UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) CHRIS VAN HOLLEN, Jr., ) ) Plaintiff, ) ) v. ) Civil Action No. 11-0766 (ABJ) ) FEDERAL ELECTION COMMISSION, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION Plaintiff Chris Van Hollen, Jr., brings this lawsuit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, challenging a regu lation promulgated bydefendant Federal Election Commission (“FEC”) defining the disclosur e requirements for corporations and labor unions that fund electioneering communications. Plaintiff contends that the regulation, 11 C.F.R. § 104.20(c)(9), which was promulgated in the wake of the Suprem e Court’s decision in FEC v. Wisconsin Right to Life, Inc. (“ WRTL ”), 551 U.S. 449 (2007), is contrary to the disclosure regime set forth in the Bipartisan Campaign Reform Act (“BCRA”), 2 U.S.C. § 434, specifically, subsections (f)(2)(E) and (F). Therefore, he submits that the regulation should be declared invalid on the grounds that the agency exceeded its statutory authority. 5 U.S.C. § 706(2)(C). Plaintiff also claims that the re gulation is otherwise arbitrary, capricious, and contrary to law under the APA. Id . § 706(2)(A). This case presents what appears to be th e novel question of whether an agency may promulgate regulations that narrow a statutory provision for the stated purpose of curing a perceived ambiguity or change in the statute’s reach that was created by new legal precedent.2 Both sides direct the Court to the two step analysis set forth in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc ., 467 U.S. 837 (1984), and neither part y has presented the Court with authority that directly addresses the question of what administrative law principles apply when the Supreme Court has altered the landscape. But there is some case law that states that if the language of a statute is clear, it must govern even unforeseen circumstances, and that the agency has no power to amend it on its own. And, a close reading of Chevron itself reveals that the fundamental APA inquiry is wh ether Congress – either explicitly or implicitly – delegated authority to the agency to clarify a partic ular provision through regulation, not whether a provision has become unwieldy or even unwis e for some other reason. Since the Court concludes that the language of the statutory pr ovision in question is not ambiguous, the FEC’s attempt to tailor it to new circumstances cannot stand, even if its approach may have been reasonable. When the agency determined in this instance that the statut e should be revised in light of legal developments, it undertook a legisl ative, policymaking function that was beyond the scope of its authority and thatfails at the first step of the Chevron test. Accordingly, the Court will grant plaintiff’s motion for summary judgment [Dkt. # 20] and will deny defendant’s cross motion for summary judgment [Dkt. # 25]. The Court will also deny intervenor-defendant Hispanic Leadersh ip Fund’s motion to dismiss [Dkt. # 30] and intervenor-defendant Center for Individual Freedom’s cross motion for summary judgment [Dkt. # 36]. I. BACKGROUND Plaintiff Chris Van Hollen is a member of th e U.S. House of Representatives from the 8th Congressional District of the Stat e of Maryland. Compl. ¶ 9. Plaintiff, who was first elected in 2002, has expressed an intention to seek re-e lection in November 2012 and communications3 related to that election will be subject to the regulation at issue in this case. Id . Defendant is a federal agency created pursuant to the Fede ral Election Campaign Act of 1971 (“FECA”), 2 U.S.C. § 437c, and it is charged with administering and enforcing federal campaign finance laws such as the FECA and BCRA. Def.’s Mem. in Support of Its Mot. for Summ. J. and Opp. to Pl.’s Mot. for Summ. J. (“Def.’s Mem.”) at 2. A. Relevant Statutory and Regulatory Background Congress enacted the BCRA as an amendmen t to FECA in 2002, and under the terms of the statute, persons who make disbursement s to fund “electioneering communications” are subject to certain reporting obligations. The BCRA defines an electioneering communication as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office,” is made within 30 days of a primary or 60 days of a general election, and is geographically targeted to the relevant electorate. 2 U.S.C. § 434(f)(3)(A). Under the BCRA, every “person” who makes disbursements for the direct cost of producing and airing electioneering communications in an aggregate amount that exceeds $10,000 per year must file a report with the Commission. Id . § 434(f)(1), (2). The report must contain, among other things, the “identification of the person making the disbursement, of any person sharing or exercising direction or control over the activities of such person, and of the custodian of the books and accounts of th e person making the disbursement.” Id . More significantly for purposes of this case, the BCRA also requires the “person” to disclose the following: (E) If the disbursements were paid outof a segregated bank account which consists of funds contributed . . . dire ctly to this account for electioneering communications, the names a nd addresses of all contri butors who contributed an aggregate amount of $1,000 or more to that account . . . .; or4 (F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all c ontributors who contri buted 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. Id . § 434(f)(2). There is no dispute among the parties that the de finition of the word “person” in the statute specifically includes organizations such as corp orations and labor organizations. 2 U.S.C. § 431(11). As originally enacted, though, section 2 03 of the BCRA prohibite d most corporations and labor organizations from making electione ering communications with corporate or union general treasury funds. 2 U.S.C. § 441b, invalidated by Citizens United v. FEC , 588 U.S. ---, 130 S. Ct. 876, 913–16 (2010). 1 B. FEC Promulgates Regulations Implementing the BCRA Following the enactment of the BCRA, the FEC promulgated regulations implementing the disclosure provisions. 67 Fed. Reg. 65,190 (Oct. 23, 2002); 68 Fed. Reg. 404 (Jan. 3, 2003). The regulation tracked the same two options for re porting the sources of the funds used to make electioneering communications, but the agency su bstituted the words “don or” and “donated” for “contributor” and “contributed.” It ca lled for the following disclosures:

