The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Currently pending before the Court are cross-motions for summary judgment filed by Plaintiff, Christopher Shays ("Shays" or "Plaintiff"), a member of the United States House of Representatives, and Defendant, the Federal Election Commission ("FEC" or "Commission" or "Defendant"). Plaintiff's Complaint in this action challenges the FEC's alleged "continuing failure to promulgate lawful regulations" implementing Titles I and II of the Bipartisan Campaign Reform Act ("BCRA")--specifically regulations governing "coordinated communications," "Federal election activity," and solicitations of nonfederal money by federal officeholders and candidates at state, district, and local fundraising events. Compl. ¶ 2.*fn1 The above-captioned action represents Plaintiff's second challenge to these regulations--Plaintiff previously filed a related action, Shays v. Federal Election Commission, Civil Action No. 02-1984 (CKK), in which he challenged the then-effective versions of these regulations. See Shays v. FEC, 337 F. Supp. 2d 28, 35 (D.D.C. 2004) ("Shays I").*fn2 This Court granted-in-part and denied-in-part each party's motion for summary judgment in Shays I, and invalidated and remanded fifteen regulations promulgated by the FEC, including the regulations at issue in the instant action. See id. at 130-31. The FEC subsequently appealed this Court's summary judgment decision in Shays I with respect to five rules, only one of which is challenged herein, and on July 15, 2005, the United States Court of Appeals for the District of Columbia Circuit affirmed this Court's "invalidation of all five rules at issue." See Shays v. FEC, 414 F.3d 76, 82, 105 (D.C. Cir. 2005) ("Shays I Appeal").
Following the decisions in Shays I and the Shays I Appeal, the Commission initiated rulemaking proceedings for each of the regulations challenged herein, and either promulgated a revised regulation or retained its previous regulation while revising the accompanying Explanation and Justification ("E&J"). Plaintiff's Complaint in this action challenges the FEC's alleged "continuing failure to promulgate lawful regulations . . . as required by the opinions and judgment in Shays I and by [BCRA]." Compl. ¶ 2. Upon searching consideration of the parties' briefing, the administrative record of the relevant rulemaking proceedings, the relevant case law and statutes, and the entire record herein, the Court shall grant-in-part and deny-in-part Plaintiff's Motion for Summary Judgment and shall grant-in-part and deny-in-part Defendant's Motion for Summary Judgment.
The Court concludes that the revised coordinated communications content standard contained in 11 C.F.R. § 109.21(c)(4) survives Chevron analysis, but does not meet the Administrative Procedure Act's ("APA") requirement of reasoned decisionmaking. See infra at 35-55. With respect to the revised coordinated communications conduct standards at 11 C.F.R. § 109.21(d), the Court finds that the revised temporal limit for the common vendor and former employee conduct standards in 11 C.F.R. §§ 109.21(d)(4) and (d)(5) survives Chevron step two analysis but is nevertheless arbitrary and capricious, in violation of the APA. See infra at 55-61. The Court further concludes that the new firewall safe harbor included in the conduct standards fails Chevron step two analysis and is also arbitrary and capricious, in violation of the APA. See infra at 61-69. As to the exemption for solicitation by federal candidates and officeholders at state, district, or local party fundraising events, found at 11 C.F.R. § 300.64(b), the Court concludes that the provision survives APA review. See infra at 69-79. Finally, the Court finds that the definitions of "voter registration activity" and "get-out-the-vote activity" contained in the Commission's regulations governing "Federal election activity," 11 C.F.R. §§ 100.24(a)(2)- (a)(3), fail both Chevron step two and APA analysis. See infra at 79-93. The Court therefore remands the following regulations to the Commission for further action consistent with this Memorandum Opinion and the accompanying Order: 11 C.F.R. § 109.21(c); 11 C.F.R. §109.21(d); 11 C.F.R. § 100.24(a)(2); and 11 C.F.R. § 100.24(a)(3).
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 instant cross-motions for summary judgment, the Court "assumes that facts identified by the moving party in the 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; 7(h).Specifically, the Court looks to each party's statement to cull out the relevant undisputed facts and to determine those facts that are conceded by the cross-moving party.
The Court further notes that the events, statutes, and case law underlying this action have been the subject of numerous opinions of this Court, the United States Court of Appeals for the District of Columbia Circuit, and the United States Supreme Court. See McConnell, 540 U.S. 93; Shays I, 337 F. Supp. 2d 28; Shays I Appeal, 414 F.3d 76. Accordingly, the Court shall recite herein only those facts that are relevant in resolving the instant cross-motions for summary judgment.
