UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JOHN DOE 1 & JOHN DOE 2, )
)
Plaintiffs, )
)
v. ) Civil Action No. 17-2694 (ABJ)
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FEDERAL ELECTION COMMISSION, )
)
Defendant. )
____________________________________)
AMENDED MEMORANDUM OPINION
Plaintiffs John Doe 1 and John Doe 2, a trustee and the trust, challenge the decision of the
Federal Election Commission (“FEC”) to disclose their identities when it publicly releases the file
pertaining to an investigation that is now closed. Plaintiffs, whose names and identifying
information appear in the file, assert that the agency’s decision is unlawful because releasing their
identities would violate the Federal Election Campaign Act and its regulations, the Freedom of
Information Act, and plaintiff’s rights under the First Amendment of the U.S. Constitution. They
have brought this case under the Administrative Procedure Act and ask the Court to enjoin the
agency from disclosing their identities as part of its release of the investigative file.
For the reasons explained below, the Court will not enjoin defendant’s disclosure of
plaintiffs’ identities pursuant to the agency’s disclosure policy.
BACKGROUND
The Federal Election Campaign Act (“FECA” or “the Act”) is a statute that imposes
extensive recordkeeping and disclosure requirements of campaign contributions in an effort “to
remedy corruption of the political process.” FEC v. Akins, 524 U.S. 11, 11 (1998). Among its
1
requirements, the Act prohibits “mak[ing] a contribution in the name of another person or
knowingly permit[ting] his name to be used to effect such a contribution” or “knowingly
accept[ing] a contribution made by one person in the name of another person.” 52 U.S.C. § 30122.
The Act established the Federal Election Commission, and it requires the agency to investigate
violations of the Act. 52 U.S.C. §§ 30106(a)–(b), 30107(a). It also sets forth requirements for
how the agency’s investigations are handled, including the public disclosure of the results of
investigations and of the materials and information uncovered in them. See, e.g., 52 USC
§§ 30109(a)(12)(A); (a)(4)(B)(ii). This case concerns whether the identities of an individual and
an entity, who were not named as respondents in an FEC investigation, but were alleged to have
had some role in or connection to the activities being investigated, may be disclosed by the agency
as part of the release of its investigative materials.
FACTUAL AND PROCEDURAL HISTORY
On February 27, 2015, the FEC received an administrative complaint from Citizens for
Responsibility and Ethics in Washington (“CREW”), alleging that American Conservative Union,
Now or Never PAC, the PAC’s treasurer James C. Thomas III, and an unknown respondent
violated the Federal Election Campaign Act when American Conservative Union made a
$1.71 million contribution, which it received from an unknown respondent, to Now or Never PAC.
See Pls.’ Emergency Mot. for TRO and Prelim. Inj. and Mem. of P. & A. in Supp., (Sealed)
2
[Dkt. # 4],1 (Redacted) [Dkt. # 13] (“Pls.’ Mot.”) at 2–3; Decl. of John Doe 1, (Sealed) [Dkt. # 4-1],
(Redacted) [Dkt. # 13-1] ¶ 3; Resp. to Pls.’ Mot., (Sealed) [Dkt. # 8] (Redacted) [Dkt. # 16]
(“Def’s. Opp.”) at 1; see also CREW’s Admin. Compl., ¶¶ 1, 13–20, https://www.fec.gov/
files/legal/murs/6920/17044434345.pdf.
The agency initiated an investigation based on these allegations, Matter Under Review
(“MUR”) 6920, and it identified Government Integrity LLC as the “unknown respondent.” Def.’s
Opp. at 1. The FEC’s Office of General Counsel (“OCG”) learned through discovery that
Government Integrity wired $1.8 million to American Conservative Union on the same day that
American Conservative Union sent $1.7 million to Now or Never PAC and that John Doe 2 –
which had a relationship with Government Integrity 2 – had transmitted funds to Government
1 On December 18, 2017, the court granted plaintiffs’ motion to seal this case. Order [Dkt.
# 5] (allowing the case to proceed temporarily under seal). After the case was assigned to the
undersigned judge, the Court ordered the parties to file public, redacted versions of their previously
sealed pleadings on the docket, and by agreement of the parties, the FEC published a redacted
version of the investigative file in dispute on its website at https://www.fec.gov/data/legal/matter-
under-review/6920/. See Min. Order (Dec. 18, 2017); Min. Order (Dec. 19, 2017). This
memorandum opinion cites to the public versions of the filings in this case.
2 See FEC Memorandum, Circulation of Discovery Documents (Aug. 4, 2017) at 2,
https://www.fec.gov/files/legal/murs/6920/17044435462.pdf. (“In response to our request for
information regarding the known principals and agents of [Government Integrity] LLC, Thomas
states [REDACTED] ‘acting as trustee of an entity named [REDACTED]’ [REDACTED]
appointed GI LLC’s now-deceased principal.”).
3
Integrity immediately before that. 3 See Third General Counsel’s Report (Sept. 15, 2017) at 6,
https://www.fec.gov/files/legal/murs/6920/17044435484.pdf.
