Shays v. Federal Election Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2005 Decided July 15, 2005
Reissued September 1, 2005

No. 04-5352

CHRISTOPHER SHAYS AND
MARTIN MEEHAN,
APPELLEES

v.

FEDERAL ELECTION COMMISSION,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 02cv01984)

David B. Kolker, Attorney, Federal Election Commission,
argued the cause for appellant. With him on the briefs were
Richard B. Bader, Associate General Counsel, and Vivien Clair,
Erin K. Monaghan, and Harry J. Summers, Attorneys.

Charles G. Curtis, Jr. argued the cause for appellees. With
him on the brief were Michelle M. Umberger, David L. Anstaett,
Brent N. Rushforth, Carl S. Nadler, Shahid A. Buttar, Roger M.
Witten, Randolph D. Moss, Donald J. Simon, and Fred
Wertheimer.
 2

Trevor Potter was on the brief for amici curiae John
McCain, et al. in support of appellees.

Before: EDWARDS, HENDERSON, and TATEL, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge: A landmark reform to the nation’s
campaign finance laws, the Bipartisan Campaign Finance
Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81, took
aim at two perceived demons of federal electoral contests: “soft
money,” i.e., use of unregulated political party activities to
influence federal elections, and “sham issue ads,” i.e., ostensibly
issue-related advocacy functioning in practice as unregulated
campaign advertising. These two tactics, given broad scope by
permissive Federal Election Commission rulings, infused federal
campaigns with hundreds of millions of dollars in federally
unregulated funds, much of it contributed by corporations and
labor unions. Now BCRA’s House sponsors (joined by Senate
sponsors as amici) claim the FEC has undone their hard work,
resurrecting in its regulations practices BCRA eradicated and
thus forcing them to seek reelection in illegally constituted
electoral contests. Considering this facial challenge to the
regulations, the district court invalidated some fifteen rules,
finding some inconsistent with the statute and others arbitrary
and capricious. The FEC appeals regarding five key rules:
standards for “coordinated communication,” definitions of the
terms “solicit” and “direct,” the interpretation of “electioneering
communication,” allocation rules for state party employee
salaries, and a de minimis exemption from allocation rules
governing certain contributions, known as “Levin funds,” to
state and local parties. We affirm in all respects.
 3

I.
Needless to say, federal campaign finance law is complex,
and BCRA is no exception. Though few of its details are
important to this litigation (and those that are we describe later
in our analysis), we here provide a brief overview of the
statute’s background and objectives.
As the Supreme Court explained in McConnell v. FEC, 540
U.S. 93 (2003), which upheld BCRA’s core provisions against
constitutional challenge, “BCRA is the most recent federal
enactment designed ‘to purge national politics of what was
conceived to be the pernicious influence of “big money”
campaign contributions.’” Id. at 115 (quoting United States v.
Auto. Workers, 352 U.S. 567, 572 (1957)). Even before BCRA,
federal campaign finance laws, including the Federal Election
Campaign Act of 1971 (“FECA”), Pub. L. 92-225, 86 Stat. 3,
and amendments to that statute, restricted campaign
“contributions,” defined as “any gift, subscription, loan,
advance, or deposit of money or anything of value made . . . for
the purpose of influencing any election for Federal office.” 2
U.S.C. § 431(8)(A)(i). Individuals could contribute to federal
candidates and their campaigns only within strict dollar limits,
2 U.S.C. § 441a(a), and corporations and labor unions could not
contribute at all (though they could sponsor special political
funds known as “political action committees” or “PACs”), id. §§
441b(a), (b)(2)(C). See McConnell, 540 U.S. at 117-19. FECA
also restricted “expenditures,” i.e., “any purchase, payment,
distribution, loan, advance, deposit, or gift of money or anything
of value, made . . . for the purpose of influencing any election
for Federal office,” 2 U.S.C. § 431(9)(A)(i). See McConnell,
540 U.S. at 118-19.
Although in Buckley v. Valeo, 424 U.S. 1 (1976) (per
curiam), the Supreme Court upheld FECA’s contribution
limitations as well as various reporting and disclosure
requirements, the Court invalidated expenditure limits for
 4

individual donors, candidates, and campaigns. See id. at 143-44.
(Though unchallenged in Buckley, FECA also codified a pre-
existing ban on election-related spending by corporations and
unions. See 2 U.S.C. § 441b; McConnell, 540 U.S. at 116-17,
122; FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 247-48
(1986).) In addition, invoking constitutional avoidance, the
Buckley Court construed the term “expenditure” to cover
communications only where they “advocate the election or
defeat of a clearly identified candidate for federal office,” and
do so using “express terms” such as “‘vote for,’ ‘elect,’
‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote
against,’ ‘defeat,’ ‘reject.’” 424 U.S. at 43-44 & n.52.
In the political world, several terms of art emerged to
describe the boundaries of this pre-BCRA law—terms we shall
use throughout this opinion. Most important, contributions
subject to federal source, amount, and disclosure requirements
are called “hard money” or “federal money.” See McConnell,
540 U.S. at 122. Funds outside FECA’s sphere are called
“nonfederal” or “soft.” See id. at 122-23. Due to its reliance on
specific phrases like “vote for” and “vote against,” the express
advocacy standard became known as the “magic words” test.
See id. at 126.
Because FECA defined both “contribution” and
“expenditure” in terms of the “purpose of influencing any
election for federal office,” see 2 U.S.C. §§ 431(8)(A), (9)(A)
(emphasis added), donations aimed at state and local elections
were unregulated, i.e., “soft.” Thus, as McConnell explains,
“questions arose concerning the treatment of contributions
intended to influence both federal and state elections.” 540 U.S.
at 123. Charged with administering federal campaign finance
laws, the Federal Election Commission (“FEC”) took a
permissive view. “Although a literal reading of FECA’s
definition of ‘contribution’ would have required funding such
activities with hard money, the FEC ruled that political parties
 5

could fund mixed-purpose activities—including get-out-the-vote
drives and generic party advertising—in part with soft money.”
Id. Parties had to allocate such costs between hard and soft
accounts, but rules in place after 1990 allowed national parties
to fund as much as 35-40% of their mixed-purpose activities
with soft money. Id. at 123 n.7. Even more generous, rules for
state and local party organizations allowed allocation based on
the ratio of federal to nonfederal offices on a given ballot,
“which in practice meant that they could expend a substantially
greater proportion of soft money than national parties to fund
mixed-purpose activities.” Id.
Over time, political parties took increasing advantage of
these soft money opportunities. Although the two major parties
spent only $21.6 million in soft money in the 1984 election
cycle, by 2000 that figure had risen to $498 million—roughly
42% of their total spending. Id. at 124. Because this “soft”
money fell outside FECA’s contribution limitations, parties
could raise it in massive dollops from single contributors,
including corporations and unions. See id. at 124-25. Though
federal candidates often played a key role in raising these funds,
the parties shifted much of their soft money ($280 million in
2000) to the state level, where the FEC’s more generous state-
party allocation rules applied, and where certain disclosure
regulations applicable to national parties did not. See id. at 124-
26; McConnell v. FEC, 251 F. Supp. 2d 176, 198-99 (D.D.C.
2003) (per curiam) (decision of three-judge district court).
Just as soft money spending was exploding, a related
phenomenon, “sham issue ads,” also developed. The term
“issue ad” derives from Buckley’s “magic words” construction
of FECA, the idea being that express advocacy relates to
candidates whereas non-express advocacy relates to “issues.”
See McConnell, 540 U.S. at 126. However “neat in theory,” this
distinction proved meaningless in practice—hence the “sham.”
See id. at 126-27. Free to mention candidates by name and even
 6

discuss their views and voting records, those financing non-
express advocacy could generate ads “functionally identical” to
campaign ads, notwithstanding the absence of “magic words.”
See id. at 126. “Little difference existed, for example, between
an ad that urged viewers to ‘vote against Jane Doe’ and one that
condemned Jane Doe’s record on a particular issue before
exhorting viewers to ‘call Jane Doe and tell her what you
think,’” id. at 126-27, a ruse employed in many ostensibly issue-
oriented ads, see McConnell, 251 F. Supp. 2d at 301
(Henderson, J., concurring in the judgment in part and dissenting
in part). Indeed, the record in the McConnell litigation showed
that even when permitted to employ express advocacy,
advertisers typically used more indirect language. See
McConnell, 540 U.S. at 127 & n.18.
Beginning in about 1996, corporations and unions—both
barred from direct contributions and expenditures, see 2 U.S.C.
§ 441b(a), but permitted to finance non-express advocacy under
the “magic words” construal of “expenditure,” see Mass.
Citizens for Life, Inc., 479 U.S. at 249—began spending large
sums on such issue advertising. See McConnell, 540 U.S. at
127-28; McConnell, 251 F. Supp. 2d at 201. Apparently
negligible before that point, such spending climbed to hundreds
of millions of dollars by 2000. McConnell, 540 U.S. at 127;
McConnell, 251 F. Supp. 2d at 201. The FEC, compounding the
problem, construed “expenditure” to mean “magic words” for
political parties, too, thus freeing them to spend their soft money
war chests on still more sham issue advertising. McConnell, 540
U.S. at 123-24; McConnell, 251 F. Supp. 2d at 199 & n.14.
Surveying the landscape in 1998, a Senate investigative
committee concluded that the campaign finance system had
suffered a “‘meltdown.’” See McConnell, 540 U.S. at 129
(quoting S. Rep. No. 105-167, vol. 4, at 4611 (1998)). Four
years later, enacting reforms proposed by that committee,
Congress passed BCRA. See id. at 132. Among other changes,
 7

the new law barred federal candidates and national parties from
soft-money fundraising, restricted activities to which state and
local parties could devote nonfederal funds, and replaced the
“magic words” standard for issue ads with a more robust
concept termed “electioneering communication.” At the same
time, compensating to some degree for these new restrictions,
the statute raised hard money contribution limits. Various
plaintiffs challenged BCRA’s constitutionality, but the Supreme
Court largely rejected their claims in McConnell. See 540 U.S.
at 224.
Now we confront a lawsuit cutting the opposite
way—arguments not that BCRA is too tough, but that FEC
implementing regulations are too lax. Plaintiffs, appellees
herein, are Christopher Shays and Martin Meehan, Members of
Congress from Connecticut and Massachusetts, respectively,
who were BCRA’s principal sponsors in the House of
Representatives. (The Senate sponsors John McCain and
Russell Feingold, joining the suit as amici, support this
challenge.) Claiming standing not based on their sponsorship of
the legislation, but rather as candidates waging reelection
contests governed by BCRA, Shays and Meehan challenged
numerous FEC interpretive rules in the U.S. District Court for
the District of Columbia. They argued that by construing
BCRA’s prohibitions too narrowly, these rules effectively
permit conduct that BCRA bans, an effect that arises because the
statute gives a defense against “any sanction” to “any person”
relying in good faith on FEC regulations. 2 U.S.C. § 438(e). In
an exceptionally thorough opinion ruling on cross-motions for
summary judgment, the district court invalidated and remanded
some fifteen rules, while upholding a few more. See Shays v.
FEC, 337 F. Supp. 2d 28, 130-31 (D.D.C. 2004). Despite a
request from the FEC, the court declined to stay its remand
pending appeal. See Shays v. FEC, 340 F. Supp. 2d 39, 54
(D.D.C. 2004).
 8

The FEC now appeals the district court’s summary
judgment decision with respect to five rules: (1) standards for
“coordinated communication”; (2) definitions of the terms
“solicit” and “direct”; (3) the interpretation of “electioneering
communication”; (4) allocation rules for state party employee
salaries; and (5) a de minimis exemption from allocation rules
governing certain contributions, known as “Levin funds,” to
state and local parties. Following a preliminary discussion of
our jurisdiction, we address each rule in turn.

II.
As a threshold matter, the FEC challenges our jurisdiction,
asserting both that Shays and Meehan lack standing and that
their claims are unripe. With respect to standing, the district
court held that because “the regulations shape the environment
in which Plaintiffs must operate” as officeholders and
candidates, Shays and Meehan could bring suit challenging
those rules. See 337 F. Supp. 2d at 44. As to ripeness, the court
explained that despite the pre-enforcement timing of Shays’s
and Meehan’s suit, the purely legal nature of the issues removed
any constitutional or prudential impediment to immediate
consideration of their claims. See id. at 47-50. Reviewing de
novo, see, e.g., Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,
366 F.3d 930, 937 (D.C. Cir. 2004), cert. denied, __ S.Ct. __
(2005); Fed. Express Corp. v. Air Line Pilots Ass’n, 67 F.3d
961, 964 (D.C. Cir. 1995), we agree with both conclusions.

Standing
Derived from the Constitution’s “case-or-controversy”
requirement for federal court jurisdiction, Article III standing
requires plaintiffs to establish, as an “irreducible constitutional
minimum,” that they face “injury in fact” caused by the
challenged conduct and redressable through relief sought from
the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
 9

(1992); see also Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 180-81 (2000). The first element,
“injury in fact,” requires “an invasion of a concrete and
particularized legally protected interest.” See McConnell, 540
U.S. at 227. Harm must be “actual or imminent,” not
“conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal
quotation marks omitted). The second element, causation,
demands “a causal connection between the injury and the
conduct complained of—the injury has to be fairly traceable to
the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.” Id.
(internal quotation marks, alterations, and ellipses omitted).
Finally, redressability requires that it be “likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision.” Id. (internal quotation marks omitted). In
addition to these constitutional requirements, parties claiming
standing under the APA must show that their claims fall
“arguably within the zone of interests to be protected or
regulated by the statute in question.” Nat’l Credit Union Admin.
v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488 (1998)
(internal quotation marks omitted); see also Amgen, Inc. v.
Smith, 357 F.3d 103, 108 (D.C. Cir. 2004).
We begin with the last—and easiest—of these
requirements. Never “especially demanding,” Amgen, 357 F.3d
at 108 (internal quotation marks omitted), the zone of interests
standard easily encompasses Shays’s and Meehan’s claims,
considering that, as officeholders and candidates for office, they
are among those who benefit from BCRA’s restrictions on
practices Congress believed to be corrupting. Of course, they
are also “among the targets of regulation,” as the FEC points
out, see Reply Br. at 3, but that poses no obstacle. Indeed, the
statute’s regulation of candidates is part of the reason why
candidates like Shays and Meehan possess APA standing, for
who suffers more directly when political rivals get elected using
illegal financing? Cf. PDK Labs., Inc. v. DEA, 362 F.3d 786,
 10

791 (D.C. Cir. 2004) (deeming the zone of interests test satisfied
where agency orders, by regulating petitioner’s supplier,
“necessarily regulate[d]” petitioner). Indeed, the FEC can
hardly maintain otherwise, for in arguing that this facial
challenge is unripe, the Commission urges Shays and Meehan
to await specific abuses and then challenge them through
FECA’s and BCRA’s “unusual” judicial review provision,
which permits aggrieved parties “to challenge the FEC’s
decision not to enforce,” see Chamber of Commerce of the U.S.
v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) (discussing 2 U.S.C.
§ 437g(a)(8))—an option that would make no sense if
enforcement of these statutes couldn’t protect the two
Congressmen’s interests. Accordingly, like the district court, we
consider it “self-evident that Plaintiffs meet the ‘zone of
interests’ test.” 337 F. Supp. 2d at 47.
Turning to the constitutional analysis, Shays and Meehan
argue that because BCRA thus protects them from prohibited
campaign practices, the challenged rules, which they argue
permit those very practices, cause them injury redressable
through judicial review. Recall that FECA precludes “any
sanction” as to “any person” who relies in good faith on FEC
rules, “[n]otwithstanding any other provision of law.” 2 U.S.C.
§ 438(e); see also supra at 7. Given this defense, Shays’s and
Meehan’s opponents may undertake any conduct permitted by
the challenged regulations without fear of penalty, even if that
conduct violates campaign statutes. Thus, as Shays and Meehan
see it, the FEC rules infringe their BCRA-protected interest in
BCRA-compliant elections—an injury the Congressmen believe
supports standing. Disagreeing, and relying chiefly on the
Supreme Court’s denial of standing as to two sets of
constitutional claimants in McConnell, the FEC disputes Shays’s
and Meehan’s theory with respect to both injury in fact and
causation. Specifically, the Commission argues that because
Shays and Meehan challenge what the rules permit rather than
what they constrain and because Shays’s and Meehan’s
 11

affidavits demonstrate no specific use of the rules by their
political opponents, the two Congressmen cannot show injury.
In addition, the Commission asserts that because the rules grant
Shays and Meehan the same legal options as their opponents,
any disadvantage they suffer stems not from those rules, but
from their own choice not to exploit them. We address these
arguments in turn, starting with injury in fact and proceeding
from there to causation.
Since parties invoking jurisdiction at summary judgment
may not rest on “‘mere allegations,’ but must ‘set forth’ by
affidavit or other evidence ‘specific facts’” demonstrating
standing, Lujan, 504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e)),
Shays and Meehan submitted affidavits in the district court
supporting their standing claim. They assert that, as Members
of Congress and candidates for reelection, they are not only
“subject to regulation under [FECA], BCRA, and the
Commission’s implementing rules,” but also “directly affected”
by opportunities those statutes and regulations create for their
“potential election opponents” and “contributors to and
supporters of [their] opponents.” (Shays Decl. ¶ 3; Meehan
Decl. ¶ 3.) Thus, they aver that “[i]f 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.” (Shays Decl. ¶ 4; Meehan Decl. ¶ 4.)
Particularizing this claim of injury, the Congressmen then
identify consequences for their own campaigns flowing from
FEC subversion of each key category of BCRA restrictions. For
example, as to BCRA’s “soft-money provisions,” Shays and
Meehan state, “[i]f [FEC] regulations do not faithfully
implement the soft-money ban, I face the strong risk that
unregulated soft money contributions will again be used in an
 12

