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Shays v. Federal Election Commission

September 18, 2004

CHRISTOPHER SHAYS & MARTIN MEEHAN, PLAINTIFFS,
v.
FEDERAL ELECTION COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

On October 8, 2002, Christopher Shays ("Shays") and Martin Meehan ("Meehan") (collectively "Plaintiffs"), both members of the United States House of Representatives, filed the above-captioned action against the Federal Election Commission ("FEC" or "Commission" or "Defendant").*fn1 Through their Complaint, Plaintiffs challenge the FEC's regulations implementing Titles I and II of the Bipartisan Campaign Reform Act ("BCRA"). Plaintiffs contend that "[t]he FEC's new regulations, in multiple and interrelated ways, thwart and undermine the language and congressional purposes of Titles I and II of BCRA." Am. Compl. ¶ 6.

At the same time this case was filed, McConnell v. Federal Election Commission and ten related actions challenging the constitutionality of BCRA were pending before a three-judge panel of this District Court. The three-judge panel issued its decision on May 1, 2003, see McConnell v. Federal Election Commission, 251 F. Supp. 2d 176 (D.D.C. 2003), and the case was immediately appealed to the United States Supreme Court. On September 29, 2003, in response to motions by the two sides in this current case advocating different methods of proceeding, the Court stayed proceedings in this case pending the Supreme Court's decision in McConnell v. Federal Election Commission. The Supreme Court issued its decision on December 10, 2003, upholding almost all of Titles I and II of BCRA. McConnell v. Federal Election Commission, 124 S.Ct. 619 (2003). This Court, after hearing the parties' views, set a briefing schedule for the pending cross-motions for summary judgment.*fn2 On February 27, 2004, the parties filed their respective Motions for Summary Judgment. Opposition briefs were filed on March 31, 2004.*fn3 The Court did not require the filing of Reply briefs, and the parties did not seek leave to file such briefs.

After considering the parties' briefing, the administrative record, and the relevant law, the Court shall grant-in-part and deny-in-part Plaintiffs' Motion for Summary Judgment and grantin-part and deny-in-part Defendant's Motion for Summary Judgment.

I: BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h)). As such, in resolving the present summary judgment motions, this Court "assumes that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1. In this instance, as the parties cross move for summary judgment, the Court looks to each party's statement to cull the relevant undisputed facts and to determine those facts that are conceded by the cross moving party. Having set forth these preliminaries, the Court moves to a discussion of the material facts not genuinely in dispute.

On February 13, 2002, the House of Representatives passed H.R. 2356. McConnell, 251 F. Supp. 2d at 205 (per curiam). The bill was then adopted by the Senate on March 18 and 20, 2002. Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s Stmt.") ¶ 1. President George W. Bush signed H.R. 2356 into law on March 27, 2002. Id. ¶ 2. The Act is commonly referred to as the Bipartisan Campaign Reform Act or "BCRA." Id.*fn4 BCRA represents the most recent amendment to the Federal Election Campaign Act of 1971 (the "Act" or "FECA"). Id. ¶ 3.

The Federal Election Commission ("FEC" or "Commission" or "Defendant") is the independent agency of the United States government with exclusive jurisdiction to administer, interpret and civilly enforce FECA. Id. ¶ 4. Section 402(c)(2) of BCRA required the FEC to promulgate rules within 90 days of BCRA's enactment to carry out the provisions found in Title I of BCRA, which added new limitations on party, candidate, and officeholder solicitations and use of nonfederal funds.*fn5 Id. ¶ 6. On May 20, 2002, the Commission published its Notice of Proposed Rulemaking ("NPRM") on "Prohibited and Excessive Contributions; Non-Federal Funds or Soft Money." Id.; Pls.' Stmt. of Genuine Issues in Opp'n to Def.'s Stmt. ("Pls.' Opp'n Stmt.") ¶ 6. In its NPRM, the Commission solicited comments on its proposed rules, and in response received many public comments, and heard testimony on June 4 and 5, 2002. Def.'s Stmt. ¶ 7. The Commission held an open meeting on June 19, 20 and 22, 2002, and adopted its Title I regulations on June 22, 2002. Pls.' Statement of Material Facts as to Which Plaintiffs Contend There is No Genuine Issue ("Pls.' Stmt.") ¶ 4. On July 16, 2002, the FEC transmitted to Congress, and on July 29, 2002, the Commission promulgated in the Federal Register, its final rules and Explanation and Justification ("E&J") on "Prohibited and Excessive Contributions: Non-federal Funds or Soft Money." Def.'s Stmt. ¶ 7. These regulations became effective on November 6, 2002. Pls.' Stmt. ¶ 4.

Section 402(c)(1) of BCRA required the FEC to promulgate within 270 days of its enactment the remaining regulations required to carry out BCRA. Def.'s Stmt. ¶ 8. On August 7, 2002, the Commission published its NPRM for Electioneering Communications in the Federal Register, which sought comments on its proposed rules. Id. In response, the Commission received many comments, and it heard testimony on its proposed rules on August 28 and 29, 2002. Id. ¶ 9. The Commission also conducted an open meeting, and on October 10, 2002, adopted the regulations. Pls.' Stmt. ¶ 5. On October 11, 2002, the Commission transmitted to Congress, and on October 23, 2002, the Commission promulgated in the Federal Register, its final rules and E&J on "Electioneering Communications." Def.'s Stmt. ¶ 9. These regulations became effective November 22, 2002. Pls.' Stmt. ¶ 5.

On August 22, 2002, the Commission published its NPRM on "Contribution Limitations and Prohibitions" in the Federal Register, which sought comments on proposed changes to the Commission's rules related to campaign contribution limitations and prohibitions under FECA as amended by BCRA. Def.'s Stmt. ¶ 10. In response, the Commission received many comments, and on November 8, 2002, the FEC transmitted to Congress, and on November 19, 2002, the Commission promulgated in the Federal Register, its final rules and E&J on "Contribution Limitations and Prohibitions." Id. ¶ 11.

On September 24, 2002, the FEC published its NPRM on "Coordinated and Independent Expenditures" in the Federal Register, which sought comments on proposed changes to its rules relating to payments for communications that are coordinated with a candidate and independent expenditures under FECA as amended by BCRA. Id. ¶ 12. In response, the Commission received many comments, id. ¶ 13, and the Commission held a public hearing on its proposed rules on October 23 and 24, 2002, at which it heard testimony from various witnesses, Pls.' Stmt. ¶ 6. After conducting an open meeting, the Commission adopted the regulations on December 5, 2002. Id. On December 18, 2002, the FEC transmitted to Congress, and on January 3, 2003, promulgated in the Federal Register, its final rules on "Coordinated and Independent Expenditures." Def.'s Stmt. ¶ 13. These regulations became effective on February 3, 2003. Pls.' Stmt. ¶ 6.