On August 10, 2017, the OGC served a subpoena for information on plaintiffs John Doe 1
and John Doe 2. Def.’s Opp. at 1–2. Plaintiffs refused to respond to the subpoena, Def.’s Opp. at
1–2, and on September 15, 2017, the OGC recommended that the Commission find reason to
believe that plaintiffs violated 52 U.S.C. § 30122 and authorize the filing of a civil action to enforce
the subpoena. Pls.’ Reply Mem. in Supp. of Pls.’ Mot., (Sealed) [Dkt. # 8]; (Redacted) [Dkt. # 25]
(“Pls.’ Reply”) at 3; Third General Counsel’s Report at 12–13.
On September 20, 2017, the Commission rejected the OGC recommendation by a vote of
3 to 2. Pls.’ Reply at 3; Def.’s Opp. at 2; Certification (Sept. 20, 2017), https://www.fec.gov/files/
legal/murs/6920/17044434647.pdf. That same day, the Commission voted 5 to 0 to authorize the
OGC to pursue conciliation with American Conservative Union and “pre-probable cause”
conciliation with Government Integrity, Now or Never PAC, and Mr. Thomas. Id. Finally, it
voted 5 to 0 to “[t]ake no action at this time on the remaining recommendations” of the OGC. Id.
The FEC did not inform plaintiffs of the OGC’s allegations and recommendations. Pls.’ Reply at
3–4.
3 “On August 10, 2017, the Commission served [REDACTED] through its trustee,
[REDACTED] with a Subpoena and Order requesting the production of documents and the
answers to interrogatories regarding its role in the transaction and the source of the funds used to
make a contribution to Now or Never PAC. [REDACTED] response was due on August 25, 2017.
The day before response was due, [REDACTED] newly retained counsel requested an extension
of seventeen days. Because of statute of limitations concerns, OGC was unable to grant the
request. Nonetheless, counsel for [REDACTED] stated that [REDACTED] would not respond to
the Subpoena and Order until September 11, 2017.” Third General Counsel’s Report at 5.
4
Thereafter, the agency entered into conciliation discussions with respondents to the
investigation and ultimately reached a conciliation agreement with them. See Def.’s Opp. at 2;
Pls.’ Reply at 4. On October 24, 2017, the Commission voted unanimously to approve the
conciliation agreement, which involved Government Integrity, American Conservative Union,
Now or Never PAC, and James C. Thomas III. Def.’s Opp. at 2; Certification (Oct. 24, 2017),
https://www.fec.gov/files/legal/murs/6920/17044434742.pdf. That agreement concluded MUR
6920. Id. Government Integrity agreed not to contest the Commission’s finding against it any
further, and the respondents collectively agreed to pay a civil penalty of $350,000. Def.’s Opp.
at 2.
On November 3, 2017, the FEC notified CREW of the results of its investigation, advising
that:
the Commission found that there was probable cause to believe American
Conservative Union violated 52 U.S.C. § 30122 . . . . The Commission also
found reason to believe that Government Integrity, LLC, violated 52 U.S.C.
§ 30122; that Now or Never PAC and James C. Thomas, III in his official
capacity as treasurer knowingly and willfully violated 52 U.S.C. §§ 30122
and 30104(b); and that James C. Thomas, III knowingly and willfully
violated 52 U.S.C. §§ 30122 and 30104(b).
Letter from Antoinette Fuoto, FEC, to Anne L. Weismann, CREW (Nov. 3, 2017),
https://www.fec.gov/files/legal/murs/6920/17044434744.pdf (“FEC Closing Letter”), at 1.
The FEC also advised that pursuant to its disclosure policy, “[d]ocuments related to the
case [would] be placed on the public record within 30 days” – or by December 3, 2017. FEC
Closing Letter at 1, citing Disclosure of Certain Documents in Enforcement and Other Matters, 81
Fed. Reg. 50,702 (Aug. 2, 2016) (“Disclosure Policy”).
Counsel for plaintiffs and counsel for Government Integrity objected to the publication of
their clients’ names and identifying information in connection with the release of the investigative
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file. Pls.’ Mot. at 3. While the agency was considering these objections, and after the 30-day
deadline to release the investigation file had passed, CREW contacted the agency to ask when it
would publish the file. Def.’s Opp. at 3.
On December 12, 2017, the FEC told counsel for Government Integrity that, pursuant to
its disclosure policy, the agency would not redact plaintiffs’ names when it released the
investigative file. Pls.’ Mot. at 3. Two days later, on December 14, the FEC advised plaintiffs’
counsel of this decision. Pls.’ Reply at 4; Def.’s Opp. at 3. Plaintiffs asked the agency to wait two
business days to publish the file, and the agency agreed to wait until December 18, 2017 at
5:00 p.m. or later to do so. Pls.’ Mot. at 4; Def.’s Opp. at 3.
On the next day, December 15, 2017, plaintiffs filed this lawsuit. Compl., (Sealed) [Dkt.