attempt to influence federal elections in which I am a
candidate.” (Shays Decl. ¶ 5; Meehan Decl. ¶ 5.) As to the
“sham issue ad provisions,” they assert, “[i]f those regulations
do not faithfully implement [BCRA], I will be open to attack,
during critical time periods just before the 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.” (Shays Decl. ¶ 7; Meehan Decl. ¶ 7.)
Through these and other like assertions, Shays and Meehan
aver that under FEC regulations permitting what BCRA
prohibits, they suffer injury to their interest, protected by that
statute, in seeking reelection through contests untainted by
BCRA-banned practices. They assert, in other words, that under
such illegal rules, they are “open to attack” by BCRA-banned
advertising, face the “strong risk” that opponents will use
improper soft money spending against them, and generally must
“raise money, campaign, and attempt to discharge [their]
important public responsibilities” in an environment rife with
practices Congress has proscribed.
In analogous cases, courts have routinely recognized this
type of injury—i.e., illegal structuring of a competitive
environment—as sufficient to support Article III standing. In
the administrative context, for example, we have held that when
agencies adopt procedures inconsistent with statutory
guarantees, parties who appear regularly before the agency
suffer injury to a legally protected interest in “‘fair
decisionmaking.’” Electric Power Supply Ass’n v. FERC, 391
F.3d 1255, 1262 (D.C. Cir. 2004) (“EPSA”) (quoting Prof’l Air
Traffic Controllers Org. v. FLRA, 685 F.2d 547, 563 (D.C. Cir.
1982) (“PATCO”)) (upholding repeat litigant’s standing to
challenge allegedly unlawful agency rules on ex parte
communication); see also Lujan, 504 U.S. at 572-73 & nn.7-8
(indicating that plaintiffs possess standing “to enforce a
 13

procedural requirement the disregard of which could impair a
separate concrete interest of theirs” and giving as an example
“the procedural requirement for an environmental impact
statement before a federal facility is constructed next door to
them”); Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C.
Cir. 1996) (en banc) (holding that litigants may establish injury
in fact by “show[ing] that the government act performed without
the procedure in question will cause a distinct risk to a
particularized interest of the plaintiff”). By the same logic,
Shays and Meehan, as regular candidates for reelection, suffer
injury to a statutorily protected interest if under FEC rules they
must compete for office in contests tainted by BCRA-banned
practices. True, the forum here is an election, not agency
rulemaking or adjudication, but much as administrative
procedures determine how interested regulated parties may go
about persuading agencies, so do the challenged FEC campaign
finance rules structure candidates’ regulated opportunities to
persuade the electorate. Thus, given that regulated litigants
suffer legal injury when agencies set the rules of the game in
violation of statutory directives, the same is true here insofar as
the FEC has exposed these regulated candidates to BCRA-
proscribed campaign practices.
Likewise indicating that illegal structuring of a competitive
environment injures those who are regulated in that
environment, longstanding precedent establishes that when a
statute “reflect[s] a legislative purpose to protect a competitive
interest, [an] injured competitor has standing to require
compliance with that provision.” Hardin v. Ky. Utils. Co., 390
U.S. 1, 6 (1968). Accordingly, when an agency authorizes
certain brokerage services by regulated banks, rival securities
dealers may challenge that decision based on their interest in
limiting market competition. See Clarke v. Secs. Indus. Ass’n,
479 U.S. 388, 390-94, 403 (1987) (upholding standing based on
zone of interests test without specifically addressing Article III
requirements); see also Nat’l Credit Union Admin., 522 U.S. at
 14

488 (stating that “competitors of financial institutions have
standing to challenge agency action relaxing statutory
restrictions on the activities of those institutions”); Ass’n of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970)
(indicating “[t]here can be no doubt” as to injury in fact where
an agency authorized competition in a market served by
petitioner). And when the government grants an application to
produce controlled substances, a current manufacturer of the
same drugs may challenge that action because “‘increased
competition represents a cognizable Article III injury.’” Md.
Pharm., Inc. v. DEA, 133 F.3d 8, 11 (D.C. Cir. 1998) (quoting
Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 701 (D.C.
Cir. 1994)).
To be sure, in this case, the challenged rules create neither
more nor different rival candidates—the electoral analogue to
participants in a market. Nor, as the FEC points out, do Shays’s
and Meehan’s rivals enjoy “special benefits” unavailable to the
two Congressmen, Reply Br. at 5. Yet Shays and Meehan do
face intensified competition. That is, under FEC rules
permitting what BCRA prohibits, the two Congressmen must
anticipate and respond to a broader range of competitive tactics
than federal law would otherwise allow. For example, under
one challenged regulation (described in detail below), rival
candidates may have supporters finance issue ads more than 120
days before the election; according to Shays and Meehan,
BCRA restricts such spending. See infra at 34-36 (discussing 11
C.F.R. § 109.21). Likewise, rival state parties may spend soft
money to pay employees devoting a quarter of their time to
defeating Shays and Meehan; the Congressmen believe BCRA
requires hard money for such salaries. See infra at 57-58
(discussing 11 C.F.R. §§ 106.7(c)(1), (d)(1), 300.33(c)(2)).
Given that accounting for additional rivals constitutes injury
in fact, see, e.g., Md. Pharm., 133 F.3d at 11, Shays’s and
Meehan’s need to account for additional practices—and thus, as
 15

the dissent concedes, additional campaign activity, see sep. op.
at 14 (Henderson, J., dissenting)—likewise supports Article III
standing. As with promulgation of illegal administrative
procedures, both these changes—additional competitors and
additional tactics—fundamentally alter the environment in
which rival parties defend their concrete interests (e.g., their
interest in persuading regulators, retaining customers, or
winning reelection). Considering that competitors may
challenge one such form of change—authorization of rivals—it
would be odd if they couldn’t challenge more elementary
distortions that alter the competitive environment’s overall rules.
Cf. Bennett v. Spear, 520 U.S. 154, 157, 167-68 (1997) (holding
that parties who “have competing economic and other interests”
in a certain water supply could challenge agency action reducing
that supply in the aggregate). To draw an example from the case
law, if drug producers may challenge permits for other
manufacturers, see Md. Pharm., 133 F.3d at 11-12; cf. Bristol-
Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1497-99 (D.C. Cir.
1996) (upholding drug manufacturer’s standing to challenge
regulations governing approval of competing generic drugs),
couldn’t they also challenge rules, say, allowing all producers to
forgo mandated warnings, or to advertise in ways Congress has
forbidden? And if securities dealers may challenge rules
allowing banks to broker stocks, see Clarke, 479 U.S. at 403; cf.
Inv. Co. Inst. v. Camp, 401 U.S. 617, 618-19, 621 (1971)
(upholding investment companies’ standing to challenge
regulations authorizing banks to operate mutual funds), couldn’t
they likewise dispute regulations allowing all
brokerages—bank-based or not—to stay open until ten o’clock
though a statute mandates closure by five? No less than when
agencies unleash illegal competitors or implement illegal
procedures, such across-the-board changes undermine statutorily
protected expectations, requiring competitors to account for
adverse activity prohibited by law. Because Shays and Meehan
have asserted equivalent injury—competition intensified by
 16

BCRA-banned practices—and thus face an equivalent need to
adjust their campaign strategy, they too suffer harm to their
legally protected interests.
Indeed, our own case law, though avoiding resolving the
issue definitively, supports applying competitor standing to
politics as well as business. In Gottlieb v. FEC, 143 F.3d 618
(D.C. Cir. 1998), although rejecting a PAC’s standing to
challenge use of public matching funds by a candidate it
opposed, we explained, “AmeriPAC cannot claim standing as a
‘competitor’ . . . because it was never in a position to receive
matching funds itself. Only another candidate could make such
a claim.” Id. at 621 (emphasis added); see also Common Cause
v. FEC, 108 F.3d 413, 419 n.1 (D.C. Cir. 1997) (per curiam)
(observing that a candidate-plaintiff who had not appealed “may
be a political competitor” of political parties). Moreover, we
stated in Chamber of Commerce v. FEC, albeit in dicta, that if
the FEC declined to enforce certain rules affecting the plaintiff,
“a political competitor could challenge the Commission’s
dismissal of its complaint” under FECA’s judicial review
provision, 2 U.S.C. § 437g(a)(8). See 69 F.3d at 603 (emphasis
added). Given that Shays and Meehan—unlike the Gottlieb
plaintiffs—clearly do face genuine rivalry from candidates and
parties “in a position,” Gottlieb, 143 F.3d at 621, to exploit
FEC-created loopholes, our cases thus support analogizing their
situation to business rivalry, a context where, as explained
above, ample precedent supports standing, see, e.g., Clarke, 479
U.S. at 403; Inv. Co. Inst., 401 U.S. at 621; Md. Pharm., 133
F.3d at 11-12; Bristol-Myers Squibb, 91 F.3d at 1497-99.
Thus, at least two lines of precedent (procedural rights and
competitor standing cases) embody a principle that supports
Shays’s and Meehan’s standing: that when regulations illegally
structure a competitive environment—whether an agency
proceeding, a market, or a reelection race—parties defending
concrete interests (e.g., retention of elected office) in that
 17

environment suffer legal harm under Article III. As the district
court recognized, opponents’ campaign finance options
necessarily “affect[] the way these politicians . . . will run their
campaigns,” such that Shays and Meehan “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.” 337 F. Supp. 2d at 42-43; see also Vote Choice, Inc. v.
DiStefano, 4 F.3d 26, 36-37 (1st Cir. 1993) (holding that where
state law required candidates to choose between public and
private financing, that choice’s “impact on the strategy and
conduct of an office-seeker’s political campaign constitutes an
injury of a kind sufficient to confer standing”). Based on our
case law and the Supreme Court’s, this harm is sufficient for
Article III standing.
Resisting this conclusion, the FEC makes two arguments,
both embraced by the dissent and both flawed. First, the
Commission points out that campaign finance restrictions
benefit the general public as well as candidates. Yet the same is
true of other statutes that structure rivals’ playing
fields—statutes routinely held to support such rivals’ standing.
Consider: although Congress may well have “designed,” Lujan,
504 U.S. at 573 n.8, environmental assessment requirements to
advance a general public interest in environmental protection,
Lujan makes clear that “one living adjacent to the site for
proposed construction of a federally licensed dam has standing
to challenge the licensing agency’s failure to prepare an
environmental impact statement” when following that procedure
could prevent concrete injury (e.g., the flooding of plaintiff’s
home), see id. at 572 & n.7. Likewise, although statutory
restrictions on brokerage services and drug manufacturing serve
(one hopes) to protect the public rather than simply to create
monopolistic fiefs, businesses benefitting from such barriers to
entry possess standing to enforce them. See Clarke, 479 U.S. at
403; Md. Pharm., 133 F.3d at 11-12. By the same token,
because BCRA-banned practices may harm Shays’s and
 18

Meehan’s electoral prospects, and given that Shays and Meehan
actively seek reelection in contests governed by the challenged
rules—a far cry from living “at the other end of the country from
[a challenged] dam,” sep. op. at 9 (Henderson, J., dissenting)
(quoting Lujan, 504 U.S. at 573 n.7)—the two Congressmen
may demand adherence to BCRA’s requirements,
notwithstanding that statute’s intended public benefits such as
preventing corruption and supporting informed voting. Cf.
Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial
power exists only to redress or otherwise to protect against
injury to the complaining party, even though the court’s
judgment may benefit others collaterally.”).
The FEC’s second argument is that McConnell forecloses
Shays’s and Meehan’s standing. It is true that in McConnell the
Supreme Court dismissed plaintiffs asserting a supposed
“competitive injury”—specifically, “fundraising disadvantage”
due to BCRA’s elevated hard money caps. 540 U.S. at 228. In
citing this dismissal, however, the FEC removes McConnell’s
holding entirely from its context.
In McConnell, the so-called “Adams plaintiffs”—a group of
voters, voter organizations, and candidates asserting
constitutional challenges to BCRA’s elevation of hard money
limits—presented two standing theories. First, they argued that
“the increases in hard money limits enacted by [BCRA] deprive
them of an equal ability to participate in the election process
based on their economic status.” Id. at 227. Disagreeing, the
Court explained that because “‘[p]olitical “free trade” does not
necessarily require that all who participate in the political
marketplace do so with exactly equal resources,’” the asserted
injury implicated no “legally cognizable right” and thus failed
to show invasion of any legally protected interest, as required
for standing. Id. (quoting Mass. Citizens for Life, Inc., 479 U.S.
at 257). Second, the Adams plaintiffs asserted that because the
federal candidates in their group would refuse on principle to
 19

accept large contributions, those candidates suffered
“‘fundraising disadvantage,’ making it more difficult for them
to compete in elections.” Id. at 228 (quoting complaint).
Rejecting this theory, too, the Court explained: “Their alleged
inability to compete stems not from the operation of [the
elevated caps], but from their own personal ‘wish’ not to solicit
or accept large contributions, i.e., their personal choice.
Accordingly, the Adams plaintiffs fail here to allege an injury in
fact that is ‘fairly traceable’ to BCRA.” Id.
As the district court recognized, McConnell’s analysis is
distinguishable from this case because here, unlike in
McConnell where plaintiffs had no right to equal funding, a
statute—namely, BCRA—specifically protects the interest in
fair reelection contests that Shays and Meehan assert. As the
Supreme Court has long recognized, “Congress may enact
statutes creating legal rights, the invasion of which creates
standing, even though no injury would exist without the statute.”
Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973); see also
Lujan, 504 U.S. at 578 (reaffirming this principle). Here, by
banning certain campaign practices, Congress has created such
rights. And because Shays and Meehan fall within the “zone of
interests” protected by BCRA, see supra at 9-10, the
Congressmen hold a “legally cognizable right,” McConnell, 540
U.S. at 227, to enforce the statute’s prohibitions under the APA.
See Clarke, 479 U.S. at 399 (1987) (“The ‘zone of interest’ test
is a guide for deciding whether . . . a particular plaintiff should
be heard to complain of a particular agency decision.”); Mudd
v. White, 309 F.3d 819, 824 (D.C. Cir. 2002) (describing the
“zone of interests” test as assessing whether the plaintiff’s
“asserted interest is among the group of claims that is envisioned
by the relevant statute”).
Obviously distinguishing the Supreme Court’s first holding
on the Adams plaintiffs (lack of legally protected interest), this
difference also places Shays’s and Meehan’s suit outside
 20

McConnell’s competitive injury analysis. True, much as the
Adams plaintiffs could “choose” to accept hard money up to
BCRA’s maximum, Shays and Meehan could perhaps reduce or
even neutralize their opponents’ advantages by exploiting illegal
FEC safe harbors themselves. To repeat examples given above,
they too could have supporters finance issue ads or commit state
party employees 25% to federal races. But because being put to
the choice of either violating BCRA or suffering disadvantage
in their campaigns is itself a predicament the statute spares
them, having to make that choice constitutes Article III injury.
Cf. Vote Choice, 4 F.3d at 36-37 (upholding standing in a
candidate’s constitutional challenge to state campaign finance
laws requiring her to choose “either to shun or to embrace public
financing”). Indeed, in a constitutional system based on the rule
of law, it would be ironic, to say the least, if Article III barred
the courthouse doors to citizens like Shays and Meehan who,
because of unlawful government action, may protect their
interest in election to Congress only by violating that lawmaking
body’s own dictates. Given that BCRA’s prohibitions would
apply absent the challenged safe harbors, Shays’s and Meehan’s
asserted injury—having to defend their office in illegally
constituted reelection fights—is not a matter of “their personal
choice,” as it was in McConnell, 540 U.S. at 228. Rather, it
stems from the “operation,” id., of regulations permitting what
BCRA bans. Thus, the dissent wrongly views the claimed
predicaments in McConnell and in this case as identical: there
no right existed; here one does. See sep. op. at 12-13
(Henderson, J., dissenting).
McConnell itself emphasizes the connection between its two
Adams holdings (lack of legal harm and lack of competitive
injury). As the Court put it, the Adams plaintiffs’ twin standing
theories shared “the same premise”—that BCRA’s “increased
hard-money limits allow plaintiffs-candidates’ opponents to
raise more money, and, consequently, the plaintiffs-candidates’
ability to compete or participate in the electoral process is
 21

diminished.” Id. Having already rejected the premise
(cognizable funding inequity), the Court naturally rejected the
deduction (wrongful disadvantage) posed by plaintiffs’ second
theory. Instead, the court attributed the asserted injury to
plaintiffs’ own choice—for if funding inequity wasn’t
cognizable, what besides choice could explain the candidates’
disadvantage? Here, in contrast, due to BCRA and the APA,
Shays’s and Meehan’s asserted interest in getting elected
through legally financed campaigns is fully cognizable.
Accordingly, their claimed injury, having to seek reelection in
illegally structured contests (and thus needing either to violate
BCRA or to suffer disadvantage), may support Article III
standing.
Furthermore, and clinching the point, McConnell gives no
indication of modifying, much less overruling, cases supporting
Shays’s and Meehan’s standing—cases like Lujan, Clarke, and
Hardin (not to mention this court’s decisions in EPSA,
Maryland Pharmaceutical, and Gottlieb, among others). Nor
did the Court suggest that campaign finance laws require unique
standing rules; quite the opposite, McConnell applies an entirely
conventional standing analysis. See id. at 225-26 (applying
Article III standing test after observing that “[o]n many
occasions, we have reiterated the three requirements that
constitute the irreducible constitutional minimum of standing”
(internal quotation marks omitted)). Given the analogous
precedent supporting standing, and considering that McConnell
is distinguishable in any event, Shays and Meehan have
presented a valid theory of injury in fact.
This same precedent—cases involving illegally structured
environments—further assures us that notwithstanding Shays’s
and Meehan’s failure to show specific adverse use of challenged
safe harbors, the Congressmen’s asserted injury is sufficiently
“concrete and particularized,” as well as “actual or imminent,
not conjectural or hypothetical,” e.g., Laidlaw, 528 U.S. at 180.
 22