Plaintiffs are both citizens of the United States, Members of Congress, candidates, voters, recipients of campaign contributions, fundraisers, and members of political parties. Id. ¶ 11. Plaintiff Christopher Shays is a Member of the United States House of Representatives from the Fourth Congressional District of the State of Connecticut. Id. ¶ 7. He was first elected in 1987, was re-elected in 1992, and has been re-elected every two years thereafter and is running for re-election in November 2004. Id. Plaintiff Martin Meehan is a Member of the United States House of Representatives from the Fifth Congressional District of the Commonwealth of Massachusetts. Id. ¶ 8. He was first elected to Congress in 1988, and has been re-elected every two years thereafter and is running for re-election in November 2004. Id. Plaintiffs are subject to regulation under FECA, BCRA, and the Commission's implementing regulations. Id. ¶ 11.

Both Plaintiffs were principal sponsors in the House of Representatives of the legislation enacted as BCRA and spent many years seeking to promote its enactment. Id. ¶ 9. They, along with other co-sponsors of BCRA, submitted written comments on the FEC's proposed rules implementing BCRA's provisions. Id. ¶ 10. The Commission did not adopt some of their views in its final rules. Id.; Def.'s Resps. & Objections to Pls.' Stmt. ("Def.'s Resp. Stmt.") ¶ 10.*fn6

II: DISCUSSION

A. Justiciability Arguments

Before the Court can address the merits of the pending motions, it must first resolve two justiciability issues raised by Defendant. Defendant asserts that Plaintiffs lack standing to bring their claims. Defendant also contends that Plaintiffs' claims are not ripe for review. The Court addresses each claim in turn.

1. Standing

a. Article III Standing

As an Article III court, this Court's judicial power extends only to "Cases" and "Controversies." National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (quoting U.S. Const. art. III, § 2). "In an attempt to give meaning to Article III's case-or-controversy requirement, the courts have developed a series of principles termed 'justiciability doctrines,' among which are standing[,] ripeness, mootness, and the political question doctrine." Id. (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). These doctrines incorporate both the prudential elements, which "Congress is free to override," id. (quoting Fair Employment Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C. Cir.1994)), and "core component[s]" which are "essential and unchanging part[s] of the case-orcontroversy requirement of Article III," id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations omitted)).

In order to satisfy the constitutional standing requirements, the party invoking federal jurisdiction must establish that he or she has (1) suffered an injury in fact, (2) which is fairly traceable to the challenged act, and (3) is likely to be redressed by a favorable decision. Lujan, 504 U.S. at 560-61. The "injury in fact" requirement requires the plaintiff to have suffered "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Id. at 560 (internal quotation marks and citations omitted).

Defendant attacks Plaintiffs' standing to bring this suit, focusing on the injury prong of the analysis. See Def.'s Mem. in Supp. of its Mot. for Summ. J. ("Def.'s Mem.") at 3-11. Plaintiffs contend that they do meet Article III's standing requirements. In so doing, Plaintiffs rely predominantly on the three-judge McConnell panel's decision finding that they had standing to intervene in that case to defend the constitutionality of BCRA. Pls.' Mem. in Supp. of Pls.' Mot for Summ. J. ("Pls.' Mem.") at 84. There, the panel found the proposed defendantintervenors' allegations that they were "among those whose conduct the Act regulates, and among those whom the Act seeks to insulate from the actual and apparent corrupting influence of special interest money," that "[t]hey want to run in elections, participate in a political system, and serve in a government in which all participants comply with the... campaign finance regulations that the Act imposes in order to stop evasion and to prevent actual and apparent corruption," and that "[i]f any of the reforms embodied in the Act are struck down... [the] movants will once again be forced to attempt to discharge their public responsibilities, raise money, and campaign in a system that [they believe to be] significantly corrupted by special-interest money," to be "sufficient to support Article III standing." McConnell v. Federal Election Commission, Civ. No. 02-582 slip op. at 6 (D.D.C. May 3, 2002) (Pls.' Ex. 163) (" McConnell Intervention Order"). The panel noted that "as opposed to members of the general public, the movants have a concrete, direct, and personal stake -- as candidates and potential candidates -- in the outcome of a constitutional challenge to a law regulating the processes by which they may attain office." Id. at 7 (citing Buchanan v. Federal Election Commission, 112 F. Supp. 2d 58, 65 (D.D.C. 2000); Vote Choice Inc. v. DiStefano, 4 F.3d 26, 37 (1st Cir. 1993)).*fn7

Plaintiffs contend that just as they "had a 'concrete and particularized' personal interest in defending BCRA from constitutional attack, so too do they have a strong personal stake in seeking to overturn unlawful agency rules that threaten to subvert, erode, and circumvent the reforms enacted by BCRA." Pls.' Mem. at 84 (citation omitted); see also Pls.' Mem. in Opp'n to Def.'s Mot. for Summ. J. (Pls.' Opp'n") at 15 (stating Plaintiffs are injured because "the challenged regulations authorize campaign finance activities that subvert, erode, and circumvent FECA and BCRA."). They make clear that they are not seeking to vindicate a sponsorship interest in the Act; rather, much like their interest in McConnell v. Federal Election Commission, they claim to have a "tangible stake in the outcome of an APA challenge to rules that" allegedly "threaten to undermine federal campaign finance law, that seek to deregulate conduct that Congress specifically ordered to be regulated, and that would perpetuate much of the corrupt soft-money system that BCRA was intended to eradicate root and branch." Id. at 85 (emphasis in original). In support of their contentions, both Shays and Meehan attest that they are subject to FECA and BCRA as candidates, voters, recipients of campaign contributions, fundraisers, and political party members. Decl. of Pl. Meehan ("Meehan Decl.") ¶ 3; Decl. of Pl. Shays ("Shays Decl.") ¶ 3. They state that in addition to being directly regulated by these laws and regulations, their "activities are also directly affected by the fact that others, including... potential contributors and supporters,... potential election opponents, contributors to and supporters of... opponents, and contributors to and supporters of both political parties are subject to the same regulation under FECA, BCRA, and the Commission's implementing rules." Id. They also specifically discuss the impact of the alleged deficiencies in the regulatory regime implementing BCRA:

If any of the campaign finance reforms embodied in BCRA is subverted, eroded or circumvented by the Commission's implementing regulations, I will be forced once again to raise money, campaign, and attempt to discharge my important public responsibilities in a system that is widely perceived to be, and I believe in many respects will be, significantly corrupted by the influence of special-interest money. The FEC regulations that implement the soft-money provisions of Title I of BCRA directly affect me. If those regulations do not implement the soft-money ban, I face the strong risk that unregulated soft money contributions will again be used in an attempt to influence federal elections in which I am a candidate. The rules implementing the soft money ban also will affect the perception the public will form of me, my fellow office-holders, and fellow party members.

