[EL] Van Hollen v. FEC reversed

Tue Sep 18 11:17:46 PDT 2012

I was, Beth. And also by the line "The statute is anything but clear,  
especially when viewed in the light of the Supreme Court's decisions in  
[Citizens United] and [WRTL II]." Slip Op. 4. A genteel, but definite, smackdown  
of the lower court's "the statute is clear" rationale. And did you notice the 
 panel quoted one of its members' law review articles? Id. 

Leaving aside the smackdown, it's an interesting opinion. It's a Chevron  
deference issue, but they seem to have pre-judged it and then gotten 
frustrated  because they couldn't finish the job without the FEC's participation. 
Yes, the  District Court went off on Step One (did Congress speak directly to 
the issue)  and was rejected. But the CtApp panel (which is retaining 
control) also said: 

"Indeed, it is doubtful that, in enacting 2 U.S.C. § 434(f), Congress even  
anticipated the circumstances that the FEC faced when it promulgated 11 
C.F.R. §  104.20(c)(9). It was due to the complicated situation that confronted 
the agency  in 2007 and the absence of plain meaning in the statute that 
the FEC acted  pursuant to its delegated authority under 2 U.S.C. § 37d(a)(8) 
to fill “a gap”  in the statute. Chevron, 467 U.S. at 843-44."  

Ordinarily, a court says this when it is about to rule in favor of the  
agency under Chevron Step Two (is the agency position reasonable). Use of the  
phrase "fill a gap" is pretty determinative. Given an agency's supposed  
expertise and the lack of guidance from Congress, under Step Two, usually an  
agency wins on any reasonable interpretation of a nebulous statute.

So here's where the Court says the FEC failed it: is the 2007 FEC reg a  
reasonable interpretation of the statute? 

"Unfortunately, as the parties’ arguments in this case have revealed, the  
agency’s adoption of § 104.20(c)(9) has raised as many questions as it 
purported  to resolve. For example, neither the court nor the parties understand 
the  reference to 11 C.F.R. § 114.15 in § 104.20(c)(9). The FEC’s failure to 
 participate in this appeal makes it impossible for the court to fully 
understand  the agency’s position on numerous issues that have been raised by 
the parties  with respect to the meaning of the statute, the intended reach of 
the disputed  regulation, and the import of the Supreme Court’s decisions 
addressing campaign  finance law. Therefore, the court is in no position to 
assess the parties’  arguments on whether § 104.20(c)(9) is reasonable, and 
thus entitled to  deference under Chevron Step Two ... "

The Court invokes the "primary jurisdiction" doctrine (initial  
determinations of the validity of rules are best made by the entity which has  the 
principal responsibility for it). Since the FEC didn't show up, the Court  told 
them: "fix this." The Pennsylvania Supreme Court basically did the same  
thing today in remanding for more factfinding on that state's voter id (though  
it didn't call it that). Will the FEC do that? The panel is dubious, which 
is  why it also directed the lower court to regulate that process or do the  
interpretation itself. But if she gets it again, Judge Jackson is highly  
unlikely to call the statute "clear" (or cite another dictionary). 

But, practical effect: the 2007 regs are back in force, unless and until  
something else happens. ECs, which have dropped to three this year, are  back.

Or are they? Perhaps organizations that have already bit the bullet and  
started express advocacy, may just continue that way. 

Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani,  LLP
Please note our new address:
10411  Motor City Dr., Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial)
_www.wjlaw.com_ (http://www.wj/) 
bzall at aol.com

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In a message dated 9/18/2012 1:12:52 P.M. Eastern Daylight Time,  
bkingsley at harmoncurran.com writes:

Was anyone else as amused by this  sentence as I was? “For example, neither 
the court nor the parties understand  the reference to 11 C.F.R. § 114.15 
in § 104.20(c)(9).”    
And more seriously, the case seems to  be in a very odd procedural posture, 
with the COA dragging the FEC back into  the middle of the fight. The 
District Court is instructed to refer the matter  to the FEC for further 
consideration, and it must either commence a new  rulemaking or defend the current 
regulations under Chevron step 2 and an “arbitrary and  capricious” 
argument. So what happens in the all too likely event that the  Commission can’t get 
4 votes for either course of action?   
Beth 
Elizabeth  Kingsley  
Harmon,  Curran, Spielberg & Eisenberg, LLP  
1726  M St., NW  
Suite  600  
Washington,  DC 20036  
202-328-3500   
www.harmoncurran.com 
From:  law-election-bounces at department-lists.uci.edu  
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Hoersting
Sent: Tuesday, September 18, 2012 11:51  AM
To:  law-election at uci.edu
Subject:  [EL] Van Hollen v. FEC reversed 
A huge win for Intervenors' counsel in Van Hollen v. FEC before the D.C.  
Circuit. Also a win for the FEC, if the agency can see it that  way. 

Most importantly, a win for robust political  participation 50 days from 
the election. 

_http://www.cadc.uscourts.gov/internet/opinions.nsf/582177A123FA411885257A7D
004DA421/$file/12-5117-1394950.pdf_ 
(http://www.cadc.uscourts.gov/internet/opinions.nsf/582177A123FA411885257A7D004DA421/$file/12-5117-1394950.pdf)   

(H/T @MichaelEToner)

-- 
Stephen M.  Hoersting

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