Although the FEC insists that the Congressmen must
demonstrate that specific rivals have exploited each challenged
rule, our cases hold that when adverse use of illegally granted
opportunities appears inevitable, affected parties may challenge
the government’s authorization of those opportunities without
waiting for specific competitors to seize them. See, e.g., La.
Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir.
1998) (noting that “we have not required litigants to wait until
increased competition actually occurs”); Associated Gas
Distribs. v. FERC, 899 F.2d 1250, 1259 (D.C. Cir. 1990)
(“[P]etitioners sufficiently establish their constitutional standing
by showing that the challenged action authorizes allegedly
illegal transactions that have the clear and immediate potential
to compete with petitioners’ own sales.”).
Given what McConnell calls the “hard lesson of
circumvention” evident in “the entire history of campaign
finance regulation,” 540 U.S. at 165, it is indisputable here that
regulated parties will seize opportunities created by the
challenged rules and thus taint contests through which Shays
and Meehan seek reelection. To give two simple examples, one
of the challenged regulations permits state and local parties to
finance certain salaries with soft money; another allows such
parties to use unregulated funds for generic party advertising
costing less than $5,000. It seems obvious that party
organizations fighting Shays’s and Meehan’s reelection will
employ these options, rather than complying unnecessarily with
hard money strictures. Cf. United Transp. Union v. ICC, 891
F.2d 908, 912 n.7 (D.C. Cir. 1989) (observing that “courts
routinely credit” assertions founded on “basic economic logic”
in upholding standing). Accordingly, FEC safe harbors will
“almost surely cause” Shays and Meehan harm, Bristol-Myers
Squibb, 91 F.3d at 1497 (quoting El Paso Natural Gas Co. v.
FERC, 50 F.3d 23, 27 (D.C. Cir. 1995), and the Congressmen
must therefore account for use of those safe harbors in their own
campaign strategy, cf. Vote Choice, 4 F.3d at 37 (noting that
 23

because “the coerced choice between public and private
financing colored [a candidate’s] campaign strategy from the
outset,” the “impact” of that choice “on the strategy and conduct
of [the candidate’s] political campaign” supported standing
(internal quotation marks omitted)). Hence, “there is no need to
wait for injury from specific transactions to claim standing.”
Bristol-Myers Squibb, 91 F.3d at 1497 (quoting El Paso Natural
Gas, 50 F.3d at 27).
Cases in the administrative context point to the same
conclusion. Although we have described administrative
litigants’ interest in “‘fair decisionmaking,’” EPSA, 391 F.3d at
1262 (quoting PATCO, 685 F.2d at 563)—analogous to Shays’s
and Meehan’s interest in “fair” reelection fights—as
“substantive,” see Ctr. for Law & Educ. v. Dep’t of Educ., 396
F.3d 1152, 1161 n.3 (D.C. Cir. 2005), Shays’s and Meehan’s
right to BCRA-compliant electoral contests is also “procedural”
insofar as campaign finance rules establish procedures through
which candidates seek reelection. When parties claim standing
based on violations of a procedural right, they “can assert that
right without meeting all the normal standards for redressability
and immediacy.” Lujan, 504 U.S. at 572 n.7; see also Wyo.
Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 51 (D.C. Cir.
1999) (indicating that in procedural rights cases the “necessary
showing” supporting the “constitutional minima of injury-in-
fact, causation, and redressability . . . is reduced”). Specifically,
“so long as the procedures in question are designed to protect
some threatened concrete interest of [the plaintiff’s] that is the
ultimate basis of his standing,” Lujan, 504 U.S. at 573 n.8, the
party invoking jurisdiction may establish injury in fact by
“show[ing] that the government act performed without the
procedure in question will cause a distinct risk to a
particularized interest of [that party],” Fla. Audubon, 94 F.3d at
664. Thus, to repeat Lujan’s example mentioned earlier, parties
living alongside a proposed dam may challenge errors in the
construction licensing procedure, “even though [they] cannot
 24

establish with any certainty that [adherence to the procedure]
will cause the license to be withheld or altered.” Lujan, 504
U.S. at 572 n.7. And as we held in EPSA, a repeat litigant may
challenge rules on ex parte communications between the Federal
Energy Regulatory Commission and certain outside parties, even
before FERC ever applies them. See 391 F.3d at 1262. Insofar
as the litigant “is seeking to enforce procedural requirements
designed to protect [its] concrete interest in the outcome of
hearings to which [it] is a party,” its standing, we explained, “is
not defeated by the fact that it cannot show, with any certainty,
that its or its members’ financial interests will be damaged by
the operation of the . . . exemption.” Id.
By the same token, Shays and Meehan may challenge FEC
subversion of BCRA’s guarantees without “establish[ing] with
any certainty,” Lujan, 504 U.S. at 572 n.7, that the challenged
rules will disadvantage their reelection campaigns. Indeed,
given the multiplicity of factors bearing on elections and the
extreme political sensitivity of judgments about what caused
particular candidates to win, requiring candidates to establish
that but for certain campaign finance rules they could have won
an election seems no more reasonable than requiring plaintiffs
to “demonstrate that, but for the procedural defect, the final
outcome of the rulemaking process would have been
different”—precisely the showing that administrative cases do
not require. See Ctr. for Law & Educ., 396 F.3d at 1160 (citing
Lujan, 504 U.S. at 572 n.7). Because BCRA establishes
campaign procedures “designed to protect [the Congressmen’s]
threatened concrete interest,” Lujan, 504 U.S. at 573 n.8, in
winning reelection, Shays and Meehan possess standing to insist
on those procedures based on the “distinct risk,” Fla. Audubon,
94 F.3d at 664, documented in their affidavits, that political
rivals will exploit the challenged rules to their disadvantage.
See Ctr. for Law & Educ., 396 F.3d at 1161 n.3 (indicating that
“a federal agency’s arguably ultra vires publications of
regulations purporting to authorize ex parte communications in
 25

violation of the Sunshine Act” violates “substantive rights
created under the Act,” thus conferring standing on affected
litigants challenging those rules (discussing EPSA, 391 F.3d at
1261-62)).
Again, the FEC, like the dissent, cites McConnell as
contrary authority, but again the analogy falls short. Dismissing
different parties from those mentioned earlier (“McConnell
plaintiffs” as opposed to “Adams plaintiffs”), the McConnell
Court found no standing as to plaintiffs challenging time-limited
broadcast restrictions based on one senator’s stated desire to
violate them during his next reelection campaign—then over
four years away. See McConnell, 540 U.S. at 224-25. “Because
Senator McConnell’s current term does not expire until 2009,”
the Court observed, “the earliest day he could be affected by [the
challenged provision] is 45 days before the Republican primary
election in 2008. This alleged injury in fact is too remote
temporally to satisfy Article III standing.” Id. at 226. Contrary
to the dissent’s suggestion that McConnell broadly requires
identification of “some specific injury arising from the
regulations,” sep. op. at 14 (Henderson, J., dissenting), the Court
thus relied entirely on lack of immediacy in finding the
McConnell plaintiffs’ injury insufficient for standing. In other
words, far from foreclosing standing for regulated parties like
Shays and Meehan, the McConnell Court concluded that because
any relevant application of the challenged rules would occur far
in the future, the McConnell plaintiffs were not in fact “subject
to regulation” at all, id. at 15. As House members, Shays and
Meehan face reelection every two years—and indeed underwent
reelection during the pendency of this appeal. Accordingly, no
comparable imminence problem exists here. Following
analogous cases such as Lujan, EPSA, and Louisiana
Energy—precedent untouched by McConnell—we therefore
conclude that Shays and Meehan suffer injury in fact insofar as
FEC rules permit BCRA-banned practices, thereby depriving the
 26

Congressmen of their right to reelection contests conducted in
accordance with that statute.
As to causation, the two Congressmen argue that their
asserted injury—deprivation of fair reelection contests
guaranteed by BCRA—is fairly traceable to the FEC’s rules
because absent those rules BCRA’s prohibitions would prevent
their opponents from tainting their electoral fights (or at least
impose a “sanction” for doing so, 2 U.S.C. § 438(e); see also
supra at 7, 10). The FEC sees the issue quite differently. Since
the challenged rules merely permit conduct by others rather than
“restrict[]” conduct Shays and Meehan would themselves
undertake, the Commission insists its rules have caused the
Congressmen no harm. Appellant’s Br. at 13.
Abundant precedent contradicts the FEC’s view. In fact,
“the causation requirement for constitutional standing is met
when a plaintiff demonstrates that the challenged agency action
authorizes the conduct that allegedly caused the plaintiff’s
injuries, if that conduct would allegedly be illegal otherwise.”
Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440
(D.C. Cir. 1998) (en banc) (upholding standing in a facial
challenge to regulations allegedly authorizing statutorily
proscribed inhumane treatment of animals) (citing Simon v. E.
Ky. Welfare Rts. Org., 426 U.S. 26, 45 n.25 (1976)). Thus, for
example, in Japan Whaling Association v. American Cretacean
Society, 478 U.S. 221 (1986), scientists and whale-watchers
possessed standing even though the agency action they
challenged—failure to certify Japan as a bad apple under
international whaling conventions—limited restraints on whale-
hunting rather than imposing them on whale-watching. See id.
at 230 n.4. Likewise, to repeat examples given above, FERC
litigants may challenge administrative procedures that could
benefit rivals, see EPSA, 391 F.3d at 1261-62, and economic
competitors may challenge decisions allowing additional
entrants into their markets, see, e.g., Nat’l Credit Union Admin.,
 27

522 U.S. at 488. If it makes no difference in such cases that
actual injury depends on action by non-governmental third-
parties—those spearing whales, competing economically, or
trading secret missives with FERC—neither should it matter
here that the challenged rules unchain Shays’s and Meehan’s
opponents, rather than chaining the two Congressmen.
Attempting to show otherwise, the FEC once again cites
McConnell’s dismissal of the Adams plaintiffs. It insists that
based on the Supreme Court’s holding, the only cause of
Shays’s and Meehan’s asserted injury is the Congressmen’s own
“choice” not to fight fire with fire by exploiting FEC safe
harbors themselves. This causation theory fails for the same
reason the FEC’s injury argument fails. Whereas in McConnell
the asserted injury stemmed from no law’s “operation,” 540 U.S.
at 228, Shays’s and Meehan’s injury—deprivation of BCRA-
compliant reelection contests—exists only insofar as FEC safe
harbors permit what BCRA forbids. Consequently, regardless
of how Shays and Meehan “choose” to negotiate the illegally
structured environment in which the FEC has placed them,
Shays’s and Meehan’s injury is “fairly traceable,” e.g., Laidlaw,
528 U.S. at 180, to the FEC’s alleged violation of congressional
commands.
Again, substantial precedent reassures us of this
conclusion—precedent McConnell never mentions, much less
questions. At bottom, though dealing with the same subject-
matter as that case, Shays’s and Meehan’s suit is an entirely
conventional administrative law claim, i.e., a facial challenge to
allegedly invalid regulations affecting the Congressmen’s
interests. Viewed in such terms, Shays’s and Meehan’s
causation theory is unremarkable. As noted earlier, we held in
ALDF, based in part on Supreme Court precedent, that “a
plaintiff satisfies the causation prong of constitutional standing
by establishing that the challenged agency rule permitted the
activity that allegedly injured her, when that activity would
 28

allegedly have been illegal otherwise.” 154 F.3d at 440-41.
Japan Whaling rests on the same view. Although there the
injury-defining law was a whale-harvesting treaty rather than a
campaign finance statute, the causal theory was identical: by
tolerating what the law condemned, the government caused
plaintiffs’ injury. See Japan Whaling, 478 U.S. at 230 n.4.
Likewise, in competition cases, the Supreme Court has upheld
challenges to rules allowing competition allegedly prohibited by
statute—again, a claim that parallels Shays’s and Meehan’s.
See, e.g., Nat’l Credit Union Admin., 522 U.S. at 488; Data
Processing, 397 U.S. at 151.
Although the FEC insists this case falls outside the
conventional rule because Shays and Meehan possess the same
legal options as their rivals and thus could potentially benefit
from the challenged rules, our case law shows otherwise.
Ordinarily, of course, mimicking injurious conduct does nothing
to interrupt causation: the whale-watchers in Japan Whaling
could hardly protect their pastime by joining the hunt. And
while here use of challenged rules could perhaps mitigate any
harm to Shays’s and Meehan’s electoral prospects, the same was
true in EPSA, where the disputed regulations, which allowed ex
parte communication with certain third parties called market
monitors, could well have helped, rather than hurt, the
petitioner. There, far from suggesting that potential benefit
foreclosed standing, we held that petitioner satisfied Article III
because it “routinely appear[ed] before FERC in contested
hearings in which market monitors have an interest,” 391 F.3d
at 1262—a condition that created opportunity for benefit as well
as detriment. Similarly, in Lujan’s dam example, affected
parties could insist on statutorily required procedures even
though adherence to those procedures might well hasten, not
prevent, the dam’s construction. See 504 U.S. at 572-73 & nn.7-
8. As in these cases, Shays’s and Meehan’s injury entails
deprivation of a statutory right to “‘fair decisionmaking,’”
EPSA, 391 F.3d at 1262 (quoting PATCO, 685 F.2d at 563).
 29

Accordingly, FEC rules structuring reelection contests in
violation of that right cause harm regardless of whether those
rules ultimately hurt or help the Congressmen’s reelection
prospects.
To illustrate the counterintuitive character of the FEC’s
position, we think it worth noting that were the Commission’s
causation argument correct, Shays and Meehan would never
have standing to challenge the rules. Even if an opponent made
express use of illegal safe harbors, even if that use demonstrably
influenced voters, and indeed even if Shays and Meehan
responded by seeking administrative enforcement and then
challenging the FEC’s dismissal of their complaint—a review
procedure the Commission urges the Congressmen to follow in
its ripeness argument, see infra at 31-32—the Congressmen
would nevertheless lack standing. As the FEC sees it, even then,
Shays’s and Meehan’s own scruples, not allegedly illegal FEC
rules, would have caused their injury. Although “an inescapable
result of any standing doctrine application is that at least some
disputes will not receive judicial review,” Fla. Audubon, 94 F.3d
at 665, that result would be surprising here given that Shays and
Meehan, as directly regulated parties, are the most natural
challengers for these rules, and agency regulations are ordinarily
subject to review. Cf. Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 670 (1986) (noting “the strong
presumption that Congress intends judicial review of
administrative action”); United States v. Nourse, 34 U.S. (9 Pet.)
8, 28-29 (1835) (Marshall, C.J.) (“It would excite some surprise
if, in a government of laws and of principle, . . . a ministerial
officer might, at his discretion, issue this powerful process, . . .
leaving to that debtor no remedy, no appeal to the laws of his
country . . . .”).
Accordingly, finding McConnell distinguishable, and
following the long line of cases holding that affected parties may
challenge regulations allowing what a statute prohibits, see, e.g.,
 30

Nat’l Credit Union Admin., 522 U.S. at 488; Data Processing,
397 U.S. at 151; Japan Whaling, 478 U.S. at 230 n.4; ALDF,
154 F.3d at 440, we conclude that Shays and Meehan have
shown causation, as well as injury in fact.
This leaves only redressability. The FEC doesn’t dispute
this element, nor could it, for “[w]here an agency rule causes the
injury, as here, the redressability requirement may be satisfied
by vacating the challenged rule.” Ctr. for Energy & Econ. Dev.
v. EPA, 398 F.3d 653, 657 (D.C. Cir. 2005) (internal quotation
marks and ellipsis omitted). Thus, Shays and Meehan have
satisfied all three requirements of constitutional standing.
“[F]orced,” as they put it, to seek reelection in illegally
structured contests, the Congressmen seek no mere “advisory
opinion”—the evil Article III averts, see Flast v. Cohen, 392
U.S. 83, 96-97 & n.14 (1968). Rather, because invalidation of
FEC safe harbors permitting what BCRA bans would vindicate
Shays’s and Meehan’s right to BCRA-compliant elections, the
two Congressmen possess “such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult . . . questions,”
Baker v. Carr, 369 U.S. 186, 204 (1962). Having reached this
conclusion, we need not consider Shays’s and Meehan’s
fallback argument that the challenged rules’ effects on
disclosure requirements give them “informational standing.”

