In Re: Sealed Case

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2000 Decided January 26, 2001

No. 00-5116

In re: Sealed Case 00-5116

Consolidated with
00-5302

Appeals from the United States District Court
for the District of Columbia
(No. 00ms00162)

Thomas W. Kirby argued the cause for appellants. With
him on the briefs was Jan Witold Baran.

David Kolker, Attorney, Federal Election Commission, ar-
gued the cause for appellee. With him on the brief were
Lawrence M. Noble, General Counsel, and Richard B. Bader,
Associate General Counsel.

 Before: Edwards, Chief Judge, Sentelle and Henderson,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: In conjunction with an ongoing
investigation of Appellants, the Federal Election Commission
("FEC" or "Commission") issued a subpoena to a third-party
witness. When the witness refused to comply with the
subpoena, the FEC petitioned the district court to enforce it.
As part of the petition, the FEC included a number of
exhibits providing information about the ongoing investiga-
tion. Immediately after the FEC filed its petition, Appellants
moved to intervene and asked the court to place the enforce-
ment action under seal pursuant to 2 U.S.C. s 437g(a)(12)(A).
After a brief hearing, the district court denied Appellants'
motion.

On appeal, Appellants argue that the district court abused
its discretion in refusing to seal the case. They submit that
s 437g(a)(12)(A) plainly protects the confidentiality of the
subjects of ongoing FEC investigations. In response, the
Commission contends that we do not have jurisdiction over
this case because (1) Appellants did not properly intervene
and (2) the district court's denial of Appellants' motion was
not a final, appealable judgment. The Commission also sug-
gests that the statutory context, the legislative history, and
an FEC regulation demonstrate that s 437g does not protect
subjects' confidentiality in the context of subpoena enforce-
ment actions.

For reasons more fully set out below, we conclude that this
Court has jurisdiction over Appellants' case. Furthermore,
we hold that the FEC failed to act in accordance with law by
submitting the exhibits on the public record. The district
court's decision is therefore reversed.

I. BACKGROUND

Appellants are the focus of an ongoing FEC investigation
concerning alleged violations of the Federal Election Cam-
paign Act ("FECA"), 2 U.S.C. s 431 et seq. During the

course of its investigation, the FEC issued a subpoena to a
third-party witness seeking information concerning Appel-
lants' activities. After the third party declined to comply
with the subpoena, the FEC decided to petition the district
court for an order enforcing it. On March 16, 2000, FEC
counsel notified Appellants that it planned to file the petition.
That filing would include a number of exhibits containing
information about the ongoing investigation. The next morn-
ing, Friday March 17, Appellants asked the FEC to refrain
from disclosing the information or to file it under seal. The
FEC refused and later that afternoon filed the petition and
exhibits. Among the exhibits, the FEC included a copy of
the complaint that prompted the investigation, an FEC-
prepared "Factual and Legal Analysis" detailing Appellants'
alleged FECA violations, an FEC certification finding "rea-
son to believe" that Appellants had violated FECA, and
information referencing a separate FEC investigation that
had no bearing on the subpoena enforcement action or the
investigation of Appellants.

Within moments of the petition being filed, Appellants filed
an Emergency Motion to seal the case. In support of this
motion, Appellants argued that by placing the exhibits in the
public record the Commission violated the broad confidentiali-
ty federal law affords the subjects of FEC investigations.
After holding an abbreviated hearing that same afternoon,
the district court denied Appellants' motion. Contending that
public disclosure of the exhibits would be irrevocable, Appel-
lants immediately moved for "an administrative ruling holding
this matter" so that they could appeal the court's decision.
The court denied this motion as well.