A. Events Prior to Shays I
The Bipartisan Campaign Reform Act, H.R. 2356, was signed into law on March 27, 2002, and amended the Federal Election Campaign Act of 1971 (the "Act" or "FECA"). Shays I, 337 F. Supp. 2d at 36-37. The Federal Election Commission is the independent agency of the United States government with exclusive jurisdiction to administer, interpret, and civilly enforce FECA. Id. at 37. As directed in BCRA, the Commission initiated rulemaking proceedings and subsequently promulgated regulations implementing BCRA. Id. Those regulations included, inter alia, rules governing Federal election activity of state, district, and local parties, and solicitation by federal candidates and officeholders at state, district, and local party fundraising events, all of which became effective on November 6, 2002, as well as a rule governing "Coordinated and Independent Expenditures," which became effective on February 3, 2003. Shays I, 337 F. Supp. 2d at 37-38; Pl.'s Statement of Material Facts As To Which Plaintiffs Contend There is No Genuine Issue ("Pl.'s Stmt.") ¶¶ 4-5; Def.'s Stmt. of Material Facts Not in Genuine Dispute ("Def.'s Stmt.") ¶¶ 3-6.
Plaintiff Christopher Shays is a citizen of the United States, a Member of Congress, candidate, voter, recipient of campaign contributions, fundraiser, and member of a political party. Pl.'s Stmt. ¶ 18. Plaintiff Shays is a Member of the United States House of Representatives from the Fourth Congressional District of the State of Connecticut. Id. ¶ 14. He was first elected in 1987, was re-elected in 1988, has been re-elected every two years thereafter, and is running for re-election in November 2008. Id. Plaintiff is subject to regulation under FECA, BCRA, and the Commission's implementing regulations. Id. ¶ 18. Along with Martin Meehan, the former Member of the United States House of Representatives from the Fifth Congressional District of Massachusetts, id. ¶ 15, Plaintiff Shays was one of the principal House sponsors of the legislation enacted as BCRA and spent many years seeking to promote its enactment, id. ¶ 16. Shays and Meehan, along with other co-sponsors of BCRA, submitted written comments on the FEC's proposed rules implementing BCRA's provisions, including the rulemaking proceedings undertaken in response to the decisions of this Court in Shays I and the D.C. Circuit in the Shays I Appeal. Id. ¶ 17. The Commission did not adopt some of Shays' and Meehan's views in its final rules. Id.; Def.'s Stmt. of Gen. Issues ("Def.'s Resp. Stmt.") ¶ 17.
Plaintiff's Complaint and Amended Complaint in Shays I challenged a number of the Commission's regulations implementing Titles I and II of BCRA. Shays I, 337 F. Supp. 2d at 35. This Court's September 18, 2004 Memorandum Opinion and Order invalidated some of those regulations including, inter alia, 11 C.F.R. §§ 100.24(a)(2) and (a)(3), 109.21(c), and 300.64(b), the regulations governing Federal election activity, coordinated communications, and solicitation by federal officeholders and candidates at state, district, and local fundraising events. Id. at 55-65, 88-93, 97-107, 129-30.*fn3 The FEC appealed this Court's resolution of Plaintiff's challenge to the coordinated communications regulations, as well as with four other regulations, and on July 15, 2005, the United States Court of Appeals for the District of Columbia Circuit affirmed this Court's invalidation of those regulations. Shays I Appeal, 414 F.3d at 97-102.*fn4
C. Post-Shays I Rulemaking Proceedings
1. Solicitation At Party Fundraising Events
On February 24, 2005, the Commission issued a Notice of Proposed Rulemaking ("NPRM") on "Solicitation at State, District, and Local Party Fundraising Events" by federal candidates and officeholders. Def.'s Stmt. ¶ 11; Pl.'s Stmt. ¶ 7. The NPRM proposed revisions to the E&J for the existing regulation, 11 C.F.R. § 300.64 (2003), and alternatively proposed revising the regulation to prohibit federal officeholders and candidates from soliciting or directing nonfederal funds when attending or speaking at state, district, or local party fundraisers. Def.'s Stmt. ¶ 12. The Commission received written comments, Def.'s Stmt. ¶ 13; Pl.'s Stmt. ¶ 7, and held a public hearing on its fundraiser NPRM on May 17, 2005, at which it heard testimony from various witnesses, Def.'s Stmt. ¶¶ 14-15; Pl.'s Stmt. ¶ 7. After conducting an open meeting on June 23, 2005, the Commission voted to approve a revised E&J for the fundraiser regulation. Def.'s Stmt. ¶ 16; Pl.'s Stmt. ¶ 7. The Commission's revised E&J for final rule 11 C.F.R. § 300.64 was published in the Federal Register on June 30, 2005. Def.'s Stmt. ¶ 17; Pl.'s Stmt. ¶ 8; see also Candidate Solicitation at State, District, and Local Party Fundraising Events, 70 Fed. Reg. at 37,649-54.