Ripeness
In addition to challenging standing, the FEC argues that
Shays’s and Meehan’s suit is unripe. A further requirement of
justiciability, albeit one “‘drawn both from Article III limitations
on judicial power and from prudential reasons for refusing to
exercise jurisdiction,’” ripeness “requires us to evaluate (1) the
fitness of the issues for judicial decision and (2) the hardship to
the parties of withholding court consideration.” Nat’l Park
 31

Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)
(quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18
(1993)). Under our case law, “the primary focus of the ripeness
doctrine is to balance the petitioners’ 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. FCC, 349 F.3d 692, 699 (D.C. Cir.
2003) (internal quotation marks omitted).
Here, as to fitness, because this case is “purely one of
statutory interpretation,” Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457, 479 (2001), the issues are “purely legal” and thus
“presumptively suitable to judicial review,” AT&T, 349 F.3d at
699 (internal quotation marks omitted). In fact, in this case, no
“crystalliz[ation]” of the disputed policies will ever occur, for as
Shays and Meehan point out, conduct protected by the
challenged safe harbors will never be subject to enforcement
proceedings. (As noted earlier, good-faith reliance on FEC
regulations affords a defense against FEC sanction, see 2 U.S.C.
§ 438(e).) For that very reason, moreover, the regulations also
cause hardship. By removing certain conduct from any risk of
enforcement, the challenged safe harbors establish “legal rights”
to engage in that conduct, thus “creat[ing] adverse effects of a
strictly legal kind.” See Ohio Forestry Ass’n v. Sierra Club, 523
U.S. 726, 733 (1998).
Making a related point, the FEC also suggests that because
FECA permits judicial review to determine whether even non-
enforcement decisions are “contrary to law,” see 2 U.S.C. §
437g(a)(8); supra at 10, Shays and Meehan cannot show that
“no other adequate remedy in a court” exists, as required for
APA jurisdiction, 5 U.S.C. § 704; see generally Nat’l Wrestling
Coaches Ass’n, 366 F.3d at 945. We think this claim even
weaker. To begin with, although we have identified
 32

“impermissible interpretation of the Act” as an element of the
“contrary to law” test, we did so in a case reviewing an advisory
opinion, not an FEC regulation. See Orloski v. FEC, 795 F.2d
156, 161 (D.C. Cir. 1986). Were a regulation applicable, given
that reliance on that regulation would afford a defense to “any
sanction,” see 2 U.S.C. § 438(e), the court might well uphold
FEC non-enforcement without ever reaching the regulation’s
validity. Cf. Chamber of Commerce, 69 F.3d at 603 (identifying
the risk of enforcement under section 437g(a)(8) as a basis for
standing though going on to invalidate the rule that would thus
be enforced). Moreover, because of that defense, the particular
conduct at issue could never be sanctioned, though penalties
might have been possible under valid rules. Given these
deficiencies, this alternative remedy hardly appears adequate,
and so poses no barrier to Shays’s and Meehan’s facial
challenge here.

III.
On the merits, we undertake our analysis pursuant to two
familiar standards of review: Chevron and the Administrative
Procedure Act. As both sides agree, because the regulations at
issue interpret statutes the FEC administers, we review them
under the two-step analysis set forth in Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
asking first “whether Congress has spoken ‘directly . . . to the
precise question at issue,’” and second, if it has not, whether the
agency’s interpretation is “reasonable.” See AFL-CIO v. FEC,
333 F.3d 168, 172-73 (D.C. Cir. 2003) (quoting Chevron, 467
U.S. at 842-43) (reviewing FEC regulations). At the same time,
because the regulations reflect final agency action under the
APA, we ask whether they are “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
 33

Applying these standards here, we affirm the district court’s
invalidation of all five rules at issue in this appeal. In reviewing
each rule, we begin with Chevron step one, asking whether the
rule runs counter to the “unambiguously expressed intent of
Congress,” Chevron, 467 U.S. at 843. We conclude that two
rules—the “solicit”/“direct” and “electioneering
communication” definitions—fail this threshold inquiry. As to
the remaining three—the coordinated communication standard,
salary allocation provision, and de minimis exemption—we
affirm the district court’s invalidation on APA grounds without
reaching Chevron step two. As our cases explain, “our inquiry
at the second step of Chevron, i.e., whether an ambiguous statute
has been interpreted reasonably, overlaps with the arbitrary and
capricious standard,” Chamber of Commerce of the U.S. v. FEC,
76 F.3d 1234, 1235 (D.C. Cir. 1996) (citing Nat’l Ass’n of
Regulatory Utility Comm’rs v. ICC, 41 F.3d 721, 726-27 (D.C.
Cir. 1994)), for “[w]hether a statute is unreasonably interpreted
is close analytically to the issue whether an agency’s actions
under a statute are unreasonable,” Gen. Instrument Corp. v.
FCC, 213 F.3d 724, 732 (D.C. Cir. 2000); see also Gen. Am.
Transp. Co. v. ICC, 872 F.2d 1048, 1053 (D.C. Cir. 1989)
(“Both questions require us to determine whether the
Commission, in effecting a reconciliation of competing statutory
aims, has rationally considered the factors deemed relevant by
the Act.”). Here, we need not decide whether these three rules
represent altogether impermissible interpretations of FECA and
BCRA—the Chevron step two inquiry, see Bluewater Network
v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) (indicating that at
Chevron step two we “defer to the agency’s interpretation as
long as it is ‘based on a permissible construction of the statute’”
(quoting Chevron, 467 U.S. at 843))—because in any event the
FEC has given no rational justification for them, as required by
the APA’s arbitrary and capricious standard, see Motor Vehicle
Mfrs. of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (interpreting the APA to require that agencies
 34

“articulate a satisfactory explanation for [their] action including
‘a rational connection between the facts found and the choice
made’” (quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962))).

Coordinated Communication
FECA has long restricted coordination of election-related
spending between official campaigns and outside groups. The
reason for this is obvious. Without a coordination rule,
politicians could evade contribution limits and other restrictions
by having donors finance campaign activity directly—say,
paying for a TV ad or printing and distributing posters. To
avoid such subterfuge, FECA defines “contribution” to include
any “expenditure[] made . . . in cooperation, consultation, or
concert, with, or at the request or suggestion of, a candidate,”
2 U.S.C. § 441a(a)(7)(B)(i), and then defines “expenditure” as
any purchase, payment, loan, or gift “made . . . for the purpose
of influencing” a federal election, id. § 431(9)(A). Thus, if
someone makes a purchase or gift with the purpose of
influencing an election and does so in cooperation with a
candidate, FECA counts that payment as a campaign
contribution. At the same time, and as a further stopgap,
FECA’s coordination provision designates any “financing . . . of
the dissemination, distribution, or republication” of campaign
materials as an “expenditure,” and thus as a “contribution” when
coordinated. Id. § 441a(a)(7)(B)(iii).
BCRA made two important changes to these provisions.
First, as part of its effort to reign in party fundraising, the statute
added a coordination rule for parties comparable to the
preexisting rule for candidates. See id. § 441a(a)(7)(B)(ii).
Second, and more important here, Congress ordered the FEC to
rewrite its regulations interpreting these provisions with respect
to “coordinated communication.” See BCRA § 214(c), 116 Stat.
81, 95.
 35

Under pre-BCRA regulations, the FEC determined whether
public communications such as radio and television ads were
“coordinated” based largely on whether the candidate had
engaged in “substantial discussion or negotiation” with an
outsider, resulting in “collaboration or agreement.” See Shays,
337 F. Supp. 2d at 55-56 & n.25 (quoting old regulation).
Absent that degree of cooperation, the communication was
considered uncoordinated and thus would not count as a FECA
contribution. BCRA instructed the Commission to scrap this
approach. “The regulations on coordinated communications . .
. are repealed,” Congress declared. “The Federal Election
Commission shall 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.” BCRA § 214(c), 116
Stat. at 95. Apart from this negative command—“shall not
require”—BCRA merely listed several topics the rules “shall
address,” providing no guidance as to how the FEC should
address them. See id.
Acting pursuant to this open-ended directive, the FEC
adopted the regulation at issue here. Under its new test,
communications count as “coordinated” (and thus as
contributions) if: (1) someone other than the candidate, party,
or official campaign pays for them, (2) the communication itself
meets specified “content standards,” and (3) the payer’s
interaction with the candidate/party satisfies specified “conduct
standards.” 11 C.F.R. § 109.21. Under the “content”
element—the only component at issue here—communications
made within 120 days of a general election or primary and
“directed” at the relevant electorate may qualify as
“coordinated” if they refer to a political party or “clearly
identified candidate for Federal office.” Id. § 109.21(c)(4).
Before the 120-day mark, the rule covers only communications
that either recycle official campaign materials or “expressly
 36

advocate[] the election or defeat of a clearly identified candidate
for federal office.” See id. § 109.21(c)(2)-(3).
According to Shays and Meehan, this limitation on the
rule’s coverage outside the 120-day window offers politicians
and their supporters an unreasonably generous safe harbor.
Several examples should help illustrate their concerns. Under
the new rules, more than 120 days before an election or primary,
a candidate may sit down with a well-heeled supporter and say,
“Why don’t you run some ads about my record on tax cuts?”
The two may even sign a formal written agreement providing for
such ads. Yet so long as the supporter neither recycles
campaign materials nor employs the “magic words” of express
advocacy—“vote for,” “vote against,” “elect,” and so forth—the
ads won’t qualify as contributions subject to FECA. Ads stating
“Congressman X voted 85 times to lower your taxes” or “tell
candidate Y your family can’t pay the government more” are
just fine. And even within 120 days of the election (though
Shays and Meehan appear not to challenge this aspect of the
rule), supporters need only avoid communications that identify
candidates or parties by name. Ads regarding, say, economic
effects of high taxes or tragic consequences of foreign wars are
not contributions—again, even if formally coordinated with the
official campaign.
The district court held that nothing in BCRA permits such
content-based exclusions. Although the court rejected Shays’s
and Meehan’s Chevron one argument, explaining that because
BCRA ordered promulgation of new regulations while
“provid[ing] no express guidance on the matter of content
restrictions,” Congress had not spoken directly to the issue, see
337 F. Supp. 2d at 61-62, it held that the FEC’s regulations
“undercut[] FECA’s statutory purposes” and thus were “entitled
to no [Chevron two] deference.” Id. at 64-65. “A
communication that is coordinated with a candidate or political
party,” the district court wrote, “has value to the political actor.
 37

To exclude certain types of communications regardless of
whether or not they are coordinated would create an immense
loophole that would facilitate the circumvention of the Act’s
contribution limits, thereby creating ‘the potential for gross
abuse.’” Id. at 65 (quoting Orloski, 795 F.2d at 165).
We reach the same result, though for slightly different
reasons. Regarding Chevron step one, we agree that Congress
has not spoken directly to the issue at hand. To be sure, it seems
hard to imagine that Representatives and Senators voting for
BCRA would have expected regulations like these. Although
Congress abrogated the FEC’s old “collaboration or agreement”
standard, the new rule permits significant categories of
expression—e.g., non-express advocacy more than 120 days
before an election—even where formal collaboration or
agreement occurs. And while BCRA’s “electioneering
communication” provisions (mentioned earlier and discussed
below, see infra at 41, 52-53) disavow the “express advocacy”
test—a standard McConnell describes as “functionally
meaningless,” 540 U.S. at 193—the FEC has resurrected that
standard here, allowing unrestricted collaboration outside the
120 days so long as the communication’s paymasters avoid
magic words and redistribution. That said, in the BCRA
provision most clearly on point—the directive calling for new
regulations—Congress studiously avoided prescribing any
specific standard, save abrogation of the “collaboration or
agreement” test. Given this “lack of guidance in the statute,” we
cannot say that BCRA clearly forecloses the FEC’s approach.
See George E. Warren Corp. v. EPA, 159 F.3d 616, 624 (D.C.
Cir. 1998).
Nor do we see clearly contrary intent, as do Shays and
Meehan, in FECA’s preexisting “expenditure” and
“contribution” definitions. True, under the statute, coordinated
expenditures “shall be considered to be a contribution,” so if a
communication involves “expenditure” and is made “in
 38

cooperation, consultation, or concert with, or at the request or
suggestion of” a candidate or party—the provision’s two
elements, see 2 U.S.C. §§ 441a(7)(B)(i), (ii)—then the FEC
lacks discretion to exclude that communication from its
coordinated communication rule. Yet to qualify as
“expenditure” in the first place, spending must be undertaken
“for the purpose of influencing” a federal election (or else
involve “financing” for redistribution of campaign materials).
See 2 U.S.C. §§ 431(9)(A), 441a(a)(7)(B)(iii). And as the FEC
points out, time, place, and content may be critical indicia of
communicative purpose. While election-related intent is
obvious, for example, in statements urging voters to “elect” or
“defeat” a specified candidate or party, the same may not be true
of ads identifying a federal politician but focusing on pending
legislation—a proposed budget, for example, or government
reform initiatives—and appearing three years before the next
election. Nor is such purpose necessarily evident in statements
referring, say, to a Connecticut senator but running only in San
Francisco media markets.
Insofar as such statements may relate to political or
legislative goals independent from any electoral race—goals like
influencing legislators’ votes or increasing public
awareness—we cannot conclude that Congress unambiguously
intended to count them as “expenditures” (and thus as
“contributions” when coordinated). To the contrary, giving
appropriate Chevron deference, we think the FEC could construe
the expenditure definition’s purposive language as leaving space
for collaboration between politicians and outsiders on legislative
and political issues involving only a weak nexus to any electoral
campaign. Moreover, we can hardly fault the FEC’s effort to
develop an “objective, bright-line test [that] does not unduly
compromise the Act’s purposes,” considering that we approved
just such a test for “contribution” in Orloski. 795 F.2d at 165.
Accordingly, we reject Shays’s and Meehan’s argument that
FECA precludes content-based standards under Chevron step
 39

one. And for the same reasons, we disagree with the district
court’s suggestion that any standard looking beyond
collaboration to content would necessarily “create an immense
loophole,” thus exceeding the range of permissible readings
under Chevron step two, 337 F. Supp. 2d at 65.
In our view, the challenged regulation’s fatal defect is not
that the FEC drew distinctions based on content, time, and place,
but rather that, contrary to the APA, the Commission offered no
persuasive justification for the provisions challenged by Shays
and Meehan, i.e., the 120-day time-frame and the weak
restraints applying outside of it. As noted earlier, McConnell
describes the express advocacy test, which before BCRA
distinguished advocacy subject to FECA from unregulated
“issue” ads, as “functionally meaningless.” 540 U.S. at 193.
“Not only can advertisers easily evade the line by eschewing use
of magic words, but they would seldom choose to use such
words even if permitted.” Id. “In the 1998 election cycle, just
4% of candidate advertisements used magic words; in 2000, that
number was a mere 5%.” Id. at 127 n.18. Of course, express
advocacy could hardly fail to count as expenditure; statements
like “vote for” clearly aim to influence elections. Nor could the
FEC permit redistribution of campaign material, since the statute
unambiguously designates that activity as “expenditure” for
purposes of this provision. See 2 U.S.C. § 441a(7)(B)(iii). Yet
the Commission took the further step of deeming these two
categories adequate by themselves to capture the universe of
electorally oriented communication outside the 120-day
window. That action requires some cogent explanation, not
least because by employing a “functionally meaningless”
standard outside that period, the FEC has in effect allowed a
coordinated communication free-for-all for much of each
election cycle.
We see nothing in the FEC’s official explanation that
satisfies APA standards. The Commission’s source for the 120-
 40

day period was an unrelated BCRA provision requiring hard
money financing for state party voter registration drives within
120 days of an election. See 68 Fed. Reg. at 430 (describing the
120-day period for coordinated communication as “based on 2
U.S.C. 431(20)(A)(i),” which defines such registration drives as
“Federal election activity”); 2 U.S.C. § 441i(b) (restricting
financing of “Federal election activity”). Drawing on this
provision, the FEC explained that “Congress has, in part,
defined ‘Federal election activity’ in terms of a 120-day time
frame, deeming that period of time before an election to be
reasonably related to that election.” 68 Fed. Reg. at 430. Yet
this observation has no bearing on the issue before us absent
evidence that registration activity and electoral advocacy occur
on similar cycles. For all we know from this record, registration
efforts may significantly influence elections only in the
immediate run-up to the vote, whereas candidate-centered
advertisements may affect voters even when broadcast more
than 120 days before the race closes. In fact, in a companion
provision to the voter registration rule, BCRA imposes even
stricter financing restrictions—without temporal limitation—on
“public communication[s] that refer[] to a clearly identified
candidate for Federal office . . . and that promote[] or support[]
a candidate for that office, or attack[] or oppose[] a candidate for
that office.” 2 U.S.C. § 431(20)(A)(iii). Although the FEC
acknowledged that its 120-day content standard was “more
conservative” than this provision, see 68 Fed. Reg. at 430, it
never explained why the time-frame for voter registration was
more relevant than BCRA’s rule for “public communications,”
seemingly a far more comparable subject-matter.
Besides citing the voter registration rule, the FEC listed two
“advantages” of the 120-day time-frame: “First, it provides a
‘bright-line’ rule. Second, it focuses the regulation on activity
reasonably close to an election, but not so distant from the
election as to implicate political discussion at other times.” 68
Fed. Reg. at 430. The first of these bromides provides no
 41

independent basis for the rule: a bright line can be drawn in the
wrong place. The second does not so much answer the question
as ask it. Why is 120 days “reasonably close” but not “so
distant”? Without further explanation, we have no assurance
that 120 days reasonably defines the period before an election
when non-express advocacy likely relates to purposes other than
“influencing” a federal election—the line drawn by the statute’s
“expenditure” definition, 2 U.S.C. § 431(9)(A).
Taking a new tack in its briefs, the FEC now argues that
BCRA itself indicates that 120 days is reasonable because a
statutory provision on “electioneering communications”—ads
that automatically count as “contributions” when coordinated
with a candidate—includes a 30/60-day time-frame. See id. §§
434(f)(3), 441a(a)(7)(C). The “electioneering communication”
concept, discussed at greater length below, covers radio and
television advertisements that (1) clearly identify a candidate or
party, (2) target the relevant electorate, and (3) appear within 60
days of a general election or 30 days of a primary. See id. §
434(f)(3)(A); infra at 52-53. Obviously similar to the content
standard for the 120-day period, the “electioneering
communication” definition differs principally in that it is limited
to radio and television, whereas the content standard applies to
other media as well. See 68 Fed. Reg. at 429-30. Although in
its explanation the FEC sought to distinguish the shorter time-
frame for these communications rather than rely on it as
justification for the 120-day rule, see 68 Fed. Reg. at 430, the
Commission now insists that if 30-60 days is reasonable for
these ads, then “the Commission’s drawing of a temporal line
two to four times as far from the election for similar
communications that are coordinated is surely permissible.”
Appellant’s Br. at 32-33. Even assuming this “post hoc
rationalization[] for agency action” is properly before us, see
Secs. Indus. Ass’n v. Bd. of Governors of the Fed. Reserve Sys.,
468 U.S. 137, 143-44 (1984), we reject it.
 42