Fortunately for Appellants, the hearing ended after the
district court clerk's office had closed for the weekend. As a
result, the exhibits would not be available to the public until
Monday afternoon, March 20. Appellants took advantage of
"this fortuitous de facto stay of disclosure" by filing a notice
of appeal. Appellants' Brief at 10. They also filed an
emergency motion asking this Court to seal the case to
permit the parties to file briefs on the merits of the appeal.
Meanwhile, the district court issued two written orders ad-

dressing the same questions decided at the March 17 hearing.
The first order denied Appellants' Emergency Motion. The
second order denied what the court described as Appellants'
"certification for interlocutory appeal." That same day, in
response to Appellant's motion to this Court, we ordered the
district court to place the case under seal pending our consid-
eration of the merits of Appellants' motion. Subsequently, on
June 7, the district court issued a final order enforcing the
subpoena against the third-party witness. In due course, the
FEC obtained the information it sought from the witness.

Appellants appeal from the district court's decision not to
seal the subpoena enforcement action. They argue that
because 2 U.S.C. s 437g(a)(12)(A) provides that information
concerning an ongoing investigation "shall not" be made
public, the district court abused its discretion in denying their
Emergency Motion.

II. ANALYSIS

A. Jurisdiction

The FEC asserts that we lack jurisdiction to consider this
case. Its assertion is based on two separate premises. First,
the FEC suggests that Appellants were not parties to the
subpoena enforcement action and did not seek to intervene.
See Fed. R. Civ. P. 24(c). The FEC claims that because
Appellants did not move to intervene, the district court did
not deny any motion from which Appellants could appeal.
See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896 & n.5
(1990). Second, the FEC submits that Appellants seek re-
view of the district court's March 17 and March 20 orders,
which simply declined Appellants' motion to place the case
under seal. According to the FEC, these decisions are not
appealable because they did not "end[ ] the litigation on the
merits"--that is, they did not address the underlying subpoe-
na enforcement action. Coopers & Lybrand v. Livesay, 437
U.S. 463, 467 (1978) (internal quotes omitted). In relying on
these premises, the FEC misconstrues the facts of this case
and misapprehends the law in this area.

 This Court unquestionably has jurisdiction to hear the
present case. Appellants attempted to intervene, and the
district court effectively--and erroneously--denied that at-
tempt. Even if Appellants had not intervened, they could,
and did, bring a simple motion to preserve their rights as
contemplated in United States v. Hubbard, 650 F.2d 293
(1980). Under either approach, Appellants properly appealed
from the district court's denial of its Emergency Motion
pursuant to the collateral order doctrine.

Appellants' March 17 Emergency Motion expressly stated
that Appellants "move[ ] for leave to intervene in the FEC
subpoena enforcement action for the limited purpose of pre-
venting unauthorized disclosures." Emergency Motion to
Place Under Seal and for All Other Appropriate Relief at 2,
In re Sealed Case, No. 00-MS-162 (D.D.C. Mar. 17, 2000).
Both the district court and the FEC were aware of Appel-
lants' desire to intervene. The March 17 Motion was entered
on the district court's docket sheet as a motion "to intervene."
Likewise, at the March 17 hearing, FEC counsel argued that
Appellants were "not a party" and should not be permitted to
intervene because they must "show harm to intervene."
Transcript of Emergency Hearing at 18, In re Sealed Case,
No. MISC. 00-162 (D.D.C. Mar. 17, 2000).

At the close of the hearing, the district court denied
Appellants' motion to seal the record in the subpoena enforce-
ment action. Three days later, the court issued a written
order memorializing that decision. See Order, In re Sealed
Case, No. 00-162 (D.D.C. Mar. 20, 2000). Although neither
the court's oral nor written order specifically addressed Ap-
pellants' motion to intervene, they both denied the Emergen-
cy Motion as a whole, thereby effectively denying the inter-
vention motion.

Under Rule 24(a) of the Federal Rules of Civil Procedure,
an applicant may intervene as of right when it "claims an
interest relating to the property or transaction which is the
subject of the action and the applicant is so situated that
disposition of the action may as a practical matter impair or
impede the applicant's ability to protect that interest." Fed.