1 An exception to the prohibition on corporation and union expenditures that precedes the enactment of the BCRA came as a result of the Supreme Court’s decision in FEC v. Massachusetts Citizens for Life, Inc. (“MCFL”) , 479 U.S. 238 (1986). There, the Court held that it was unconstitutional to bar incorporated advocacy organizations possessing certain characteristics from using general treasury funds to make independent expend itures. In order to qualify as an “ MCFL organization,” a nonprofit corporation must meet three criteria: the corporation (1) must have been “formed for the express purpose of promoting political ideas, and cannot engage in business activities[;]” (2) must ha ve “no shareholders or others affiliated” so that members have “no economic disincentive for disassociating with it if they disagree with its political activity[;]” (3) was “not established by a business corporation,” and has a policy of refusing contributions from such entities.” Id . at 264. The parties are agreed that MDFL corporations are covered by section 434(f)(1) and (2).5 (7) If the disbursements were paid exclusively from a segregated bank account . . . , the name and address of each donor who donated an amount aggregating $1,000 or more to the segregat ed bank account, aggregating since the first day of the preceding calendar year; or (8) If the disbursements were not paidexclusively from a segregated bank account described in paragraph (c)(7) of th is section, the name and address of each donor who donated an amount aggreg ating $1,000 or more to the person making the disbursement, aggregating since the first day of the preceding calendar year. 11 C.F.R. § 104.20(c) (effective until Dec. 26, 2007); 68 Fed. Reg. 404, 419 (Jan. 3, 2003). As the FEC explains, “[b]ecause BCRA prohibited corporations from making electioneering communications unless they met the strict crite ria of “MCFL corporations,” the new regulation applied to very few corporations (and no unions).” Def.’s Mem. at 6, citing MCFL , 479 U.S. at 263–64; McConnell v. FEC , 540 U.S. 93, 209–12 (2003), overruled in part by Citizens United , 130 S. Ct. 876; see note 1, supra . C. Supreme Court Precedent Regarding Electioneering Communications In 2003, the Supreme Court rejected the first f acial challenge to section 203 of the BCRA
in McConnell v. FEC , and it upheld the prohibition on the use of general treasury funds by corporations and labor organizations to pay for electioneering communications. 540 U.S. at 93.
In WRTL , though, the Court held that the prohibition embodied in section 203 was unconstitutional as applied to expenditures by corporations and unions for advertisements that did not constitute “express advocacy” or the “f unctional equivalent of express advocacy.” 551 U.S. at 470–76. The Court explained that a co mmunication is the “func tional equivalent of express advocacy” only if it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Id . at 470. Thus, following WRTL , corporations and labor organizations were permitted to make expenditures for electioneering6 communications that did not constitute expr ess advocacy or its f unctional equivalent (“ WRTL ads”). Id . at 476–82. Subsequently, in 2010, the Suprem e Court finished the job and completely invalidated the prohibition on the use of corporate and union treasury funds to finance electioneering communications in Citizens United, 130 S. Ct. 876 at 913. At the same time, though, the Court upheld section 201 of the BCRA – the disclosure provision – because “the public has an interest in knowing who is speaking about a candi date shortly before an election.” Id . at 915. D. FEC Regulations Implementing WRTL Soon after the WRTL decision, the FEC issued a Notice of Proposed Rulemaking (“NPRM”) “to implement the S upreme Court’s decision in WRTL .” 72 Fed. Reg. 50261 (Aug. 31, 2007). The FEC requested public comment “generally regarding the effect of the [ WRTL ] decision on the Commission’s rules governing co rporate and labor organization funding of electioneering communications, the definition of ‘electioneering communi cation,’ and the rules governing reporting of electioneering communications.” 72 Fed. Reg. at 50262. The NPRM set forth two alternatives for implementing WRTL . Alternative 1 proposed to allow corporations and unions to finance cert ain electioneering communications with general treasury funds but would not have exempted WRTL ads from the definition of election communications altogether. 72 Fed. Reg. 50261, 50262. Inconnection with this alternative, the FEC posed the following question: “[s]hould the Commission limit the ‘donation’ reporting requirement to funds that are donated for th e express purpose of making electioneering communications?” Id . at 50271. Alternative 2 proposed to entirely exempt the ads from the definition of electioneering communication in 11 C.F.R. § 100.29 and, as a result, eliminate both7 the disclosure requirements a nd financing restrictions for WRTL ads. Id . The FEC held hearings on the proposed rule in October 2010. E. The FEC Promulgates a New Regulation On December 26, 2007, the FEC promulgated the new regulation, 11 C.F.R. § 104.20, which is at issue in this suit. Th e regulation provides for disclosure: If the disbursements were made by a corporation or labor organization pursuant to 11 C.F.R. § 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corpora tion or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering election eering communications. 11 C.F.R. § 104.20(c)(9) (emphasis added). In c onnection with its decision, the FEC published an “Explanation and Justification for Final Ru les on Electioneering Communications” (“E&J”), 72 Fed. Reg. 72899 (Dec. 26, 2007). The E&J explained that one rationale behind the rule was that corporations and labor or ganizations may have funding sources other than donations, and that those persons may not support the co rporation’s electione ering communications: A corporation’s general treasury funds ar e often largely compromised of funds received from investors such as sharehol ders who have acquired stock in the corporation and customers who have purc hased the corporation’s products or services, or in the case of a non-prof it corporation, donations from persons who support the corporation’s mission. These investors, customers, and donors do not necessarily support the corporation’s el ectioneering communications. Likewise, the general treasury funds of labor organizations and incorporated membership organizations are composed of member dues obtained from individuals and other members who may not necessarily support the organization’s electioneering communications. Id . at 72911. The FEC’s second rationale for the rule was that compliance with the disclosure requirements would impose a heavy burden on corporations and labor organizations: Witnesses at the Commission’s hearing testified that the effort necessary to identify those persons who provided funds totaling $1,000 or more to a corporation or labor organization would be very costly and require an inordinate amount of effort. Indeed, one witness not ed that labor organizations would have to disclose more persons to th e Commission under the [electioneering8 communications] rules than they would di sclose to the Department of Labor under the Labor Management Report and Disclosure Act. Id . Based on these considerations, the FEC determined that: [T]he policy underlying the disclosure pr ovisions of BCRA is properly met by requiring corporations and labor organizati ons to disclose and report only those persons who made donations for the purpose of funding [electioneering communications]. Thus, new section 104.20( c)(9) does not require corporations and labor organizations making electi oneering communications permissible under 11 CFR 114.15 to report the identities of ever yone who provides them with funds for any reason. Instead, new section 104.20( c)(9) requires a labor organization or a corporation to disclose the identities only of those persons who made a donation aggregating $1,000 or more specifically for the purpose of furthering [electioneering communications] pursuant to 11 CFR 114.15, during the reporting period . . . . In the Commission’s judgment, requiring disclosure of funds received only from those persons who donated specifi cally for the purpose of furthering [electioneering communications] appr opriately provides the public with information about those persons who act ually support the message conveyed by the [electioneering communications] without imposing on corporations and labor organizations the significant burden of disclosing the identities of the vast number of customers, investors, or members who have provided funds for purposes entirely unrelated to the making of ECs. Id