# 1]; (Redacted) [Dkt. # 12]; Pls.’ Mot. They filed a sealed complaint and a sealed motion for a
temporary restraining order, asking the Court to enjoin the agency from releasing their identities
in its investigative file. On December 18, 2017, defendant filed its opposition to plaintiffs’ motion,
Def.’s Opp., and on that day, the Court held a sealed hearing in which the FEC agreed to redact
plaintiffs’ names and any other identifying information from its investigative file and not publish
the redacted information until further order of the Court in this case. Min. Order (Dec. 18. 2017).
In light of that agreement, the Court denied plaintiffs’ motion for a temporary restraining order as
moot and consolidated the motion for a preliminary injunction with the merits of the case. Id.,
citing Fed. R. Civ. Proc. 65.
On December 19, 2017, Commissioner Ellen Weintraub released through Twitter a
redacted version of a Statement of Reasons concerning this matter and the September 20 vote of
2 to 3 against authorizing action to enforce the subpoena against plaintiffs. Pls.’ Reply, Ex. C;
Commissioner Weintraub Statement of Reasons, https://www.fec.gov/files/legal/murs/6920/
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17044435456.pdf (“Weintraub Statement of Reasons”). On December 20, 2017, Commission
Vice Chair Caroline Hunter and Commissioner Lee Goodman issued their own Statement of
Reasons about the vote. Statement of Reasons (Dec. 20, 2017), https://www.fec.gov/files/legal/
murs/6920/17044435563.pdf (“Hunter and Goodman Statement of Reasons”).
On December 22, 2017, defendant filed notice with the Court that it had published a
redacted version of the investigative file. Notice [Dkt. # 20]. On January 3, 2018, plaintiffs filed
their reply in support of their motion. Pls.’ Reply. Finally, on February 12, 2018, CREW filed an
amicus brief in this matter. 4 Brief of CREW and Anne Weismann as Amici Curiae [Dkt. # 45].
STANDARD OF REVIEW
The Administrative Procedure Act (“APA”) establishes the scope of judicial review of
agency action. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519, 545–49 (1978). It requires courts to “hold unlawful and set aside agency action, findings,
and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” in excess of statutory authority, or “without observance of procedure
required by law.” 5 U.S.C. §§ 706(2)(A), (C) and (D).
Courts are required to analyze an agency’s interpretation of a statute by following the two-
step procedure set forth in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). First, the court must determine “whether Congress has directly spoken to the precise
question at issue.” Id. at 842. “If the intent of Congress is clear, that is the end of the matter; for
4 CREW filed a motion to intervene in this action on January 3, 2018, Mot. to Intervene by
CREW and Anne Weismann [Dkt. # 22], which the Court denied on January 31, 2018, authorizing
CREW instead to file an amicus curaie brief. See Order [Dkt. # 44].
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the court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Id. at 842–43. If the court concludes that the statute is either silent or ambiguous, the
second step of the court’s review process is to determine whether the interpretation proffered by
the agency is “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843.
Once a reviewing court reaches the second step, it must accord “considerable weight” to
an executive agency’s construction of a statutory scheme it has been “entrusted to
administer.” Id. at 844. “[U]nder Chevron, courts are bound to uphold an agency interpretation
as long as it is reasonable – regardless whether there may be other reasonable or, even more
reasonable, views.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998). And the
court must defer to an agency’s reading of its own regulations unless it is “plainly erroneous or
inconsistent with the regulation.” Id. at 1320 (internal quotation marks omitted).
ANALYSIS
The Federal Election Campaign Act has a number of provisions that address the
confidentiality of investigation materials. The Court has concluded that the issue cannot be
resolved at the Chevron step one stage, since none of the statutory provision cited by the parties
speaks directly to the matter.
I. Disclosure in this case is neither barred by 52 U.S.C. § 30109(a)(4)(B)(i), as plaintiffs
contend, nor required by section 30109(a)(4)(B)(ii), as the FEC contends.
The Federal Election Commission’s administrative enforcement authority is set forth in
52 U.S.C § 30109. Subsection (a)(4) specifies the informal methods and procedures the agency
may invoke to correct or prevent violations of FECA. Id. at § 30109(a)(4). Subsection (a)(4)(A)
requires the FEC to attempt to correct or prevent a violation through a number of informal methods,
and it authorizes the agency to enter into conciliation agreements with any person involved. Id. at
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§ 30109(a)(4)(A). “A conciliation agreement, unless violated, is a complete bar to any further
action by the Commission.” Id.
The Commission seeks to disclose its investigative file for MUR 6920 pursuant to
subsection (a)(4)(B), which governs disclosures by the agency within the context of these
conciliation attempts and agreements. Def.’s Opp. at 4. Subsection (a)(4)(B)(i) states the
following with regard to conciliation attempts:
No action by the Commission or any person, and no information derived, in
connection with any conciliation attempt by the Commission under
subparagraph (A) may be made public by the Commission without the
written consent of the respondent and the Commission.
52 U.S.C. § 30109(a)(4)(B)(i). Subsection (a)(4)(B)(ii) deals with conciliation agreements:
If a conciliation agreement is agreed upon by the Commission and the
respondent, the Commission shall make public any conciliation agreement
signed by both the Commission and the respondent. If the Commission
makes a determination that a person has not violated this Act or chapter 95
or chapter 96 of Title 26, the Commission shall make public such
determination.