R. Civ. P. 24(a). An applicant does not possess a right to
intervene, however, if its "interest is adequately represented
by existing parties." Id.

Appellants readily meet the basic requirements necessary
to intervene as of right. First, Appellants have a protected
interest in the "transaction which is the subject of the action."
As we explain below in more detail, they have a legally
cognizable interest in maintaining the confidentiality of the
documents the FEC seeks to disclose in the public record.
See 2 U.S.C. s 437g(a)(12)(A); cf. United States v. AT&T, 642
F.2d 1285, 1292 (D.C. Cir. 1980) (explaining that by asserting
the work product privilege to protect the confidentiality of
certain documents a third party had asserted a "legal inter-
est" of "direct and immediate character" (internal quotes
omitted)).

Second, if the FEC's enforcement action were allowed to
proceed on the public docket, then "as a practical matter"
Appellants' ability to protect their confidentiality would be
irrevocably impaired. Once the information included in the
FEC's subpoena enforcement action is released, "the cat is
out of the bag," and Appellants' statutorily guaranteed confi-
dentiality would be forever lost. In re Papandreou, 139 F.3d
247, 251 (D.C. Cir. 1998).

Finally, neither party to the enforcement action could have
adequately represented Appellants' interest. Because the
third-party witness was not the subject of the FEC's investi-
gation, the witness was not entitled to the same legal protec-
tion afforded to Appellants. See s 437g(a)(12)(A). In addi-
tion, it is unclear on what grounds the witness even could
have asked the court to place the case under seal. Obviously,
the FEC refused to represent Appellants' interest and in-
stead sought to run roughshod over that interest by seek-
ing--unjustifiably and unexplainably--to place legally confi-
dential information on the public record. The FEC chose this
misguided course despite commands in its own governing
statutes and regulations to keep ongoing investigations confi-
dential. Because Appellants met the necessary criteria to

intervene as of right, the district court erred by denying their
motion to intervene. See Fed. R. Civ. P. 24(a).

Even if Appellants did not move to intervene under Rule
24(a) as the FEC now argues, as noted above, Appellants
could, and did, bring a simple motion to preserve their own
rights as contemplated in United States v. Hubbard, 650 F.2d
293 (D.C. Cir. 1980). In Hubbard, this Court held that a
third party may attempt to "maintain the confidentiality" of
materials that are under the control of a court in a pending
case by filing a motion initiating a distinct ancillary proceed-
ing without intervening in the underlying case. Id. at 311.
In Hubbard, the third party had a protectible "combination of
property and privacy interests" in the materials controlled by
the court. Id. at 307. Similarly, Appellants have a protecti-
ble interest in the confidentiality of the petition and exhibits
the FEC filed in the district court. As we explain below,
Congress explicitly established this interest with respect to
the subjects of FEC investigations. See s 437g(a)(12)(A).
Accordingly, under Hubbard, Appellants properly initiated an
ancillary proceeding in the district court in order to protect
this interest by moving to place the subpoena enforcement
action under seal. See Hubbard, 650 F.2d at 311-12; cf.
United States v. RMI Co., 599 F.2d 1183, 1186 (3d Cir. 1979)
(discussing the "principle in permitting intervention for the
assertion of claims of privilege when subpoenas are addressed
to third parties").