2. Federal Election Activity
On May 4, 2005, the FEC published its NPRM regarding "Federal election activity" ("FEA") of state and local parties, including definitions of the terms "voter registration activity" and "get-out-the-vote activity" ("GOTV activity"). Def.'s Stmt. ¶ 18; Pl.'s Stmt. ¶ 8. The Commission's NPRM did not propose any changes to the regulatory definition of the term voter registration activity, but indicated that it would issue an expanded E&J for the definition. Def.'s Stmt. ¶ 19. The NPRM proposed certain changes to the regulatory definition of the term GOTV activity. Id. ¶ 20. The Commission received written comments, id. ¶ 21, Pl.'s Stmt. ¶ 8, and held a public hearing on the FEA NPRM onAugust 4, 2005, at which it heard testimony from various witnesses, Def.'s Stmt. ¶ 22; Pl.'s Stmt. ¶ 8. On August 30, 2005, the FEC published a notice to reopen the comment period on the FEA NPRM for 30 days, after which the Commission received two additional written comments. Def.'s Stmt. ¶ 23. After conducting an open meeting, the FEC adopted the revised final rules on the definition of FEA, along with an expanded E&J, on February 9, 2006. Id. ¶ 24; Pl.'s Stmt. ¶ 8. On February 10, 2006, the Commission transmitted to Congress, and on February 22, 2006, promulgated in the Federal Register, its final rules defining voter registration activity and GOTV activity along with an expanded E&J. Def.'s Stmt. ¶ 25; Pl.'s Stmt. ¶ 8; see also Definition of Federal Election Activity, 71 Fed. Reg. at 8,926-32. These regulations became effective on March 24, 2006. Pl.'s Stmt. ¶ 8.
3. Coordinated Communications
On December 14, 2005, the Commission published a NPRM that proposed seven alternatives addressing coordinated communications. Def.'s Stmt. ¶ 26; Pl.'s Stmt. ¶ 9. The NPRM "specifically invite[d] comments in the form of empirical data that show the time periods before an election in which electoral communications generally occur," as well as "examples of communications from previous election cycles demonstrating that an alternative may be either underinclusive or overinclusive," and information as to whether "early electoral communications, for example, that occur more than 120 days before an election, have an effect on election results." Def.'s Stmt. ¶ 27; Pl.'s Resp. Stmt. ¶ 27. The Commission received many written comments, Def.'s Stmt. ¶ 28; Pl.'s Stmt. ¶ 9, and held a public hearing on January 25 and 26, 2006, at which it heard testimony from 18 witnesses, Def.'s Stmt. ¶ 28; Pl.'s Stmt. ¶ 9.
a. National Journal Articles
One of the written comments included a submission of articles from the National Journal describing the scripts, timing, cost, and strategy of 236 television and radio advertisements by federal candidates, political parties, and outside interest groups from the 2004 and 2006 congressional elections and the 2000, and 2004 presidential elections (hereinafter the "National Journal articles"). Pl.'s Resp. Stmt. ¶ 29; 12/8/06 Decl. of David L. Anstaett in Support of Pl.'s Mot. for Summ. J. ¶ 16; Pl.'s Ex. ("PX") 15 (1/13/06 Comments on Notice 2005-28: Coordinated Communications submitted by the Campaign Legal Center, Democracy 21, and the Center for Responsive Politics) (hereinafter "1/13/06 Joint Comments") at 18; PX 132 (2/1/06 Suppl. Comments on Notice 2005-28: Coordinated Communications) (hereinafter "2/1/06 Suppl. Joint Comments") at 1.*fn5 The commenters submitting the National Journal articles (the Campaign Legal Center, Democracy 21, and the Center for Responsive Politics, hereinafter the "Joint Commenters") asserted that they constituted "evidence of election-influencing advertising broadcast more than 120 days prior to the election the ad was intended to influence." PX 15 (1/13/06 Joint Comments) at 18.*fn6
In connection with his Motion for Summary Judgment, Plaintiff asserts that the National Journal articles constitute "compilations of advertising during particular time periods, as gathered by the highly respected, nonpartisan National Journal." Pl.'s Resp. Stmt. ¶ 29.*fn7 In contrast, the FEC describes the National Journal articlesas a "cherry-picked collection of press reports" that are "inherently unreliable because they are based on statements from campaigns and often merely reflect their hopes or goals for the future." Def.'s Br. at 47 n.24 (citing PX 54, PX 70, and PX 76). Plaintiff defends his reliance on the National Journal articles in his Reply brief by stating that they are "actual ads" that "actually ran" and that the Joint Commenters "reviewed all National Journal coverage in two Presidential cycles (1999-2000 and 2003-04) and two Congressional cycles (2003-04 and 2005-06), and included all ads that would have run outside the Commission's revised pre-election windows." Pl.'s Reply Mem. in Support of Pl.'s Mot. for Summ. J. and Mem. in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Reply Br.") at 25.
