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nitt $ttti (!Inurt of jajnt1
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2018 Decided April 12, 2019
No. 18-5099
JOHN DOE, 1 AND JoHN DOE, 2,
APPELLANTs
V.
FEDERAL ELECTION COMIvIISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1: 17-cv-02694)
John P. Elwood argued the cause for appellants. With him
on the briefs were Michael S. Dry, Katherine Cooperstein,
William W Taylor Ill, Carlos T. Angulo, and Dermot Lynch.
Haven G. Ward, Attorney, Federal Election Commission,
argued the cause for appellee. With her on the brief were Kevin
Deeley, Associate General Counsel, Charles Kitcher, Acting
Assistant General Counsel, and Robert W Bonham Ill Senior
Attorney.
Adav Noti, Mark?. Gaber, Stuart C. McPhail, and Adam I
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Rappaport were on the brief for amid curiae Citizens for
Responsibility and Ethics in Washington and Anne Weismann
in support of Federal Election Commission and affirmance.
Before: GARLAND, Chief Judge, HENDERSON, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
RANDOLPH, Senior Circuit Judge:’ This is an appeal from
the decision of the district court reftising to enjoin the Federal
Election Commission from releasing information identifying a
trust and its trustee in connection with a misreported federal
campaign contribution. Doe v. FEC, 302 F. $upp. 3d 160
(D.D.C. 201$).
Plaintiffs the trust and its trustee appear incognita as
— —
John Doe 2 and John Doe 1. They claim that the Commission’s
release of documents identifying them would violate the First
Amendment to the Constitution, the Federal Election Campaign
Act (FECA), and the Freedom of Information Act (FOLk).
Plaintiffs and the Commission have filed some ofthe documents
bearing on this case under seal.
The case began when an organization Citizens for
—
Responsibility and Ethics in Washington (CREW), which
appears here as amicus curiae filed a complaint with the
—
1
NOTE: Portions of this opinion contain Sealed Information,
which has been redacted.
3
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Commission alleging that a $1.71 million contribution to a
political action committee in October 2012 was made and
reported in the name of someone other than the actual donor.
The Commission’s regulation, implementing 52 U.S.C. §
30 122,2 states that no person shall “{m]ake a contribution in the
name of another;” “[k]nowingly permit his or her name to be
used to effect that contribution;” “[k]nowingly help or assist any
person in making a contribution in the name of another;” or
“[k]nowingly accept a contribution made by one person in the
name of another.” 11 C.F.R. § 110.4(b)(l)(i)—(iv).3
In this case the Commission, acting on CREW’s allegations,
voted 6-0 finding reason to believe that the American
Conservative Union violated § 30122 “by knowingly permitting
its name to be used to effect a $1.71 million contribution in the
name of another to Now or Never PAC, an independent
expenditure-only political committee. The Commission also
found reason to believe that [others implicated in CREW’s
complaint] violated 52 U.S.C. § 30122 by making the
contribution in the name of another.” Memorandum from Lisa
Stevenson, Acting Gen. Counsel, to FEC 1 (Aug. 4, 2017)
(footnote omitted), https ://www.fec.gov/files/Iegal/murs/6920
2
52 U.S.C. § 30122 provides: “No person shall make a
contribution in the name of another person or knowingly permit his
name to be used to effect such a contribution, and no person shall
knowingly accept a contribution made by one person in the name of
another person.”
See also United States v. Boender, 649 F.3d 650, 660 (7th Cir.
2011); United States v. O’Donnell, 608 F.3d 546, 553—54 (9th Cir.
2010).
4
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/17044435462.pdf. The Commission therefore authorized an
investigation. Id.; see also 52 U.S.C. § 30109(a)(2).
The investigation, conducted bythe General Counsel, traced
the $1.71 million contribution and revealed the following
undisputed facts. Government Integrity, LLC. a Delaware
limited liability corporation, was formed in Se tember 2012 for
the purpose of making political contributions. I
On or about October 3 1, 2012, the
ust, presumably at the direction of its trustee, wired S2.5
million to Government Integrity. Minutes after receipt,
Government Integrity wired SI .8 million to the American
Conservation Union, which then wired the $1 .71 million
contribution to the political action committee, the Now or Never
While participating in these sequential transactions on
October 31, 2012, James C. Thomas, III served as the lawyer for
Government Integrity and, at the same time, as the treasurer of
the Now or Never PAC. Thomas filed a report with the
Commission, on behalf of the PAC, listing the American
Conservative Union (ACU) as the source of the $1.71 million
even though ACU considered itself merely a “pass through” for
the contribution.