Whether the district court's order in this case denied
Appellants' application to intervene or denied their Hubbard
motion to place the subpoena enforcement action under seal,
Appellants properly appealed that order to this Court pursu-
ant to the collateral order doctrine. See Hubbard, 650 F.2d
at 314; AT&T, 642 F.2d at 1296. Under that doctrine, an
order is appealable if it "conclusively determine[s] the disput-
ed question, resolve[s] an important issue completely separate
from the merits of the action, and [is] effectively unreviewable
on appeal from a final judgment." Coopers & Lybrand, 437
U.S. at 468; accord In re Sealed Case, 192 F.3d 995, 999
(D.C. Cir. 1999). In this case, the district court conclusively
determined that the record would not be sealed, an issue

completely separate from the underlying subpoena enforce-
ment action. See In re Reporters Cmte. for Freedom of the
Press, 773 F.2d 1325, 1330 (D.C. Cir. 1985). Because the
public would have had immediate access to the record, the
issue would have been effectively unreviewable by the time
the district court had decided whether to enforce the FEC
subpoena. See Hubbard, 650 F.2d at 314 ("[B]ecause public
access to the documents at issue will to some extent irrepara-
bly damage the interests asserted, an order which has the
effect of permitting such an invasion, as a practical matter,
'finally determine[s]' the claim."). Consequently, the district
court's March 17 and March 20 orders are appealable under
the collateral order doctrine. See AT&T, 642 F.2d at 1295-
96; cf. RMI, 599 F.2d at 1186.

Alternatively, were we to conclude that the district court's
March 17 and March 20 orders did not deny Appellants'
motion to intervene, as the FEC suggests, the court's final
June 7 order did so. That order ended all issues related to
the enforcement proceeding, including the motion to inter-
vene. See Catlin v. United States, 324 U.S. 229, 233 (1945).
At that point, Appellants could properly appeal the final
order, see 28 U.S.C. s 1291, which they did with a timely
notice of appeal on July 24. See Fed. R. App. P. 4(a)(2).

Because our jurisdiction to hear this case is firmly estab-
lished, we now turn our attention to the merits of Appellants'
appeal.

B. The Merits of the Motion to Seal

The FEC is authorized to investigate potential violations of
the Federal Election Campaign Act. See 2 U.S.C.
s 437g(a)(2). When the FEC receives a complaint alleging
FECA violations, it must provide written notification to the
person accused of committing the violation and provide that
person with an opportunity to respond to the accusation. See
id. s 437g(a)(1). The Commission then determines, based on
a vote of its members, if there is "reason to believe that [the]
person has committed" a FECA violation. Id. s 437g(a)(2).
If this standard is met, the FEC investigates the alleged

violation. See id. During the course of its investigation, the
FEC is empowered to (1) order any person to submit written
reports and answer questions, and (2) subpoena witnesses to
testify or to produce documentary evidence. See 2 U.S.C.
s 437d(a)(1), (3). Although the FEC has no power to enforce
such orders and subpoenas, it may petition the district court
for judicial enforcement. See id. s 437d(b).

Following its investigation, the Commission may vote to
determine if there is "probable cause to believe that [the]
person has committed" a FECA violation. s 437g(a)(4)(A)(i).
If the Commission finds probable cause, it must attempt "to
correct or prevent such violation by informal methods of
conference, conciliation, and persuasion." Id. If the FEC's
attempt at conciliation is unsuccessful, the Commission is
authorized to enforce FECA through a civil suit brought in
district court. See id. s 437g(a)(6)(A).

In the statutory section detailing the Commission's enforce-
ment authority, FECA states that:

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 receiv-
ing such notification or the person with respect to whom
such investigation is made.

Id. s 437g(a)(12)(A). Similarly, the FEC's regulations pro-
vide that:

[N]o complaint filed with the Commission, nor any notifi-
cation sent by the Commission, nor any investigation
conducted by the Commission, nor any findings made by
the Commission shall be made public by the Commission
or by any person or entity without the written consent of
the respondent with respect to whom the complaint was
filed, the notification sent, the investigation conducted, or
the finding made.

11 C.F.R. s 111.21(a).

Appellants point to these two provisions to argue that the
district court abused its discretion in denying their March 17
Emergency Motion to seal the record of the subpoena en-

forcement action. According to Appellants, both the statute
and the regulation permit disclosure of information concern-
ing an ongoing FEC investigation only if the subject of that
investigation provides written consent. Because Appellants
did not consent, they contend that the district court erred in
allowing the action and accompanying exhibits to be placed on
the public record.