Likewise, the FEC regulations that implement the loophole-closing extension of the soft money provisions to the funding for certain state and local activities that affect federal elections... will directly and personally impact me as a candidate who runs in elections that could be affected by those very state and local party activities, as well as in my capacity as a party member who might be expected to raise soft money directly or indirectly for use at the state and local party level.

The Commission's regulations implementing the sham issue ad provisions in Title II-A of BCRA also directly affect me as a candidate. If those regulations do not faithfully implement Title II-A, I will be open to attack, during critical time periods just before primary and general elections, in broadcast advertising campaigns mounted by groups seeking to evade the contribution limits, source prohibitions, and disclosure requirements imposed by Congress.

Similarly, I will be directly affected as a candidate by the Commission's regulations regarding coordinated communications.... If those regulations do not faithfully implement Congressional intent, my election opponents will be able to interact and coordinate with their parties, their supporters, and interest groups in ways that evade the contribution limits, source prohibitions, and disclosure requirements of federal law.

Many FECA and BCRA provisions require the disclosure of campaign finance information by covered persons and entities. 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.

Id. ¶¶ 4-9.

The FEC claims that Plaintiffs have not met their burden of establishing their standing to bring this suit. The FEC contends that Plaintiffs do not challenge the regulations as they affect their own actions, but rather allege that the regulations fail "to regulate the activities of other people more strictly." Def.'s Mem. at 4 (emphasis in the original). This fact, Defendant maintains, increases the burden Plaintiffs must meet to establish standing. Id. at 4-5. In addition, since this case is at the summary judgment stage, Defendant points out that Plaintiffs must support their standing arguments with evidence and argues that they have failed to do so. Def.'s Resp. in Supp. of its Mot. & in Opp'n to Pls.' Mot. for Summ. J. ("Def.'s Opp'n") at 2 & n.2, 7- 8.

Defendant is correct that at the summary judgment stage, "the plaintiff [may not] rest on... 'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' which for the purposes of the summary judgment motion will be taken to be true." Lujan, 504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e)); see also id. at 567 (noting that at the summary judgment stage the standing inquiry demands "a factual showing of perceptible harm.").

As noted supra, Plaintiffs argue that the McConnell panel's decision finding that they had standing to defend the constitutionality of BCRA is instructive here. The McConnell panel found that the intervenors had a "direct, and personal stake - as candidates and potential candidates - in the outcome of a constitutional challenge to a law regulating the processes by which they may attain office." McConnell Intervention Order at 7. The Court finds that the present case implicates the same interest. Just as Plaintiffs would have been affected - adversely in their view - from the striking down of BCRA on constitutional grounds, so are they affected by the regulations they claim improperly implement BCRA and "regulat[e] the processes by which they may attain office." Id. This finding, however, does not end the Court's inquiry, as Defendant notes that the McConnell panel's decision was made at the pleading stage and not revisited, whereas here the Court is faced with a standing challenge at the summary judgment stage.

As noted supra, Plaintiffs support their injury claims with declarations. These sworn statements appear to be the only factual basis presented in support of Plaintiffs' claim that they have standing. It is clear from these submissions that Plaintiffs are or will be affected by the campaign finance regime established by the current regulations. They claim that their campaign activities are affected by other participants in the political process who are subject to the same rules, and that the current regulations - by being, in their view, unfaithful to the terms of BCRA - force them to raise money in a system that is perceived to be and in their view is "corrupted by the influence of special-interest money." Meehan Decl. ¶¶ 3-4; Shays Decl. ¶¶ 3-4. Defendant dismisses the sufficiency of these statements, arguing that Plaintiffs have presented no facts suggesting that any identifiable party has any plans to engage in any of the activities they think should be prohibited in connection with their own election campaigns, and they have not offered any factual basis for thinking any such activities by third parties that may materialize are more likely to oppose than to support their own re-election chances. Def.'s Opp'n at 2. The Commission also cites to substantive areas of Plaintiffs' opening brief where they complain of loopholes and provisions unfaithful to BCRA and contends that these arguments are not supported by any evidence that entities are actually engaging in the actions to which Plaintiffs object. Id. at 2-3. The FEC states that "[i]n the absence of any factual showing that the activities [Plaintiffs] think should be prohibited are going to be used to help defeat them in their own elections, plaintiffs have failed to satisfy their threshold burden to demonstrate 'concrete' harm to themselves that is 'actual or imminent.'" Id. at 4 (quoting McConnell, 124 S.Ct. at 707).

The Court finds that Defendant's attacks on Plaintiffs' factual support for the injury-infact prong miss the point of Plaintiffs' alleged harm. Plaintiffs are undisputedly participants in the federal campaign finance system. They attest that their activities are affected not only by the manner in which they respond to the campaign finance rules, but also by the way in which other participants, both allies and adversaries, respond to the rules. Meehan Decl. ¶¶ 3-4; Shays Decl. ¶¶ 3-4. Whether or not they have alleged that some entity has in fact taken advantage of an alleged FEC-created loophole in BCRA, the fact that such a loophole exists affects the way these politicians, who face election in a matter of months, will run their campaigns. If the FEC has promulgated regulations unfaithful to BCRA, then Plaintiffs are at the very least harmed by having to anticipate other actors taking advantage of the regulations to engage in activities that otherwise would be barred.*fn8 The First Circuit has recognized that "an impact on the strategy and conduct of an office-seeker's political campaign constitutes an injury of a kind sufficient to confer standing." Becker v. Federal Election Commission, 230 F.3d 381, 386 (1st Cir. 2000) (quoting Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 37 (1st Cir. 1993)). In fact, the First Circuit has held such an injury to exist even when the change in strategy is speculative, and the plannedfor circumstance fails to materialize. Vote Choice, Inc., 4 F.3d at 31, 37; see also Becker, 230 F.3d at 387 ("We similarly granted credence in Vote Choice to plaintiff Leonard's claim that she had to adjust her campaign to account for the possibility of facing a publicly funded opponent, even though in the end that possibility did not materialize.").*fn9 The First Circuit has also found it improper "to second-guess a candidate's reasonable assessment of his own campaign." Becker, 230 F.3d at 387.*fn10 Therefore, contrary to Defendant's assertion, the current case does not represent a situation "when the plaintiff is not himself the object of the government action or inaction he challenges," in which case "standing is not precluded, but it is ordinarily 'substantially more difficult' to establish," Lujan, 504 U.S. at 562. Rather, Plaintiffs are directly regulated by the rules they challenge in that the regulations shape the environment in which Plaintiffs must operate.