For one thing, the proposition that 120 is twice 60 and four
times 30, though arithmetically indisputable, is no reason to
select that number over any other. Why not triple 60, or
multiply 30 by one-and-a-half? Alternatively, if 30 to 60 days
is too short, as the FEC indicated in its explanation, see 68 Fed.
Reg. at 430, why not go all the way and apply the standard at all
times, as in the “public communication” provision discussed
earlier? In any event, while “electioneering” ads are clearly one
category of communications that may count as coordinated
expenditures under BCRA, nothing in the statute suggests they
represent the only—or even primary—such category.
Acknowledging as much, the FEC’s own rule rejects the
electioneering definition’s time limit (expanding it to 120 from
30/60), as well as its media limitations (including print
advertising and other media besides radio and TV). By the same
token, nothing should prevent the FEC from regulating other
categories of non-electioneering speech—non-express advocacy,
for example—outside the 120 days.
Finally, the FEC points out that limiting its standard to
express advocacy and campaign redistribution outside the 120
days preserves space for political activities unrelated to
elections. True enough, but so would regulating nothing at all,
and that would hardly comport with the statute.
Notwithstanding its obligation to “attempt to avoid
unnecessarily infringing on First Amendment interests,” AFL-
CIO, 333 F.3d at 179, the Commission must establish, consistent
with APA standards, that its rule rationally separates election-
related advocacy from other activity falling outside FECA’s
expenditure definition. See State Farm, 463 U.S. at 43 (“[T]he
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.”
(internal quotation marks omitted)). The record before us,
however, provides no assurance that the FEC’s standard does
not permit substantial coordinated expenditure, thus tossing out
 43

the proverbial baby (spending qualifying as contributions) with
the bath water (political advocacy). Cf. AFL-CIO, 333 F.3d at
179 (invalidating rule where FEC “fail[ed] to undertake . . .
tailoring” consistent with First Amendment interests).
For their part, Shays and Meehan argue not only that the
FEC has in fact failed to justify its standard, but also that doing
so would be impossible. In support of this claim, they urge us
to take judicial notice that substantial election-oriented
advertising occurred beyond the 120-day window in recent
presidential races, a fact that, if true, would undercut the
Commission’s view that it has drawn the line in the right place.
That factual assertion, however, is better directed to the FEC’s
expertise, and indeed illustrates the sort of inquiry the
Commission should have undertaken. Do candidates in fact
limit campaign-related advocacy to the four months surrounding
elections, or does substantial election-related communication
occur outside that window? Do congressional, senatorial, and
presidential races—all covered by this rule—occur on the same
cycle, or should different rules apply to each? And, perhaps
most important, to the extent election-related advocacy now
occurs primarily within 120 days, would candidates and
collaborators aiming to influence elections simply shift
coordinated spending outside that period to avoid the challenged
rules’ restrictions? The FEC must carefully consider these
questions, for if it draws the line in the wrong place, its action
will permit exactly what BCRA aims to prevent: evasion of
campaign finance restrictions through unregulated collaboration.
In sum, while we accept the FEC’s premise that time, place,
and content may illuminate communicative purpose and thus
distinguish FECA “expenditures” from other communications,
we detect no support in the record for the specific content-based
standard the Commission has promulgated. Accordingly,
finding the rule arbitrary and capricious under the APA, we shall
affirm the district court’s invalidation.
 44

“Solicit” and “Direct”
As noted earlier, one of BCRA’s main objectives is to shut
down the so-called “soft money” system whereby political
parties employed funds outside FECA’s controls to finance
political activities related to federal elections. The
“cornerstone” of this effort, McConnell, 540 U.S. at 133, a new
prohibition on soft-money fundraising by national party
organizations, provides as follows:
A national committee of a political party (including a
national congressional campaign committee of a political
party) may not solicit, receive, or direct to another person
a contribution, donation, or transfer of funds or any other
thing of value, or spend any funds, that are not subject to
the limitations, prohibitions, and reporting requirements of
this Act.
2 U.S.C. § 441i(a)(1). The same prohibition extends to the
national party committees’ officers and agents, as well as
subordinate entities. See id. § 441i(a)(2). In addition, federal
candidates and officeholders may not “solicit, receive, direct,
transfer, or spend” soft money, id. § 441i(e), nor may national,
state, or local party organizations “solicit” or “make or direct”
contributions to certain tax-exempt groups, id. § 441i(d).
Shays and Meehan challenge FEC regulations interpreting
“solicit” and “direct” with respect to these provisions. In effect,
the Commission has interpreted both terms to mean “ask.”
Under its new regulations, “to solicit means to ask that another
person make a contribution, donation, transfer of funds, or
otherwise provide anything of value,” whether that gift is made
“directly” or “through a conduit or intermediary.” 11 C.F.R. §
300.2(m). “[T]o direct means to ask a person who has expressed
an intent to make a contribution, donation, or transfer of funds,
or to provide anything of value, to make that contribution,
donation, or transfer of funds, or to provide that thing of value,
 45

including through a conduit or intermediary.” Id. § 300.2(n).
Thus, in the FEC’s view, fundraisers “solicit” money when they
ask for it (as in, “please give to the party”) and they “direct”
contributions when they ask for them following an expression of
interest, such as when a donor says, “I’ve got money to burn”
and the politician responds, “why not give it to X?”
Whether this interpretation is reasonable depends on the
meaning of “ask.” Shays and Meehan argue that this term, as
used in the regulations, requires “an outright, explicit
request—‘please give’—that is contained in a single
communication.” Appellee’s Br. at 28. The district court shared
this view, finding it supported by the FEC’s explanatory
statement that “[b]y using the term ‘ask,’ the Commission
defined ‘solicit’ to require some affirmative verbalization or
writing, thereby providing members of Congress, candidates and
committees with an understandable standard,” Contribution
Limitations & Prohibitions, 67 Fed. Reg. 69,928, 69,942 (Nov.
19, 2002). See Shays, 337 F. Supp. 2d at 78-79. Read this way,
as the district court observed, the rule permits national parties,
candidates, and officeholders “to funnel nonfederal money into
different organizations by simply not ‘asking’ the donors to do
so, but using more nuanced forms of solicitation.” Id. at 79.
Shays and Meehan offer the following examples. Under the
regulation, “a Senator who told a group of party donors that ‘it’s
important for our state party to receive at least $100,000 from
each of you in this election’—with or without an accompanying
wink—would not have ‘asked’ under the Commission’s
regulations,” and thus would have neither “solicited” nor
“directed” funds in violation of BCRA. Appellee’s Br. at 30.
Likewise, statements like “X is an effective state party
organization; it needs to get as many $100,000 contributions as
possible” would again neither “solicit” nor “direct” because they
would not “ask.” Id. at 31.
 46

In its briefs, the FEC questions this reading of the
regulations, even calling it a “straw man.” Reply Br. at 11. At
oral argument, however, Commission counsel was unable to
reassure us that the rules would cover “nuanced” situations like
Shays’s and Meehan’s hypotheticals. Indeed, though pressed to
represent the FEC’s views, counsel went no further than to call
the Congressmen’s hypotheticals “gray area[s],” stating that he
“simply can’t predict how the Commission would vote on
them.” That response came as no surprise, for the FEC’s official
explanatory statement abundantly supports the narrow reading
that the Congressmen, like the district court, find embodied in
the regulations.
During the rulemaking, commenters called the FEC’s
definition “too narrow.” 67 Fed. Reg. at 69,942. They
advocated construing “solicit” to mean “request, suggest or
recommend,” as Commission staff had proposed. Id. Yet the
Commission rejected this alternative, deeming it inconsistent
with “the need for clear definitions to avoid ambiguity,
vagueness and confusion as to what activities or conversations
would constitute solicitations.” Id. Explaining the distinction,
the Commission observed that it objected to “the impressionistic
or subjective aspects of the term ‘suggest’ and ‘request.’” Id.
“[W]hile the terms ‘suggest’ or ‘request’ . . . encompass a wide
array of activity, it is not clear that they would cover more direct
verbalizations or writings captured by terms such as ‘demand,’
‘instruct,’ or ‘tell,’ which the Commission believes are captured
by the term ‘ask.’” Id. Further:
The Commission was unwilling to use the far more
expansive term “suggest,” for concern that such a vague
term could subject persons to investigation and prosecution
based on highly subjective judgments about whether a
particular remark or action constituted “suggestion.” The
definition of “solicit” is intended to include a palpable
 47

communication intended to, and reasonably understood to,
convey a request for some action.
Id. (internal quotation marks omitted).
Although the FEC’s explanation thus suggested that
statements “reasonably understood” as “asking” could qualify as
such, the Commission could not have intended thereby to
suggest that its rule covered indirect requests, for that
interpretation would overlook the distinction the FEC drew
between “ask” and “suggest.” According to the FEC, “ask”
covers “direct” statements—expressions “captured” by verbs
such as “demand” and “tell”—whereas “suggest” does not.
Thus, by lopping off “suggest” (as well as “recommend”) from
the staff proposal and sticking just with “ask” (which the
Commission deemed “essentially synonymous” with “request,”
id.), the FEC eliminated the definition’s indirect component.
This produced a narrowing construction, one that “mark[s] the
boundary between permissible and impermissible solicitations,”
id., leaving unregulated a “wide array of activity”—like the
conduct in Shays’s and Meehan’s two hypotheticals—that the
term “solicit” could plausibly cover. Whereas “solicit” might
otherwise cover coded statements, not to mention winks and
nods, the FEC, by limiting its rule to “affirmative verbalization
or writing,” has spared itself any need to scrutinize such
exchanges. Nor will the FEC have any need to delve into
“subjective” meaning indicated by context. Under the rule, it
may simply determine whether the fundraiser in question made
an explicit request.
Reinforcing this view, we note that the FEC’s construction
of its regulations comports with the most natural meaning of
“ask.” Of course, we can imagine describing Shays’s and
Meehan’s hypothetical Senator as “asking” for money by saying
“it’s important that the party receive $100,000,” just as we can
imagine saying “my mother asked me to come home” when
what she said was “I love it when you visit.” But this is hardly
 48

the most natural use of the word “ask,” which ordinarily means
“to call upon for an answer” or “to make a request”—terms
implying a direct question or demand, rather than a statement of
fact or opinion. See Webster’s Third New Int’l Dictionary 128
(1993). Moreover, using only “ask” rather than a series of verbs
would seem odd unless the FEC intended to narrow the statute’s
meaning to that word’s principle definition—i.e., “calling for an
answer” as opposed to “suggesting” or “indicating.”
Thus, in proceeding with our Chevron/APA inquiry, we
assume the regulations mean what the FEC’s official
explanation says they do, i.e., that the FEC definitions require an
explicit direct request for money—an interpretation FEC
counsel refused to disavow at oral argument. Adopting this
same view, the district court deemed the FEC’s definitions
unreasonable under Chevron step two. According to the court,
although the terms “solicit” and “direct” were not so clear as to
preclude the regulations under Chevron step one, the rules’
construction of these terms to cover only direct requests
“‘create[d] the potential for gross abuse,’” thus defying
Congress’s evident purpose of “divorc[ing] national political
parties, as well as candidates for federal office and federal
officeholders, from the nonfederal money business.” 337 F.
Supp. 2d at 74-76, 78-79 (quoting Orloski, 795 F.2d at 165).
We agree, though we locate our holding under Chevron one,
rather than two.
In undertaking our Chevron step one inquiry into “whether
Congress has directly spoken to the precise question at issue,”
we employ “the traditional tools of statutory construction,” see
Chevron, 467 U.S. at 842-43 & n.9, including “examination of
the statute’s text, legislative history, and structure[,] as well as
its purpose,” Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1047
(D.C. Cir. 1997) (citations omitted). As the Supreme Court has
emphasized, “[i]n determining whether Congress has
specifically addressed the question at issue, a reviewing court
 49

should not confine itself to examining a particular statutory
provision in isolation. The meaning—or ambiguity—of certain
words or phrases may only become evident when placed in
context.” FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 132 (2000).
Here, even setting context aside, we think “solicit” (if not
also “direct”) more naturally connotes an indirect request than
does “ask,” at least in the narrow sense of “asking” that the
FEC’s rule employs. To give an example, a charity brochure on
starving children might well “solicit” though it doesn’t “ask” in
the sense of “calling for an answer.” Cf. Wis. Dep’t of Revenue
v. William Wrigley, Jr., Co., 505 U.S. 214, 223 (1992)
(considering it “evident” that the term “solicitation of orders”
“includes, not just explicit verbal requests for orders, but also
any speech or conduct that implicitly invites an order”). But in
any event, although “‘[s]olicit’ can, of course, mean a variety of
things,” Martin Tractor Co. v. FEC, 627 F.2d 375, 383 (D.C.
Cir. 1980), in the context of this case we find the FEC’s narrow
interpretation of that term (as well as “direct”) implausible.
Reflecting “Congress’s effort to plug the soft-money
loophole,” McConnell, 540 U.S. at 133, BCRA marshals
“solicit” and “direct” as reinforcements for other, more
straightforward prohibitions. Candidates may not “receive” or
“spend” soft money, nor may they “solicit . . . , direct, [or]
transfer” it—for themselves or anyone else. See 2 U.S.C. §
441i(e)(1). The same restrictions—spending, receiving,
transferring, soliciting, directing—likewise apply to national
parties. See id. § 441i(a). Further, BCRA surrounds these
restrictions with yet more stopgaps, providing, for example, that
even indirectly controlled entities count as “parties” for purposes
of these restrictions, 2 U.S.C. § 441i(a)(2), and then
“reinforc[ing],” McConnell, 540 U.S. at 133, the soft-money
rules by requiring that certain state-party activities receive
federal (i.e., non-soft-money) funding, 2 U.S.C. § 441i(b).
 50

Given this context, and considering Congress’s intent to shut
down the soft-money system, we think it obvious that “solicit”
and “direct” serve to reinforce BCRA’s more direct prohibitions.
Barred from spending and receiving unregulated funds,
candidates and parties might switch to raising such money for
friendly outsiders. So BCRA bans “soliciting” and “directing”
as well.
The FEC’s definitions fly in the face of this purpose
because they reopen the very loophole the terms were designed
to close. Under the Commission’s interpretation, candidates and
parties may not spend or receive soft money, but apart from that
restriction, they need only avoid explicit direct requests.
Instead, they must rely on winks, nods, and circumlocutions to
channel money in favored directions—anything that makes their
intention clear without overtly “asking” for money. Simply
stating these possibilities demonstrates the absurdity of the
FEC’s reading. Whereas BCRA aims to shut down the soft
money system, the Commission’s rules allow parties and
politicians to perpetuate it, provided they avoid the most explicit
forms of solicitation and direction.
Although this context alone satisfies us that the FEC’s
narrowing construction violates congressional intent, two further
considerations reassure us that Congress intended broader
meanings for “solicit” and “direct.” The first is BCRA’s repeal
of the “magic words” standard for issue advocacy. As noted
earlier, whereas pre-BCRA law permitted unregulated financing
of ads lacking “explicit words of advocacy of election or defeat
of a candidate,” Buckley, 424 U.S. at 43, BCRA adopts more
robust standards for communication oriented towards elections,
see infra at 52-53—a change understood to reflect Congress’s
judgment that the old standard was “functionally meaningless,”
McConnell, 540 U.S. at 193. Yet as the district court observed,
the FEC’s interpretation of “solicit” and “direct” is “not . . .
unlike that under pre-BCRA FECA, where the ‘express
 51

advocacy’ rule permitted labor unions and corporations to avoid
regulation by simply avoiding Buckley’s magic words, which
effectively permitted such groups to sidestep FECA’s
prohibitions.” 337 F. Supp. 2d at 79. If imaginative advertisers
are able to make their meaning clear without employing express
terms like “vote for” and “vote against,” savvy politicians will
surely be able to convey fundraising desires without explicitly
asking for money. We see little reason why Congress would
have written BCRA to allow the latter practice while stamping
out the former.
Second, as Shays and Meehan point out, the FEC has long
construed “solicit” elsewhere in FECA as covering indirect
requests. While allowing corporations and labor unions to
create special accounts for political activity, FECA restricts
“solicitation” of contributions to those accounts. See 2 U.S.C.
441b(b)(4). Interpreting this restriction, FEC advisory opinions
have held that unions and companies may solicit funds merely
by praising contributors, see, e.g., FEC Advisory Op. 1979-13,
or even just describing contribution procedures, see, e.g., FEC
Advisory Op. 1999-6. As the Commission’s own campaign
guide puts it, “solicitations” are not limited to “a straightforward
request for contributions.” FEC Campaign Guide for
Corporations and Labor Organizations at 24 (2001). Although
the FEC could of course reconsider these advisory rulings, and
while “solicit” could perhaps carry different meanings in
different contexts, this background reinforces our sense that
Congress anticipated a similarly broad construction of that term
here. Cf. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184, 193-94 (2002) (“Congress’s repetition of a well-established
term generally implies that Congress intended the term to be
construed in accordance with pre-existing regulatory
interpretations.”).
For all these reasons, we hold that Congress has clearly
spoken to this issue and enacted a prohibition broader than the
 52

one the FEC adopted. In context, BCRA’s terms “solicit” and
“direct” cover indirect requests. Because the FEC’s rule,
according to the Commission’s own explanation, does not, we
shall affirm its invalidation. In doing so, we express no view
regarding a further argument presented by Shays and
Meehan—that to avoid statutory redundancy, “direct” must
mean more than “ask in response,” when “solicit” means “ask”
plain and simple.