Ordinarily, we review a district court's decision not to seal
court records for abuse of discretion. See EEOC v. Nat'l
Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996). In
the general case, there is a "strong presumption in favor of
public access to judicial proceedings." Johnson v. Greater
Southeast Community Hosp. Corp., 951 F.2d 1268, 1277 (D.C.
Cir. 1991). As we explained in Hubbard, this presumption
can be overcome based on the following six factors:

(1) the need for public access to the documents at issue;
(2) the extent of previous public access to the documents;
(3) the fact that someone has objected to disclosure, and
the identity of that person; (4) the strength of any
property and privacy interests asserted; (5) the possibili-
ty of prejudice to those opposing disclosure; and (6) the
purposes for which the documents were introduced dur-
ing the judicial proceedings.

Nat'l Children's Ctr., 98 F.3d at 1409 (citing Hubbard, 650
F.2d at 317-22).

The district court denied Appellants' March 17 Emergency
Motion, treating it "sort of as a TRO request." Transcript of
Emergency Hearing, In re Sealed Case, No. MISC. 00-162, at
12 (D.D.C. Mar. 17, 2000). In explaining its decision, the
court recognized the general understanding that "there is a
very strong presumption against filing pleadings under seal."
Id. The court's decision rested on this presumption, as well
as two other rationales. First, the district court concluded
that the FEC's regulations permit it to file unsealed plead-
ings. See id. at 12-13 (citing 11 C.F.R. s 111.21(c)). Second,
the court reasoned that there was not "any possibility of
irreparable harm" because the press had already published

several stories about the FEC's investigation of Appellants.
Id. at 13.

If this were a typical case, we would hold that the district
court abused its discretion for treating Appellants' motion as
"sort of a TRO request" and for failing to consider any of the
Hubbard factors. That failure is particularly glaring in the
present case, because, as we discuss below, both FECA and
the FEC's regulations interpreting the statute create an
extraordinarily strong privacy interest in keeping the records
sealed absent a party's express written consent to the con-
trary. So strong is that interest that only rarely, if ever,
might the remaining five Hubbard factors counterbalance the
"strength of [the] ... privacy interests asserted." Moreover,
as we discuss below, the district court incorrectly interpreted
the FEC's regulations--they (and, more importantly, the
FEC's authorizing statute) plainly do not permit it to file
pleadings relating to an ongoing investigation on the record.
See infra at 12-13. Further, the existence of press reports
about an investigation has no bearing on the issue raised by
Appellants. See infra at 17-18.

This is not a typical case, however, looking simply at
whether court records should be sealed. Rather, the question
before us is more properly posed as whether the FEC has the
authority to file information concerning an ongoing investiga-
tion on the public record when it seeks to enforce a subpoena.
See 5 U.S.C. s 706(2)(A). We hold that both 2 U.S.C.
s 437g(a)(12)(A) and 11 C.F.R. s 111.21(a) plainly prohibit
the FEC from disclosing information concerning ongoing
investigations under any circumstances without the written
consent of the subject of the investigation. Accordingly, we
conclude that the FEC failed to act in accordance with law
when it sought to file the subpoena enforcement action on the
public docket.

When interpreting a federal statute administered by an
agency such as the FEC, we employ the familiar two-step
inquiry of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-
43 (1984). In the first step, we consider whether the statute
speaks directly to the precise question at issue. If it does,
"the inquiry is at an end; the court must give effect to the
unambiguously expressed intent of Congress." FDA v.
Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1300

(2000) (internal quotes omitted). If the statute is silent or
ambiguous concerning the question, we advance to the second
step, deferring to the "agency's interpretation of the statute if
it is reasonable and consistent with the statute's purpose."
Independent Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638,
643 (D.C. Cir. 2000).