Defendant maintains that this conclusion is foreclosed by the Supreme Court and the three judge panel's decisions in McConnell v. Federal Election Commission. Def.'s Mem. at 8- 10; Def.'s Opp'n at 4-5. The Commission notes that the Supreme Court determined that Senator Mitch McConnell lacked standing to challenge Section 305 of BCRA. Def.'s Opp'n at 4-5 ("After all, Senator McConnell is, like plaintiffs, an officeholder and candidate whose activities in those roles are subject to the campaign finance statutes, but he lacked standing to litigate over BCRA § 305 because he could not show that then provision would cause him any direct personal injury that was imminent.") (emphasis in original) (citing McConnell, 124 S.Ct. at 707-08). A review of the McConnell opinion, however, shows that the Supreme Court's decision that Senator McConnell lacked standing to challenge the provision was based on the fact that Senator McConnell could not be affected by the challenged provision until "45 days before the Republican primary election in 2008." McConnell, 124 S.Ct. at 708. This fact led the Supreme Court to conclude that Senator McConnell's "alleged injury in fact is too remote temporally to satisfy Article III standing." Id. (emphasis in original). By contrast, Plaintiffs here are in the midst of general election contests. Accordingly, the Court finds that the Supreme Court's decision on Senator McConnell's standing to challenge Section 305 of BCRA does not control the present inquiry.

The FEC argues that the Supreme Court's determination that another group of McConnell plaintiffs lacked standing also forecloses finding that Plaintiffs have standing in the present suit. Def.'s Opp'n at 5 ("Similarly, the Adams plaintiffs, who were candidates, lacked standing to litigate the validity of BCRA's new contribution limits that would govern their own election campaigns and those of their opponents because they were unable to show that they suffered a personal injury from that provision, regardless of their general 'stake' in the electoral system as candidates."). The Adams plaintiffs*fn11 challenged the constitutionality of Section 307 of BCRA, which raised FECA's contribution limits. McConnell, 124 S.Ct. at 708. In attempting to establish their Article III standing, the Adams plaintiffs argued that increases in "hard money" contribution limits "deprive[d] them of an equal ability to participate in the election process based on their economic status." Id. The Supreme Court determined that since its precedent holds that "political 'free trade' does not necessarily require that all who participate in the political marketplace do so with exactly equal resources," the Adams plaintiffs' alleged injury of "a curtailment of the scope of their participation in the electoral process" did not constitute an injury "to a legally cognizable right." Id. at 708-09 (quoting Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 257 (1986)). Here Plaintiffs contend that they are harmed by the FEC's regulations' failure to faithfully adhere to the terms Congress mandated in BCRA. Accordingly the rights they seek to vindicate - in essence, to campaign in a regime that reflects Congress's mandate as articulated in BCRA - are legally cognizable.*fn12

The FEC also argues that Plaintiffs have the burden of establishing "that they will suffer a personal injury in fact from each of the regulations they challenge here; demonstrating such an injury from one regulation would not suffice to establish their standing to contest any other regulations." Def.'s Mem. at 6 (emphasis in original). This implicates the second prong of the standing inquiry, causation. Plaintiffs do not contest Defendant's articulation of the state of the law; rather, they note that the Supreme Court has recognized that BCRA and the changes it made to FECA, created a "delicate and interconnected regulatory scheme." Pls.' Opp'n at 8 (quoting McConnell, 124 S.Ct. at 677). While this is true,*fn13 the Court does not find this fact to be dispositive. It is correct, as Defendants have noted, that Article III "standing requires an injury with a nexus to the substantive character of the statute or regulation at issue." Diamond v. Charles, 476 U.S. 54, 70 (1986). The harm that Plaintiffs have alleged, having to adjust their campaigns to account for activities that they maintain should be banned but are permitted by the regulations, is connected to all of the regulations they challenge. The Court therefore finds that Plaintiffs' harm is "fairly traceable to the challenged" regulations, and they have established the causation prong of the standing inquiry.

In terms of the redressability prong, Defendant does not argue that Plaintiffs have failed to meet this standing requirement. Plaintiffs maintain that their injury "plainly would be redressed by a judicial decree plugging the loopholes and ordering that the rules be corrected to comply with the statute." Pls.' Opp'n at 15-16. Although the Court disagrees with the appropriateness of the relief Plaintiffs request, see infra at 155, the Court agrees that favorable rulings for Plaintiffs will result in changes to the regulations they challenge that the Court finds to be improper. Therefore, the Court finds that Plaintiffs have satisfied the redressability prong of the standing analysis.

Accordingly, the Court is satisfied that Plaintiffs have alleged, and supported with evidence, a concrete and actual harm constituting an injury in fact for purposes of the Article III standing inquiry, that this harm is connected to the contested regulations and would be redressed by a favorable decision by this Court.

b. Prudential Standing

Plaintiffs note that Defendant does not argue that they fail to meet the prudential standing requirement found in Section 10(a) of the APA. Pls.' Opp'n at 3. The provision provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The Supreme Court has interpreted this provision "to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury-in-fact." Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 488 (1998). To establish prudential standing under the APA, "the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute... in question." Id. (quoting Association of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970)); see also Amgen, Inc. v. Smith, 357 F.3d 103, 108 (D.C. Cir. 2004).

[I]n applying the "zone of interests" test, [a court does] not ask whether, in enacting the statutory provision at issue, Congress specifically intended to benefit the plaintiff. Instead, [the court] first discern[s] the interests "arguably... to be protected" by the statutory provision at issue; [the court] then inquire[s] whether the plaintiff's interests affected by the agency action in question are among them. Nat'l Credit Union Admin., 522 U.S. at 492. The "zone of interests" test "is not meant to be especially demanding." Amgen, Inc., 357 F.3d at 108 (quoting Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 396-97(1987)).

Plaintiffs contend that they "are directly regulated by FECA and BCRA, and fall within several of the classes intended to be protected - they are elected officials, candidates, fundraisers, party members, and voters." Pls.' Opp'n at 3-4; Pls.' Mem. at 87 n.146.*fn14 Since it strikes the Court as self-evident that Plaintiffs meet the "zone of interests" test, and given that Defendant has not responded to Plaintiffs' argument on the matter, see Def.'s Opp'n at 2-8, the Court finds that Plaintiffs meet the APA's prudential standing requirement.