. The complaint alleges that as result of the promulgation of 11 C.F.R. § 104.20(c)(9), “corporations have exploited the enormous l oophole it created.” Compl. ¶ 29. According to the plaintiff Van Hollen: “[i]n 2010, persons making electioneering communications disclosed the sources of less than 10 percent of their $79.9 milli on in electioneering communication spending. The ten persons that reported spending the mo st on electioneering communications (all of them corporations) disclosed the sources of a mere five percent of the money spent. Of these ten corporations, only three disclosed any information about their funders.” Id . ¶ 30, citing 2010 Outside Spending by Groups, Center for Responsive Politics, available at9 http://www.opensecrets.org/outsidespending/s umm.php?cycle=2010&disp=O&type=Echrt=D (last checked March 30, 2012) (int ernal quotation marks omitted). F. The Lawsuit Before this Court Plaintiff filed this lawsuit on April 21, 2011. [D kt. # 1]. The complaint alleges that the regulation promulgated by the FEC, 11 C.F.R. § 104.20(c)(9), violates the APA, 5 U.S.C. § 706(2)(A) and(C), because the agency exceeded its statutory authority and because it is arbitrary, capricious, an abuse of discretion, and c ontrary to the disclosure scheme set forth in the BCRA. Compl. ¶¶ 33–36. Plaintiff asks the C ourt to declare the regulation invalid and remand it to the FEC for further action consistent with that determination. Id . ¶ 37. Plaintiff and defendant filed cross-motions for summary judgment [Dkt. # 20 and # 25.] The Hispanic Leadership Fund (“HLF”) and the Center for Individual Freedom (“CFIF”) moved to intervene [Dkt. # 14 and # 15] under Fed. R. Civ. P. 24(a)(2) and (b). Plaintiff opposed the motions to intervene [Dkt. # 21], whereas defendant took no position [Dkt. # 18]. On August 1, 2011, the Court granted the motions to intervene under Fed. R. Civ. P. 24(1) as of right. Defendant-Intervenor HLF filed a motion to dismiss for lack of jurisdiction under Fed. R.Civ. P. 12(b)(1), arguing that plaintiff lacks standing to bring this suit. [Dkt. # 30]. DefendantIntervenor CFIC filed a pleading that servedas both its opposition to plaintiff’s motion for summary judgment and its cross-motion for summary judgment. [Dkt. # 36]. II. STANDARD OF REVIEW Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment be ars the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings,10 depositions, answers to interrogatories, and admissi ons on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (internal quot ation marks omitted). To defeat summary judgment, the non-moving party must “d esignate specific facts showing there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). “The rule governing cross-motions for summary judgment . . . is that neither party waives the right to a full trial on the merits by filing its own motion; each side co ncedes that no material facts are at issue only for the purposes of its own motion.” Sherwood v. Washington Post , 871 F.2d 1144, 1148 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer , 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). In assessing each party’s motion, “[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia , 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson , 477 U.S. at 247. III. ANALYSIS This case presents no genuine issues of mate rial fact, and so it may be properly decided on summary judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. , 477 U.S. at 323. The question presented is whether the disclo sure requirement for corporations and labor unions embodied in 11 C.F.R. § 104.20(c)(9) is contrary to a clear statement of Congressional intent found in the BCRA, 2 U.S.C. § 434(f)(2)(E) and (F), or whether Congress did not speak to this precise issue and instead delegated authority to the FEC to promulgate regulations to fill in a11 gap or ambiguity in the statute. If the agency ha d the authority to act, the Court would also be required to consider whether the ag ency’s interpretation was reasonable. A. Plaintiff Has Standing to Challenge the Regulation As a threshold matter, the Court addresse s defendant- intervenor Hispanic Leadership Fund’s (“HLF”) argument that plaintiff lacks st anding to challenge 11 C.F.R. § 104.20(c)(9). HLF contends that plaintiff has ne ither informational standing under FEC v. Akins , 524 U.S. 11 (1998) and Shays v. FEC (“Shays III”) , 528 F.3d 914, 923 (D.C. Cir. 2008), nor competitor standing under Shays v. FEC , 414 F.3d 76 (D.C. Cir. 2005) (“ Shays I ”). HLF’s Mem. in Support of Mot. to Dismiss (“HLF’s Mem.”) [Dkt . # 31] at 2–8. The Court notes that defendant FEC does not attack the complaint on these grounds ; indeed, it agreed at oral argument that plaintiff had standing under Akins and Shays III . Motions Hearing Transcript (“Tr.”) at 57 (Jan. 11, 2011). Turning first to the argument regarding informational standing, in Shays III, the D.C. Circuit found that a member of Congress “plainly ha[d] standing” to challenge the FEC’s definition of “coordinated communications” because he had been denied information about who was funding presidential candidates’ campaigns. 528 F.3d at 923, citing Akins , 524 U.S. at 16. The court stated that “the information would help [Shays] (and others to whom [he] would communicate it) to evaluate candidates for public office . . . , and to evaluate the role that [outside groups’] financial assistance might play in a specific election.” Id . (alterations in original). In reaching that decision, the court relied on the Supreme Court’s holding in Akins , where a group of voters challenged the FEC’s dete rmination that the Amer ican Israel Public Affairs Committee (“AIPAC”) did not qualify as a “political committee,” which meant that it did not have to disclose its member s, contributors and expenditures. 524 U.S. at 16. The Supreme12 Court held that the voters had standing because they had suffered an injury in fact, namely an inability to obtain information on AIPAC’s donors, contributions, and expenditures, that they believed the statute require d AIPAC to make public. Id . at 21. Here, plaintiff has represented: FECA and BCRA require disclosure of donors who provide funding to persons making “electioneering communications.” If the FEC regulations do not faithfully implement these disclosure provisions, I will be deprived of information to which I am entitled under FECA and BCRA. Van Hollen Decl. ¶ 5. The Court concludes that ba sed on this statement, plaintiff has made the necessary showing to support informational standing under Shays III and Akins , as the FEC agrees. Because the Court finds that plaintiff has informational standing, it does not reach HLF’s second argument that plainti ff also lacks competitor standing to challenge the regulation. B. Plaintiff’s Challenge to the Rule Under the Administrative Procedure Act 1. The Chevron procedure. The Court has jurisdiction to review the FE C’s action under the Administrative Procedure Act. Where, as here, the plaintiff challenges an agency action that interprets a statute the agency administers, the Court is required to analyze an agency’s interpretation of the statute by following the two-step procedure set forth in Chevron , 467 U.S. 837. First, the Court must determine “whether Congress has directly spoken to the precise question at issue.” Id . at 842. “If the intent of Congress is cl ear, that is the end of the matter, for the court, as well as the agency, must give ef fect to the unambiguously expressed intent of Congress.” Id. at 842–43. In determining whether Congress has spoken directly to the question at issue, the Court must consider whether “the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill[.]” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs ., 545 U.S. 967, 982–83 (2005). Courts “use ‘traditional tools of13 statutory construction’ to dete rmine whether Congress has unamb iguously expressed its intent,” Serono Labs., Inc., v. Shalala , 158 F.3d 1313, 1319 (D.C. Cir. 1998), including examination of the statute’s text, structure, pur pose, and legislative history. Bell Atlantic Tel. Co. v. FCC , 131 F.3d 1044, 1047 (D.C. Cir. 1997). If the Court concludes that the statute is e ither silent or ambiguous with respect to the issue in question, the second step of the Court’ s review process is to determine whether the interpretation proffered by the agency is “based on a permissible construc tion of the statute.” Chevron , 467 U.S. at 843. Once a reviewing court reaches the second step, it must accord “considerable weight” to an executive agency’s construction of a statutory scheme it has been “entrusted to administer.” Id . at 844. Indeed, “under Chevron , courts are bound to uphold an agency interpretation as long as it is reasonabl e – regardless of whether there may be other reasonable or, even more reasonable, views.” Serono , 158 F.3d at 1321. The Supreme Court explained: If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Chevron, 467 U.S. at 843–44. In either event, then, the fundamental inquiry at the first level of the Chevron analysis is to ascertain whether Congress has authorized the agency to make rules to fill in a gap. 2. Chevron step one. According to defendant, the rule it promulgated is appropriate, in part, because the Supreme Court took action that rendered the statute ambiguous. Def.’s Mem. at 21–23; Tr. at14 31–33. The FEC initiated the rulemaking in 200 7 in direct response to the decision in FEC v. Wisconsin Right to Life, which struck down the BCRA prohibition on the use of corporate and labor organization funds for at least certain types of electioneering communications. 72 Fed. Reg. 50261-01. 2 There is no question that the agency was animated by concerns that the disclosure provision might be too burdensome ortoo broad as a matter of policy when applied to all corporations and labor unions, as opposed to just the MCFL corporations it covered before. In other words, the agency did not purpo rt to be responding to a direct delegation of rulemaking authority or addressing an ambi guity inherent in the statutory scheme: it specifically undertook to modify existing law to fit the changed circumstances. In its Notice of Proposed Rulemaking, the FE C noted that corporations or unions could select the option available under 2 U.S.C. §434(f)(2 )(E) “that persons making electioneering communications may create a segregated bank account for funding electioneering communications in order to limit reporting t o the donors for that account.” 72 Fed. Reg. 50261, 50271. But then it asked: If the corporation or labor organiza tion does not pay for the electioneering communication from [a segregated bank ac count], would the corporation or labor organization be required to report “the name and address of each donor who donated an amount aggregating $1000 or mo re” to the corporation or labor organization during the re levant reporting period as required by 2 U.S.C. §434(f)(2)(F) and 11 CFR 104.20(c)(8)? If so, how would a corporation or labor organization determine whic h receipts qualify as “donations?” Should the Commission limit the “donation” reporting re quirement to funds that are donated for the express purpose of making electioneering contributions? Id.