Likewise, we review an agency's interpretation of its own
regulations with "substantial deference." See, e.g., Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). As the
Supreme Court recently stressed, however, judicial deference
towards an agency's interpretation "is warranted only when
the language of the regulation is ambiguous." Christensen v.
Harris County, 120 S. Ct. 1655, 1663 (2000). The agency's
interpretation thus "will prevail unless it is 'plainly erroneous
or inconsistent' with the plain terms of the disputed regula-
tion." Everett v. United States, 158 F.3d 1364, 1367 (D.C.
Cir. 1998) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)).

In this case, the statute and regulation at issue are unam-
biguous and directly address the issue presented in this case.
Their plain meaning therefore controls our decision. Section
437g(a)(12)(A) unequivocally states that any investigation
"shall not be made public by the Commission or by any
person without the written consent of the person ... with
respect to whom such investigation is made." The FEC's
regulations are equally clear: no FEC investigation or find-
ings "shall be made public by the Commission or by any
person or entity without the written consent of the respon-
dent with respect to whom ... the investigation [is] conduct-
ed." 11 C.F.R. s 111.21(a). In other words, the Commission
shall not make public an ongoing investigation or its findings
concerning such an investigation without written consent.
Neither the statute nor the regulation provide any exceptions
to this rule. In light of these provisions' clear meaning, the
Commission shall not place information about an ongoing
investigation in the public record when it seeks to enforce a
subpoena. By doing so, the Commission unquestionably vio-
lates Congress's mandate and its own regulations.

 The plain language of these provisions and the overall
purpose and structure of the statutory scheme create a
strong confidentiality interest analogous to that protected by
Federal Rule of Criminal Procedure 6(e)(6). In both con-
texts, secrecy is vital " 'to protect [an] innocent accused who
is exonerated from disclosure of the fact that he has been
under investigation.' " United States v. Proctor & Gamble
Co., 356 U.S. 677, 682 n.6 (1958) (quoting United States v.
Rose, 215 F.2d 617, 628-29 (3d Cir. 1954)). Given this
analogy, there is a strong presumption that, even if the FEC
possesses the power to file subpoena enforcement actions on
the public record, such actions should be sealed. Cf. In re
Sealed Case, 199 F.3d 522, 526 (D.C. Cir. 2000) ("Unlike
typical proceedings, grand jury proceedings and related mat-
ters operate under a strong presumption of secrecy.").

We cannot help but question why the FEC opposed Appel-
lants' Emergency Motion and why it continues to fight the
Motion on appeal. We would hope that its strident opposition
is not politically motivated nor compelled by some vindictive
desire to publicize allegations that are yet to be established.
Nevertheless, the weakness of the FEC's position in this case
invites the suspicion that its actions are externally motivated.
Still, the FEC has proffered several arguments opposing
Appellants' motion, and we must consider them.

First, the FEC argues that the confidentiality provision in
s 437g(a)(12)(A) does not apply to the statutory section that
authorizes the Commission to issue subpoenas and petition
the district court for their enforcement. This argument is
based on the fact that s 437g(a)(12)(A) refers only to "investi-
gation[s] made under this section," while the subpoena au-
thority is provided in a separate section, s 437d. At first
blush, this argument seems colorable--indeed, it appears to
be the strongest argument presented by the Commission.
On closer inspection, however, we see that, like the other
justifications proffered by the FEC, it is hollow.