2. Ripeness

Defendant also contends that Plaintiffs' claims are not ripe for review. Def.'s Mem. at 11. A Court may not entertain a suit that is not ripe for review. The basic rationale behind the ripeness doctrine is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977). The Supreme Court has cautioned against premature litigation over regulatory actions:

Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891 (1990).*fn15 Therefore, Plaintiffs' suit is of a type "ordinarily" considered unripe for review. However, a court may find such challenges ripe for review after evaluating "(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration." Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 123 S.Ct. 2026, 2030 (2003) (" NPHA ") (citing Abbott Labs., 387 U.S. at 149). This Circuit has characterized the ripeness inquiry as a balancing test, where the court "balance[s] the petitioner's interest in prompt consideration of allegedly unlawful agency action against the agency's interest in crystallizing its policy before that policy is subject to review and the court's interest in avoiding unnecessary adjudication and in deciding issues in a concrete setting." AT&T Corp. v. Federal Communications Commission, 349 F.3d 692, 699 (D.C. Cir. 2003) (quoting City of Houston v. Dep't of Housing & Urban Dev., 24 F.3d 1421, 1430 (D.C. Cir. 1994)) (internal quotation marks omitted). Therefore, under AT&T 's guidance, the fitness for review prong actually consists of two considerations: (1) "whether the disputed claims [are] presumptively suitable for judicial review;" and (2) "whether the court or the agency would benefit from postponing review until the policy in question has sufficiently crystallized by taking a more definite form." Id. at 699-700 (internal quotation marks and citations omitted).

The Court considers the "fitness for review" and "hardship" prongs in turn.

a. Fitness for Review

"Among other things, the fitness of an issue for judicial decision depends on whether it is 'purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency's action is sufficiently final.'" Atlantic States Legal Found. v. Environmental Protection Agency, 325 F.3d 281, 284 (D.C. Cir. 2003) (quoting Clean Air Implementation Project v. Environmental Protection Agency, 150 F.3d 1200, 1204 (D.C. Cir. 1998)). "Claims that an agency's action is arbitrary and capricious or contrary to law present purely legal issues. But even purely legal issues may be unfit for review." Id. (citation omitted); see also NPHA, 123 S.Ct. at 2032 (finding issue unfit for review, even though the issue was "a purely legal one" and "constitute[d] 'final agency action' within the meaning of § 10 of the APA").

Plaintiffs contend that their challenge is ripe for review. Pls.' Mem. at 87. They note that "the BCRA rules clearly constitute 'final agency action' within the meaning of 5 U.S.C. § 704, and have the force and effect of law." Id. Moreover, they contend that "the issues in this facial challenge involve purely legal questions of statutory construction and compliance with the APA." Id. Defendant does not dispute these assertions. Def.'s Opp'n at 9.*fn16 Nor does the Commission suggest any institutional considerations weighing against review at this time. Rather, the Commission contends that this action involves purely legal issues that are not ripe for review because "plaintiffs' arguments are grounded largely on their own speculation about how the Commission would construe and apply the general language of the regulations in specific factual circumstances.... They ask this Court to review the legality of possible constructions of the regulations that the Commission itself has not adopted." Id. at 11. This, the FEC contends, demonstrates that the Court needs to wait to see how the rules will be applied in order to know what their effects truly are. Id.

The Court has reviewed Plaintiffs' challenges and finds that none of them rely on speculation as to how the regulations will be applied.*fn17 Plaintiffs' challenges are limited to arguments claiming that the FEC has not followed Congress's instructions in promulgating the regulations implementing BCRA. As these challenges are purely legal, and the Court observes no judicial or agency considerations warranting delay in reviewing the regulations, Plaintiffs have satisfied the "fitness for review" prong of the ripeness analysis.

b. Hardship to the Plaintiffs of Withholding Court Consideration

Plaintiffs contend that since this case presents purely legal issues, this Court need not decide the hardship prong of the Abbott Laboratories test. Pls.' Mem. at 89 n.149. In this Circuit, "[t]he 'hardship' prong of the Abbott Laboratories test is not an independent requirement divorced from the consideration of the institutional interests of the court and agency. Thus, where there are no institutional interests favoring postponement of review, a petitioner need not satisfy the hardship prong." AT&T Corp., 349 F.3d at 700 (citation omitted).*fn18 Defendant attempts to distinguish this precedent from the case at bar, noting that AT&T was a case brought pursuant to the "specific statutory authorization of pre-enforcement review" of the Federal Communications Act. Def.'s Opp'n at 9-10 n.13. Defendant then cursorily surmises that "when review is sought under the APA, the hardship test is the first and most important factor." Id. at 10 n.13. In support of this latter argument, Defendant cites to NPHA, a case brought pursuant to the APA, where the Supreme Court in making its ripeness determination, began by examining "the hardship inquiry." NPHA, 123 S.Ct. at 2030. The Court finds both of these arguments lack merit.

First, nowhere in NPHA does the Supreme Court state that "the hardship test is the first and most important factor," and the Court does not impute that principle from the fact that the NPHA Court elected to take the Abbott Laboratories factors out of turn. See id. Second, there is nothing in AT&T or any other case the Court has reviewed that suggests that its holding is limited to challenges to regulations brought under statutes authorizing pre-enforcement review, rather than those brought pursuant to the APA, and Defendant has not cited to one. See, e.g., AT&T, 349 F.3d at 700. It is clear that the Abbott Laboratories test applies to cases brought pursuant to the APA as the test itself was first applied in a case brought under the APA. Abbott Labs., 387 U.S. at 148, 153. Moreover, this Circuit has dispensed with the hardship prong in a case brought under the APA where it found the legal issues were fit for review. Air Transp. Ass'n of America v. Dep't of Transp., 900 F.2d 369, 374 (D.C. Cir. 1990), judgment vacated on other grounds, 498 U.S. 1077 (1991), vacated by 933 F.2d 1043 (D.C. Cir. 1991).*fn19 Accordingly, the Court finds that under this Circuit's precedent, once a plaintiff has established that no institutional considerations caution in favor of postponing review, the Court need not address the "hardship" prong of the ripeness analysis.*fn20 The Court therefore finds that Plaintiffs' suit is ripe for review.

B. Legal Standards

1. Summary Judgment

Summary judgment is appropriate only if the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994); Fed. R. Civ. P. 56(c). In ruling upon a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir.1992). Similarly, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975); Long v. Gaines, 167 F. Supp. 2d 75, 85 (D.D.C. 2001). Each moving party discharges its burden to support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions 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) (quoting Fed. R. Civ. P. 56(c)).