52 U.S.C. § 30109(a)(4)(B)(ii).
The Court agrees with defendant that subsection (a)(4)(B)(i) does not bar the agency from
making the disclosures plaintiffs seek to enjoin here, since the prohibition in that subsection is
limited to disclosure of any action by the Commission, or information derived “in connection with
any conciliation attempt by the Commission under subparagraph (A).” 52 U.S.C.
§ 30109(a)(4)(B)(i) (emphasis added). In other words, that provision relates to the confidentiality
of the conciliation process.
But plaintiffs are correct that subsection (a)(4)(B)(ii) does not require the agency to
disclose the plaintiffs’ identity either, since the record reflects that the Commission did not make
any “determination” that plaintiffs had not violated the Act; it simply did not vote to find reason
9
to believe that they had. See Exhibit A to Def.’s Opp. [Dkt. # 25-1] at 41–44. Thus, subsection
(a)(4)(B) does not mandate the outcome in this case.
II. Disclosure in this case is not barred by subsection (a)(12)(A), as plaintiffs contend.
Subsection (a)(12)(A) governs the disclosure of notifications or investigations:
Any notification or investigation made under this section shall not be made
public by the Commission or by any person without the written consent of
the person receiving such notification or the person with respect to whom
such investigation is made.
52 U.S.C. § 30109(a)(12)(A). Plaintiffs point to this subsection to support their argument that
disclosure of their names is prohibited. Pls.’ Mot. at 8–10. The Commission interprets this
provision as governing disclosures of pending investigations only, and it argues that any other
interpretation would be inconsistent with the statutory mandate in subsection (a)(4)(B)(ii) to make
certain disclosures at the conclusion of an investigation. Def.’s Opp. at 6–8.
The Court acknowledges that the issue before it is not an easy one to resolve, but it is not
writing on a blank slate. The D.C. Circuit has considered the scope of subsection (a)(12)(A) and
disclosures by the FEC in a case that struck down the agency’s prior disclosure policy. As the
FEC explained in the Federal Register Notice announcing its current policy:
For approximately the first 25 years of is existence, the Commission viewed
the confidentiality requirements as ending with the termination of a case.
The Commission placed on its public record the documents that had been
considered by the Commissioners in their determination of a case, minus
those materials exempt from disclosure under the FECA or under the
Freedom of Information Act . . . .
Disclosure Policy, 81 Fed. Reg. at 50702. In 2001, however, that policy was challenged in court,
and the district court rejected the agency’s longstanding interpretation of the confidentiality
provision in subsection (a)(12)(A). See AFL-CIO v. FEC, 177 F. Supp. 2d 48, 56 (D.D.C. 2001)
10
(holding based on its plain language that the protections in subsection (a)(12)(A) do not lapse as
soon as the FEC terminates an investigation).
On appeal, the D.C. Circuit affirmed the district court’s decision with respect to the
disclosure of the particular materials at issue in that case, but it did not adopt the lower court’s
interpretation. Specifically, it rejected the district court’s conclusion that the plain text of
subsection (a)(12)(A) clearly prohibited disclosure and that the case could be resolved at the first
step of the Chevron analysis:
[W]e think the Commission may well be correct that subsection (a)(12)(A)
is silent with regard to the confidentiality of investigatory files in closed
cases and that Congress merely intended to prevent disclosure of the fact
that an investigation is pending. But even if the AFL-CIO could convince
us that its alternate construction represents the more natural reading of
subsection (a)(12)(A), the fact that the provision can support two plausible
interpretations renders it ambiguous for purposes of Chevron analysis.
AFL-CIO v. FEC, 333 F.3d 168, 174 (D.C. Cir. 2003). 5 This ruling is binding on this Court.
The Court of Appeals then proceeded to consider step two of the Chevron analysis:
whether the Commission’s disclosure policy constituted a permissible construction of the statute.
It observed: “[a]t this stage of our Chevron analysis, we would normally accord considerable
deference to the Commission . . . particularly where, as here, Congress took no action to disapprove
the regulation when the agency submitted it for review pursuant to 2 U.S.C. § 438(d).” Id. at 175
(citations omitted). At the same time, however, the Court recognized that “we do not accord the
5 The Court notes that the concurring opinion in AFL-CIO did agree with the interpretation
that plaintiffs advance here, finding it to be compelled by the plain text of subsection (a)(12)(A).
See 333 F. 3d at 180–84 (J. Henderson, concurring) (“While the provision does not state in so
many words that ‘no completed investigation shall be made public,’ that does not mean it is silent
on the matter; whatever the word “investigation” means, section 437g(a)(12)(A) plainly covers
‘[a]ny . . . investigation,’ ongoing or completed.”) (emphasis in original).
11
Commission deference when its regulations ‘create serious constitutional difficulties.’” Id., citing
Chamber of Commerce v. FEC, 69 F. 3d 600, 604–05 (D.C. Cir. 1995). Faced with a policy that
called for the placement of the agency’s entire investigatory file in the AFL-CIO matter on the
public record, the Court concluded that “the Commission failed to tailor its disclosure polity to
avoid unnecessarily infringing upon First Amendment rights.” Id.