The General Counsel, in recommending that the
Commission take enforcement action, concluded that this nearly
simultaneous three-step transaction — from the trust to
Government Integrity, from Government integrity to ACU, and
from ACU to the PAC “suggests that the parties went through
—
significant lengths to disguise the true source of the funds.”
Third General Counsel’s Report at 11, Am. Conservative
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Union, No. MUR 6920 (FEC Sept. 15, 2017),
https://www fec.gov/filcs/Iegal/murs/6920/1 7044435484.pdf.
.
In 2017, the Commission, rather than bringing an
enforcement action, entered into a “conciliation agreement” with
Government Integrity, LLC, the American Conservative Union,
the Now or Never PAC, and Thomas. Conciliation Agreement,
Am. Conservative Union, No. MUR 6920 (FEC
Nov. 3, 2017), https ://www.fec .gov/fl les/legallmurs/6920/l 70
44434756.pdf; see also 52 U.S.C. § 30109(a)(4)(A)(i). These
respondents to CREW’s complaint agreed not to contest the
Commission’s determination that each of them violated § 301 22
because the source of the $1.71 million contribution had been
disguised. The conciliation agreement imposed an overall civil
penalty of $350,000. The trust and the trustee were not parties
to the reement and, I
‘
were not identitied
within it.
Because it accepted the conciliation agreement, the
Commission voted to close its file. Pursuant to its disclosure
policy, the Commission announced that it would release
documents from the investigation, some of which identified the
trust aid trustee. See generally Disclosure of Certain
Documents in Enforcement and Other Matters, 8 1 Fed. Reg.
50,702, 50,702—03 (Aug. 2, 2016) [hereinafter Disclosure
Policy]. The Commission later issued those documents. It
removed the disputed identifying information before publication
pending the outcome of this lawsuit.
Plaintiffs’ complaint sought an injunction barring the
Commission from revealing their identities. They did not deny
the Commission’s assertion that the trust was the source of the
$1.71 million contribution. Distinguishing AFL-cIO v. FEC,
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333 F.3d 168 (D.C. Cir. 2003), the district court held that the
First Amendment did not prevent the Commission from
disclosing the identity of the trust and trustee; that the
application of the Commission’s disclosure policy to plaintiffs
was reasonable; and that FECA’s provisions and the regulations
thereunder did not bar the disclosure and authorized the
Commission’s action. Doe, 302 F. Supp. 3d at 165—74.
I.
The basic claim of the trust and the trustee is that the
Commission had no statutory authority to disclose any
documents identifying them.4 They point out that FECA
“affirmatively and unambiguously provides for disclosure of
two and only two items: (1) ‘any conciliation agreement
— —
signed by both the Commission and the respondent’ and(2) FEC
‘determination[s] that a person has not violated [FECA or other
federal election laws].’ 52 U.S.C. § 30109(a)(4)(B)(ii).” Does’
Br. 32 (alterations in original). As to (1), the Commission has
made the conciliation agreement public. As to (2), the
Commission did not decide whether plaintiffs violated FECA.
Plaintiffs’ theory must be that FECA’s specification ofwhat
the Commission is required to disclose deprives the Commission
The district court rejected plaintiffs’ argument that the
Commission would be violating 52 U.S.C. § 30109(a)(12)(A), which
forbids disclosure of an “investigation” unless the person being
investigated consents. Doe, 302 F. Supp. 3d at 166—68. On appeal,
plaintiffs have abandoned this argument. See fox v. Gov ‘t of D.C.,
794 F.3d 25, 29 (D.C. Cir. 2015).
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of authority to disclose anything else.5 And so they say that if
the Commission publicly releases the additional material it
would be acting “not in accordance with law” under the
Administrative Procedure Act. 5 U.S.C. § 706(2)(A).6
Plaintiffs’ argument presents an obvious question: “not in
accordance with” what “law”? The Commission has a long
standing regulation requiring it to make public its action
terminating a proceeding and “the basis therefor.” 11 C.f.R. §
111.20(a).
