[EL] DC Circuit Reverses Lower Court in Van Hollen v FEC

[BZall at aol.com]

https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41
006AF4EC/$file/15-5016-1594896.pdf (unanimous  opinion of Brown (author), 
Sentelle and Randolph)
 
Background: Federal Election Commission regulations, enacted in 2007  
following the Supreme Court's decision in FEC v. Wisconsin Right to Life ("tie  
goes to the speaker, not the censor"), require disclosure of donors who give 
to  support particular "electioneering communications" (non-electioneering 
messages  including the name or image of a candidate - including an elected 
official --  that are broadcast shortly before elections. E.g., "The Senate 
Small Business  Committee is holding a markup on an important piece of 
legislation. Please  contact Sen. Marco Rubio and tell him to vote for S. 1234."). 
Cong. Chris Van  Hollen (D-MD) sued to strike those regulations, and 
require disclosure of all  donors to any organization which broadcasts an 
electioneering communication. In  2012, the U.S. District Court struck down those 
regulations under what is called  a Chevron step one analysis (did Congress 
speak directly to the subject matter  of the regulation). Judge Amy Berman 
Jackson of the District Court  held that all donors for the prior two years to 
organizations which ran  electioneering communications must be disclosed. In 
2012, the Court of  Appeals for the D.C. Circuit reversed that decision and 
sent the case back, this  time for review under Chevron step two (is the 
FEC's regulation a "permissible"  construction of the statute). On remand, 
Judge Berman Jackson doubled down on  her interpretation and again struck the 
electioneering communication regulation  on donor disclosure, under Chevron 
step two. 
 
Today the D.C. Circuit again reversed the District Court, this time on  
Chevron step two grounds and as neither arbitrary or capricious, in  part 
because of the extraordinary burden the proposed donor disclosure  would place on 
tax-exempt organizations. (In fact, the real burden of  disclosure would 
likely fall on organizations who may not even know that their  
non-election-related speech is very limited close to elections, under the  "electioneering 
communications" rules.) The decision reflects the tension  between 
disclosure and privacy, as well as a practical consideration of the  effects of the 
particular regulation. 
 
Highlights:
 
 
 