Electioneering Communication
Shays’s and Meehan’s third challenge relates to the FEC’s
regulatory definition of “electioneering communication”—a new
BCRA concept that replaces the old “magic words” standard for
issue ads. As noted earlier, in Buckley the Supreme Court, based
on constitutional avoidance, construed key FECA provisions as
applying only to “communications that include explicit words of
advocacy of election or defeat of a candidate,” i.e., “magic
words” such as “vote for” and “vote against.” See 424 U.S. at
43-44 & n.52, 80. This created a giant loophole. By simply
avoiding express advocacy, corporations and labor unions,
among others, could expend hundreds of millions of dollars in
unregulated funds on broadcasts that appeared “functionally
identical” to ordinary campaign advertising. McConnell, 540
U.S. 126-27. Now, BCRA provisions upheld against
constitutional challenge in McConnell, see id. at 189-95, 203-12,
bar corporations and unions (though not their PACs) from
financing ads meeting the statutory definition of “electioneering
communication,” 2 U.S.C. § 441b(b)(2); see also McConnell,
540 U.S. at 204. Further, BCRA requires certain disclosures for
electioneering communications, 2 U.S.C. § 434(f)(1)-(2), and,
as noted earlier, such communications automatically qualify as
FECA “contributions” when coordinated with a candidate, id. §
441a(a)(7)(C); see also supra at 41.
 53

The key to these new restrictions is what counts as
“electioneering communication” in the first place. As a general
rule, the definition covers “any broadcast, cable, or satellite
communication” that (1) “refers to a clearly identified candidate
for Federal office,” (2) “is made within” 60 days before a
general election or 30 days before a primary, and (3) “is targeted
to the relevant electorate.” 2 U.S.C. § 434(f)(3). Certain
communications are then expressly exempted, among them news
stories, commentary, and editorials (unless the broadcaster is
controlled by a political party or candidate). See id. §
434(f)(3)(B)(i). In addition, BCRA authorizes the FEC to craft
exemptions, subject to certain limitations described below. Id.
§ 434(f)(3)(B)(iv).
In an exceedingly complex regulation, the FEC has laid out
its interpretation of provisions defining “electioneering
communication.” Although the district court invalidated other
aspects of this rule, only one point remains disputed: the
interpretation of “made.”
Recall that BCRA’s definition applies only to
communications “made within” specified time periods (i.e., 30
or 60 days before an election). Construing this phrase, the
FEC’s regulation defines “made” to mean “publicly distributed,”
11 C.F.R. § 100.29(a)(2), and then defines “publicly distributed”
to mean “aired, broadcast, cablecast or otherwise disseminated
for a fee through the facilities of a television station, radio
station, cable television system, or satellite system,” id. §
100.29(b)(3)(i) (emphasis added). The italicized words are the
rub. According to Shays and Meehan, nothing in the statute
supports limiting “electioneering communications” to purchased
transmissions. As the Congressmen see it, the statute applies
equally to unpaid broadcasts, such as public service
announcements. Indeed, they worry that sham PSAs could
become the new sham issue ads—communications evading
regulation though functionally indistinguishable from campaign
 54

ads. To give an example used by the FEC in the very
rulemaking here, supporters could “us[e] a PSA to associate a
Federal candidate with a public-spirited endeavor”—say, a
blood drive or veterans’ support effort—“in an effort to promote
or support that candidate.” Electioneering Communications, 67
Fed. Reg. 65,190, 65,202 (Oct. 23, 2002). Indeed, given a
friendly broadcaster willing to forgo its fee, supporters could
even air unambiguous election aids, i.e., ads clearly identifying
a federal candidate, targeting the relevant electorate, and
appearing close to the election.
The district court found that the FEC’s definition violated
Congress’s clearly expressed intent under Chevron step one.
We agree. In effect, the Commission has taken the three parts
of BCRA’s standard—(1) candidate identification, (2) within 30
or 60 days, and (3) targeted at the electorate—and added a
fourth: “for a fee.” Nothing in the statute suggests that
Congress contemplated such an element. Certainly, the word
“made” carries no such connotation. When one says, “dinner is
made,” the implication is that dinner exists, not that someone
paid for it. Likewise here, to say a “broadcast, cable, or satellite
communication . . . is made” implies quite simply that the
communication exists—i.e., that it was transmitted—not that
someone paid a fee to make the transmission happen. Nor does
the context add any ambiguity. To the contrary, BCRA says,
“communication . . . made within” a certain time-frame, i.e., 60
days before a general election or 30 days before a primary.
Obviously, the temporal reference point—when the
communication “is made”—is the date of transmission, for that
is the point when the ad may influence the election. But given
that focus, it makes no sense to say that the communication is
“made” only if someone paid a fee, an event that likely occurred
earlier. The point, again, is simply that the transmission
occurred.
 55

Attempting to concoct ambiguity, the FEC protests, “There
is simply no mention of funding anywhere in the definition.”
Appellant’s Br. at 41-42. True, but so what? The already
capacious U.S. Code would require even more volumes if
Congress could be clear only by ruling out every possible
limitation on statutory language. See, e.g., Ry. Labor
Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671
(D.C. Cir. 1994) (en banc) (rejecting the claim “that Chevron
step two is implicated any time a statute does not expressly
negate the existence of a claimed administrative power (i.e.,
when the statute is not written in ‘thou shalt not’ terms)”).
When Congress bans possession of a firearm or cocaine, we
hardly scratch our heads and ask, “Gee, maybe they meant
possession for a fee?” By the same token, when BCRA says
“made,” we presume, absent compelling indication otherwise,
that it means “made” and not “made for a fee.”
Of course, BCRA does permit FEC-crafted exemptions, and
one might characterize this rule as such, given that it effectively
excludes unpaid broadcasts from the definition. To be sure, the
FEC doesn’t characterize its action this way. Instead,
presumably because the district court held that the FEC’s action
exceeded the plain text of BCRA’s exemption clause, see 337 F.
Supp. 2d at 128-29, the Commission insists that its rule
represents an interpretation of the statute. No matter. As the
district court explained and as Shays and Meehan argue, the
FEC’s rule far exceeds any exemption BCRA would permit, for
the statute specifically provides that “a communication may not
be exempted” if it falls within another provision describing
“public communication[s] that refer[] to a clearly identified
candidate for Federal office . . . and that promote[] or support[]
a candidate for that office, or attack[] or oppose[] a candidate for
that office.” See 2 U.S.C. § 434(f)(3)(B)(iv) (referencing id. §
431(20)(A)(iii)). Exempting all fee-free communications
regardless of content, the FEC’s rule makes no pretense of
following this command. To the contrary, as noted earlier, it
 56

permits broadcasters to run ad after ad lambasting or applauding
federal candidates, right up to election day, provided the
broadcaster sacrifices its bottom line for its beliefs. Because
BCRA’s limitation on the exemption power forecloses exactly
this possibility, the FEC’s rule again conflicts with Congress’s
unambiguous intent.
Rather than focusing on these textual problems, the FEC’s
briefs emphasize the “risk” that without its limiting construction,
BCRA’s electioneering communication restrictions could chill
“entertainment, educational, and documentary programs that
mention or portray a federal candidate only incidentally,” as
well as PSAs featuring federal candidates and “encouraging
citizens to donate blood, for example.” Appellant’s Br. at 41,
42-43, 44. Although this rationale is hardly apparent in the
rulemaking record, see 67 Fed. Reg. at 65,192-93 (“bas[ing]”
the rule “on the legislative history of BCRA”), and although in
any event we need not consider it given our Chevron one
holding, we nevertheless think it worth pointing out that
avoiding chilling particular types of communication could
hardly justify the FEC’s broad exclusion of all unpaid
broadcasts, regardless of content. Furthermore, because BCRA
already includes an express exemption for “communication[s]
appearing in a news story, commentary, or editorial,” 2 U.S.C.
§ 434(f)(3)(B)(i), no further exemption was necessary to avoid
chilling those. As for PSAs, excluding federal candidates from
broadcasts promoting blood drives and other worthy causes for
90 days out of every two years (30 days before the primary plus
60 days before the general election) would hardly seem
unreasonable given that such broadcasts could “associate a
Federal candidate with a public-spirited endeavor in an effort to
promote or support that candidate”—a risk the FEC itself
acknowledged, in the very same rulemaking, in justifying its
refusal to promulgate a general exemption for PSAs (whether
paid or unpaid), see 67 Fed. Reg. at 65,202.
 57

To sum up, as an interpretation of “electioneering
communication,” the regulation contradicts BCRA’s plain text
and thus fails Chevron step one. Insofar as it instead constitutes
an exemption, it runs roughshod over express limitations on the
Commission’s power, thus again flunking Chevron one.
Accordingly, we shall affirm the district court’s invalidation of
this rule.

Salary Allocation
Yet another new BCRA concept is “federal election
activity” (“FEA” for short). Central to Congress’s effort to
eliminate soft money influence, this concept identifies activities
that state and local party organizations must finance with hard
money. Among them, as mentioned previously, are voter
registration drives within 120 days of an election, 2 U.S.C. §
431(20)(A)(i), and “public communications” attacking or
supporting identified federal candidates (whether or not state
and local candidates are also “mentioned or identified”), id. §
431(20)(A)(iii). Of course, even before BCRA, FECA’s
“expenditure” definition covered spending “for the purpose of
influencing” federal elections, including spending by state and
local parties. See id. § 431(9)(A); McConnell, 540 U.S. at 118-
19. But as mentioned earlier, FEC regulations governing
activities with combined state and federal implications—among
them, voter registration drives and generic party
advertising—allowed generous use of soft money by state and
local parties. See McConnell, 540 U.S. at 123 & n.7; see also
supra at 5. BCRA’s FEA provisions supplant these regulations,
making clear that the listed “mixed purpose” activities must be
financed with federally regulated money. See 2 U.S.C. §
441i(b).
The issue before us relates to one category of FEA: salaries
for employees devoting more than 25% of their paid time to
federal elections. See id. § 431(20)(A)(iv). In any month during
 58

which a state or local party employee’s work crosses the 25%
threshold, the employee’s entire salary counts as FEA, thus
requiring the party to pay that salary exclusively with federally
regulated funds. See id. §§ 431(20)(A)(iv), 441i(b). In its
regulations, the FEC faithfully implemented this restriction,
declaring that such salaries “must be paid only with Federal
funds.” 11 C.F.R. § 300.33(c). But the FEC also drew an
inference that Shays and Meehan dispute. With respect to all
other salaries, i.e., those for employees devoting 25% of their
time or less to federal activities, the FEC eliminated any
allocation requirement, thus freeing state and local parties to pay
such employees’ salaries entirely with soft money. Id. §§
106.7(c)(1), (d)(1), 300.33(c)(2). Thus, under the Commission’s
rule, such parties may require every one of their employees to
work as much as quarter time—a day a week or more—on
federal elections without needing any federally regulated funds
for those salaries.
As stated in the official explanation, the FEC views this rule
on salaries below the 25% mark as an “implication” of BCRA’s
standard for salaries above that threshold. See Prohibited &
Excessive Contributions: Non-Federal Funds or Soft Money, 67
Fed. Reg. 49,064, 49,078 (July 29, 2002). “Congress appears to
have concluded,” the FEC wrote, “that salaries for employees
spending 25% or less of their time on activities in connection
with a Federal election or on Federal election activities do not
have to be paid from any mix of Federal funds.” Id. Shays and
Meehan disagree. Absent any change in FECA’s “expenditure”
definition, they argue, spending “for the purpose of influencing”
federal elections, including state party salaries, must still be
allocated. While holding that BCRA did not unambiguously
foreclose the Commission’s rule, the district court concluded
that because state parties could simply spread federal work over
multiple 25%-federal employees, exclusive use of unregulated
funds for such salaries would “compromise the Act’s purposes
of preventing circumvention of its national party committee
 59

nonfederal money ban and stemming the flow of nonfederal
money into activities that impact federal elections.” 337 F.
Supp. 2d at 114. For this reason, the district court invalidated
the rule under Chevron step two. Again, we shall affirm.
First, to the extent Shays and Meehan assert a BCRA
violation under Chevron step one, we join the district court in
rejecting their position. As the district court explained, the
statute “speaks only to how state, district or local political party
committees should fund the activities of their employees who
spend more than 25 percent of their paid time on Federal
election activities.” Id. at 113. It says nothing at all about
salaries below that threshold, much less anything unambiguous,
as required by Chevron one. But for the very same reason—i.e.,
because BCRA says nothing at all—the statute’s 25% provision
also does not carry the “implication” the FEC attributes to it. In
fact, far from suggesting that 25%-or-less salaries may be
funded entirely with unregulated money, as the FEC believes,
the statute, by singling out certain employees (i.e., those above
the 25% level), suggests that others’ salaries remain subject to
preexisting law.
The statutory context confirms this reading. No exhaustive
canvass of federally-oriented electoral costs, BCRA’s FEA
definition covers just four categories, all of which involve
activities with combined state and federal implications that
could thus be used to disguise federally-oriented activities as a
state-related campaign. We have already mentioned three of the
categories—above-25% salaries, voter registration within 120
days of an election, and ads attacking or supporting federal
candidates in combination with state ones. See 2 U.S.C. §§
431(20)(A)(i), (iii), (iv). The fourth comprises “voter
identification, get-out-the-vote activity, or generic campaign
activity in connection with an election in which a candidate for
Federal office appears on the ballot (regardless of whether a
candidate for State or local office also appears on the ballot).”
 60

Id. § 431(20)(A)(ii); see also id. § 431(20)(B) (exempting
certain expenditures such as costs for buttons, bumper-stickers,
and local party conventions from all four categories of FEA).
As a general rule, BCRA requires exclusive hard money
financing for each of these four activities. See id. § 441i(b)(1).
The only exception, applicable only to limited types of FEA and
never to above-25% salaries, is the “Levin Amendment”—a
provision (described below) that permits partial financing of
certain generic campaign activity with funds raised subject to
special controls. See id. § 441i(b)(2); see also McConnell, 540
U.S. at 161-64; infra at 62-64.
The purpose of these restrictions, as McConnell says of the
25% rule, is “prophylactic.” See 540 U.S. at 170-71. Before
BCRA, donors could lavish soft money on generic state party
advertising and pre-election voter registration drives,
notwithstanding the obvious benefits such efforts would have for
federal candidates. Now, outside the carefully circumscribed
limits of the Levin Amendment, such activities must be financed
entirely with federal money, even though they relate to state as
well as federal elections. Cf. id. at 166 (describing the FEA
provisions as “captur[ing] some activities that affect state
campaigns for nonfederal offices”). Likewise, before BCRA,
under FEC allocation rules, see supra at 5, state parties could
pay their workers largely with soft money. Now those above the
25% level must be paid entirely with hard funds—again, even
though their activity benefits state as well as federal candidates.
Given this prophylactic thrust—sweeping state activities into the
federal orbit due to the risk of concealed federal
purpose—nothing in the FEA definition’s structure suggests
congressional intention to deregulate federal activity. The FEA
provisions supplement, not supplant, preexisting controls.
Indeed, the FEC’s rules acknowledge as much. Despite
categorically exempting 25%-or-less salaries from allocation,
FEC regulations continue to require that “administrative costs”
 61

be spread between hard and soft money accounts. See 11 C.F.R.
§ 106.7(c)(2). As the Commission explained in the very same
statement promulgating the 25%-or-less rule, “nothing in BCRA
or the legislative history suggests that Congress intended the
Commission to abandon its longstanding allocation requirement
for these expenses.” 67 Fed. Reg. at 49,078. Likewise subject
to allocation are fundraising costs associated with joint
state/local and federal campaigns, see 11 C.F.R. § 106.7(c)(4),
as well as expenses (apart from salaries and wages) for “voter
identification, voter registration, and get-out-the-vote drives, and
any other activities that urge the general public to register or
vote, or that promote or oppose a political party . . . that do not
qualify as Federal election activities,” id. § 106.7(c)(5).
These regulations clearly rest on the same BCRA
interpretation that we have articulated—that while imposing
additional constraints on FEA activities, BCRA makes no
change to preexisting restrictions on non-FEA expenditures.
But if “nothing in BCRA” evinces congressional intent to
deregulate non-FEA expenses like administrative and
fundraising overhead, then neither does BCRA support
exclusion of non-FEA salaries, i.e., those for employees
devoting up to 25% of their time to federal elections. Cf. Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
__, __ (2005) (describing “[a]gency inconsistency” as a possible
“reason for holding an interpretation to be an arbitrary and
capricious change from agency practice under the [APA]”).
Indeed, the salary rule appears particularly irrational given the
FEC’s recognition that costs for voter registration, get-out-the-
vote drives, and generic party advertising—all matters, like
salaries, that the FEA definition specifically addresses—may
require allocation even when the activities “do not qualify” as
FEA. See 11 C.F.R. § 106.7(c)(5).
In sum, the FEC has construed a BCRA provision sweeping
state activities within FECA as an excuse to punt federal
 62

activities outside it. Because this “implication” from the statute
makes no sense, and because the Commission gave no other
justification for its rule, the regulation exempting 25%-or-less
salaries from allocation is arbitrary and capricious. We shall
therefore affirm the district court’s invalidation of this rule as
well.
To be clear, because we thus rely on the APA rather than
Chevron, nothing in our holding necessarily precludes the FEC
from remedying deficiencies in its explanation and
repromulgating this rule on remand, though we are skeptical that
it may do so. Answering the district court’s concerns about
potential abuse, the FEC suggested in its briefs here that state
and local parties may possess neither “an incentive” nor “the
necessary flexibility in their workloads and staffing” to spread
federal work among under-25%-federal employees. Appellant’s
Br. at 36 n.9; see also Reply Br. at 18. But why so? Given the
massive soft money sums infused into pre-BCRA elections
(nearly half a billion dollars in 2000 alone), it strikes us as quite
plausible that wealthy donors would swallow costs for increased
state and local campaigning, were the result an army of workers
devoting more than a day a week to federal elections. Should
the FEC wish to adhere to its current view in future rulemaking,
it must summon more substantial support than the conclusory
assertions presented to us.