2. Standards for Administrative Agency Review

Plaintiffs' central challenge to the FEC's regulations is that they are contrary to the statutory instructions given by Congress when it enacted BCRA. The standard for the Court's review of such challenges is known as Chevron review, after the Supreme Court's decision in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). The central question for the reviewing court under Chevron "is whether the agency's construction of the statute is faithful to its plain meaning, or, if the statute has no plain meaning, whether the agency's interpretation 'is based on a permissible construction of the statute.'" Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995) (quoting Chevron, 467 U.S. at 843). Under the Chevron analysis, a court first asks "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43; see also id. at 843 n.9 ("[A]dministrative constructions which are contrary to clear congressional intent" must be rejected by the court). "When performing this first step, [courts] employ traditional tools of statutory construction." Independent Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643 (D.C. Cir. 2000) (citing Chevron, 467 U.S. at 842-43; INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)). Among these tools is a statute's legislative history. See American Fed'n of Labor & Congress of Indus. Orgs. v. Federal Election Commission, 333 F.3d 168, 172 (D.C. Cir. 2003) (" AFL-CIO "); American Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp. 2d 114, 134 (D.D.C. 1999); see also Natural Res. Def. Council v. Browner, 57 F.3d 1122, 1127 (D.C. Cir. 1995) ("Reference to statutory design and pertinent legislative history may often shed new light on congressional intent, notwithstanding statutory language that appears 'superficially clear.'") (quoting American Scholastic TV Programming Found. v. Federal Communications Commission, 46 F.3d 1173, 1178 (D.C. Cir. 1995)). However, canons of construction are only to be used during step one of the Chevron analysis to determine if "Congress had a specific intent on the issue in question. Mich. Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292-93 (D.C. Cir. 1989) (emphasis in original). In conducting this stage of the Chevron analysis, the Court "giv[es] no deference to the agency's interpretation." AFL-CIO, 333 F.3d at 173.

If the court finds that "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843. "A statute is considered ambiguous if it can be read more than one way." AFL-CIO, 333 F.3d at 173. "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n.11. Therefore

[w]hen a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges--who have no constituency-- have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."

Id. at 866 (quoting TVA v. Hill, 437 U.S. 153, 195 (1978)). However, "[i]f the FEC's interpretation unduly compromises the Act's purposes, it is not a 'reasonable accommodation' under the Act, and it would therefore not be entitled to deference." Orloski, 795 F.2d 156, 164 (D.C. Cir. 1986) (quoting Chevron, 467 U.S. at 845); see also Chevron, 467 U.S. at 845 (providing that if the agency's "choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.") (quoting United States v. Shimer, 367 U.S. 374, 382 (1961)); Common Cause v. Federal Election Commission, 692 F. Supp. 1391, 1396 (D.D.C. 1987) ("[W]here the agency interprets its statute in a way that flatly contradicts Congress's express purpose, the court may -- indeed must -- intervene and correct the agency.").*fn21

In addition to their Chevron challenge, Plaintiffs also claim that the Commission, in promulgating the challenged regulations, failed to engage in the "reasoned analysis" required in order for a regulation not to be rendered "arbitrary and capricious." The Administrative Procedure Act ("APA") provides that "[t]he reviewing court shall... hold unlawful and set aside agency action, findings, and conclusions found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: We may not supply a reasoned basis for the agency's action that the agency itself has not given. We will, however, uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.

Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal citations and quotation marks omitted); see also Cellco P'ship v. Federal Communications Commission, 357 F.3d 88, 93-94 (D.C. Cir. 2004) (noting "arbitrary and capricious" review is "highly deferential... presum[ing] the validity of agency action... [which] must [be] affirm[ed] unless the Commission failed to consider relevant factors or made a clear error in judgment."). The "reasoned analysis" requirement is "not 'particularly demanding,'" and "is satisfied if the agency 'enables us to see what major issues of policy were ventilated and why the agency reacted to them as it did.'" Republican Nat'l Comm. v. Federal Election Commission, 76 F.3d 400, 407 (D.C. Cir. 1996), cert. denied, 519 U.S. 1055 (1997) (quoting Public Citizen, Inc. v. Federal Aviation Admin., 988 F.2d 186, 197 (D.C. Cir. 1993) (internal punctuation omitted). Moreover, the Court "must affirm if a rational basis for the agency's decision exists." Bolden v. Blue Cross & Blue Shield Ass'n, 848 F.2d 201, 205 (D.C. Cir. 1988). The degree of deference a court should pay an agency's construction is, however, affected by "the thoroughness, validity, and consistency of an agency's reasoning." Federal Election Commission v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981). Moreover, this Circuit has noted that "a permissible statutory construction under Chevron is not always reasonable under State Farm: 'we might determine that although not barred by statute, an agency's action is arbitrary and capricious because the agency has not considered certain relevant factors or articulated any rationale for its choice.'" Republican Nat'l Comm., 76 F.3d at 407 (quoting Arent v. Shalala, 70 F.3d 610, 620 (D.C. Cir. 1995) (Wald, J., concurring in the judgment)).

Finally, since Plaintiffs are mounting a facial challenge to the FEC's regulations, to prevail they "must establish that no set of circumstances exists under which the regulation would be valid." Reno v. Flores, 507 U.S. 292, 301 (1993); see also Amfac Resorts, L.L.C. v. United States Dep't of the Interior, 282 F.3d 818, 826-28 (D.C. Cir. 2002) (acknowledging the Reno holding, but noting potential problems in its application), vacated, sub nom. National Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803 (2003); but cf. Mineral Policy Ctr v. Norton, 292 F. Supp. 2d 30, 39 (D.D.C. 2003) (Kennedy, J.) (noting confusion in the wake of the Reno decision).

C. Challenged Regulations

The Court now turns to the merits of this case. Plaintiffs have challenged numerous regulations promulgated by the FEC pursuant to Congress's enactment of BCRA. The Court addresses each in turn.*fn22

1. Regulations Governing Coordinated Communications

In the modern era of campaign finance, Congress and the courts have acknowledged the distinction between those expenditures that are independent and those that are made in coordination with a campaign. McConnell, 124 S.Ct. at 704 ("Ever since our decision in Buckley, it has been settled that expenditures by a noncandidate that are 'controlled by or coordinated with the candidate and his campaign' may be treated as indirect contributions subject to FECA's source and amount limitations.") (quoting Buckley, 424 U.S. at 46). Those expenditures*fn23 that are made in coordination with certain political entities and candidates for federal office*fn24 are deemed to be "contributions" under campaign finance law. See 2 U.S.C. § 441a(a)(7)(B)(i) ("[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate"); Buckley v. Valeo, 424 U.S. 1, 46-47 (1976) (noting that "coordinated expenditures are treated as contributions rather than expenditures under [FECA]. [FECA's] contribution ceilings rather than [its] independent expenditure limitation prevent attempts to circumvent [FECA] through prearranged or coordinated expenditures amounting to disguised contributions."). While conceptually cogent, this formulation created practical concerns for courts forced to determine the line that separates an independent expenditure from a coordinated one, especially when the expenditure in question is an expressive one that implicates First Amendment considerations. See McConnell, 251 F.2d at 255-57 (per curiam) (discussing Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999) & Federal Election Commission v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001)).