Section 437g provides the basic scheme for the process the
Commission must follow in enforcing FECA. It sets forth,
for example, the steps the Commission must take in investi-

gating an alleged violation. See s 437g(a)(1), (2). The Com-
mission's power "to conduct investigations," however, is found
in s 437d, see s 437d(a)(9), the same section that authorizes
the Commission to issue subpoenas, see id. s 437d(a)(3), (4).
In this case, the subpoena in question was issued as part of
the FEC's ongoing investigation of Appellants. At oral argu-
ment, FEC counsel acknowledged that the Commission issues
subpoenas as part of its investigations. This acknowledgment
is completely inconsistent with the FEC's strained interpreta-
tion of s 437g. We cannot fathom why the FEC's issuance of
a subpoena in furtherance of an ongoing investigation would
not be considered part of that "investigation" within the
meaning of s 437g. When the FEC issues a subpoena as
part of an investigation, s 437g mandates those subpoenas,
like other components of the investigation, "shall not be made
public." The FEC's position contemplates a bizarre result:
the FEC would be obligated to keep a subpoena confidential
until the target refused to comply, at which point the FEC
could publicize the subpoena. Of course, there is no basis in
the statute for this interpretation. Even if we assume that
the FEC's argument was correct (which it is not) and the
Commission could disclose the subpoenas themselves (which
it can not), the Commission would still lack the authority to
divulge information pertaining to the underlying investigation
as it has attempted to do here.

Second, the FEC contends that the legislative history of
s 437g demonstrates that the Commission is authorized to
disclose subpoenas issued in furtherance of an ongoing inves-
tigation. Specifically, the FEC directs us to two pieces of
"evidence" from which it claims to have intuited Congress's
intent. Initially, it asks us to consider the Conference Report
for the 1976 Amendments to FECA, which states that
s 437g(a)(12) is not violated "when actions taken carrying out
an investigation lead to public awareness of the investigation."
H.R. Conf. Rep. No. 94-1057, at 50 (1976) quoted in Brief for
the Appellee at 23. Next, it provides us with a clipped
excerpt from the House of Representatives' debate over these
amendments. During the debate the Manager of the bill
stated, "The Commission ... sent nine investigators into Mr.

Rose's district, with eight-column headlines saying that he
had been charged with a flagrant violation of the election
law." 122 Cong. Rec. 8,566 (1976) (statement of Rep. Hays)
quoted in Brief for the Appellee at 22.

The FEC claims to have divined the meaning of an unam-
biguous statutory provision through this ambiguous legisla-
tive history. The FEC accomplishes this feat while acknowl-
edging that the "legislative history does not mention judicial
proceedings." We also note that it does not mention, or even
allude to, FEC subpoenas. Still, the FEC relies on these two
disconnected bits of legislative history to urge a reading of
s 437g that calls for otherwise confidential information to lose
all protection whenever the Commission files a subpoena
enforcement action in the district court.

The limits on the Commission's authority--like that author-
ity itself--are derived from statutory provisions, not from
loosely worded fragments extracted from congressional re-
ports and speeches. "The law, as it passed, is the will of the
majority of both houses, and the only mode in which that will
is spoken is in the act itself." Aldridge v. Williams, 44 U.S.
(3 How.) 9, 24 (1845). Here, the Act explicitly requires that
the FEC "shall not" make public its ongoing investigations.
Nothing in the Act can be rationally read to make an excep-
tion for subpoena enforcement actions. In the future, the
Commission would be best served if its counsel did "not
resort to legislative history to cloud a statutory text that is
clear." Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994).

Third, the FEC suggests that it has promulgated a regula-
tion, 11 C.F.R. s 111.21(c), that interprets s 437g(a)(12)(A).
According to the regulation,

Nothing in these regulations shall be construed to pre-
vent the introduction of evidence in the courts of the
United States which could properly be introduced pursu-
ant to the Federal Rules of Evidence or Federal Rules of
Civil Procedure.

11 C.F.R. s 111.21(c). The FEC declares that this provision
"specif[ies] that the confidentiality provision is simply not

applicable when evidence, like the exhibits to the Commis-
sion's enforcement petition, is filed in court." Brief for the
Appellee at 27. The Commission asserts that its interpreta-
tion of this regulation and s 437g(a)(12)(A) is due substantial
deference. See FEC v. Democratic Senatorial Campaign
Cmte., 454 U.S. 27, 37 (1981).