Levin Funds
Shays’s and Meehan’s final challenge involves an exception
to an exception. As noted in the last section, although “federal
election activity,” as defined in BCRA, generally requires hard
money, the statute contains an exception—the “Levin
Amendment.” See 2 U.S.C. § 441i(b); McConnell, 540 U.S. at
162-63. That provision allows state and local parties to finance
certain types of FEA with money, called “Levin funds,” subject
to far less onerous controls than those for hard money. See
 63

generally McConnell, 540 U.S. at 162-63. The catch is that the
party must “allocate” these FEA costs between Levin funds and
hard money. See 2 U.S.C. § 441i(b)(2). But under a regulatory
exception to this exception—one Shays and Meehan challenge
—party organizations need not allocate if they spend no more
than $5,000 total on allocable expenditures, an amount the
Commission considers de minimis. See 11 C.F.R. §
300.32(c)(4); 67 Fed. Reg. at 49,097.
To understand the FEC’s rationale and Shays’s and
Meehan’s objection, yet more detail about this complex statute
is (unfortunately) necessary. First, “Levin funds” are a sort of
semi-soft money. Available to state and local party
organizations in sums up to $10,000 per donor per year, Levin
funds are exempted from federal disclosure requirements and
restrictions (though not from state law). See 2 U.S.C. §
441i(b)(2)(B)(iii); McConnell, 540 U.S. at 162-63. Party entities
using Levin funds must raise them on their own, without help
from national parties or even state and local affiliates. See 2
U.S.C. §§ 441i(a), (b)(2)(B)(iv), (e); McConnell, 540 U.S. at
163-64. Furthermore, parties may use Levin funds only for
certain types of FEA—specifically, generic party campaigning,
get-out-the-vote activity, and voter identification and
registration drives (activities covered by two of the four FEA
categories), see 2 U.S.C. § 441i(b)(2)(A) (referencing id. §
431(20)(A)(i)-(ii))—and under no circumstances may Levin
funds finance expenditures “refer[ring] to a clearly identified
candidate for Federal office,” 2 U.S.C. §§ 441i(b)(2)(B)(i). See
generally McConnell, 540 U.S. at 163. Nor may they bankroll
any “broadcasting, cable, or satellite communication,” save
those that “refer[] solely to a clearly identified candidate for
State or local office.” 2 U.S.C. § 441i(b)(2)(B)(ii).
Thus, a typical Levin Amendment activity might involve a
generic effort by some state or local party organization to
register voters and turn them out for an election where both state
 64

and federal offices are at issue. The party entity could finance
that activity in part with money raised in $10,000 contributions.
Usual hard money requirements would not apply, but, as noted
earlier, the party would need to “allocate” the vote drive’s costs
between hard money accounts and the “Levin funds” raised in
these up-to-$10,000 donations.
By what criteria do parties “allocate”? Presumably the goal
is to approximate the relative state and federal components of
the activity (assigning Levin funds to the former and hard
money to the latter), but much as with the “coordinated
communication” issue discussed earlier, BCRA leaves the
question open. That is, rather than prescribing allocation rules
itself, BCRA simply refers to “regulations prescribed by the
Commission.” 2 U.S.C. § 441i(b)(2)(A). So the Commission
promulgated rules, and these rules, in addition to providing
guidance on allocation, include the $5,000 “de minimis”
exemption at issue in this appeal.
Our cases recognize that agencies may promulgate de
minimis exemptions to statutes they administer. See, e.g., Ass’n
of Admin. Law Judges v. FLRA, 397 F.3d 957, 961-62 (D.C. Cir.
2005); Envtl. Def. Fund, Inc. v. EPA, 82 F.3d 451, 466 (D.C.
Cir. 1996); Ala. Power Co. v. Costle, 636 F.2d 323, 360 (D.C.
Cir. 1979). Predicated on the notion that “the Congress is
always presumed to intend that pointless expenditures of effort
be avoided,” such authority “is inherent in most statutory
schemes, by implication.” Ass’n of ALJs, 397 F.3d at 962
(internal quotation marks omitted). But there are limits. First,
de minimis exemption power does not extend to “extraordinarily
rigid” statutes. See id. at 962; EDF, 82 F.3d at 466. By
promulgating a rigid regime, Congress signals that the strict
letter of its law applies in all circumstances, thus rebutting the
presumption against “pointless” applications. Second, even
absent rigidity, “[t]he authority to create these exceptions does
not extend to ‘a situation where the regulatory function does
 65

provide benefits, in the sense of furthering regulatory objectives,
but the agency concludes that the acknowledged benefits are
exceeded by the costs.’” Public Citizen v FTC, 869 F.2d 1541,
1557 (D.C. Cir. 1989) (quoting Ala. Power, 636 F.2d at 360-61)
(emphasis removed). Instead, situations covered by a de
minimis exemption must be truly de minimis. That is, they must
cover only situations where “the burdens of regulation yield a
gain of trivial or no value,” EDF, 82 F.3d at 466 (internal
quotation marks omitted), for otherwise the exemption reflects
impermissible “second-guess[ing] [of] Congress’s calculations,”
Public Citizen, 869 F.2d at 1557, as opposed to avoidance of
“absurd or futile results,” EDF, 82 F.3d at 466 (internal
quotation marks omitted).
Apparently attempting to satisfy these requirements, the
FEC gave three reasons for its exemption here. First, the
Commission attempted to show that the Levin allocation rule is
not “extraordinarily rigid.” See 67 Fed. Reg. at 49,097
(observing that “the reporting requirements for Federal election
activity contain an exception for activity below $5,000 in the
aggregate in a calendar year” and therefore concluding that
“Congress did not take a rigid approach to low levels of Federal
election activity”) (citing 2 U.S.C. § 434(e)(2)(A)). We need
not consider that argument, however, for even if the FEC is
correct on this point, its remaining two rationales give no
assurance that exempted spending—i.e., Levin expenditures
totaling $5,000 or less in a given year for a given party
organization—is in fact de minimis.
In the first of the two remaining rationales, the FEC
observed, “[T]he Commission is particularly sensitive to the
nature of the Federal election activity to which this provision
applies: Grassroots activities for which references to Federal
candidates are prohibited.” 67 Fed. Reg. at 49,097. “There is a
far weaker nexus,” the Commission went on, “between Federal
candidates and this category of Federal election activity than
 66

other types of Federal election activity for which Levin funds
are prohibited.” Id. The FEC’s point, we take it, is that the
Levin Amendment includes only “grassroots” FEA categories
(e.g., voter registration drives and generic party campaigning),
and that as such, the included FEA categories involve a “weaker
nexus” with federal candidates than those that Congress
excluded (e.g., over-25% salaries and public communications
referring to specific candidates).
Although this distinction may explain the pattern of
included and excluded FEA types—an issue we need not
address—Congress’s rationale for including activities in the
Levin Amendment obviously affords no justification for
excluding them from Levin allocation, the very form of
regulation Congress chose. See Public Citizen, 869 F.2d at 1557
(observing that de minimis exemptions may not “second-guess
Congress’s calculations”). Yet that is precisely the effect of the
FEC’s exemption with respect to Levin spending totaling $5,000
or less in a given year for a given party entity. To put the same
point somewhat differently, because the FEC’s observations
(that covered activities are “grassroots” and bear a “weaker
nexus”) relate to Levin FEA in general, these rationales would
apply equally to $50,000 or even $50,000,000 in Levin
spending—sums Congress could hardly have deemed “trivial,”
EDF, 82 F.3d at 466.
The FEC’s final rationale fares no better. Observing that
$5,000 is only half of $10,000, the amount each Levin
contributor may “donate (subject to State law) to each and every
State, district, and local party committee,” the Commission
declared: “[T]here is no danger that allowing a committee to
use entirely Levin funds for allocable Federal election activity
that aggregates $5,000 or less in a calendar year will somehow
lead to circumvention of the amount limitations set forth in [the
statute].” 67 Fed. Reg. at 49,097. This is certainly true. A party
with only $5,000 total expenditures can hardly evade the
 67

$10,000 “amount limitation” on contributions. Id. But the point
of Levin allocation—the subject-matter of this exemption—is to
restrict spending, not donations. Specifically, allocation requires
state parties to raise hard money for the federal component of
mixed-purpose activities, despite using Levin funds for the
remainder. Thus, again, to establish that some level of FEA
spending—whether $5,000, $50,000, or $500—is de minimis,
the FEC must demonstrate that efforts below that level have
“trivial or no” impact on federal elections. See EDF, 82 F.3d at
466. The fact that donors could contribute more than that
amount to the state component of such activities does nothing to
reassure us that the federal component is thus insignificant. Nor
does $5,000 strike us as an obviously trivial amount, considering
that donors could give that amount to each and every state,
district, and local party organization—an observation the FEC
itself made, see 67 Fed. Reg. at 49,097.
Thus, even assuming the Levin Amendment is flexible
enough to permit de minimis exclusions, the record here
presents no coherent justification for the specific exemption the
FEC chose. Accordingly, the Commission’s action again falls
short of APA standards, so again we shall affirm the district
court’s invalidation.

IV.
As the Supreme Court (rather fatalistically) observed in
McConnell, “Money, like water, will always find an outlet.”
540 U.S. at 224. Offered there as a reason for “no illusion that
BCRA will be the last congressional statement on [campaign
finance],” id., this comment serves equally well here to illustrate
the importance of faithfully implementing the statute Congress
has passed. For if regulatory safe harbors permit what BCRA
bans, we have no doubt that savvy campaign operators will
exploit them to the hilt, reopening the very soft money
floodgates BCRA aimed to close. Because the rules at issue in
 68

this appeal either fall short of Congress’s mandate or lack record
support showing otherwise, we affirm their invalidation by the
district court.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
I dissent from the majority opinion because I believe the
appellees lack standing to bring this action under Article III of
the United States Constitution. In McConnell v. FEC, 540 U.S.
93 (2003), the United States Supreme Court iterated the “three
requirements that constitute the ‘irreducible constitutional
minimum’ of standing”:
First, a plaintiff must demonstrate an “injury in fact,” which
is “concrete,” “distinct and palpable,” and “actual or
imminent.” Second, a plaintiff must establish “a causal
connection between the injury and the conduct complained
of–the injury has to be ‘fairly trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] some third
party not before the court.’ ” Third, a plaintiff must show the
“ ‘substantial likelihood’ that the requested relief will remedy
the alleged injury in fact.”
540 U.S. at 225-26 (alteration original; internal citations
omitted). The appellees have failed to make this minimum
showing because they have not identified an actual or imminent,
concrete injury-in-fact that is caused by the challenged
regulations implementing the Bipartisan Campaign Reform Act
of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81 (2002).
Instead they speculate that they may suffer vaguely described
injuries at some future time. See Decls. of Shays and Meehan
¶¶ 6, 7, 8 (averring each appellee will be “impact[ed]” “as a
candidate who runs in elections that could be affected” by soft-
money funding of “state and local activities that affect federal
elections,” each “will be open to attack . . . by groups seeking to
evade the contribution limits, source prohibitions, and disclosure
requirements imposed by Congress” and opponents “will be able
to interact and coordinate . . . . in [unidentified] ways that evade
the contribution limits, source prohibitions, and disclosure
requirements of federal law”) (emphases added). Or they
complain of the subjective indignity of campaigning in a
purportedly tainted electoral environment. See id. ¶¶ 4, 5
(averring each “will be forced” to run for re-election “in a
 2

system that is widely perceived to be, and [he] believe[s] in
many respects will be, significantly corrupted by the influence
of special-interest money,” each “will face the strong risk that
unregulated soft money contributions will again be used in an
attempt to influence federal elections in which [he is] a
candidate” and the soft-money contribution regulations “will
affect the perception the public will form of me, my fellow
office-holders, and fellow party members”). Such wispish
injury claims fall far short of the injury showing required for
Article III standing. See Allen v. Wright, 468 U.S. 737, 751
(1984) (to satisfy constitutional component of standing doctrine
“injury alleged must be . . . distinct and palpable, and not
abstract or conjectural or hypothetical”) (internal quotations
omitted). The majority attempts to fill the gaps in the appellees’
allegations by invoking two standing doctrines—conflated under
the novel heading “illegal structuring of a competitive
environment,” maj. op. 12, 13—which neither the Supreme
Court nor we have ever before applied in a similar context. In
its eagerness to manufacture standing, the majority stretches
both doctrines past their breaking points.
First, the majority finds standing based on the “procedural
rights” cases. Under the procedural rights doctrine, courts have
lowered the standing bar somewhat “in cases in which a party
‘has been accorded a procedural right to protect his concrete
interests’ ” before an agency so that “the primary focus of the
standing inquiry is not the imminence or redressability of the
injury to the plaintiff, but whether a plaintiff who has suffered
personal and particularized injury has sued a defendant who has
caused that injury.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d
658, 664 (D.C. Cir. 1996) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 572 n.7 (1992)). In Electric Power
Supply Ass’n v. FERC, 391 F.3d 1255 (D.C. Cir. 2004), on
which the majority relies, we applied the procedural rights
doctrine to conclude that the Electric Power Supply Association
(EPSA), a national trade association, and its members, which
 3

“routinely appear before FERC in contested hearings,” 391 F.3d
at 1262, had standing to challenge a regulation creating an
exception to the Sunshine Act’s statutory prohibition on ex parte
communications in agency proceedings, see 5 U.S.C. §
557(d)(1)(A), (B). The court reasoned that to establish standing,
the plaintiffs did not need to show any certainty of financial loss
because, “[a]s regular participants in contested FERC hearings,
EPSA and its members have a right, protected by the Sunshine
Act's proscription against ex parte communications, to ‘fair
decisionmaking’ by the Commission.” 391 F.3d at 1262
(quoting Prof’l Air Traffic Controllers Org. v. FLRA, 685 F.2d
547, 563 (D.C. Cir. 1982)). Similarly, in cases challenging an
agency’s refusal to prepare an environmental impact statement
regarding a proposed federal project, we and other courts have
found that a landowner whose property is threatened by the
project has standing to challenge the agency’s refusal based on
the Congress’s intent to protect the landowner’s procedural right
to an environmental impact statement from the agency. See,
e.g., Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 51
(D.C. Cir. 1999); see also Lujan v. Defenders of Wildlife, 504
U.S. 555, 572 n.7 (1992) (“[U]nder our case law, one living
adjacent to the site for proposed construction of a federally
licensed dam has standing to challenge the licensing agency's
failure to prepare an environmental impact statement, even
though he cannot establish with any certainty that the statement
will cause the license to be withheld or altered, and even though
the dam will not be completed for many years.”). The majority
finds such cases “analogous to” this one. Maj. op. 12. The
analogy does not hold up.
In Electric Power, EPSA had standing to challenge the
regulation because it was “seeking to enforce procedural
requirements designed to protect [its] concrete interest in the
outcome of hearings to which EPSA is a party.” 391 F.3d at
1262. EPSA enjoyed a procedural right to an administrative
proceeding free from ex parte communications because it was
 4

the beneficiary of one of the two interests underlying the
Sunshine Act—to ensure disclosure “ ‘as an instrument of fair
decisionmaking,’ ” for “ ‘only if a party knows the arguments
presented to a decisionmaker can the party respond effectively
and ensure that its position is fairly considered.’ ” Id. (quoting
Prof’l Air Traffic Controllers Org., 685 F.2d at 563). As the
Supreme Court explained in Defenders of Wildlife, “ ‘procedural
rights’ are special: The person who has been accorded a
procedural right to protect his concrete interests can assert that
right without meeting all the normal standards for redressability
and immediacy.” 504 U.S. at 573 n.7. The appellees do not
qualify for this special relaxation of the usual injury standard for
three reasons.
First, in the procedural rights cases, the courts have found a
party has standing to challenge an agency decision which
deprives the challenger of a procedural right that the Congress
intended to protect in proceedings before the same agency. See
Committee for Full Employment v. Blumenthal, 606 F.2d 1062,
1065 n.11 (D.C. Cir. 1979) (“On many occasions we have
reviewed agency action or inaction at the request of a party who
alleged that its procedural rights (as created either by the
agency’s own regulations, or the Administrative Procedure Act)
had been violated.”). In Electric Power, for example, we
concluded that the EPSA and its members had standing to seek
review of the decision by the Federal Energy Regulatory
Commission to permit ex parte communication in its own
proceedings which the Congress had intended to prohibit in the
Sunshine Act in order to protect the right of fair decisionmaking
in proceedings before the Federal Energy Regulatory
Commission. See Electric Power, 391 F.3d at 1262 (“As regular
participants in contested FERC hearings, EPSA and its members
have a right, protected by the Sunshine Act’s proscription
against ex parte communications, to ‘fair decisionmaking’ by
the Commission.”) (emphasis added). Similarly, in the cases
challenging an agency’s refusal to prepare an environmental
 5

impact statement regarding a proposed federal project, to which
the Supreme Court alluded in Defenders of Wildlife, see maj. op.
23-24, courts have found that a landowner whose property is
threatened by the project has standing to challenge the agency’s
refusal based on the Congress’s intent to protect the landowner’s
procedural right to obtain an environmental impact statement
from the agency undertaking the project. Here, there is no such
connection between the FEC or its rulemaking proceeding and
the “procedural right” allegedly denied the appellees. The
majority finds the appellee congressmen have standing to
challenge the FEC’s rulemaking procedure based not on a right
to some guaranteed procedural protection before the
Commission but rather on an “interest in ‘fair’ reelection fights”
in future public elections. See maj. op. 23. This unprecedented
reliance on a right independent of any agency proceeding turns
the procedural rights doctrine on its head and creates a wholly
new and insupportable theory of standing.
Second, even assuming candidates could have standing to
challenge an agency proceeding based on a procedural right
available and violable only in a future election campaign, BCRA
accords no such special right to the appellees or to any other
candidate 1 because BCRA’s requirements were not designed to