2 Defendant points to comments submitted in 2007 during the FEC’s rulemaking process regarding the WRTL decision, which observe that “ WRTL was a fundamental change that Congress could not have foresee n.” Def.’s Mem. at 19 & n.7 (p roviding examples of comments made at the FEC’s hearing on the revised rule).15 When the agency characterized its own exercise as a making a decision on whether a corporation or labor organization should be bound to report “as required by” the statute, or whether the Commission should “limit” that requi rement instead, it succinctly answered the first question presented by Chevron : Congress has already spoken. 3
a. The Text of the Statute It is undeniable that in determining whether Congress has directly spoken to the issue, the Court must first consider the plain meaning of the statutory text itself. S. Cal. Edison Co. v.
FERC , 195 F.3d 17, 23 (D.C. Cir. 1999). Chevron step one requires the Court to apply traditional canons of statutory inte rpretation to the law in question t o determine if its meaning is clear. ArQule, Inc. v. Kappos , 793 F. Supp. 2d 214, 220 (D.D.C. 2011), citing Eagle Broadcasting Group, Ltd. v. FCC , 563 F.3d 543, 552 (D.C. Cir. 2009). As the Supreme Court has explained: [C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon beforeall others. We ha ve stated time and time again that courts must presume that a legislature says in a statute what it

3 Indeed, the FEC’s own summary of the E&J seems to largely concede the point. According to the FEC’s brief:

x The Commission “rejected the contention that the BCRA did not contemplate reporting by corporations and unions;”

x The Commission noted that the statute requi res “persons” as defined by section 431, i.e. , including corporations and labor unions), to file reports;

x The Commission rejected the argument that it was necessary to eliminate the reporting requirement to protect privacy concerns; and

x The Commission decided that corporations and labor unions were bound by the reporting requirements.

x But, the Commission promulgated what it described as a “new” regulation “to ensure that disclosure would be narrowly tailored.” Def.’s Mem. at 9-11, citing 72 Fed. Reg. 72,899-901.16 means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also th e last: judicial inquiry is complete. Conn. Nat’l Bank v. Germain , 503 U.S. 249, 253–54 (1992) (int ernal quotation marks and citation omitted). Here, there is no question that the BCRA provides that every “person” who funds “electioneering communications” must disclose “all contributors,” 2 U.S.C. § 434(f)(1), (f)(2)(F), and that Congress explicitly defined “person” to include corporations and labor organizations. Id . § 431(11). The provision plainly requi res “every person” to identify “all” contributors who contributed over $1,000 during th e reporting period, and there are no terms limiting that requirement to call only for the na mes of those who transmitted funds accompanied by an express statement that the contribu tion was intended for the purpose of funding electioneering contributions. So, there is no indication that Congress charged the FEC with clarifying anything, either explicitly or implicitly, and the text favors the plaintiff at Chevron step one. b. The fact that Congress did not cont emplate the current reach of the BCRA does not render the statute ambiguous for Chevron purposes. The FEC reminds the Court, though, that “words of a statute must be r ead in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treasury , 489 U.S. 803, 809 (1989). See also Bell Atlantic Tel. Co. , 131 F.3d at 1047 (determination of whether a stat utory provision is ambiguous i nvolves a consideration of the entire statute, including its text, structure, purpose and legislative history). It takes the position that Congress could not possibly have addressed th e precise question at issue here because under the BCRA as enacted, corporations and labororganizations were prohibited from funding electioneering communications altogether. 2 U.S. C. § 441b(b)(2). So, defendant reasons, the17 conflict between that provision and the provision detailing what persons who could make such disbursements were required to disclose renders the disclosure provision ambiguous as to the originally barred entities. Def.’s Mem. at 18–27. Put another way, the FEC argues that Congress could not have specifically intended the br oad disclosure rules to apply to corporations and labor unions as written if it carved them out of the BCRA entirely at the same time. While this is the agency’s most compelling argument, in the end the Court concludes that it is not a proper consideration at the Chevron step one stage when the statutory language is clear and unambiguous. The Supreme C ourt was quite unequivocal in Chevron when it declared: “[i]f the intent of Congress is clear, that is th e end of the matter.” 467 U.S. at 842–43. And, the Supreme Court has gone on to explain that unambiguous statutory text is not rendered ambiguous simply because the statute has b een called upon to govern unforeseen circumstances: “The fact that a statute can be applied in situ ations not expressly antic ipated by Congress does not demonstrate ambiguity; it demonstrates breadth.” Penn. Dep’t of Corrections v. Yeskey , 524 U.S. 206, 212 (1998) (internal quotation marks omitted). In Yeskey , the Supreme Court held that the Americans with Disabilities Act applied to state prisoners, notwithstanding defendant’s argument that Congress did not envision that prisons would qualify as public entities under the Act, because “in the context of unambiguous statutor y text[,] that is irrelevant.” 524 U.S. 206 at
212. 4