Does an agency’s disclosure regulation constitute “law”
within the meaning of § 706 of the Administrative Procedure
Act? A similar question was presented in Chrysler Corp. v.
Brown, 441 U.S. 281 (1979). The Supreme Court answered:
“authorized by law” includes “properly promulgated,
substantive agency regulations.” 441 U.S. at 295. We gave the
same answer inBartholdi Cable Co. v. FCC, 114 F.3d 274, 281
(D.C. Cir. 1997). Although these FOTA cases were interpreting
the Trade Secrets Act, 18 U.S.C. § 1905, their statements apply
Without saying as much, plaintiffs implicitly invoke the familiar
negative-implication canon the “expression of one thing implies the
—
exclusion of others (expressio unius est exclusio atteriits).” Antonin
Scalia & Bryan A. Gamer, Reading Law: The Interpretation ofLegal
Texts 107 (2012). See Texas Rural Legal Aid, Inc. v. Legal Services
Corp., 940 f.2d 685, 694 (D.C. Cir. 1991), stating that the “expressio
maxim” may be “inappropriate in the administrative context” in light
of cases such as Mourning v. Family Publications Service, Inc., 411
U.S. 356, 372 (1973).
6
The trust and trustee dispute the release of their names and the
Commission’s planned removal of the redactions. They have not
contested the release of the documents in redacted form, which has
already occurred.
8
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as well to the quoted language in the Administrative Procedure
Act.
Plaintiffs have not argued that § 111.20(a) is anything other
than a “properly promulgated” regulation.7 FECA empowers the
Commission to “prescribe[] forms and to make, amend, and
repeal such rules. as are necessary to carry out the provisions
. .
of this Act,” 52 U.S.C. § 30107(a)(8), and to “formulate policy
with respect to” the Act, 52 U.S.C. § 30106(b)(1).8 When an
agency’s “empowering provision” contains such language, the
courts will sustain a regulation that is “reasonably related” to the
purposes of the legislation. Mourning, 411 U.S. at 369 (quoting
‘
See Bartholdi, 114 F.3d at 28 1—82:
Bartholdi argues that § 0.457 of the
Commission’s regulations does not meet the
definition of “authorized by law” under Chrysler. But
Bartholdi did not raise this challenge before the
Commission. Bartholdi s application for review made
‘
no mention of Chrysler. Because Bartholdi failed to
challenge the validity of § 0.457 before the
Commission, we decline to consider the issue.
See also Carducci v. Regan, 714 f.2d 171, 177 (D.C. Cir. 1983)
(“[Ajppellate courts do not sit as self-directed boards of legal inquiry
and research, but essentially as arbiters of legal questions presented
and argued by the parties before them.”).
8
Congress gave the Commission the “primary and substantial
responsibility for administering and enforcing [FECA],” “extensive
rulemaking and adjudicative powers,” and the authority to “formulate
general policy with respect to the administration of[FECA].” Buckley
v. Valeo, 424 U.S. 1, 109, 110 (1976) (per curiam) (citation omitted);
see also 52 U.S.C. § 30111(a)(8).
9
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Thorpe v. Hous. Auth. ofDurham, 393 U.S. 268, 280 (1969)).
This regulation like the regulation in Mourning requires
— —
more disclosure than the governing statute, but that is no reason
for rejecting it. Id. at 371—73. The Supreme Court long has
recognized that “[gjrants of agency authority comparable in
scope” to FECA’s provisions at issue here “have been held to
authorize public disclosure of information .as the agency
. .,
may determine to be proper upon a balancing of the public
interests involved.” FCC v. Schreiber, 381 U.S. 279, 29 1—92
(1965).
As to this particular regulation’s relationship to the
purposes of FECA, we have recognized that “deterring future
violations and promoting Commission accountability may well
justify releasing more information than the minimum disclosures
required by” the statute. AFL-CIO, 333 F.3d at 179. The
Commission’s 2016 Disclosure Policy, adopted in response to
AFL-CIO, considered the public and private interests involved
and reasonably concluded that disclosure of the contemplated
documents “tilts decidedly in favor of public disclosure, even if
the documents reveal some confidential information.”
Disclosure Policy, 81 Fed. Reg. at 50,703.