The Court has reviewed the National Journal articles and notes that, although they do appear to be based in some cases on press reports and statements by candidates to the National Journal, see, e.g., PX 70, PX 76, each article includes the script of the ad or ads described, the date on which the ads were planned to run, often a description of the strategy behind the ad, and a link that enables the reader to view the video or listen to the audio of the ad, see PX 18-104. The articles describing 2006 congressional ads also include information on the ads' producers, running times, debut dates, ad buys, and, where available, cost. See e.g., PX 106. In addition, the articles relating to the 2004 ads note that "Ad Spotlight has the latest commercials from the 2004 campaigns, issue/advocacy groups and searchable archives dating back to 1997." See, e.g., PX 104. All of these are indicia that the ads were, at the very least, produced in connection with the elections in question. The Court therefore credits the National Journal articles as evidence of ads produced in connection with the 2000 and 2004 presidential election and the 2004 and 2006 congressional elections. However, as the FEC correctly notes, Plaintiff provides no information as to the percentage of total ads run in connection with each of those elections that is represented in the ads described in the National Journal articles. See Def.'s Reply Br. at 26.*fn8 The Court therefore lacks a factual predicate on which to judge the statistical significance of the ads described in the National Journal articles.
After the comment period closed, the FEC published on its website a Supplemental Notice of Proposed Rulemaking ("SNPRM") dated March 13, 2006, which made public data that the FEC had licensed from TNS Media Intelligence/CMAG ("CMAG") regarding television advertising by presidential, Senate, and House of Representatives candidates during the 2004 election cycle. Def.'s Stmt. ¶ 30; Pl.'s Stmt. ¶ 9. The parties do not dispute that data provided by CMAG are generally reliable, rather, they agree that CMAG is a leading provider of political advertising tracking as well as media analysis services to a wide variety of clients, including national media organizations, foundations, academics, and Fortune 100 companies. Def.'s Stmt. ¶ 32; Pl.'s Resp. Stmt. ¶ 32. In addition, the parties agree that CMAG provided the data used for the 2000 "Buying Time" study, which was relied upon by BCRA's principal sponsors in formulating BCRA's provisions, and that CMAG data were heavily relied upon by the courts in McConnell. Def.'s Stmt. ¶ 34 (citing McConnell, 540 U.S. at 206; 251 F. Supp. 2d at 583-87 (Kollar-Kotelly, J.); id. at 796-98 (Leon, J.)); Pl.'s Resp. Stmt. ¶ 34. Indeed, in McConnell, this Court "accept[ed] the CMAG data as a legitimate source of data for use in studies seeking to understand the contours of political advertising, recognizing it has certain limitations," including that its "coverage is not universal," McConnell, 251 F. Supp. 2d at 583-84 (Kollar-Kotelly, J.). The Court reaches that same conclusion again.
Plaintiff, while not challenging the validity of the CMAG data itself, nevertheless raises a number of challenges to the manner in which the FEC used the CMAG data during the rulemaking on the coordinated communications regulation, as well as the conclusions that the FEC drew from the CMAG data. To the extent that these constitute legal arguments, the Court addresses them below; however, insofar as they constitute factual challenges, the Court addresses them at this point. CMAG currently monitors more than 560 television stations in 101 major markets,*fn9 21 hours per day (between 5:00 a.m. and 2:00 a.m.).*fn10 Def.'s Stmt. ¶ 33; Pl.'s Resp. Stmt. ¶ 33. "For each market, CMAG monitors the four major broadcast networks (ABC, CBS, NBC, and Fox), as well as 42 national cable networks," but does not monitor local cable advertising. McConnell, 251 F. Supp. 2d at 720 (Kollar-Kotelly, J.); Def.'s Reply Br. at 25-26. Plaintiff asserts that the FEC's use of the CMAG data suffers from "general methodological flaws" because the CMAG data involve only TV ads (not radio ads, internet ads, or direct mail), and focus only on candidate ads (not on ads run by political parties and outside groups). Pl.'s Br. at 34-35. According to Plaintiff, this constitutes a flaw because the National Journal articles describe early ads run on media other than TV, as well as early ads run by non-candidates. Id. However, Plaintiff offers no evidence that the pattern of electoral advocacy differs on television and radio, or that the pattern of electoral advocacy by non-candidates differs from that of candidates themselves. Def.'s Br. at 50. Without such evidence, the Court cannot conclude that the CMAG data are in any way less reliable because they include only candidate TV ads.