4 See also Massachusetts v. EPA , 549 U.S. 497 (2007). In that case, the EPA denied a petition for rulemaking asking it to regulate ce rtain greenhouse gas emissions on the grounds that the statute did not expressly authorize it do so. Id . at 511. The Court rejected the EPA’s argument that it lacked authority to regulate carbon dioxide emissions from motor vehicles under the Clean Air Act, 42 U.S.C. § 7521(a)(1), simp ly because Congress did not expressly grant it the authority to do so. Id . at 532. The Court found that Cong ress intentionally defined “air pollutant” broadly in the statute so that that the agency could respond to “changing circumstances and scientific de velopments” that would otherwise “render the Clean Air Act obsolete.” Id . It cited its decision in Yeskey for the proposition that “broad language . . . reflects18 Defendant argues that Yeskey is not applicable here becaus e it did not address a situation in which a court decision significantly altered the scope of a statute by “legalizing what Congress had specifically made unlawful.” Def.’s Repl y at 8. But those different circumstances do not negate the applicability of the key principle involve d: that this Court is bound to give effect to the broad language that Congress decided to em ploy. And the FEC cites no authority for the proposition that a legal decision striking down one provision of a statute provides a gateway for an agency to move in and tinker with another that the courts have le ft untouched. Indeed, the notion that Chevron would not approve rulemaking under those circumstances is particularly compelling here since Congress was careful to make the statute explicitly severable, expressing an intention that the disclosure provisions would stand as written – applying to all “persons,” defined to include corporations and labor unions – even if the ban on corporate disbursements was struck down. See Pub. L. 107-155 § 401 (“If any provision of this Act or amendment made by this Act, or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and amendments made by this Act, and the application of the provisions and amendment to an y person or circumstance, shall not be affected by this holding.”) And, as the FEC acknowledges, the disclosure rules did apply as written to at least some corporations. See MCFL , 479 U.S. at 238. So, the problem the FEC decided it needed to a ddress – the fact that some, or even many, contributors to organizations might be pr oviding those funds for purposes other than electioneering communications and might even disagree with those communications – was already inherent in the statutory regime. MCFL corporations could have a number of purposes,

an intentional effort to confer the flexibility necessary to forestall [a statute’s] obsolescence.” While the case may not be on all fours with the instant situation as defendant suggests, it reinforces the teaching in Yeskey.19 including education and advocacy, yet the rule requiring the identification of “all” contributors applied to them. And Congress also plainly intende d that the rule would apply to partnerships and other unincorporated business organizations, even if they, like some corporations, derived income or operating revenue from selling goods or services or collecting dues, or they received contributions from donors intending to support activ ities other than electioneering, or who were indifferent, or even opposed, to the ads the orga nization chose to fund. Indeed, as the Supreme Court observed when it rejected a First Amendm ent challenge to the disclosure provisions, all speakers, even individuals, might fund their political speech with money amassed from the economic marketplace, even from people who disagree with them. Citizens United , 130 S. Ct. at 905. Yet Congress made a clear policy choice not to limit the disclosure re quirement applicable to any “person” to whom a contribution is made based on the contributors’ individual motivation. Perhaps the legislature recognized that the motivation for a contribution is not always easily discerned or expressly stated, or that such a rule could result in the wholesale evasion of disclosure requirements if contribut ors were encouraged to simply transfer money but keep their thoughts to themselves. In any event, under Chevron, it was not up to the FEC to revisit that legislative determination. The law in this Circuit points to the same conclusion. In Mova Pharmaceutical Corp. v. Shalala , the Court of Appeals addressed a situation where the plain language of the statute technically applied to the situation, but th e agency promulgated a regulation that was inconsistent with the text because it was concer ned that application of the literal text would produce an absurd result. 140 F.3d 1060 (D.C. Cir. 1998). The court recognized that although statutes should be construed to avoid absurd resu lts, agencies do not “obtain a license to rewrite the statute” when the agency feels that application of “seemingly clear statutory language”20 would lead to an anomalous outcome. Id . at 1068. The court reasoned that “[w]hen the agency concludes that a literal reading of a statute would thwart the purposes of Congress, it may deviate no further from the stat ute than is needed to prot ect congressional intent.” Id . The ruling is instructive in this case even though the FEC was not specifically worried about an absurd result; indeed, the principle might apply more strongly to this situation where the agency was attempting to “limit” a broad rule’s application. 5 c. A consideration of the statute’s purpos e and legislative history supports the conclusion that it is not ambiguous. Circuit precedent indicates that developing an understanding of the purpose of the statutory provision under review is another aspect of the statutory construction to be undertaken at the Chevron step one stage. City of Cleveland v. U.S. Nuclear Regulatory Comm’n , 68 F.3d 1361, 1366 n.4 (D.C. Cir. 1995) (“[W]e may consider a provision’s legislative history in the first step of Chevron analysis to determine whether Congress’ intent is clear from the plain language of the statute.”) And here, it cannot be gainsaid that the purpose of the regulation was to increase disclosure. In enacting the disclosure requirements, it is clear that Congress intended to “shine[] sunlight on the undisclosed expenditures for sh am issue advertisements.” 147 Cong. Rec.
5 Although this is more properly a Chevron step two concern, the Court notes that the separate bank account option Congre ss provided in the BCRA might be a viable way to solve the agency’s concerns about the burden the disclo sure rule would impose on the newly regulated entities. Defendant points out thatthe separate bank account can only be utilized to receive contributions made to regulated “persons” by individuals, so it does not necessarily capture all contributions to those “persons” subj ect to the disclosure regime after WRTL . Tr. at 48–49. But it was the potential burden imposed by the need to identify individual contributors under 2 U.S.C. §434(f)(2)(F), i.e. , individual customers, investors, and dues paying members – that was cited at the rulemaking stage as the reason for the “limiting” the requirement. There is little indication that anyone complained that it w ould be too burdensome to name all of their institutional contributors. So, it appears to the Court that th e separate bank account option already included in the statute would largely so lve the problem the FEC set out to address.21 S3022-05, S3034 (Mar. 28, 2001) (statement by Sen. Je ffords). Reflecting on the need for more comprehensive disclosure require ments, Senator Dianne Feinstein commented: “The attacks come and no one knows who is actually paying for them . I believe this is une thical. I believe it is unjust. I believe it is unreasonable and it must end.” 147 Cong. Rec. S3233-06, S3238 (April 2, 2001). Similarly, in upholding the BCRA’s disclosure provisions in Citizens United , the Supreme Court observed that “the public has aninterest in knowing who is speaking about a candidate shortly before an election.” 130 S. Ct. at 915. The Court also noted that in its previous decision in Buckley v. Valeo , 424 U.S. 1 (1976), it had found that the statute’s disclosure requirements were motivated by the fact that there was evidence in the record that independent groups were running advertisements “‘while hiding behind dubious and misleading names’” and that disclosures “would help citizens ‘make informed choices in the political marketplace.’” Id . at 914, citing and quoting Buckley , 540 U.S. at 197 (internal citation omitted). In light of this clearly articulated legislative purpose, there is no question that the regulation promulgated by the FEC directly contravenes the Congressional goal of increasing transparency and disclosure in electioneering communications. Defendant argues that Congress’ general preference for disclosure in the BCRA does not mean that the Congress specifically intended to mandate the electioneering communication disclosures that plaintiff believes are necessary since corporations and unions were originally prohibited from making any electioneering disbursements. Def.’s Mem. at 26. But the general legislative purpose here is clearly expressed and it favors plaintiff’s interpretation of the statute: that Congress intended to shine light on whoever was behind the communications bombarding voters immediately prior to elections.22 d. The general rulemaking provision did not authorize defendant to promulgate rules to respond to changes occasioned by Supreme Court precedent. It is true that Congress authorized defendant “to make, amend, and repeal such rules . . . as are necessary to carry out the provisions of th is Act.” 2 U.S.C. § 437d(a)(8). But devising procedures to “carry out” or “ implement” statutory provisions is not the same thing “limiting” them as the agency did here. So, there is nothi ng in this statutory text expressly delegating authority to the agency to narrow the disclosure rules, and defe ndant has failed to point to anything in the statute that would support a finding that Congress implicitly delegated the authority to alter them either. e. There was no other ambiguity in the plain language of the disclosure provision. The rulemaking was specifically undertaken to address the changes wrought by WRTL to the types of “persons” to whom the disclosure rules apply and, for the reasons set forth above, the Court concludes that this change in circumstances does not constitute an ambiguity or gap under Chevron step one. But in its briefing here, FEC now contends that the text was actually ambiguous all along, and that this inherent ambiguity – which did not prompt the rulemaking exercise – is sufficient to require the Court to move on to the Chevron two stage of reviewing the regulation for reasonableness. 6

