on the wisdom of the agency's policy, rather than whether it is a reasonable choice within the gap left open by Congress, the challenge must fail." Chevron, 105 S. Ct. at 2793. Since we find that the two-prong test is a "reasonable choice," we cannot disturb that standard.
Our obligation to accept the legal standard applied by the Commission, however much we may disagree, does not end our inquiry. In determining whether an agency has acted arbitrarily or capriciously, a court must first determine whether the agency has presented a rational basis for its decision. The record before us prevents that threshold determination.
The legality of the Commission's dismissal of Common Cause's complaint depends on the precise reasons the Commission articulated to explain this action. In general, an agency may not act in silence: it must set forth clearly the grounds on which it acts. S.E.C. v. Chenery Corp., 332 U.S. 194, 196-97, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947); Village of Winnetka v. F.E.R.C., 220 U.S. App. D.C. 40, 678 F.2d 354, 357 (D.C. Cir. 1982). While the Federal Election Commission is not required to offer a separate statement of reasons where its rationale may be "gleaned" from staff reports, see F.E.C. v. Democratic Senatorial Campaign Committee, 454 U.S. at 38-39 n.19, Carter/Mondale Presidential Committee, Inc. v. F.E.C., 249 U.S. App. D.C. 349, 775 F.2d 1182, 1186-87 (D.C. Cir. 1985), it nonetheless bears the burden of showing a "coherent and reasoned explanation of its exercise of discretion." Carter/Mondale, 775 F.2d at 1185.
The Commission did not provide or attempt to provide a statement of reasons to support its dismissal of the Common Cause complaint. As plaintiff alleges and defendant does not dispute, the Commission sent Common Cause a form letter simply stating that the Commission had found no reason to believe a federal election law violation had occurred and that the file in this matter would be closed. Pl. Opp. at 3. Pursuant to its usual practice, the Commission did not issue an accompanying explanation.
Defendant now argues that the General Counsel's report suffices to show the Commission's reasoning. Yet this report is premised on the conclusion that the "totality of the circumstances" demonstrate that the VFW speech was "campaign-related." Defendant reads too much into this opinion in arguing that it sets out the two-prong test on which the Commission relied. The report recognizes express advocacy and solicitation of contributions as two relevant factors, but does not consider them to be "an exhaustive list." Def. Ex. 1 at 8. It would be difficult indeed to "glean" from this report a rationale that the speech was not "campaign-related" because it did not satisfy the elements of the two-prong test.
The Commission's attempt now to explain that the speech was not campaign-related does not suffice. The Commission reasonably finds that Mr. Reagan neither expressly mentioned his candidacy nor solicited contributions from the audience.
Yet this determination and the resulting conclusion that the speech was not "campaign-related" are first presented in the legal memoranda which defendant filed in this litigation. Such post hoc rationalization is clearly unacceptable. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 9 L. Ed. 2d 207, 83 S. Ct. 239 (1962); Ace Motor Freight, Inc. v. I.C.C., 181 U.S. App. D.C. 236, 557 F.2d 859, 864 (D.C. Cir. 1977).
The absence of a contemporaneous statement of the Commission's reasons for dismissing the complaint precludes effective judicial review. Since we therefore cannot evaluate the agency's action on the record before us, we must vacate the Commission's order and remand for further proceedings. EDF v. Costle, 657 F.2d at 285.
The Commission must not only demonstrate its reasons for finding the speech was not campaign-related but, if it indeed applied the two-prong test, it must further explain why it did not consider the "totality of the circumstances." It is well-settled that when an agency departs from previous practice, it must provide some opinion or analysis indicating that prior policies are being deliberately changed, not casually ignored. Greater Boston T.V. Corp. v. F.C.C., 143 U.S. App. D.C. 383, 444 F.2d 841, 852 (D.C. Cir. 1970), cert. denied, 403 U.S. 923, 29 L. Ed. 2d 701, 91 S. Ct. 2233 (1971); Baltimore and Annapolis Railroad Co. v. W.M.A.T.C., 206 U.S. App. D.C. 397, 642 F.2d 1365, 1370 (D.C. Cir. 1980). Defendant argues that application of the two-prong test here represents long-standing Commission practice. Defendant glosses over its earlier decisions too quickly.
A close reading of the Commission's Advisory Opinions (AO's) reveals that contrary to defendant's characterization, the Commission has not in fact always looked only at the two factors of express advocacy and solicitation. In AO 1984-13, 1 Fed. Election Campaign Fin. Guide (CCH) P5759 (May 17, 1984), the Commission considered whether the National Association of Manufacturers (NAM) would make an unlawful contribution or expenditure by inviting Republican Congressional candidates to speak at a conference cosponsored by NAM and scheduled to take place at the same time as the Republican National Convention. The Commission's decision that the candidates' appearances would be unlawful was based on its finding that the event "is thus linked by its timing and purpose to Congressional elections and carries partisan overtones." AO 1984-13 (emphasis added). This reasoning obviously goes beyond the two-prong test.
Other AO's confirm this broad analysis. While the Commission certainly has looked to advocacy and solicitation as two key signs of campaign activity, the absence of these two elements represents only the principal, not the sole, condition for Commission approval. For example, in AO 1978-15, 1 Fed. Election Campaign Fin. Guide (CCH), para. 5304 (Mar. 30, 1978), the Commission authorized a candidate to continue as chairman of a charitable fundraising effort. Both the fact that the candidate had accepted this position before he decided to run and his lack of any role in distributing the brochure bearing his name and picture were "significant" to the Commission's decision. "Furthermore," the Commission conditioned its assent on the assumption that the other aspects of the drive would not involve express advocacy of the candidate's election or solicitation of contributions to his campaign. As the word "furthermore" suggests, the two-prong test represented an additional, not the only, consideration. See also AO 1983-23, 1 Fed. Election Campaign Fin. Guide (CCH) P5623 (Oct. 13, 1981) (Commission's approval of hospitality suite at the Republican National Convention "also" rested on its understanding that purpose was not to defray delegates' subsistence expenses and that sponsor would exercise full control).
The Commission's past practice of looking beyond the two factors of advocacy and solicitation necessitates some explanation for its dismissal of plaintiff's complaint. If the Commission indeed relied only on this two-prong test in considering plaintiff's complaint, it must clearly indicate this fact. More importantly, it should also set out why it did not consider other factors, as it has done in the past. We therefore remand both for an explanation of the legal standard actually applied and, as we discussed above, a statement of reasons demonstrating how the Commission applied such legal standard to the facts before it. On remand, the Commission is not foreclosed from reaching a different conclusion as to the merits of plaintiff's administrative complaint.
An order consistent with the foregoing has been entered this day.
Upon consideration of the parties' cross-motions for summary judgment, the supporting memoranda of points and authorities and the record herein, and for reasons set out in the accompanying memorandum opinion, it is by the court this 25th day of June, 1986,
ORDERED that plaintiff's motion is granted in part, and it is
ORDERED that defendant's motion is denied, and it is
ORDERED that plaintiff's complaint that Reagan-Bush '84 violated the federal election laws by failing to pay for and report the expenses of a trip by Ronald Reagan to Chicago in August 1984 is remanded to the Federal Election Commission for proceedings consistent with the accompanying memorandum opinion and, and it is
FURTHER ORDERED that this action shall be dismissed.