph. 

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(B) Targeted communication 

For purposes of subparagraph (A), the term “targeted communication” 

means an electioneering communication (as defined in section 

434(f)(3) of this title) that is distributed from a television or radio 

broadcast station or provider of cable or satellite television service 

and, in the case of a communication which refers to a candidate for an 

office other than President or Vice President, is targeted to the 

relevant electorate. 

(C) Definition 

For purposes of this paragraph, a communication is “targeted to the 

relevant electorate” if it meets the requirements described in section 

434(f)(3)(C) of this title. 

11 C.F.R. § 104.20. Reporting electioneering communications

* * * 

(c) Contents of statement. Statements of electioneering communications filed 

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

* * * 

(7) 

* * * 

(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. 

* * * 

(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 

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A-11 

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. § 109.10. 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: 

* * * 

(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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