Plaintiff next asserts that the "CMAG 2004 Presidential primary data that are selectively relied on by the Commission understate early primary advertising expenditures in several respects." Pl.'s Br. at 35.*fn11 First, in analyzing the CMAG data, the Commission "decided to limit the data [it considered] to those States in which the 2004 Presidential race was the most highly contested." 71 Fed. Reg. at 33,195 & n.21. The Commission therefore focused on the states determined to be the 2004 "battleground" states. Id.; see also PX 134 (FEC CMAG Data Graphs, Pres. Graphs -- Notes) (hereinafter "PGN") at 6.*fn12 Plaintiff challenges this focus on battleground states, claiming that it excludes states with "historically important primaries simply because they were not 'battlegrounds' in the 2004 general election." Pl.'s Br. at 35. As an initial matter, the FEC persuasively suggests that its approach may actually have been "statistically conservative" because battleground states "would be presumed to have the most advertising, even if they are not representative of the entire nation," such that the relative percentages of early advertising might drop if non-battleground states were included. Def.'s Br. at 51.
In any event, Plaintiff does not attempt to demonstrate how the FEC's analysis would change if non-battleground states were included. Nor does Plaintiff submit data from any non-battleground states suggesting that the timing of advertising varies between battleground and non-battleground states. Most significantly, the complete CMAG presidential primary data set--which is not limited to battleground states--is part of the administrative record submitted by the FEC in this matter, and has been available on the FEC's website since the SNPRM was published. See Def.'s Reply Br. at 24 & n.15; see also 71 Fed. Reg. at 13,306 (3/15/06 SNPRM); Data Related to SNPRM, available at http://www.fec.gov/pdf/nprm/coord_commun/ suppNPRMdata.shtml. Nevertheless, Plaintiff has not performed any analysis of his own with the presidential primary data in order to substantiate his speculation that the FEC's analysis understates early primary advertising expenditures because it focuses on battleground states. As a result, the Court lacks a factual predicate on which to conclude that the FEC's focus on battleground states in any way skews or biases its analysis.
Plaintiff further argues that the Commission's presidential primary methodology is flawed because the FEC only considered 2004 presidential primary advertisements run in media markets fully contained within a single battleground state. Pl.'s Br. at 35. The 101 media markets monitored by CMAG correspond to Nielsen Media Research Designated Market Areas ("DMAs"), PX 134 (PGN at 1), which are "exclusive geographic area[s] of counties in which the home market television stations hold a dominance of total hours viewed," see Neilsen Media Research, Glossary of Media Terms and Acronyms, http://www.nielsenmedia.com (follow "Acronyms & Glossary" hyperlink). In many cases a DMA, and thus a CMAG media market, is comprised of counties located in more than one state, see PX 134 (PGN at 4-5); however, the CMAG data for media spots in those DMAs do not specify which state's primary or caucus is relevant for any given media spot, id. at 1. As a result, the Commission limited its analysis to media markets fully contained within a single battleground state because the Commission could safely assume that all presidential primary advertisements within such media markets would relate to the relevant battleground state. Id. According to the FEC, "there would have been no simple way to match broadcasts to particular state primary elections when those broadcasts reached more than one state." Def.'s Br. at 51 n.29.
Plaintiff claims that this restriction is flawed because it narrows the list of twenty-one battleground states to eleven states and because it excludes media markets within the remaining eleven battleground states where those markets extend across state lines. Pl.'s Br. at 35. As Plaintiff notes, although three Pennsylvania media markets (Harrisburg, Johnstown, and WilkesBarre) are included in the media markets analyzed by the FEC, the Philadelphia and Pittsburgh media markets are not because they cover multiple states. Id. Furthermore, although New Hampshire is a battleground state, it is excluded from the FEC's analysis of presidential primary advertising because it has no media market fully contained within its borders. Id. at 35-36.*fn13 Again, however, Plaintiff does not provide evidence of differences between the patterns of presidential primary advertising in media markets included in, and excluded from, the FEC's analysis, nor does Plaintiff attempt to show how considering more media markets would alter the FEC's analysis. Plaintiff thus fails to demonstrate that the FEC's methodological approach results in any skewing of the CMAG data. The Court therefore lacks a factual basis on which to conclude that the FEC's presidential primary advertising methodology resulted in a skewing of its analysis.*fn14
Finally, Plaintiff raises a challenge to the FEC's congressional primary methodology. The FEC analyzed the CMAG data by creating Merged Data files that contain both the CMAG data and information from official state materials provided to the FEC by each state regarding primary and general election ballot lists. See Data Related to SNPRM, Notes -- Merged Data at 1, available at ftp://ftp.fec.gov/FEC/coordinated_communication/MERGED_DATA_ READ_ME.PDF . The FEC then used the Merged Data files to create graphs representing the CMAG data. Id. These Merged Data files contain no advertisements by 2004 congressional candidates broadcast in 2003. Pl.'s Stmt. ¶ 11; Def.'s Resp. Stmt. ¶ 11. Plaintiff argues that this represents a shortcoming in the CMAG data because the National Journal articles describe advertisements by 2004 congressional candidates that were broadcast in 2003. Pl.'s Br. at 36. For its part, the FEC asserts that it "omitted nothing from the data sets," Def.'s Reply Br. at 25, that it requested 2003 ads from CMAG, and that "those that were run in the CMAG monitored media markets were provided," Def.'s Resp. Stmt. ¶ 11.