When the Commission ended its investigation and closed the
file, it “terminate[d] its proceedings” within the meaning of 11 C.F.R.
§ 111.20(a), as the district court held. The “proceedings” included an
investigation of the plaintiffs and a Commission vote on whether to
take action against them. The documents containing plaintiffs’ names
reveal the “basis” for the Commission’s actions. Doe v. FEC, 302 F.
Supp. 3d at 172—73.
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II.
Plaintiffs claim that the First Amendment to the
Constitution barred the Commission from publicly identifying
them. We agree with the district court that Citizens United v.
FEC, 558 U.S. 310 (2010), forecloses their argument. The
Supreme Court there rejected the argument that FECA’s
disclosure provisions violated the First Amendment. 558 U.S.
at 366—71. The provision requiring contributions to be made in
the name of the source of the funding 52 U.S.C. § 30122 is
— —
thus plainly constitutional. Citizens United left open the
possibility of an as-applied First Amendment challenge, but only
if the donor proved that revealing its identity would probably
bring about threats or reprisals. 55$ U.S. at 370. Plaintiffs
provided no such evidence and did not allege that they would be
subject to threats or reprisals. They did claim that disclosing
their identity would “chill” them from engaging in political
activity. But this does not distinguish them from others who
make campaign contributions. And in any event, the Supreme
Court rejected just such a claim of “chill” in Citizens United.
Id.; see also AFL-CIO, 333 F.3d at 176—178.
III.
This brings us to plaintiffs’ argument resting on the
Freedom of Information Act. Under FOLk, 5 U.S.C. § 552,
federal agencies must make their records available to the public.
There are several exceptions. One is for “records or information
compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or
information. . could reasonably be expected to constitute an
.
unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(7)(C). This exemption, plaintiffs claim, entitled them to
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an injunction preventing the Commission from disclosing their
identities.
This is not a mn-of-the-mill “reverse-fOIA” case. In the
typical “reverse-fOIA” case an entity submits information to an
agency and later “seeks to prevent the agency that collected the
information from revealing it to a third party in response to the
latter’s FOIA request.” CNA Fin. Corp. v. Donovan, 830 f.2d
1132, 1133 n.1 (D.C. Cir. 1987).
Here neither the trust nor the trustee provided any of the
information the Commission would release. hi fact, when the
Commission served these plaintiffs with a subpoena seeking
information, they refused to comply and provided no
information. For another thing, when the Commission
announced its intention to disclose the documents containing
plaintiffs’ names, no FOJA request was pending.
In these circumstances, FOIA cannot be used to prevent the
Commission from publicly revealing plaintiffs’ identities. FOLk
is a disclosure statute. If an agency wrongly withholds
information in the face of a proper FOIA request, it violates that
statute. But if an agency discloses information pursuant to other
statutory provisions or regulations, the agency cannot possibly
violate FOIA. Chrysler Corp. v. Brown held that the FOIA
exemptions regime in § 5 52(b) on which the trust and the trustee
rely “demarcates the agency’s obligation to disclose; it does not
foreclose disclosure.” 441 U.S. at 292. Tn other words,
“Congress did not limit an agency’s discretion to disclose
information when it enacted the FOJA.” IcL at 294; see also
Bartholdi, 114 f.3d at 281.10
10
Many reverse-FOIA cases are explained in light of the Trade
Secrets Act, 18 U.S.C. § 1905, which can constrain an agency’s
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In any event, there is nothing to plaintiffs’ complaint that
their privacy would be unduly compromised if their identities
were revealed. They emphasize that the Commission did not
determine whether they violated FECA. That is true but beside
the point. The conciliation agreement, the General Counsel’s
report, and other documents contained evidence that the trust
and its trustee “assist{ed] [a] person in making a contribution in
the name of another.” 11 C.F.R. § 1 10.4(b)(l)(iii).” The
conciliation agreement stated that Government Integrity, LLC
agreed not to contest its violation of FECA’s bar against making
a contribution in the name of another.
We add that, under Exemption 7(C), the Commission would
not have had discretion to witlthold information identifying the
trust in response to a FOIA request. Revealing the name of the
trust could not constitute an “unwarranted invasion of personal
privacy’ because “personal privacy” in Exemption 7(C) refers
to “individuals,” not “corporations or other artificial entities.”