The Court rejected arguments that the longstanding disclosure policy warranted Chevron
deference and was essential to public oversight of the Commission. Id. at 172.
In sum, although we agree that deterring future violations and promoting
Commission accountability may well justify releasing more information
than the minimum disclosures required by section 437g(a), the Commission
must attempt to avoid unnecessarily infringing on First Amendment
interests where it regularly subpoenas materials of a delicate nature
representing the very heart of the organism which the first amendment was
intended to nurture and protect. Because 11 C.F.R. § 5.4(a)(4) fails to
undertake this tailoring, it creates the serious constitutional difficulties
outlined above. We therefore conclude that the regulation is impermissible.
Id. at 179 (citations, edits, and quotation marks omitted).
In light of that ruling, the Commission revised its disclosure policy, and in 2016, it
published the current policy. Disclosure Policy, 81 Fed. Reg. 50,702. The FEC undertook to
revise the policy as instructed by the Court of Appeals to “avoid unnecessarily infringing on First
Amendment interests where it regularly subpoenas materials of a delicate nature.” Id. at 50,703.
The policy narrowed the scope of the information that would be made public in closed
investigations to “several categories of documents integral to its decisionmaking process . . . as
well as documents integral to its administrative functions,” including: administrative complaints,
responses to complaints, certain General Counsel’s Reports, statements of reasons issued by one
or more Commissioners, conciliation agreements, certain memoranda and reports from the OGC
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prepared for the Commission in connection with specific pending MURs, and closeout letters. Id.
The agency explained:
The categories of documents that the Commission intends to disclose as a
matter of regular practice either do not implicate the Court’s concerns or,
because they play a critical role in the resolution of a matter, the balance
tilts decidedly in favor of public disclosure, even if the documents reveal
some confidential information.
Id.
The Commission maintains in this case that the disclosure of plaintiffs’ identities as part
of the release of the investigative file for MUR 6920 is appropriate under the revised disclosure
policy because plaintiffs “are referenced in documents addressing whether there is reason to
believe they committed violations of FECA, whether discovery should be sought from them and
other parties, and whether there is probable cause to believe others committed violations of
FECA.” Def.’s Opp. at 5. Defendant notes that the administrative complainant CREW did not
originally name plaintiffs as respondents because it did not know the source of the contribution at
issue, and it acknowledges that the Commission did not designate plaintiffs as respondents after it
became aware of their identities in the investigation. Id. Nevertheless, according to the FEC,
plaintiffs “feature[d] prominently” in the investigation, and the Commission asserts that there is
“obvious public importance of making the identities of plaintiffs transparent where they appear in
the Commission’s deliberations.” Id.
But the application of the policy to plaintiffs has been challenged on First Amendment
grounds, so in accordance with the approach outlined in AFL-CIO, the Court must first resolve
whether the Commission’s revised disclosure policy, and its application to the information
plaintiffs are seeking to shield here, are constitutional before it can conduct the Chevron step two
analysis under the APA and afford the agency the deference it is seeking in this case.
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III. The Disclosure in this Case Does Not Violate the First Amendment
A. Disclosure of plaintiffs’ identities is not barred by AFL-CIO.
Plaintiffs rely heavily on AFL-CIO, but the case is inapposite. The investigatory files at
issue in AFL-CIO involved an estimated 10,000 to 20,000 pages of materials gathered during the
course of the FEC’s proceedings, none of which it had reviewed before it dismissed the
administrative complaints under investigation. 333 F.3d at 171–72. The agency’s disclosure
policy at the time required “the release of all information not expressly exempted by FOIA.” Id.
at 178 (emphasis in original). Pursuant to that policy, upon closing the investigation, the
Commission made an initial disclosure of 6,000 pages of investigatory material. Id. at 172. The
AFL-CIO and Democratic National Committee sued to enjoin disclosure, providing affidavits
attesting that the agency’s initial and further releases would disclose the names of hundreds of
their volunteers, members, and employees, making make it more difficult for the organizations to
recruit personnel in the future. Id. at 176. They further attested that the disclosures would make
public “detailed descriptions of training programs, member mobilization campaigns, polling data,
and state-by-state strategies,” and that revealing their activities, strategies, and tactics to their
opponents would frustrate their ability to pursue their political goals effectively. Id. at 176–77.
Faced with these concerns, the D.C. Circuit concluded that applying the broad disclosure
policy the agency followed at the time to the DNC and AFL-CIO would raise substantial First
Amendment concerns; the public disclosure of the associations’ confidential internal materials
would “intrude[ ] on the ‘privacy of association and belief guaranteed by the First
Amendment,” and seriously interfere with internal group operations and effectiveness. 333 F.3d
177–78, quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976); see also id. at 178 (expressing concern
that compelled disclosure of such materials combined with the Commission’s broad subpoena
14
practices would encourage political opponents to file charges against their competitors to chill the
expressive efforts of their competitors and to learn and exploit their political strategies).