Prior to the passage of BCRA, the then-existing regulation on coordinated communications "placed significant weight on whether a communication had resulted from a 'substantial discussion or negotiation... the result of which is collaboration or agreement' between the candidate and outside spender...." Pls.' Mem. at 8 n.15 (quoting 11 C.F.R. § 100.23(c)(2)(iii) (2001) ( repealed )).*fn25 Section 214 of BCRA repealed this regulation and instructed the FEC to promulgate new regulations on coordinated communications paid for by persons other than candidates, authorized committees of candidates, and party committees. The regulations shall not require agreement or formal collaboration to establish coordination. In addition to any subject determined by the Commission, the regulations shall address

(1) payments for the republication of campaign materials;

(2) payments for the use of a common vendor;

(3) payments for communications directed or made by persons who previously served as an employee of a candidate or a political party; and

(4) payments for communications made by a person after substantial discussion about the communication with a candidate or a political party.

2 U.S.C. § 441a note; BCRA § 214(b)-(c). On January 3, 2003, the FEC issued its Final Rules on coordinated communications in response to BCRA, which included a repeal of 11 C.F.R. § 100.23. Coordinated & Independent Expenditures, 68 Fed. Reg. 421 (Jan. 3, 2003). Plaintiffs challenge three aspects of these regulations. The Court addresses each in turn.

a. Content Standards

The FEC explains that under its new regulations, [a] communication is coordinated with a candidate, an authorized committee, a political party committee, or an agent of any of the foregoing when the communication:

(1) Is paid for by a person other than that candidate, authorized committee, political party committee, or agent of any of the foregoing;

(2) Satisfies at least one of the content standards in paragraph (c) of this section; and

(3) Satisfies at least one of the conduct standards in paragraph (d) of this section. Coordinated & Independent Expenditures, 68 Fed. Reg. at 453. Plaintiffs argue that the content standards promulgated by the FEC for coordinated communications should be invalidated. The content standards are as follows:

(c) Content standards. Each of the types of content described in paragraphs (c)(1) through (c)(4) satisfies the content standard of this section.

(1) A communication that is an electioneering communication under 11 CFR 100.29.

(2) A public communication that disseminates, distributes, or republishes, in whole or in part, campaign materials prepared by a candidate, the candidate's authorized committee, or an agent of any of the foregoing....

(3) A public communication that expressly advocates the election or defeat of a clearly identified candidate for Federal office.

(4) A communication that is a public communication, as defined in 11 CFR 100.26, and about which each of the following statements in paragraphs (c)(4)(i), (ii), and (iii) of this section are true.

(i) The communication refers to a political party or to a clearly identified candidate for Federal office;

(ii) The public communication is publicly distributed or otherwise publicly disseminated 120 days or fewer before a general, special, or runoff election, or 120 days or fewer before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate; and

(iii) The public communication is directed to voters in the jurisdiction of the clearly identified candidate or to voters in a jurisdiction in which one or more candidates of the political party appear on the ballot.

11 C.F.R. § 109.21(c)(1)-(4). Plaintiffs object to the fact that under this regulation, unless the communication constitutes "express advocacy"*fn26 or is a republication of a candidate's own materials, the regulation only bars coordinated communications within 120 days of an election, primary or convention.*fn27 Pls.' Mem. at 10. They contend that under the plain language of the new rules, a candidate will now be able to help create an advertisement touting his virtues or attacking his opponent's, and then persuade a corporation or union to sponsor it using treasury funds, so long as the advertisement is run more than 120 days before any primary, convention, or general election and avoids any "express advocacy" or republication of campaign materials.

Id. at 10-11. Furthermore, Plaintiffs note that under the regulations, if the coordinated communication does not refer to a candidate or political party by name then the communication may be broadcast at any time. Id. at 12. Defendant does not dispute Plaintiffs' reading of its regulations. See Def.'s Opp'n at 53-58; see also Def.'s Mem. at 79 ("[D]uring the last 120 days before an election, a communication that is not a republication of a candidate's own campaign materials will not be treated as a 'coordinated expenditure' if it does not at least mention a candidate or political party."). In fact, in its publication of the rule, the Commission noted that "[i]n effect, the content standard of paragraph (c)(4)(ii) operates as a 'safe harbor' in that communications that are publicly disseminated or distributed more than 120 days before the primary or general election will not be deemed to be 'coordinated' under this particular content standard under any circumstances." Coordinated & Independent Expenditures, 68 Fed. Reg. at 430 n.2 (emphasis added). However, the Commission does contend that the universe of permissible coordinated communications under the rule is narrower than Plaintiffs suggest. Def.'s Opp'n at 57. It points out that "express advocacy"*fn28 and "the dissemination of a candidate's own campaign materials," are barred year-round. Id. at 58. The Commission also notes that the 120-day window applies to numerous political events which occur at different time periods, and that "these multiple 120-day windows will usually include a majority of the days in even-numbered years preceding the November election." Id.*fn29

Applying the Chevron analysis, the Court first inquires as to whether or not "Congress has directly spoken on the precise question at issue." Chevron 467 U.S. at 842. The Court does so "using traditional tools of statutory construction and legislative history." AFL-CIO, 333 F.3d at 172. Plaintiffs contend that the fact that Congress included a 120-day window in a separate provision of BCRA*fn30 suggests, "[u]nder the canon expressio unius est exclusio alterius " that Congress "intended for no temporal restrictions to apply to provisions it did not similarly limit." Pls.' Mem. at 14. Defendant rejects this conclusion, arguing that "under Chevron the 'contrast between Congress's mandate in one context with its silence in another suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion.'" Def.'s Opp'n at 23 (quoting Amax Land Co. v. Quarterman, 181 F.3d 1356, 1365 (D.C. Cir. 1999) (omitting citations) (emphasis in original)). Indeed, this Circuit has noted the academic criticism of the canon, and has held that

[w]hatever its general force, we think it an especially feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved. Here the contrast between Congress's mandate in one context with its silence in another suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion. Such a contrast (standing alone) can rarely if ever be the "direct[ ]" congressional answer required by Chevron. Cheney R.R. Co. v. Interstate Commerce Comm'n, 902 F.2d 66, 69 (D.C. Cir. 1990) (emphasis in original). However, this general rule is not without its exceptions. As Plaintiffs point out, this Circuit recently found an agency regulation to be contrary to Congress's express intent relying in part on the canon of expressio unius est exclusio alterius. Pls.' Mem. at 14 n.24. In Independent Insurance Agents of America v. Hawke, the D.C. Circuit acknowledged that it had "rejected the canon in some administrative law cases, but only where the logic of the maxim - that the special mention of one thing indicates an intent for another thing not be included elsewhere - did not hold up in the statutory context." 211 F.3d 638, 644 (D.C. Cir. 2000) (citing Texas Rural Legal Aid, Inc. v. Legal Serv. Corp., 940 F.2d 685, 694 (D.C. Cir. 1991); Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773, 779 (D.C. Cir. 1990); Cheney R.R. Co., 902 F.2d at 68-69)). The Hawke court noted further that "if there are other reasonable explanations for an omission in a statute, expressio unius may not be a useful tool." Id. "But, where the context shows that the 'draftsmen's mention of one thing, like a grant of authority, does really necessarily, or at least reasonably, imply the preclusion of alternatives,' the canon is a useful aid." Id. (quoting Shook v. District of Columbia Fin. Responsibility & Mgmt. Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998)).