FCC v. AT&T Inc., 562 U.S. 397, 403 (2011). To state the
obvious, a trust is an artificial entity. The Commission thus not
only had the authority to release the trust’s identity, it may well
have had the legal duty to do so had that information been
requested.
disc [osure discretion, see, e.g., Canadian om,nercial Coip. v. Dep ‘t
oftheAit Force, 514 F.3d 37, 39 (D.C. Cir. 2008).
“
This regulation applies to those who “initiate or instigate or
have some significant participation” in the making of a contribution
in the name of another. See Affiliated Committees, Transfers,
Prohibited Contributions, Annual Contribution Limitations and
Earmarked Contributions, 54 Fed. Reg. 34,098, 34,1 05 (Aug. 17,
1989).
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As to the trustee, plaintiffs insist that if and when the
Commission makes the name of the trust public as it must
— —
this would be tantamount to revealing the name of the trustee as
well. Does’ Br. 26—27. Even if this were so, the trustee’s
privacy interest in his representational capacity is minimal. In
addition “[t]he disclosures with which the statute is concerned
are those of ‘an intimate personal nature’ such as marital status,
legitimacy of children, identity of fathers of children, medical
condition, welfare payments, alcoholic consumption, family
fights, and reputation. Sims v. CIA, 642 F.2d 562, 574 (D.C. Cir.
1980). Information relating to business judgments and
relationships does not qualify for exemption. See Id. at 575. This
is so even if disclosure might tarnish someone’s professional
reputation. See Cohen v. EPA, 575 F. $upp. 425, 429 (D.D.C.
1983).” Wash. Post Co. v. US. Dep ‘t ofJustice, 863 F.2d 96,
100 (D.C. Cir. 1988).12 While the Commission may
nevertheless have had discretion to withhold the trustee’s name,
it was not required to do so.
We therefore affirm the judgment of the district court, and
remand for proceedings consistent with this opinion.
So ordered.
12
SafeCard Services, Inc. v. SEC, 926 f.2d 1197 (D.C. Cir.
1991), decided only that an agency may not must withhold “the
— —
names and addresses of third parties mentioned in witness interviews,
of customers listed in stock transaction records obtained from
investment companies, and of persons in correspondence with the”
agency. Id. at 1205.
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KAREN LECRAFT HENDERsoN, Circuit Judge, concurring
in part and dissenting in part: I agree with much of the Court’s
opinion which ably disposes of the plaintiffs’ Freedom of
Information Act and First Amendment arguments.’ But I
believe my colleagues err in concluding that the Federal
Election Commission (Commission) has authority under the
Federal Election Campaign Act of 1971, Pub. L. No. 92-225,
86 Stat. 3, as amended (codified at 52 U.S.C. § 30101 et seq)
(FECA or Act), to disclose documents from MUR 6920 that
reveal the plaintiffs’ identities. The Commission “has as its
sole purpose the regulation of core constitutionally protected
activity.” AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir.
2003). Its “investigations into alleged election law violations
frequently involve subpoenaing materials of a ‘delicate
nature,” materials regarding “political expression and
association” that go to “the very heart of the” First
Amendment. Id. (quoting FEC v. Machinists Non-Partisan
Political League, 655 F.2d 380, 388 (D.C. Cir. 1981)). These
serious privacy and First Amendment interests make holding
the statutory line even more critical. I would preserve the
delicate balance that the Congress struck and, accordingly,
limit the Commission to making only those disclosures
expressly authorized by FECA. The disclosures at issue, I
submit, are not among them.
The plaintiffs—a trust and a trustee—gave money to
Government Integrity, LLC. Government Integrity
immediately transferred the money to the American
Conservative Union, which, in turn, made a large contribution
to a political action committee, Now or Never PAC. The
Commission opened an investigation into the transfers and the
contribution, naming as respondents, inter alia, Government
1
Accordingly, I concur in Parts II and III of the majority
opinion.