The FEC's interpretation is not entitled to substantial--or
any--deference here. We only defer to an agency interpreta-
tion if a statute or regulation is unclear. See Brown &
Williamson, 120 S. Ct. at 1300; Thomas Jefferson Univ., 512
U.S. at 512. As explained above, the confidentiality provision
in s 437g is clear. See supra at 12-13. So too is 11 C.F.R.
s 111.21(c). This regulation simply states that the FEC's
regulations do not "prevent the introduction of evidence in
the courts" if that evidence could otherwise be properly
introduced. s 111.21(c). This text plainly addresses only
what evidence can be introduced, not how it should be
introduced. There is only one way to read this regulation
consistently with s 437g and s 111.21(a): the FEC can intro-
duce evidence pursuant to the Federal Rules, but it cannot
introduce evidence concerning an ongoing investigation on the
public record--that is, any evidence may be introduced as
long as it is placed under seal. The resulting procedure does
not undercut the Federal Rules or adversely affect the FEC's
ability to enforce subpoenas. Cf. In re Motions of Dow Jones
& Co., 142 F.3d 496, 501 (D.C. Cir. 1998) (discussing advan-
tages of closing judicial proceedings ancillary to grand jury
proceedings). Allowing the FEC to interpret s 111.21(c), an
entirely unambiguous regulation, as it suggests "would be to
permit the agency, under the guise of interpreting a regula-
tion to create de facto a new regulation." Christensen, 120
S. Ct. at 1663.

The FEC's proposed interpretation would produce an ab-
surd result: the FEC could not reveal information about an
ongoing investigation unless it did so in open court proceed-
ings. This reading not only is "plainly inconsistent with the
wording of the regulation," LaRouche v. FEC, 28 F.3d 137,
140 (D.C. Cir. 1994) (internal quotes omitted), it also would
undermine Congress's clear directive that the FEC "shall

not" make information about investigations public. Section
111.21(c) merely states that the Commission's "regulations"
do not prevent the introduction of evidence; it does not
undercut the statute's mandate--nor could it. Agencies are
not empowered to carve out exceptions to statutory limits on
their authority. Cf. Ry. Labor Executives' Ass'n v. Nat'l
Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc)
("Were courts to presume a delegation of power absent an
express withholding of such power, agencies would enjoy
virtually limitless hegemony, a result plainly out of keeping
with Chevron and quite likely with the Constitution as well."
(emphasis in original)).

The FEC further submits that its interpretation of the
statute and regulation merits deference in light of its contin-
ued practice of filing subpoena enforcement actions on the
public record. Even if the statute in question were ambigu-
ous, such a supposed practice does not produce an agency
interpretation to which we accord deference. Cf. Christen-
sen, 120 S. Ct. at 1662. The deference afforded to an
agency's interpretation of either a statute or a regulation
presupposes that the interpretation is presented as part of
notice-and-comment rulemaking or at least a reasoned deci-
sion-making process. See id.; cf. Democratic Senatorial
Campaign Cmte., 454 U.S. at 37-38 (addressing situation in
which the Commission formally adopted an interpretation on
three separate occasions). Choices made by FEC attor-
neys--without the Commission's ratification or acceptance--
do not stand as the authoritative interpretation of the agency
requiring deference.

Finally, the FEC suggests that Appellants would not suffer
any harm from the Commission breaching its duty of confi-
dentiality because the press already has reported on some
aspects of the investigation. This also is unconvincing. Sto-
ries in the media have no bearing on the confidentiality
requirement Congress imposed on the FEC. It does not
matter that the media has published some information con-
cerning the investigation--the FEC has a straightforward
duty not to disclose information about an ongoing investiga-

tion. Only the subject's written consent can relieve the FEC
of this duty. See s 437g(a)(12)(A).

III. CONCLUSION

For the foregoing reasons, the district court's decision is

Reversed.