6 The Court notes that this argument is not one of the stated justifications that defendant gave for the promulgation of 11 C.F.R. § 104.20(c)(9 ), but it is one of the reasons it advances now for why the Court should resolve the question in this case under Chevron step two instead of step one. Plaintiff argues that the FEC cannot now invoke the argument that the BCRA’s term “contributor” is ambiguous because the FEC did not rely on that proposition when it promulgated the regulation. Pl.’s Opp. at 1–2, citing Williams Gas Processing – Gulf Coast Co., L.P. v. FERC , 373 F.3d 1335, 1345 (D.C. Cir. 2004) (“It is axiomatic that [a court] may uphold agency orders based only on reasoning that is fairly stated by the agency in the order under review . . . post hoc rationalizations by agency counsel will not suffice. ” (internal citation and quotation marks omitted). Because the Court find s that the statutory language is unambiguous under Chevron step one, it does not reach this question.23 The BCRA requires that every “person” who disburses funds for the direct costs of electioneering communications must disclose th e names of “all contributors who contributed an aggregate amount of $1,000 or more” to the segregated bank account from which the disbursements were made, or, if no such account was used, to the “person” itself. 2 U.S.C. § 434(f)(2)(E) (“if the disbursements were paid ou t of a segregated bank account . . . the names and addresses of all contributors who contributed . . . ”) and id . at § 434(f)(2)(F) (“if the disbursements were paid out of funds not [from a segregated bank account], the names and addresses of all contributors . . .”) (emphasis added). According to the Oxford English Dictionary, the plain meaning of the word “all” is “the entire number of; the individual components of, without exception.” Oxford English Dictionary, 2d edition (1989) (online version 2012). Defendant does not contest that the meaning of the word “all” is unambiguous. Rather, defendant focuses on the words “c ontributor” and “contributed,” arguing that these terms are “susceptible of multiple meanings in different contexts.” Def.’s Opp. [Dkt. #24] at 19. Defendant points out that while neither of the words is defined in the BCRA, these terms share a common root with the word “contribution” which is defined under FECA as a transfer of something of value made “for the purpose of in fluencing any election for Federal office.” Id . at 20, citing 2 U.S.C. § 431(8)(A). Because of the definition provided in FECA and the fact that the BCRA uses similar terms but leaves them undefined, defendant contends that the terms “contributor” and “contributed” have been ambiguous since the BCRA was enacted – well before the Supreme Court’s WRTL decision – and that the FEC attempted to resolve this ambiguity in its rulemaking procedures that took place in 2003. In the 2003 rulemaking that led to the Commission’s original electioneering communications disclosure regulation, the24 Commission noted that, although Congress define d the term “contribution” long ago in FECA, neither “contributor” nor “contributed” was defined in the BCRA and as a result: [I]t did not seem appropriate to interpret “contributor” in this context precisely as one who has made a “contribution” as defi ned by FECA because the definition of “electioneering communication” could include speech not made for the purpose of influencing an election: The mere reference to a clearly identified candidate in a targeted broadcast communication suffices to bring an ad within the statutory definition. Def.’s Mem. at 20. In other words, the FEC is not claiming that the FECA definition is applicable here; it submits that the absence of a definition in the BCRA created a gap to be filled. 7 But even if there was such an ambiguity inhere nt in the statute, the FEC took action in 2003 to address it. According to defendant’s pape rs, to clarify the issue, the FEC chose not to repeat the terms “contributor” a nd “contributed” when promulgating the original regulation in
2003. Id . Instead, it required disclosure of the “name and address of each donor who donated an amount aggregating $1,000 or more to the person making the disbursement[.]” 11 C.F.R. § 104.20 (c)(8) (emphasis added). Id .; see also Tr. 38–39 (“Even in the 2003 rulemaking for the rule that existed when Wisconsin was decided, the Commission had identified that it was not clear in that context that – what ‘contributor s who contributed’ meant, and that’s why we adopted – that’s why the Commission adopted the language ‘donati on’ and ‘donated.’) So why was more needed after WRTL ? Defendant contends that the ambiguity in the statute became even more pronounced after the Supreme Court’s decision in WRTL because no one had ever pondered the question of what co nstituted “all contributor s who contributed” to a
7 Contrary to defendant FEC’s position, defendant-intervenor CFIF argues that this case can be decided under Chevron step one because it contends that the definition of “contribute” from FECA should be imported to the BCRA. CFIF Mem. at 6–8. But both plaintiff and defendant agree that would be underinclusive and unworkable.25 corporation or a union due to the BCRA’s prohibition on electioneering disbursements by those entities. Def.’s Mem. at 20–21. Becau se, according to defendant, the WRTL decision changed the rules of the game so significantly in 2007, the agency “for the first time had to address the vast majority of corporate orga nizations and unions[,] which, unlike MCFL corporations, may have customers, investors, or comparable s ources of revenue that might have little or no connection to political activity.” Id . at 21. 8 Plaintiff responds that there is no questi on that Congress enacted the BCRA with the understanding that it might become applicable to a wide range of corporations. Pl.’s Opp. [Dkt. #35] at 5–6. 9 He maintains that the FEC’s own acknow ledgement that Congress understood and intended that some corporations could make electioneering communi cations, Def.’s Mem. at 6, citing McConnell , 540 U.S. at 209–212, undermines its cont ention that Congress could not have envisioned that the disclosure re quirements would someday apply to other types of corporations.