The Court stated that when analyzing a constitutional challenge to a disclosure
requirement, courts must
balance the burdens imposed on individuals and associations against the
significance of the government interest in disclosure and consider the
degree to which the government has tailored the disclosure requirement to
serve its interests. Where a political group demonstrates that the risk of
retaliation and harassment is “likely to affect adversely the ability of . . .
[the group] and its members to pursue their collective effort to foster beliefs
which they admittedly have the right to advocate,” for instance, the
government may justify the disclosure requirement only by demonstrating
that it directly serves a compelling state interest. In contrast, where the
burden on associational rights is “insubstantial,” we have upheld a
disclosure requirement that provided “the only sure means of achieving” a
government interest that was, though valid, “not . . . of the highest
importance.”
333 F.3d at 176, quoting Buckley, 424 U.S. at 64–68, Block v. Meese, 793 F.2d 1303, 1315–16
(D.C. Cir. 1986), and NAAPC v. Alabama, 357 U.S. 449, 462–63 (1958) (citations omitted) (edits
in original).
Here, plaintiffs do not make any claim that anyone’s associational rights are being
infringed, and disclosing the identities of plaintiffs here would not involve the disclosure of
anyone’s internal operations or political strategies.
Moreover, the investigative file in AFL-CIO involved tens of thousands of pages that the
Commission gathered but never reviewed – and so the information in those pages played no role
in the agency’s decision making process. See AFL-CIO, 333 F.3d at 171–72. The unreviewed
files included the names of hundreds of volunteers, members, and employees, id. at 176, none of
whom had any role in the matter being investigated. See id. at 171 (describing the underlying
complaint to allege that the AFL-CIO and other unions had unlawfully coordinated campaign
15
expenditures with political candidates and party committees). By contrast, here the Commission
seeks to disclose documents that were central to its handling and decision making in reaching the
conciliation agreement and closing MUR 6920, including its decision of whether to pursue
litigation against plaintiffs that arose out of and was directly related to the investigation.
The disclosure defendant seeks to make here is pursuant to its recently revised policy,
which the agency carefully tailored to minimize the burdens on constitutional rights while
providing for sufficient disclosure to advancing legitimate concerns of deterring future violations
and promoting Commission accountability. Thus, the limited disclosure of plaintiff’s names
would not threaten any of the interests that concerned the Court in AFL-CIO, and that case does
not govern the outcome here.
B. Disclosure of plaintiffs’ identity does not violate the First Amendment.
So then the question is: do the reasons advanced for disclosing the records of completed
investigations, which the D.C. Circuit stated “may well justify releasing more information than the
minimum disclosures required by section 437g(a),” AFL-CIO, 333 F.3d at 179, outweigh any
concerns the Court might have about the more limited intrusion on First Amendment rights that is
being alleged here?
The Court notes at the outset that although John Doe 2 appears to be asserting a First
Amendment right to make a political contribution without being identified, see Pls.’ Reply at 15–
17, it is unclear whether John Doe 1 is asserting a personal constitutional right in this case and
whether he has standing to raise the First Amendment issue. The complaint only mentions the
constitution once: paragraph 40 alleges summarily that “[t]he Commission’s disclosure of
Plaintiffs’ names is an arbitrary and capricious decision, and an abuse of discretion because such
action violates the First Amendment to the United States constitution.” Compl. ¶ 40; see also
16
Compl. ¶ 3 (alleging that the release of their identities is contrary to law under FECA and FOIA
for a number of reasons, including that it “has the effect of chilling speech”).
But there are no factual allegations in the complaint concerning plaintiffs’ exercise of their
right to free speech. In his declaration in support of the motion for injunctive relief, John Doe 1,
the trustee, states:
10. The disclosure that John Doe 2 and 1 were even marginally involved
in an investigation into alleged violations of campaign finance law will
damage my professional reputation [REDACTED].
11. I fear that being connected to this investigation will damage my
reputation and John Doe 2’s reputation.
Decl. of John Doe 1 in Supp. of Pls.’ Mot. (Redacted) [Dkt. # 13-1] ¶¶ 10–11. These concerns go
to John Doe 1’s FOIA and privacy concerns, not the constitutional concerns.
John Doe 1 adds:
12. The events subject to the FEC’s investigation in MUR 6920
pertained to core First Amendment activity, that is, political fundraising. It
is objectively reasonable to conclude that disclosure of the identities of
parties involved in an FEC investigation of events subject to First
Amendment protections that result in no FEC enforcement action will be
chilled in the exercise of their First Amendment rights.
Id. ¶ 12. This convoluted sentence does not actually specify who it is the trustee posits “will be
chilled.” And, since it was the trust, John Doe 2, that allegedly transferred the funds to
Government Integrity to be used for the constitutionally protected purpose of funding campaign
activities, and John Doe 1 was acting solely on behalf of the trust, it is not clear how John Doe 1’s
First Amendment rights play any role in this case. 6
6 Indeed, John Doe 1 emphasizes that “the full record now reveals that the FEC accused John
Doe 1 of a violation in his official capacity as a trustee only.” Pls.’ Reply at 21.