The  arc of campaign finance law has been ambivalent, bending toward speech 
and  disclosure. Indeed what has made this area of election law so 
challenging is  that these two values exist in unmistakable tension. Disclosure 
chills speech.  Speech without disclosure risks corruption. And the Supreme Court
’s track record  of expanding who may speak while simultaneously blessing 
robust disclosure rules  has set these two values on an ineluctable collision 
course. ... 
[Following Citizens  United, which struck down the statutory ban on 
corporate and labor union  political independent expenditures and electioneering 
communications,] The  FEC was now left to decide how BCRA’s disclosure 
requirements should apply to a  class of speakers Congress never expected would 
have anything to disclose.   ... 
According to Van Hollen  (and the district court), since “the legislative 
history of the BCRA makes it  clear that the purpose behind the disclosure 
requirements was to enable voters  to be informed about who was trying to 
influence their decisions,” the purpose  requirement’s “limiting language” 
similarly frustrates BCRA. Van Hollen, 74  F.Supp.3d at 433–34.  
But  the art of statutory construction has moved beyond this particularly  
results-oriented brand of purposivism. Just because one of BCRA’s purposes 
(even  chief purposes) was broader disclosure does not mean that anything 
less than  maximal disclosure is subversive. ... That BCRA seeks more robust 
disclosure  does not mean Congress wasn’t also concerned with, say, the 
conflicting privacy  interests that hang in the balance. In fact, Congress “took 
great care in  crafting . . . language to avoid violating the important 
p[]rinciples in the  First Amendment.” 147 CONG. REC. S3033 (daily ed. Mar. 28, 
2001) (statement of  Sen. Jeffords). ... 
the  district court downplays Wisconsin Right to Life’s disruptive import. 
Before  2007, the modus operandi of campaign finance law had always been 
that Congress  could restrict corporate and union speech in the interest of 
deterring  “corruption” or “the appearance of corruption.” See Buckley, 424 
U.S. at 26. But  Wisconsin Right to Life marked the first chink in that 
conventional wisdom’s  armor, an onslaught that would ultimately culminate in the 
most expansive,  speech-protective campaign finance decision in American 
history, Citizens  United. After Wisconsin Right to Life, corporations and 
unions suddenly could  expend general treasury funds for issue ads, a result 
Congress had explicitly  prohibited under BCRA. An entirely new class of 
previously silenced speakers was  now subject to BCRA’s disclosure requirements. 
And just as the FEC was  authorized to decide how to implement BCRA’s 
disclosure provisions for qualified  speakers in 2003, it was authorized to decide 
how to implement BCRA’s disclosure  provisions for these newly qualified 
speakers in 2007, too. ... 
Both  an individual’s right to speak anonymously and the public’s interest 
in  contribution disclosures are now firmly entrenched in the Supreme Court’
s First  Amendment jurisprudence. And yet they are also fiercely 
antagonistic. The  deleterious effects of disclosure on speech have been ably 
catalogued.  “Disclaimer and disclosure requirements enable private citizens and 
elected  officials to implement political strategies specifically calculated to 
curtail  campaign-related activity and prevent the lawful, peaceful 
exercise of First  Amendment rights.” Citizens United, 558 U.S. at 483 (Thomas, J., 
dissenting)  (highlighting how mandatory disclosure of contributors to 
California’s  controversial “Yes on Proposition 8” campaign led to their being 
singled out for  ruthless retaliation and intimidation). “[T]he advent of 
the Internet enables  prompt disclosure of expenditures, which provides 
political opponents with the  information needed to intimidate and retaliate 
against their foes.” Id. at 484  (internal quotation marks omitted). “Disclosure 
also makes it easier to see who  has not done his bit for the incumbents, 
so that arms may be twisted and pockets  tapped.” Majors v. Abell, 361 F.3d 
349, 356 (7th Cir. 2004) (Easterbrook, J.,  dubitante).  
In  addition to these general burdens, the specific disclosure requirement 
Van  Hollen advocates here would present its own unique harms. For instance, 
an  American Cancer Society donor who supports cancer research but not ACS’
s  political communications must decide whether a cancer cure or her 
associational  rights are more important to her. This is categorically distinct 
from deciding  whether a political issue, such as tax reform, is as important 
as one’s  associational right. Cancer research isn’t a political issue, but 
disclosure  rules of this sort would undeniably transform it into one. These 
disclosure  rules also burden privacy rights in another crucial way: modest 
individuals  who’d prefer the amount of their charitable donations remain 
private lose that  privilege the minute their nonprofit of choice decides to 
run an issue ad. The  Supreme Court routinely invalidates laws that chill 
speech far less than a  disclosure rule that might scare away charitable 
donors. See Watchtower Bible  and Tract Soc’y of New York, Inc. v. Stratton, 536 
U.S. 150 (2002) (striking a  law requiring religious canvassers to obtain a 
permit before advocating  door-to-door on private property).  
The  ones who would truly bear the burden of Van Hollen’s preferred rule 
would not be  the wealthy corporations or the extraordinarily rich private 
donors that likely  motivated Congress to compel disclosure in the first place. 
Such individuals  would have “little difficulty complying” with these 
laws, as they can readily  hire “legal counsel who specialize in election 
matters,” who “not only will  assure compliance but also will exploit the 
inevitable loopholes.”  Majors, 361 F.3d at 357–58 (Easterbrook, J., dubitante). 
Instead, such  requirements “have their real bite when flushing small groups, 
political clubs,  or solitary speakers into the limelight, or reducing them 
to silence.” Id. at 358.  
…



Holding,  as we do here, that the FEC’s purpose requirement satisfies both 
Chevron Step Two and State Farm review has the benefit both of being a  
correct application of black letter administrative law and of  forestalling to 
some other time an answer to the important constitutional  questions bubbling 
beneath the surface of this case. As our discussion of the  FEC’s rule has 
shown, the Supreme Court's campaign finance jurisprudence  subsists, for 
now, on a fragile arrangement that treats speech, a constitutional  right, and 
transparency, an extra-constitutional value, as equivalents. But “the  
centre cannot hold.” William Butler Yeats, The Second Coming (1919).  Until then, 
however, the FEC’s purpose requirement survives, and the judgment of  the 
district court is therefore  
Reversed. 

 
 
 
 
Barnaby  Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
10411 Motor City  Drive, Suite 500
Bethesda, MD 20817
301-231-6943 (direct  dial)
bzall at aol.com 
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