The Court has reviewed the National Journal articles and cannot conclude that they reveal an actual discrepancy in the CMAG data. First, many of the purported 2003 advertisements identified by Plaintiff are radio advertisements, but CMAG monitors only TV advertisements. See, e.g., Pl.'s Br. at 19-20 (describing radio ad run by Senator Arlen Specter (R-PA), at PX 79); Def.'s Reply Br. at 25. Second, many of the purported 2003 ads were planned to run in media markets not included in the 101 markets monitored by CMAG. For instance, the National Journal articles describe TV ads run by Senate Majority Leader Tom Daschle (D-SD) beginning on July 9, 2003, see Pl.'s Br. at 19 (citing PX 87, 89, 90-91, 93); however, CMAG does not monitor any South Dakota media markets, see PX 134 (PGN at 4-5). Therefore, while these ads highlight the limitations of the CMAG data, they do not indicate that advertisements are missing from the CMAG data that should have been included. In contrast, some of the National Journal articles describe television advertisements run in media markets tracked by CMAG. See, e.g., PX 102 (describing tv ad run in the Greensboro, North Carolina media market by Republican congressional candidate). Still, the Court cannot determine that these ads represent discrepancies in the CMAG data because the National Journal articles do not indicate the station on which the ads purportedly ran, and CMAG does not track local cable stations. Def.'s Reply Br. at 25. In sum, the Court lacks a basis for concluding that the CMAG data omit relevant advertisements or are unreliable as a result. See McConnell, 251 F. Supp. 2d at 583 (Kollar-Kotelly, J.) (accepting CMAG as a legitimate source of data despite the fact that its "coverage is not universal [and] that advertisements can be, and apparently are, missed" because opponents of CMAG data had "not demonstrated how these shortcomings affect a majority of the conclusions that can be drawn from the CMAG data.").
Having concluded that the CMAG data represent a reliable source of data regarding political advertising and that Plaintiff has provided no evidence demonstrating that the FEC's analysis of the CMAG data is generally skewed or unrepresentative, the Court notes the following conclusions drawn by the parties regarding the 2004 election cycle, based on the FEC's analysis of the CMAG data:
* Presidential candidates aired 8.44% (3,838 ads out of a total of 45,474) of their pre-primary ads more than 120 days prior to the relevant primary elections. Pl.'s Stmt. ¶ 12 (citing PX 134 (FEC Graph P7)); Def.'s Resp. Stmt. ¶ 12.
* The 3,838 ads aired more than 120 days before the relevant primary elections were valued at more than $802,544 (4.89% of $16,411,945, the total cost of the ads aired prior to the 2004 presidential primaries). Pl.'s Stmt. ¶ 12 (citing PX 134 (FEC Graph P8)); Def.'s Resp. Stmt. ¶ 12.
* Of the 3,838 ads aired more than 120 days before the relevant primary elections, 2,968 (77%) were run in Iowa. The 2,968 early Iowa ads were valued at $486,709 (61% of the total value of the early ads included in the CMAG data analyzed by the FEC). Pl.'s Stmt. ¶ 12; Def.'s Stmt. ¶ 12.
* The 2,968 early Iowa ads constituted sixteen percent (16%) of the total 18,657 ads run in Iowa before the 2004 Iowa caucus. Pl.'s Stmt. ¶ 13; Def.'s Stmt. ¶ 13.
* The Republican presidential candidate spent almost $9.5 million on ads aired during the "gap period," i.e., between some primaries and the start of the 120-day period before the general election. Def.'s Stmt. ¶ 39; Pl.'s Resp. Stmt. ¶ 39. This represented 14% of the Republican presidential candidate's total post-primary spending in those media markets. Def.'s Stmt. ¶ 39; Pl.'s Resp. Stmt. ¶ 39.
* Democratic presidential candidates spent $1,221,045 on advertisements during the gap period. Def.'s Stmt. ¶ 39; Pl.'s Resp. Stmt. ¶ 39.
* Senate candidates aired 0.87% and 0.39% of their campaign ads more than 90 days prior to their primary and general elections, respectively. Def.'s Stmt. ¶ 37 (citing FEC Graphs S1 and S3).*fn15 This advertising represented 0.66% and 0.15% of the total estimated costs of advertisements run by Senate candidates before the primary and general elections, respectively. Id. (citing FEC Graphs S2 and S4).
* House of Representative candidates aired 8.56% and 0.28% of their advertisements more than 90 days prior to their primary and general elections, respectively. Def.'s Stmt. ¶ 38 (citing FEC Graphs H1 and H3). This advertising represented 3.79% and 0.13% of the total estimated costs of advertisements run by House candidates before the primary and general elections, respectively. Id. (citing FEC Graphs H2 and H4).