8 The Court is not particularly persuaded bythis argument. If “all contributors who contributed” was ambiguous from the start, the FE C had a rulemaking to address it. And its substitution of the words “donor” and “donation,” with their clear connotation of providing something for nothing, see http://www.merriam-webster.com/dictionary/donation (defining “donation” as “the making of a gift, especiallyto a charity or public institution” or “a free contribution”), seems to ameliorate the concerns supposedly raised by the expansion of the statute’s reach to include corporations and unions. Is it really difficult to determine if dues paid in return for the benefits of membership are “don ations,” or if investors who pay for shares of stock and customers who pay for goods and servic es are a corporation’s “donors?” The problem here is that the challenged regulation was prompted, at least in part, by the agency’s stated concern that it would be too burdensome for corpor ations or unions to identify all “persons who provided funds.” 72 Fed. Reg. 72911. But the ex isting regulation was not so broad – it called for the identification of “donors,” not all who prov ided funds for any purpose. Thus, the agency had already narrowed the universe in a way that di d not add an intent requi rement or contravene the intent of the statute, and nothing about WRTL made the existing regulation ineffective. 9 Intervenor HLF disputes statements made byboth plaintiff and defendant that the BCRA recognized that at least some corporations, namely MCFL -corporations, would be permitted to engage in certain corporate-funded electioneering communications under the original enactment of the BCRA. HLF Mem. at 8–10. Because the Court’s decision under Chevron step one rests on the unambiguous language of the BCRA, it declines to resolve this issue.26 Pl.’s Opp. at 5. As plaintiff points out, “[t]hose MCFL corporations, like other non-profit entities, could have ‘members’ who might pay dues without announc ing or otherwise manifesting an explicit ‘purpose’ to further ‘electioneering communications.’” Id

. 10 Bearing all of these considerations in mind, the Court must look first to the actual language of the statute. CSX Transp., Inc. v. Alabama Dep’t of Revenue , --- U.S. ---, 131 S. Ct. 1101, 1007 (2011). There is no question that that B CRA clearly states that “the names and addresses of all contributors who contributed” must be disclosed. 2 U.S.C. § 434(f)(2)(E), (F) (emphasis added). The Oxford En glish Dictionary defines “contri butor” as “one that contributes or gives to a common fund; one that bears a pa rt in effecting a result.” Oxford English Dictionary, 2d edition (1989) (online version 2012). The verb “contribute” is defined, in relevant part, as “to give or pay jointly withothers; to furnish a common fund or charge.” Id

. Similarly, the Merriam-Webster dictionary defines “contributor,” in relevant part, as “to give or supply in common with others [;] . . . to give a part to a common fund or store[.]” MerriamWebster Dictionary online at 1, 3, available at: http://www.merriamwebster.com/dictionary/contributor. Each of these definitions suggests that as the term is commonly used, an individual’s status as a “contributor” is not dependent on his or her purpose in transferring the funds. In other words, the plain meaning of “contribute” does no t include a purpose or intent element, and the
10 Plaintiff also points to the Snowe-Jeffo rds Amendment, 2 U.S.C. § 441b(c)(2), as evidence that Congress did c ontemplate that certain non- MCFL corporations would be able to make electioneering communications under the BCRA. Pl.’s Opp. at 6. Defendant contends that the plaintiff is relying on a portion of the S nowe-Jeffords amendment that is inoperative and “sheds no light on what electioneering communication disclosure Congress would have required had it known how the Supreme Court w ould alter the scope of BCRA in WRTL .” Def.’s Mem. at 23–26. But at oral argument, the parties indicated that the Snowe-Jeffords amendment is largely irrelevant to the question the Court must resolve in this case. Tr. at 18 (“[Plaintiff’s Counsel]: I think the ink spilled over Snowe-Jeffords and Wellstone is in inverse proportion to its importance to the resolution of this case.”)27 FEC’s attempt to add one is an alteration, and not a clarification. 11 As plaintiff contends, contributor “means a person who gives money without expectation of service or property or legal right in return . . . . [And] a person who give s money to a non-profit corporation but has no opinion about how the non-profit uses the money is still a ‘contributor.’ Likewise, a person who gives money to a non-profit but does not know whether the non-profit makes ‘electioneering communications’ is still a contributor.” Pl.’s Mem. in Support of Its Mot. for Summ. J. (“Pl.’s Mem.”) [Dkt. #20] at 20. 12 So, when the FEC asked in its ru lemaking if it should “limit” the