2
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Integrity, the American Conservative Union and Now or Never
PAC. See 52 U.S.C. § 30109(a)(1)—(2) (granting authority to
commence investigation upon receiving complaint). Acting
under authority given him by 11 C.F.R. § 111.8(a), the
Commission General Counsel asked the Commission to “find
reason to believe” that the trust and trustee plaintiffs “ha[ve]
committed... a violation” and should be added as
respondents. In a 2-3 vote, the Commission declined the
request; the three Commissioners voting “no” explained that
their decision was based on prosecutorial discretion—namely,
a rapidly approaching statute of limitations and a novel theory
supporting the trust/trustee plaintiffs’ culpability under FECA.
The Commission later entered a conciliation agreement with
the respondents, who admitted violating FECA.
In closing MUR 6920, the Commission plans to make
public its investigative files, invoking as authority a FECA
regulation and a policy statement. The disclosure regulation
provides: “[ijf a conciliation agreement is finalized, the
Commission shall make public such conciliation agreement
forthwith.” 11 C.F.R. § 111.20(b). It also declares: “[i]f 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.” Id § 111.20(a) (emphasis added). The disclosure
regulation does not specify which documents are included in
the “basis” for the Commission’s action. Id The Commission
fills the gap with a policy statement, which identifies twenty-
one “categories of documents integral to its decisionmaking
process that will be disclosed upon termination of an
enforcement matter.” Disclosure of Certain Documents in
Enforcement and Other Matters, 81 Fed. Reg. 50,702 (Aug. 2,
2016). The plaintiffs began this litigation pursuant to the
Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq,
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to stop the Commission from revealing their identities in its
MUR 6920 disclosures.
The APA requires a reviewing court to “set aside agency
action” that is “not in accordance with law.” 5 U.S.C.
§ 706(2)(A). The plaintiffs assert that FECA’s plain text
prohibits the Commission from making public the documents
revealing their identities and thus any such disclosure is “not
in accordance with law.”2 Id It is hornbook law that an agency
cannot grant itself power via regulation that conflicts with plain
statutory text. Orion Reserves Ltd P ‘ship v. Salazar, 553 F.3d
697, 703 (D.C. Cir. 2009) (“[Rjegulation contrary to a statute
is void.”); Murphy v. IRS, 493 F.3d 170, 176 n. (D.C. Cir.
2007) (if “the regulation conflicts with the plain text,. . the
.
statute clearly controls”). As a result, the Commission cannot
use a regulation or policy statement to contravene the plain
limits that FECA sets on its disclosure authority. This case,
then, turns on whether FECA prohibits—by necessary
implication—the disclosure of records containing the
plaintiffs’ identities. If so, the Commission’s intended
disclosures are unlawful and in violation of the APA. 1A
Sutherland Statutory Construction § 31.02, at 521 (4th ed.
1985) (“The legislative act is the charter of the administrative
agency and administrative action beyond the authority
conferred by the statute is ultra vires.”). If not, the plaintiffs’
challenge fails.
2
Although the plaintiffs’ argument focuses on the
Commission’s lack of authority to release certain documents under
FECA, the plaintiffs request as relief only redaction of their own
identities, not withholding of the documents in toto. The
Commission does not argue—nor do my colleagues suggest—that
the plaintiffs’ failure to ask for more expansive relief in any way
affects their merits argument.
4
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Section 30109 of FECA sets forth the Commission’s
disclosure authority. 52 U.S.C. § 30109. It requires disclosure
under two circumstances. First, “[i]f 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.” Id
§ 30109(a)(4)(B)(ii). Second, “[i]f 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.” Id These are the only two situations in
which FECA affirmatively requires the Commission to make
disclosures.
But does FECA permit additional non-required
disclosures? I think not. First, section 30109 does not
expressly grant the Commission discretion to make additional
disclosures. An “agency literally has no power to act.. unless
.
and until Congress confers power upon it.” La. Pub. Serv.
Comm ‘n v. FCC, 476 U.S. 355, 357 (1986). We have held, as
a corollary to that principle, “[t]he duty to act under certain
carefully defined circumstances simply does not subsume the
discretion to act under other, wholly different, circumstances,
unless the statute bears such a reading.” Ry. Labor Execs.’
Ass’nv. Nat’l Mediation Bd,29 F.3d655, 671 (D.C. Cir. 1994)
(en banc). The Congress has charged the Commission with
making limited disclosures in two carefully defined
circumstances and there is no textual basis for concluding that
additional discretionary disclosure authority exists.