17
In any event, even if one concludes that at least one plaintiff has asserted an interest in
preventing the chilling of future speech in the form of donations, the only right that is implicated
by the agency’s actions in this case is the right to contribute anonymously, not the right to
contribute at all.
Thus, the case is entirely distinguishable from AFL-CIO, and, more importantly,
notwithstanding the plaintiffs’ highly selective quotations from the case law, the constitutional
issue has already been decided in the agency’s favor.
The First Amendment protects political speech; and disclosure permits
citizens and shareholders to react to the speech of corporate entities in a
proper way. This transparency enables the electorate to make informed
decisions and give proper weight to different speakers and messages.
Citizens United v. FEC, 558 U.S. 310, 371 (2010).
It is true that in Buckley v. Valeo, the Supreme Court stated that disclosure of campaign
contributions could chill political activity and impose “not insignificant burdens” on First
Amendment rights. 424 U.S. at 65–66, 68. But as the Court recounted in Citizens United, it has
repeatedly held that those burdens withstand strict scrutiny. 558 U.S. at 366–71. In Citizens
United, the Court addressed not only the provisions of the Bipartisan Campaign Reform Act
(“BCRA”) that prohibited campaign expenditures by corporations and unions, but also the
disclosure provisions contained in the legislation. And in doing so, it reviewed its treatment of the
disclosure issue to date.
Disclaimer and disclosure requirements may burden the ability to speak, but
they “impose no ceiling on campaign-related activities.” The Court has
subjected these requirements to “exacting scrutiny,” which requires a
“substantial relation” between the disclosure requirement and a
“sufficiently important” governmental interest.
18
In Buckley, the Court explained that disclosure could be justified based on
a governmental interest in “provid[ing] the electorate with information”
about the sources of election-related spending. The McConnell Court
applied this interest in rejecting facial challenges to BCRA §§ 201 and 311.
There was evidence in the record that independent groups were running
election-related advertisements “‘while hiding behind dubious and
misleading names.” The Court therefore upheld BCRA §§ 201 and 311 on
the ground that they would help citizens “make informed choices in the
political marketplace.”
558 U.S. at 366–67, quoting Buckley, 424 U.S. at 64, 66, and McConnell v. FEC, 540 U.S. 93,
196, 201, 231–32 (2003) (internal citations, quotation marks, and brackets omitted); see also AFL-
CIO, 333 F.3d at 176 (observing that the Court in Buckley concluded that the disclosure
requirements “survived strict scrutiny as the least intrusive means of achieving several compelling
governmental interests”). Therefore, neither the FEC policy on its face nor its application in this
case impinges impermissibly on the plaintiffs’ First Amendment right to express themselves
through political donations.
In Citizens United, though, the Court reassured litigants that “as-applied challenges would
be available if a group could show a ‘reasonable probability’ that disclosure of its contributors’
names will subject them to threats, harassment, or reprisals from either government officials or
private parties.” Citizens United, 558 U.S. at 367, quoting McConnell, 540 U.S. at 198 and
Buckley, 424 U.S. at 74. But plaintiffs do not even allege, much less demonstrate, that there are
any grounds to fear that they would be subject to harassment or reprisals – the only harm they
allege is the claimed harm to their reputations arising from the fact that they were under
investigation.
So the disclosure involved in this case would not offend the Constitution, and the only
question that remains to be resolved is whether, considering the privacy issues asserted by the
plaintiffs, disclosure is reasonable under standard APA principles.
19
IV. Application of the FEC’s Disclosure Policy to Plaintiffs in this case is Reasonable
and Consistent with FOIA.
FECA requires the disclosure of any “conciliation agreement” and any “determination that
a person has not violated this Act.” 52 U.S.C. § 30109(a)(4)(B)(ii). The implementing regulation
provides:
If the Commission makes a finding of no reason to believe or no probable
cause to believe or otherwise terminates its proceedings, it shall make
public such action and the basis therefor . . . [and]
If a conciliation agreement is finalized, the Commission shall make public
such conciliation agreement forthwith.
11 C.F.R. §111.20(a)–(b) (emphasis added). Because, as explained above, there are no
constitutional issues implicated by the Commission’s proposed disclosure in this case, Chevron
deference applies.
The Court holds that the agency’s interpretation of the statute to require the public
disclosure set forth in the regulation is reasonable. See AFL-CIO, 333 F.3d at 178 (recognizing
that deterring FECA violations and promoting its own public accountability are valid goals of the
disclosure regulation and finding the prior regulation invalid only on the basis that it was not
tailored “to avoid unnecessarily burdening the First Amendment rights of the political
organizations” the agency investigates). And the disclosure of plaintiffs’ names in this case is
consistent with subsection (a)(4)(B)(ii), as it has been interpreted by the agency in
11 C.F.R.§111.20(a).
The Court agrees with plaintiffs that the Commission did not “make a finding of no reason
to believe” in this case. Rather, all the Commission did with respect to plaintiffs was decline to
make a finding that there was reason to believe, even though the OGC asked it to. But the facts of
this case fall well within the provision of the regulation requiring disclosure in cases where the
20
Commission “otherwise terminates its proceedings.” 11 C.F.R. § 111.20(a). The investigation as
a whole was otherwise terminated, including the aspect of the matter that involved issuing a
subpoena to the plaintiffs. Indeed, since under terms of the statute, even the names of those who
are investigated and exonerated are publicly revealed, 52 U.S.C. § 30109(a)(4)(A)(ii), the Court
finds that it would not be unreasonable to release the plaintiffs names here.