* The 8.56% of advertisements aired by House candidates more than 90 days before their respective primaries were valued at $653,892 (3.79% of $17,253,099, the total cost of ads aired prior to the 2004 congressional primaries). Pl.'s Resp. Stmt. ¶ 38 (citing FEC Graph H2).
The SNPRM was published in the Federal Register on March 15, 2006, Def.'s Stmt. ¶ 30; Pl.'s Stmt. ¶ 9, and gave commenters through March 22, 2006 to comment on the CMAG data, Def.'s Stmt. ¶ 31; Pl.'s Stmt. ¶ 9. The FEC received twelve additional comments in response to the SNPRM. Def.'s Stmt. ¶ 31. After conducting an open meeting, the Commission adopted its revised coordinated communications regulations on April 7, 2006. Pl.'s Stmt. ¶ 10. The final regulations were transmitted to Congress on June 2, 2006 and published in the Federal Register on June 8, 2006. Id.; see also Coordinated Communications, 71 Fed. Reg. at 33,190-211. The coordinated communications regulations became effective on July 10, 2006. Id.
The FEC's coordinated communications regulation includes both a "content standards" prong and a "conduct standards" prong. See 11 C.F.R. § 109.21. In Shays I, Plaintiff challenged certain aspects of the content standards, 11 C.F.R. § 109.21(c), but did not challenge any aspects of the conduct standards, 11 C.F.R. § 109.21(d). Shays I, 337 F. Supp. 2d at 56-65; Shays I Appeal, 414 F.3d at 97-102. The FEC's December 14, 2005 NPRM included proposed revisions to the conduct standards of the coordinated communications regulation, about which the FEC received written comments and heard testimony during the January 25 and 26, 2006 public hearing. Def.'s Stmt. ¶ 47. The Commission's revisions to the conduct standards were adopted, transmitted to Congress, published in the Federal Register, and became effective along with the rest of the coordinated communications regulation. Id.
Plaintiff filed his Complaint in this action on July 11, 2006. In compliance with the briefing schedule entered by the Court, Plaintiff filed his Motion for Summary Judgment on December 8, 2006, and on January 19, 2007, the FEC filed its Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. On February 16, 2007, Plaintiff filed a combined Reply Memorandum and Opposition to Defendant's Motion, and on March 16, 2007, the FEC filed its Reply.*fn16
On June 25, 2007, the Supreme Court issued its decision in Federal Election Commission v. Wisconsin Right to Life, 551 U.S. __ (2007) ("WRTL"). On July 6, 2007, this Court issued an Order seeking the parties' opinions as to the relevance of the WRTL decision on the pending cross-motions for summary judgment in this case. Shays v. FEC, Civil Action No. 06-1247, Order (D.D.C. July 6, 2007). On July 13, 2007, both Plaintiff and Defendant filed Notices with the Court indicating that the WRTL decision is not directly relevant to the instant case because WRTL deals with the regulation of independent expenditures, while the instant case involves only coordinated expenditures. See Pl.'s Notice; Def.'s Notice. Accordingly, the Court declined to order additional briefing on the application of WRTL to the instant case, and deemed the cross-motions for summary judgment ripe for consideration.
A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). 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). Furthermore, 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)). In opposing a motion for summary judgment, a party must "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324.
B. Administrative Agency Review
Plaintiff's challenge to the FEC's regulations implementing Titles I and II of BCRA is analyzed pursuant to the two standards of review applied by this Court in Shays I and by the D.C. Circuit in the Shays I Appeal: Chevron review and the Administrative Procedures Act. Under Chevron review, so-called 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 "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). In applying 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). In conducting this stage of the Chevron analysis, the Court "giv[es] no deference to the agency's interpretation." American Fed'n of Labor & Congress of Indus. Orgs. v. Federal Election Commission, 333 F.3d 168, 173 (D.C. Cir. 2003) ("AFL-CIO").
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 v. FEC, 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.").
In addition to his Chevron challenge, Plaintiff also claims that the Commission, in promulgating the challenged regulations, failed to engage in the "reasoned analysis" required 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) (hereinafter "State Farm") (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. FEC, 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) ("Public Citizen v. FAA") (internal punctuation omitted)). 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." FEC 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, 70 F.3d at 620 (Wald, J., concurring)).
As the D.C. Circuit explained in the Shays I Appeal, the "inquiry at the second step of Chevron . . . overlaps with the arbitrary and capricious standard . . . for whether a statute is unreasonably interpreted is close analytically to the issue whether an agency's actions under a statute are unreasonable." 414 F.3d at 96 (internal quotations and citations omitted). Thus, where an agency has "given no rational justification for [its regulations], as required by the APA's arbitrary and capricious standard," a court "need not decide whether [those regulations] represent altogether impermissible interpretations of the [relevant statutes]." Id. at 97.