Second, section 30109 includes confidentiality provisions
that expressly forbid the Commission from making its
investigative files public unless disclosure is otherwise
authorized. The first provision states: “[a]ny notification or
investigation.., shall not be made public by the Commission
or by any person without the written consent of the person
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receiving such notification or the person with respect to whom
such investigation is made.” 52 U.S.C. § 30109(a)(12)(A).
The prohibition against revealing “any investigation”
includes—at a minimum—information that would confirm the
existence of an investigation. See AFL-CIO, 333 f.3d at 174
(“[T]he commission may well be correct... that congress
merely intended to prevent disclosure of the fact that an
investigation is pending.”). The second provision provides:
“[n]o action by the Commission or any person, and no
information derived, in connection with any conciliation
attempt by the Commission... may be made public by the
Commission without the written consent of the respondent and
the Commission.” Id § 30109(a)(4)(B)(i). The section 30109
confidentiality provisions are robust: nearly any disclosure of
an investigatory file will reveal the existence of an
investigation and thereby violate section 30109(a)(12)(A). See
In re Sealed Case, 237 F.3d 657, 666—67 (D.C. Cir. 2001)
(section 30109(a)(12)(A) “plainly prohibit[sJ the FEC from
disclosing information concerning ongoing investigations
under any circumstances without the written consent of the
subject of the investigation”). Moreover, the section 30109
confidentiality provisions do not have expiration dates: they
continue to bind the Commission unless and until another
provision of section 30109 authorizes disclosure. See 52
U.S.C. § 301 09(a)(4)(B)(i), (a)( 1 2)(A).
In my view, FECA’s disclosure scheme is comprehensive
and sets forth precisely when the Commission can and cannot
make its records public. The Commission must make limited
disclosures in two—and only two—cases: (1) upon entering a
signed conciliation agreement and (2) after determining that a
person did not violate FECA. See Id. § 30109(a)(4)(B)(ii). In
all other cases, the Commission must keep its investigatory
information confidential. See Id. § 30109(a)(4)(B)(i),
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(a)(12)(A). The statute does not authorize any discretionary
disclosure.3
Neither mandated disclosure under FECA authorizes the
Commission to release documents containing the plaintiffs’
identities. Regarding the first, the Commission entered a
conciliation agreement in MUR 6920 and the plaintiffs do not
take issue with the Commission making that agreement public.
See id. § 30109(a)(4)(B)(ii). But the Commission’s power to
release the signed conciliation agreement plainly does not
include the remainder of its investigative file. Id. (“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.”). Regarding the second mandated disclosure—a
no violation determination—the Commission concedes that not
every enforcement matter ends with a determination of liability
vel non. Indeed, the Commission sometimes decides against
pursuing an investigation as a matter of prosecutorial
discretion. See, e.g., Citizens for Responsibility & Ethics in
Washington v. fEC, 892 F.3d 434, 438 (D.C. Cir. 2018). That
is what happened here. The Commission declined to pursue
Contrary to the majority’s suggestion, my reading of FECA
does not rely on the canon of construction expressio unius est
exclusio alterius, Maj. Op. at 6 n.4, a so-called “feeble helper” in the
administrative law context, Adirondack MecL Ctr. v. Sebelius, 740
f.3d 692, 697 (D.C. Cir. 2014). Expressio unius, like other canons
of construction, sheds light on the meaning of statutory text. See
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992)
(“[C]anons of construction are no more than rules of thctmb that help
courts determine the meaning of legislation. . .“). But we do not
.
use statutory construction canons if the statutory text is plain. Ici at
253—54. FECA’s disclosure provisions are plain as day and the
expressio unius canon is therefore inapplicable.
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enforcement against the two plaintiffs as a matter of
prosecutorial discretion, citing a rapidly approaching statute of
limitations and a novel theory of liability. Because neither
basis of disclosure under FECA applies, I believe the
Commission’s decision to release its documents containing the
plaintiffs’ identities is contrary to law and should be enjoined.
Cf In re Sealed Case, 237 F.3d at 666—67.
The majority reaches a different conclusion without
discussing FECA’s disclosure provisions. See Maj. Op. at 6—
9. It instead upholds the Commission’s position as a
permissible exercise of its general power to make rules “as are
necessary to carry out the provisions of’ FECA, 52 U.S.C.