11 CFIF contends that these definitions actually support the addition of a purpose requirement because of language such as “co mmon fund” and “in common with others,” CFIF Mem. at 8, but the Court reads these definitions to mean simply that the money was deposited in a common pot. The recipient of the donation is what the contributors all have in common, not the reason behind the donation. And defendant-intervenor HLF complains that this lawsuit is an attempt to accomplish judicially what plaintiff was unable to do legislativ ely. It notes that plaintiff sponsored a bill in the U.S. House of Representatives known as the “Democracy is Strengthened by Casting Light on Spending in Elections Act” (the “D ISCLOSE Act”). H.R. 5175, 111th Congress § 211(b)(1)(B), which was defeated in the Senate. HLF Mem. at 15 (summarizing relevant legislative history). HLF argues that “it is no coincidence that the interpretation of 2 U.S.C. § 434(f)(2)(F) that Plaintiff urges the Court to adopt exactly mirrors [plaintiff’s legislative proposal.]” Id . But the Court cannot glean much meaning from legislative inaction as it may reflect the Senate’s disagreement with the plaint iff’s proposal or a view that it simply wasn’t necessary. See, e.g., Chevron , 467 U.S. at 865 (“Perhaps [Congress] consciously desired the [agency] to strike the balance at this level . . . ; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question[.]”). Therefore, plaintiff’s motivation infiling this lawsuit is immaterial to the Court’s determination of whether that the language of the BCRA is clear and unambiguous. 12 At oral argument, counsel fo r plaintiff offered a hypothetic al that underscores the point that the plain meaning of “contributor” does not include an intent requirement: [PLAINTIFF’S COUNSEL]: Let’s say I was a contributor to the Do-Re-Mi Music Festival. Maybe I did that because I love mu sic. Whether or not I love music, I’m a contributor. Maybe I hate music but I like to see my name printed on the program. I have a purely selfish motive. I’m still a contributor. Or maybe I gave because somebody I know was putting the arm on me to give to his fa vorite charity, and I hate music but I gave anyway. I’m still a contributor. Or maybe I gave because I thought if I give to his charity, he’ll give to my charity. I’m still a contributor.28 disclosure rules, it directly contravened the re quirement set forth plainly by Congress that “all contributors who contributed” be disclosed. Congress’s use of repetitive, but not obscure, language in the provision did not justify th e agency’s assertion of authority here. 13 C. The Intervenors’ Constitutional Arguments Lack Merit Defendant-intervenors HLF and CFIF advance several constitutional arguments related to the regulation, but these concerns are not properl y before the Court on this motion, and in any event, they are governed by th e Supreme Court’s decision in Citizens United , 130 S. Ct. at 914–
16. CFIF argues that plaintiff’s reading of the regulation would burden “core speech,” triggering “exacting scrutiny.” CFIF’s Mem. in S upport of Summ. J. [Dkt. # 33] (“CFIF Mem.”) at 14–16. CFIF contends that plain tiff has “the burden of showing that applying the statute to require broad disclosures from corporations and labor unions satisfies exacting scrutiny.” Id . at 13. But CFIF fails to provide any authority that plaintiff must meet this “burden” in order to succeed on his challenge to the regulation under th e APA. Plaintiff did not allege in the complaint that the statute or regulation, as written, violates the Cons titution, and defendant-

Tr. at 22–23. 13 Indeed, the Court wonders how defendant wo uld ever be able to enforce the intent requirement embodied in the regulation. Ho w is the recipient supposed to know which contributors it must disclose and which ones it is not? Would contributors be required to state their purpose when making a donation? Also, pl aintiff points out that many of the entities making electioneering communications “conveniently neglect to communicate about purpose [to their contributors.] That’s why this constructi on of the statute has blown a gaping loophole in the disclosure issue . . . .” Tr. at 23. Althoug h these considerations do not bear on the Court’s analysis of the plain language of the statute at the Chevron step one stage, they heighten concerns that the new regulation does not comp ort with the Congressional purpose and intent behind campaign finance legislation: to expos e the parties behind the communications to the light.29 intervenors did not file their own claims, so their arguments regarding the constitutionality of the statute and regulation are not properl y before the Court on these motions. To the extent that defendant-intervenors are arguing that the Court’s statutory construction must adopt the FEC’s interpretation to “save the statute from constitutional invalidity,” the FEC has no authority, as plain tiff points out, to “save” st atutes by promulgating regulations that contravene the plain language of the statute. Pl.’s Opp. to Intervenors’ Briefs [Dkt. # 39] at 9, citing Weinberger v. Salfi , 422 U.S. 749, 794 (1975) (“Adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.”) 14 And even if that were not th e case, plaintiff is under no obligation to demonstrate that requiring an agen cy to follow the unambiguous language Congress used in a statute must meet “exacting scrutiny.” 15 Most important, any constitutional concerns th at defendant-intervenors raised about the burdens the regulation would impose were addressed by the Supreme Court in Citizens United , 130 S. Ct. at 914–16. The Court expressly upheld the disclosure requirements set forth in section 434(f) of the BCRA, noting that they serve an imp ortant public function be cause they “‘provid[e] the electorate with information about the sour ces of election-related spending,’” quoting and

14 Furthermore, as plaintiff points out, even if the constitutional concerns were proper considerations, the intervenor s may not defend the challenged regulation on grounds not invoked by the FEC. Pl.’s Opp. to Intervenors’ Briefs [Dkt. #39] at 7–8. The Court notes that the FEC did not rely on constitutional c onsiderations in the E&J it published when the regulation was promulgated. 15 Both intervenors point to a recent case from the Southern District of West Virginia as authority for the proposition that the regulatio n promulgated by the FEC is constitutionally required. HLF Mem. at 11, citing Center for Individual Freedom, Inc. v. Tennant , --- F. Supp. 2d ---, No. 1:08-cv-00190, 2011 WL 2912735 (S.D. W. Va. July 18, 2011); see also CFIF Mem. at 16–17. In that case, the court considered disc losure requirements under West Virginia state election law. Tennant is not controlling authority, and more over, because it arose under state law and regulations, it is not persuasive to the federal law issues presented in this case.30 citing Buckley , 424 at 66, and “help citizens ‘make informed choices in the political marketplace.’” Id . at 914, quoting and citing McConnell , 540 U.S. at 197. The Court in Citizens United specifically understood that corporations and labor unions would fall within the category of “persons” to whom the disclosure rules would apply, yet it still approved the disclosure requirements with which defendant-intervenors take issue. The only outer limit the Court seems to have imposed is whether disclosure would subject an organization’s donors to threats or reprisals, 130 S. Ct. at 914, and nothing like that has been raised as an issue in this case.31 CONCLUSION In sum, the Court finds that Congress spoke plainly, that Congress did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking, and that a change in the reach of the statute brought aboutby a Supreme Court ruling did not render plain language, which is broad enough to cover the new circumstances, to be ambiguous. The agency cannot unilaterally decide to take on a quint essentially legislative function; if sound policy suggests that the statute needs tailoring in the wake of WRTL or Citizens United , it is up to Congress to do it. Because the statutory text is unambiguous, the “judicial inquiry is complete,” and the Court need not reach step two of the Chevron framework. Teva Pharm. Indus. Ltd. v. Crawford , 410 F.3d 51, 53 (2005). Accordingly, the Court will grant plaintiff’s motion for summary judgment [Dkt. # 20] and will deny defendant’s cross motion for summary judgment [Dkt. # 25]. The Court will also deny intervenor-defendant Hispanic Leadersh ip Fund’s motion to dismiss [Dkt. # 30] and intervenor-defendant Center for Individual Free dom’s cross motion for summary judgment [Dkt. # 36]. A separate order will issue.

AMY BERMAN JACKSON United States District Judge DATE: March 30, 2012