When issues have been resolved at a prior stage in the litigation, courts generally decline to revisit these issues, based upon principles of judicial economy. See New York v. Microsoft, 209 F. Supp. 2d 132, 141 (D.D.C. 2002) (Kollar-Kotelly, J.). More than a mere rule-of-thumb, the "'law-of-the-case-doctrine' refers to a family of rules embodying the general concept that a court involved in later phases of a lawsuit should not reopen questions decided (i.e., established as the law of the case) by that court or a higher one in earlier phases." Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995). "The doctrine bars reconsideration of the court's explicit decisions, as well as those issues decided by necessary implication." Microsoft, 209 F. Supp. 2d at 141 (citing LaShawn A. v. Barry, 87 F.3d 1389, 1394 (D.C. Cir. 1996) (en banc) ("The law-of-the-case doctrine, the Supreme Court said, turns 'on whether a court previously decide[d] upon a rule of law . . . not whether, or how well, it explained the decision.'") (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (alteration in Christianson)).
There are two important considerations when dealing with the "law-of-the-case doctrine." First, the doctrine applies only where "an issue is . . . litigated and decided . . . ." Nat'l Souvenir Ctr., Inc. v. Historic Figures, Inc., 728 F.2d 503, 510 n.3 (D.C. Cir. 1984) (quotation omitted). Second, "[l]aw of the case is a prudential rule rather than a jurisdictional one; in the words of Justice Holmes, the doctrine 'merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.'" Crocker, 49 F.3d at 739-40 (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912); citing Arizona v. California, 460 U.S. 605, 618 (1983)). Thus, although a "court has the power to revisit prior decisions of its own . . . as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was 'clearly erroneous and would work a manifest injustice.'" Christianson, 486 U.S. at 817 (quoting Arizona, 460 U.S. at 618 n.8).
In Shays I, this Court reached numerous conclusions regarding the regulations at issue in the instant action. Specifically, as discussed below, the Court concluded that the FEC's regulation on coordinated communication, 11 C.F.R. § 109.21, survived Chevron step one review and represented a facially permissible construction of BCRA Section 214. See Shays 1, 337 F. Supp. 2d at 58-62. The D.C. Circuit affirmed these conclusions in the Shays I Appeal, see 414 F.3d at 98-100, and Plaintiff therefore does not challenge them.See Pl.'s Mem. in Support of Pl.'s Mot. for Summ. J. ("Pl.'s Br.") at 3-4 n.3. In Shays I, this Court also concluded that the Commission's regulation regarding solicitation at state, district, and local party fundraisers, 11 C.F.R. § 300.64, satisfies Chevron steps one and two review, 337 F. Supp. 2d at 88-92, and that the relevant portions of the Commission's regulations defining voter registration activity and GOTV activity, 11 C.F.R. §§ 100.24(a)(2) and (a)(3) survive Chevron step one review and represent facially permissible readings of BCRA, id. at 98-100, 102-03, 105.
Plaintiff notes, correctly, that the D.C. Circuit did not consider this Court's conclusions with respect to the latter two regulations because the Commission elected not to appeal. Pl.'s Br. at 3-4 n.3. Nevertheless, Plaintiff raises his Chevron "step one challenges again in this action," arguing that he "could not have obtained earlier appellate review of this Court's Chevron step one determinations." Id. The FEC opposes Plaintiff's effort to have the Court revisit its earlier rulings. Def.'s Br. at 14-15. The Court agrees that Plaintiff's Chevron step one challenges have been "litigated and decided,"Nat'l Souvenir Ctr., Inc., 728 F.2d at 510 n.3, and that Plaintiff has not identified any "extraordinary circumstance" that would merit the Court revisiting any of its prior rulings. Accordingly, the Court declines to reconsider its rulings in Shays I with respect to the definition of FEA and solicitation at state, district, and local party fundraisers, and shall address herein only those issues left open in Shays I or raised by the FEC's revised regulations.
In the Shays I Appeal, the D.C. Circuit affirmed this Court's conclusion in Shays I that Plaintiff had standing to challenge the regulations at issue in that case. See Shays I Appeal, 414 F.3d at 83-95; Shays I, 337 F. Supp. 2d at 38-47. Accordingly, although the FEC disputes some of the factual assertions on which Plaintiff purports to ground standing in this action, see Def.'s Resp. Stmt. ¶¶ 18-23, the Commission does not, "at this time" contest Plaintiff's standing, Def.'s Br. at 15 n.7. The Court therefore does not revisit its conclusions in Shays I regarding standing. Furthermore, the Commission does not challenge Plaintiff's assertion that his claims are ripe for review, see Pl.'s Br. at 5; 53-54, and the Court notes that Plaintiff's claims are fit for review because they present legal questions, ...