A review of the provision in question reveals that the expressio unius canon does not demonstrate that Congress has spoken directly on the question of time limits. Indeed, BCRA Section 214 expressly provides the Commission with the authority to promulgate new regulations addressing coordinated communications, with some guidance regarding what matters should be covered by the regulations and a single prohibition against equating coordination with "agreement or formal collaboration." 2 U.S.C. § 441a note (quoted supra at 34). Otherwise, the regulation is silent on the parameters of this delegation of authority. The Court does not find persuasive the argument that the inclusion of a 120-day period in a separate and unrelated section of BCRA, but not in Section 214, means that Congress has spoken clearly on whether or not such a requirement may be included in the coordinated communications regulations. Accordingly, the Court rejects Plaintiffs' argument that the expressio unius canon of statutory construction reveals Congress's specific intent on this matter.

Plaintiffs also appear to make an argument under the legislative reenactment doctrine, although they do not invoke the doctrine by name. Noting that the FEC had consistently treated the content of communications as irrelevant for purposes of determining whether or not they were coordinated under FECA, Plaintiffs argue that the "Commission was not at liberty to depart from [this] long-standing construction relied upon by Congress as it fine-tuned the campaign finance laws." Pls.' Mem. at 16-17; see also id. at 17 n.31 (citing legislative reenactment doctrine cases). Defendant contends that the doctrine is inapplicable to the current case. Def.'s Opp'n at 15 n.26, 55-56 n.83.

The legislative reenactment doctrine provides that "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change[.]" Lorillard v. Pons, 434 U.S. 575, 580 (1978). This Circuit has noted that while "courts have stated this general proposition, usually as a defense to a later attack against the same interpretation, no case has rested on this presumption alone as a basis for holding that the statute required that interpretation." American Fed'n of Labor & Congress of Indus. Orgs. v. Brock, 835 F.2d 912, 916 n.6 (1987) (emphasis in original) (listing cases including Lorillard ).*fn31 The Brock court observed that

[t]he authority to whom the Supreme Court as well as lower courts refer for this rule of statutory construction makes this qualification explicit: "[The rule of implied adoption of an agency interpretation on reenactment] does not apply where nothing indicates that the legislature had its attention directed to the administrative interpretation upon reenactment." C. Sands, Sutherland on Statutory Construction § 49.09, at 400 (footnote omitted) (4th ed. 1984).

Id. Therefore, the Brock court held that [t]o freeze an agency interpretation, Congress must give a strong affirmative indication that it wishes the present interpretation to remain in place." Id. at 916; see also 2B Norman J. Singer, Sutherland Statutes & Statutory Construction § 49.9 (6th ed. 2004) (noting that the doctrine "does not apply where nothing indicates that the legislature had its attention directed to the administrative interpretation upon reenactment."); Pls.' Mem. at 17 n.31 (citing same). In support of their legislative reenactment argument, Plaintiffs point the Court to Senator Russell Feingold's statement on the Senate floor noting that "[e]xisting law provides that a campaign-related communication that is coordinated with a candidate or party is a contribution to the candidate or party, regardless of whether the communication contains 'express advocacy.'" Pls.' Mem. at 17 (quoting 148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002) (statement of Sen. Feingold)). The Court finds that while this statement does shed some light on Congress's understanding of the FEC's approach to coordinated communications, and does provide some indication of an expectation that this approach would continue after the passage of BCRA, the Court does not find that it meets the Brock test of constituting a "a strong affirmative indication that [Congress] wishe[d] the present interpretation to remain in place." Brock, 835 F.2d at 916. The statement is devoid of any reference to maintaining the same approach to coordinated communications. Moreover, the other cases cited by Plaintiffs that discuss the legislative reenactment doctrine contain substantially stronger affirmative indications of Congress's intention to retain the agency's interpretation. See supra note 31. Accordingly, Plaintiffs' legislative reenactment argument is unavailing.

Plaintiffs also make numerous arguments about the legislative history of Section 214, and Congress's purposes and objectives in passing the provision, claiming that these factors demonstrate Congress's clear intent and that the Commission's regulations have run afoul of that intent. Pls.' Mem. at 15-18. It is true that when deciding Chevron step one, a court looks to see "whether Congress has directly spoken to the precise question at issue... through the statute's purposes;" however, this analysis is not done "in a vacuum; rather [courts] look to how th[o]se purposes are expressed through the statutory language. 'The invocation of disembodied purposes, reasons cut loose from the language is a sure way to frustrate rather than to implement the statute.'" Orloski, 795 F.2d at 163-64 (quoting Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir. 1986)). Looking at the statutory language, it is clear that Congress ordered the FEC to promulgate new regulations and provided some guidance. See 2 U.S.C. § 441a note. However, Congress provided no express guidance on the matter of content restrictions, and therefore the Court finds that the statute is "silent... with respect to the specific issue." Chevron, 467 U.S. at 843. Accordingly, the Court, following the D.C. Circuit's model in Orloski, turns to the second prong of the Chevron analysis. See Orloski, 795 F.2d at 164.*fn32

Under Chevron step two, since the Court has found that "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843. "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 843 n.11. Like the situation the Orloski court faced, here it is readily apparent that... Congress left a large gap between the obviously impermissible and the obviously permissible. This gap creates the potential for a broad range of differing interpretations of the Act, the legitimacy of each being heavily dependent upon the degree to which it undercuts the statutory purposes.... If the FEC's interpretation unduly compromises the Act's purposes, it is not a reasonable accommodation under the Act, and it would therefore not be entitled to deference.

Orloski, 795 F.2d at 164 (internal quotation marks omitted). Given the vast discretion Congress delegated to the FEC in enacting BCRA Section 214, the Court finds that its construction of the statute is facially permissible. The Court now turns to ...


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