1
I know of no authority to support the majority’s suggestion, maj.
op. 19, that if the appellees come within BCRA’s “zone of interests”
for prudential standing under the APA—a requirement the majority
acknowledges is “ ‘[n]ever especially demanding,’ ” maj. op. 9
(quoting Amgen, Inc. v. Smith, 357 F.3d 103, 108 (D.C. Cir. 2004)—
they necessarily have standing under Article III as well. See Bennett
v. Spear, 520 U.S. 154, 162 (1997) (zone of interests requirement is
part of “a set of prudential principles that bear on the question of
standing” “[i]n addition to the immutable requirements of Article III”).
It is true that the Congress “may enact statutes creating legal rights,
the invasion of which creates standing, even though no injury would
exist without the statute,” Linda R.S. v. Richard D., 410 U.S. 614, 617
 6

protect any interest, much less a concrete interest, belonging to
a candidate in his capacity as candidate (as opposed to his
capacity as voter). See Fla. Audubon Soc’y, 94 F.3d at 658
(“According to Defenders of Wildlife, a plaintiff may have
standing to challenge the failure of an agency to abide by a
procedural requirement only if that requirement was ‘designed
to protect some threatened concrete interest’ of the plaintiff.”
(quoting Defenders of Wildlife, 504 U.S. at 573 n. 8; emphasis
added)). In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme
Court determined that the “primary purpose” of the Federal
Election Campaign Act of 1971 (FECA), which BCRA amends,
was “ ‘to limit the actuality and appearance of corruption
resulting from large individual financial contributions,’ ”
McConnell, 540 U.S. at 120 (quoting Buckley, 424 U.S. at 26),
by which “the integrity of our system of representative
democracy is undermined,” Buckley, 424 U.S. at 26-27. The
Buckley Court found, the McConnell Court noted, that FECA’s
substantive contribution limits “serve[] an interest in protecting
‘the integrity of our system of representative democracy.’ ” 540
U.S. at 120 (quoting Buckley, 424 U.S. at 26-27). Those BCRA
provisions which may be considered “procedural”—that is, the
provisions governing disclosure, recordkeeping and
reporting—“vindicate[] three important interests: providing the
electorate with relevant information about the candidates and

n.3 (1973), quoted at maj. op. 19, but to do so it must under Electric
Power and the other procedural rights cases have “designed” the
statute with the purpose to confer a right or benefit on the party
asserting the right. See also infra pp. 9-10 (discussing competitive
injury standing and need for legislative intent to confer it). This
legislative purpose standard is more stringent than the “zone of
interests” inquiry in which "there need be no indication of
congressional purpose to benefit the would-be plaintiff.” Clarke v.
Secs. Indus. Ass’n, 479 U.S. 388, 399-400 (1987) (analyzing zone of
interests to establish prudential standing).
 7

their supporters; deterring actual corruption and discouraging
the use of money for improper purposes; and facilitating
enforcement of the prohibitions in the Act.” McConnell, 504
U.S. at 121 (citing Buckley, 424 U.S. at 66-68). None of these
interests accrues to candidates qua candidates. The first two
plainly benefit the general electorate; as the Court explained in
Buckley, “[a] public armed with information about a candidate’s
most generous supporters is better able to detect any post-
election special favors that may be given in return.” Buckley v.
Valeo, 424 U.S. at 67. As for the third, “recordkeeping,
reporting and disclosure requirements are an essential means of
gathering the data necessary to detect violations of the
contribution limitations,” Buckley, 424 U.S. at 67-68, thereby
serving FECA’s primary—public—interest in reducing
corruption and its appearance by limiting contributions. Thus,
BCRA’s procedural provisions were designed to protect only the
rights of voters generally to be informed about candidates and
to exercise their franchise in an electoral system untainted (or
less tainted) by corruption. They were not designed to benefit
or protect candidates running for office. Because each
congressman appellee is “claiming only harm to his and every
citizen’s interest in proper application of the Constitution and
laws, and seeking relief that no more directly and tangibly
benefits him than it does the public at large,” he “does not state
an Article III case or controversy.” Defenders of Wildlife, 504
U.S. at 573-74. In short, he has no more standing than any other
voter—which is to say none.2
To support a candidate’s standing to challenge a campaign
finance law violation under the procedural rights doctrine, the
majority cites the example in Defenders of a landowner who has

2
The majority offers no support for its bald statement that BCRA
“specifically protects the interest in fair reelection contests that Shays
and Meehan assert.” Maj. op. 19 (emphasis added).
 8

a procedural right to challenge an agency’s failure to prepare an
environmental impact statement regarding a proposed dam on
land adjacent to his own. But there is a key distinction. The
landowner has a concrete, particularized claim—beyond the
general public’s—to the interest which the environmental
assessment requirements were designed to protect: his particular
corner of the environment may be adversely affected by the dam
because of its proximity. Thus, he has standing “even though he
cannot establish with any certainty that the statement will cause
the license to be withheld or altered, and even though the dam
will not be completed for many years.” Defenders of Wildlife,
504 U.S. at 573 n.7. A candidate for public office, however, has
no such special claim to the interest advanced by
BCRA—namely, preserving the integrity of our system of
government by eliminating corruption. With regard to this
interest, he is like one of those “persons who live (and propose
to live) at the other end of the country from the dam” and
therefore “have no concrete interests affected.” Defenders of
Wildlife, 504 U.S. at 573 n.7.3
Finally, to the extent that BCRA creates any procedural
protections (and I would be reluctant to characterize BCRA’s
disclosure, recordkeeping and reporting requirements as
“protections” for candidates), it is not the regulations’
procedural requirements that cause the appellees’ alleged
injuries but rather the purported relaxation of BCRA’s
substantive restrictions on contributions and expenditures. See
supra pp. 1-2 (quoting from the appellees’ declarations).

3
In this respect, the majority’s characterization of Defenders’
persons living “at the other end of the country” as “a far cry from”
from the appellees is wrong. See maj. op. 17-18. The appellees are in
the same position as any voter and have no more personal stake in
enforcing BCRA than Defenders’ remote landowner would in
enforcing environmental assessment requirements.
 9

In addition to the procedural rights cases, the majority also
finds standing based on a line of cases establishing “the rule . . .
that when [a] particular statutory provision invoked [] reflect[s]
a legislative purpose to protect a competitive interest, the injured
competitor has standing to require compliance with that
provision.” Hardin v. Ky. Utils. Co., 390 U.S. 1, 6 (1968)
(citations omitted). The majority’s competitive standing theory
also suffers from three fatal defects.4
First, as I just explained, BCRA does not “reflect a legislative
purpose to protect a competitive interest” of the appellees; for

4
In the past we have consistently viewed competitor standing in the
political arena with skepticism. See Gottlieb v. FEC, 143 F.3d 618,
620 (D.C. Cir. 1998) (“As to AmeriPAC’s ‘political competitor’
theory, we have never completely resolved this ‘thorny issue.’ ”
(quoting Common Cause v. FEC, 108 F.3d 413, 419 n.1 (D.C. Cir.
1997); citing Akins v. FEC, 101 F.3d 731, 737 (D.C. Cir. 1997) (en
banc), vacated, 524 U.S. 11 (1998); Fulani v. Brady, 935 F.2d 1324
(D.C. Cir. 1991)). In Gottlieb, on which the majority relies, maj. op.
16, the court rejected the competitive standing claim of a political
action committee challenging a candidate’s receipt of federal matching
funds, citing our decision in Fulani, in which we had similarly
rejected a third party candidate’s challenge to the tax exempt status of
a presidential debate sponsor. The Gottlieb court noted that in Fulani
“[w]e speculated that ‘[a]rguably’ Fulani would have had standing ‘if
the IRS were depriving Fulani of a benefit that it afforded to others
similarly placed.’ ” 143 F.3d at 621 (quoting Fulani, 935 F.2d at
1328) (emphases added). I do not agree with the majority that the
court’s finding that the plaintiff lacked standing, particularly in light
of the quoted language, “supports applying competitive standing to
politics as well as business.” Maj. Op. 16. Even assuming, however,
that competitive injury standing is viable in the political context, the
appellees are, like the plaintiffs in Gottlieb and Fulani, “not in a
position,” Gottlieb, 143 F.3d at 620, to claim competitive standing
because, as I explain below, they have not alleged a competitive
injury.
 10

the provisions the appellees seek to enforce are “in no way
concerned with protecting against competitive injury.” Hardin,
390 U.S. at 6 (explaining cases in which court found no standing
notwithstanding existence of competitive economic injury).
Second, the Commission’s regulations have not caused the
appellees a competitive injury. In Association of Data
Processing Serv. Orgs. v. Camp, 397 U.S. 150 (1970), cited at
maj. op. 14, the Supreme Court found sufficient injury-in-fact
under Article III because the petitioners experienced increased
competition for their customers as a result of the challenged
government action. 5 The Supreme Court held that the
petitioners, data processing service providers, had standing to
challenge a ruling by the Comptroller of the Currency that
authorized national banks to provide data processing services to
other banks and to bank customers because the petitioner “not
only allege[d] that competition by national banks in the business
of providing data processing services might entail some future
loss of profits for the petitioners, they also allege[d] that
respondent American National Bank & Trust Company was
performing or preparing to perform such services for two
customers for whom petitioner Data Systems, Inc., had
previously agreed or negotiated to perform such services.” 397
U.S. at 152. As the majority acknowledges, however, the
appellees have suffered no increased competition as a result of
the Commission’s regulations which “create neither more nor
different rival candidates.” Maj. op. 14. The majority also
concedes that the regulations offer no “special benefits” to the
appellees’ rivals so as to implicate the other basis for
competitive standing: creating marketplace advantage for

5
In Clarke v. Secs. Indus Ass’n, 479 U.S. 388 (1987), and National
Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479
(1998), cited along with Data Processing, maj. op. 13-14, the
Supreme Court addressed only prudential, not constitutional, standing.
See supra n. 1.
 11

competitors. Id.; See, e.g., DIRECTV, Inc. v. FCC, 110 F.3d
816, 830 (D.C. Cir. 1997) (holding prospective auction bidder
had standing to challenge rule that put it at “a substantial
competitive disadvantage vis- a-vis other bidders”). As in
McConnell, because the challenged action neither confers a
competitive benefit on competing candidates nor subjects the
appellees to any competitive disadvantage, the appellees lack
Article III standing.
In McConnell, the “Adams plaintiffs” alleged their candidates
suffered a “competitive injury” from section 307 of BCRA
which increased the ceiling on certain individual contributions,
unconstitutionally in their view. As injury they alleged that
under section 307 their candidates would be at a “ ‘fundraising
disadvantage’ ” given that they “ ‘d[id] not wish to solicit or
accept large campaign contributions as permitted by BCRA’
because ‘[t]hey believe such contributions create the appearance
of unequal access and influence.’ ” 540 U.S. at 228 (quoting
Adams plaintiffs’ complaint). The Court rejected this argument
because the candidates’ “alleged inability to compete stems not
from the operation of § 307, but from their own personal ‘wish’
not to solicit or accept large contributions, i.e., their personal
choice.” 540 U.S. at 228. Here too, any competitive injury the
appellees may suffer stems not from the FEC’s regulations but
from their own refusal to take advantage of them. Under the
Commission’s regulations, the appellees are authorized to
employ the same campaign tactics in the same manner as any
other federal candidate. The majority attempts to distinguish the
Adams plaintiffs’ plight by claiming that “because being put to
the choice of either violating BCRA or suffering disadvantage
in their campaign is itself a predicament the statute spares them,
having to make that choice constitutes Article III injury.” Maj.
op 20. But this is the same “predicament” the Adams plaintiffs
asserted: they would be outspent unless they chose to accept the
higher hard money contributions authorized by BCRA, which,
they maintained, violated the United States Constitution. They
 12

faced their Hobson’s choice only because, in their view, BCRA
“permit[s] what [the Fifth Amendment] forbids.” See maj. op.
27. In short, the two appellees have identified no competitive
injury they will suffer as a consequence of the challenged
regulations; if the FEC “alter[ed] the competitive environment’s
overall rules,” maj. op. 15, it did so for all candidates, including
the appellees, thereby maintaining a level playing field. Lacking
a competitive injury, the appellees’ only complaint is of injury
to their generalized, abstract interests in enforcing BCRA as
they believe it was meant to be implemented and in preventing
the appearance or occurrence of corruption. Neither interest
supports standing. See Common Cause v. FEC, 108 F.3d 413,
418 (D.C. Cir. 1997) (stating court cannot “recogniz[e] a
justiciable interest in the enforcement of the law and noting
“Congress cannot, consistent with Article III, create standing by
conferring ‘upon all persons . . . an abstract, self-contained,
noninstrumental “right” to have the Executive observe the
procedures required by law,’ ” (quoting Defenders of Wildlife,
504 U.S. at 573) (emphasis original); Rainbow/PUSH Coalition
v. FCC, 396 F.3d 1235, 1241 (D.C. Cir. 2005) (finding injury
from discrimination at local public radio station was insufficient
for standing because it was “simply a setback to [an] abstract
social interest’ in advancing racial equity” (quoting Havens
Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982))).
In the absence of either of the two established bases for
competitive standing—increased competition and competitive
advantage/disadvantage—the only competitive “injury” the
majority identifies is the vague, hypothetical and novel
“intensified competition” injury, maj. op. 14 (emphasis original).
Specifically, the majority cites regulations permitting
unrestricted coordinated expenditures to be made more than 120
days before an election and relieving non- federal political party
committees from allocating expenses for employees devoting
less than 25% of their time to federal election activity between
federal and non-federal expenditures. These regulations do not,
 13

as the majority states, require the appellees to “respond to a
broader range of competitive tactics” or to “account for
additional practices.” Maj. op. 14 (emphases added). Even
under the appellees’ interpretation, BCRA indisputably permits
both soft-money-funded coordinated expenditures and use of
non-federal committee employees for federal election activity;
the regulations simply permit more of these same activities than
the appellees believe BCRA authorizes. How these regulations
“intensify” the appellees’ competition, whether and to what
extent rival candidates may avail themselves of the so-called
“safe harbors” or their increased use of them will affect the
outcome of the appellees’ reelection campaigns, is anyone’s
guess. Notably, neither the appellees nor the majority cites any
instance when the safe harbors were exploited to a candidate’s
detriment in the 2004 election campaigns. In short, the
majority’s “intensified competition” is precisely the sort of
vague and speculative injury that Article III’s case or
controversy requirement forbids.
Third, the majority’s competitive standing theory fails
because, as the district court noted, the appellees did not allege
a specific competitive injury in their declarations or elsewhere.
See Shays v. FEC, 337 F. Supp. 2d 28, 45 n.12 (2004); Sierra
Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (burden is on
party asserting standing to “identify in th[e] record evidence
sufficient to support its standing”).
Finally, the majority is simply wrong if it means to suggest
that the two congressmen have standing solely because they are
“directly regulated parties,” maj. op. 29. The appellees claim
injury not from any regulation of their activities under BCRA or
the FEC’s regulations but rather from the way that other
candidates will be regulated (or not). It is clear from the
Supreme Court’s decision in McConnell that injury does not
arise automatically from the simple fact of being subject to
regulation under a particular regime. As a senator raising funds
 14

to run for reelection, McConnell was plainly “directly regulated”
by BCRA. Yet the Supreme Court found he lacked standing to
challenge section 305 of BCRA because he failed to carry his
burden to “demonstrate an ‘injury in fact,’ which is ‘concrete,’
‘distinct and palpable,’ and ‘actual or imminent.’ ” McConnell,
540 U.S. at 225. The defect noted in McConnell’s case was the
temporal remoteness of his claimed injury, which related to an
election then 6 years off—an unlikely stumbling block for
congressmen such as the appellees who are elected biennially.
Nonetheless, the treatment of McConnell is relevant here
because the Court refused to assume his standing simply
because he is “directly regulated” by BCRA. He was still
required to point to some specific injury that satisfied all of the
standing requirements. The appellee congressmen here are
likewise required to identify some specific injury arising from
the regulations in order to satisfy Article III’s requirements.
Because they failed to do so, I would vacate the district court’s
decision and dismiss this action for lack of standing.6

6
I do not agree with the majority that under this view “Shays and
Meehan would never have standing to challenge these rules,” not even
under FECA’s judicial review provision, 2 U.S.C. § 437g(a)(8), which
permits a private party to challenge in the district court the
Commission’s decision not to enforce FECA. See maj. op. 29. This
provision does what BCRA does not; once an actual campaign finance
violation has been alleged, it confers on a complainant a procedural
right to have the FEC review it. If the FEC offends the right, the party
has standing to seek redress in court.