Plaintiffs emphasize that they were neither targets of, nor respondents to, the MUR 6920
investigation, so they reject the notion that there were any “proceedings” opened or closed as to
them. See Pl.’s Reply at 1, 8. But the language of the regulation is not so narrow, and the public
has an interest in the agency’s decision to terminate this proceeding involving Government
Integrity without enforcing its own subpoenas and following the money back to its source. And
the only reason the Doe 2 trust was not a respondent from the outset was because CREW did not
know who the donor was. This is not a situation where a person’s name happened to come up in
a wide ranging inquiry. Plaintiffs here were integrally involved in a narrow, focused investigation:
plaintiff John Doe 2 was a link in the single chain involving a single contribution, it is related to
Government Integrity, a party to the conciliation agreement, and it was the recipient of a subpoena
21
from the agency. The only reason plaintiffs’ identity was not revealed in the investigation was
because plaintiffs resisted responding to the agency’s subpoena. 7
Plaintiffs also rely on FOIA principles when identifying the privacy interests the agency
was bound to protect. They point out that FOIA Exemption 7(C) exempts from disclosure
information compiled for law enforcement purposes, which “could reasonably be expected to
constitute an unwarranted invasion of personal privacy;” and that the purpose of the provision is
to protect the privacy interests of suspects, witnesses, and investigators. Pls.’ Mot. at 6–8, citing
5 U.S.C. § 552(b)(7)(C), SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991), and
Bast v. DOJ, 665 F.2d 1251, 1254 (D.C. Cir. 1981). But John Doe 2 is a trust, see Pls.’ Mot. at 1,
7 Plaintiffs make much of the fact that after Commissioner Weintraub published a statement
of reasons decrying the resolution of the proceedings before the Commission established who was
behind the $1.7 million contribution, see Weintraub Statement of Reasons, two of the
Commissioners who voted to end the investigation issued a statement of their own. See Pls.’ Reply
at 4–5, 20, citing Hunter and Goodman Statement of Reasons. It is true that in a footnote to their
separate statement, Vice Chair Hunter and Commissioner Goodman expressed concerns that
Commissioner Weintraub had “publicly prejudged” plaintiffs’ guilt and “pre-supposed facts and
intent without investigation.” Hunter and Goodman Statement of Reasons at 3 n.8. But plaintiffs
make too much of these comments, and their efforts to highlight the footnote obscure the fact that
there is nothing in the body of the two Commissioners’ Statement of Reasons that militates against
disclosure under the FEC policy. The Hunter and Goodman five-page letter makes several points:
1) that the legal theory underlying the OGC’s “reason to believe” recommendation concerning
plaintiffs was unclear, and that more factual investigation on the question of intent was needed
because “the Commission had circumstantial evidence but not direct evidence,” and “time was
running out;” 2) the statute of limitations concerning the original respondents was close to
expiring, and expanding the matter to include plaintiffs could delay the case further, so “we
believed the most efficient prosecutorial path forward was to finalize the case against the 3
Respondents” as efficiently and expeditiously as possible;” 3) the agency’s decision to conciliate
with the named respondents and avoid “the procedural, legal, and investigative complexities” of
adding plaintiffs was well within the agency’s prosecutorial discretion; and 4) the decision was in
the public interest since the conciliation agreement established precedent and secured a large
penalty. See Hunter and Goodman Statement of Reasons. None of this suggests that the
allegations of plaintiffs’ involvement or the fact that the agency declined to enforce its own
subpoena were not integral to the proceeding or its termination.
22
and under well-established FOIA principles, an entity has no right to “personal privacy” under
FOIA Exemption 7(C). See FCC v. AT&T Inc., 562 U.S. 397, 409–10 (2011) (rejecting argument
that “personal privacy” in Exemption 7(C) reaches corporations: “protection in FOIA against
disclosure of law enforcement information on the ground that it would constitute an unwarranted
invasion of personal privacy does not extend to corporations”). And the actions of John Doe 1, as
the trustee for John Doe 2, were solely on behalf of the trust, not himself, so his asserted privacy
interests are minimal.
Accordingly, the Court defers to the FEC’s reasonable interpretation of the statutory
disclosure requirements and holds that the application of that policy to plaintiffs in this case is
valid. The agency’s salutary interest in exposing its decision making to public scrutiny outweighs
plaintiffs’ insubstantial privacy concerns.
CONCLUSION
For the reasons set forth above, the Court will not enjoin defendant’s disclosure of
plaintiffs’ identities as part of the regular release of the investigative file for MUR 6920 under the
FEC’s revised disclosure policy. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: May 29, 2018
23