§ 30107(a)(8), and to “formulate policy with respect to”
FECA, id § 30106(b)(1). The key to the majority’s reading is
the United States Supreme Court’s holding in Mourning v.
family Publications Service, Inc., which declared that
“[w]here the empowering provision of a statute states simply
that the agency may ‘make. . such rules and regulations as
.
may be necessary to carry out the provisions of this Act,’
the validity of a regulation promulgated thereunder will be
sustained so long as it is ‘reasonably related to the purposes of
the enabling legislation.” 411 U.S. 356, 369 (1973) (alteration
in original) (quoting Thorpe v. Housing Auth. of City of
Durham, 393 U.S. 268, 280—81 (1969)). Applying Mourning,
my colleagues conclude that the Commission may use its
general power to promulgate regulations to authorize
disclosures in addition to those carefully limited by
section 30109. Maj. Op. at 7—8. In their view, “[t]he
Commission’s 2016 Disclosure Policy.., considered the
public and private interests involved and reasonably concluded
that disclosure of the contemplated documents ‘tilts decidedly
in favor of public disclosure, even if the documents reveal
some confidential information.” Maj. Op. at 8—9 (quoting
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Disclosure of Certain Documents in Enforcement and Other
Matters, $1 Fed. Reg. at 50,703)).
But Circuit precedent rejects this generous reading of
Mourning. In Colorado River Indian Tribes v. National Indian
Gaming Commission, we were called upon to decide whether
the Indian Gaming Regulatory Act gives the National Indian
Gaming Commission “authority to promulgate regulations
establishing mandatory operating procedures for certain kinds
of gambling in tribal casinos.” 466 F.3d 134, 135 (D.C. Cir.
2006). Unable to find a statutory hook for its regulation, the
Gaming Commission, invoking Mourning, rested on its general
authority to promulgate rules carrying out the Indian Gaming
Regulatory Act and the Act’s underlying policy goals. Id. at
139. We rejected its defense: “[a]n agency’s general
rulemaking authority does not mean that the specific rule the
agency promulgates is a valid exercise of that authority.” Id.
To the contrary, “[a]ll questions of government are ultimately
questions of ends and means” so “[ajgencies are therefore
‘bound, not only by the ultimate purposes Congress has
selected, but by the means it has deemed appropriate, and
prescribed, for the pursuit of those purposes.” Id. (first
alteration in original) (first quoting Nat ‘1 Fed ‘n of fed Emps.
v. Greenberg, 983 F.2d 286, 290 (D.C. Cir. 1993); then quoting
MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 n.4
(1994)). Under Mourning, then, we focus both on the goals the
Congress seeks to achieve and the mechanism it uses to achieve
them. Id. at 140 (Congress sought to protect gaming business
integrity not generally but instead “through the ‘statutory basis
for the regulation of gambling’ provided in the Act” (quoting
25 U.S.C. § 2702(2))). “This le[d] us back to the opening
question—what is the statutory basis empowering the
Commission to regulate” the gaming at issue? Id. “Finding
none,” we held that the regulation was invalid. Id.
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Mourning does not resolve this case. See NetCoalition v.
SEC, 615 F.3d 525, 533—34 (D.C. Cir. 2010) (“[Al statute’s
‘general declaration of policy’ does not protect agency action
that is otherwise inconsistent with the congressional delegation
of authority for ‘[a]gencies are. . “bound, not only by the
.
ultimate purposes Congress has selected, but by the means it
has deemed appropriate, and prescribed, for the pursuit ofthose
purposes.” (second and third alterations in original) (quoting
Colorado River Indian Tribes, 466 F.3d at 139)). It instead
“leads us back to the opening question”—what disclosure
mechanism did the Congress use to further FECA’s underlying
policy goals of deterring election law violations and promoting
Commission accountability? Colorado River Indian Tribes,
466 F.3d at 140; see also AfL-CIO, 333 F.3d at 179 (listing
FECA policy goals related to disclosure). I have already given
my answer: FECA allows disclosure in two—and only two—
circumstances. Because neither circumstance exists here, I
believe the Commission is without authority to release the
documents containing the plaintiffs’ identities and would
therefore reverse the district court.
Accordingly, I respectfully dissent from Part I of the
majority opinion.