Shays v. Federal Election Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2005 Decided July 15, 2005

Reissued September 1, 2005

No. 04-5352

CHRISTOPHER SHAYS AND

MARTIN MEEHAN,

APPELLEES

v.

FEDERAL ELECTION COMMISSION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cv01984)

David B. Kolker, Attorney, Federal Election Commission,

argued the cause for appellant. With him on the briefs were

Richard B. Bader, Associate General Counsel, and Vivien Clair,

Erin K. Monaghan, and Harry J. Summers, Attorneys.

Charles G. Curtis, Jr. argued the cause for appellees. With

him on the brief were Michelle M. Umberger, David L. Anstaett,

Brent N. Rushforth, Carl S. Nadler, Shahid A. Buttar, Roger M.

Witten, Randolph D. Moss, Donald J. Simon, and Fred

Wertheimer.

2

Trevor Potter was on the brief for amici curiae John

McCain, et al. in support of appellees.

Before: EDWARDS, HENDERSON, and TATEL, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge: A landmark reform to the nation’s

campaign finance laws, the Bipartisan Campaign Finance

Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81, took

aim at two perceived demons of federal electoral contests: “soft

money,” i.e., use of unregulated political party activities to

influence federal elections, and “sham issue ads,” i.e., ostensibly

issue-related advocacy functioning in practice as unregulated

campaign advertising. These two tactics, given broad scope by

permissive Federal Election Commission rulings, infused federal

campaigns with hundreds of millions of dollars in federally

unregulated funds, much of it contributed by corporations and

labor unions. Now BCRA’s House sponsors (joined by Senate

sponsors as amici) claim the FEC has undone their hard work,

resurrecting in its regulations practices BCRA eradicated and

thus forcing them to seek reelection in illegally constituted

electoral contests. Considering this facial challenge to the

regulations, the district court invalidated some fifteen rules,

finding some inconsistent with the statute and others arbitrary

and capricious. The FEC appeals regarding five key rules:

standards for “coordinated communication,” definitions of the

terms “solicit” and “direct,” the interpretation of “electioneering

communication,” allocation rules for state party employee

salaries, and a de minimis exemption from allocation rules

governing certain contributions, known as “Levin funds,” to

state and local parties. We affirm in all respects.

3

I.

Needless to say, federal campaign finance law is complex,

and BCRA is no exception. Though few of its details are

important to this litigation (and those that are we describe later

in our analysis), we here provide a brief overview of the

statute’s background and objectives.

As the Supreme Court explained in McConnell v. FEC, 540

U.S. 93 (2003), which upheld BCRA’s core provisions against

constitutional challenge, “BCRA is the most recent federal

enactment designed ‘to purge national politics of what was

conceived to be the pernicious influence of “big money”

campaign contributions.’” Id. at 115 (quoting United States v.

Auto. Workers, 352 U.S. 567, 572 (1957)). Even before BCRA,

federal campaign finance laws, including the Federal Election

Campaign Act of 1971 (“FECA”), Pub. L. 92-225, 86 Stat. 3,

and amendments to that statute, restricted campaign

“contributions,” defined as “any gift, subscription, loan,

advance, or deposit of money or anything of value made . . . for

the purpose of influencing any election for Federal office.” 2

U.S.C. § 431(8)(A)(i). Individuals could contribute to federal

candidates and their campaigns only within strict dollar limits,

2 U.S.C. § 441a(a), and corporations and labor unions could not

contribute at all (though they could sponsor special political

funds known as “political action committees” or “PACs”), id. §§

441b(a), (b)(2)(C). See McConnell, 540 U.S. at 117-19. FECA

also restricted “expenditures,” i.e., “any purchase, payment,

distribution, loan, advance, deposit, or gift of money or anything

of value, made . . . for the purpose of influencing any election

for Federal office,” 2 U.S.C. § 431(9)(A)(i). See McConnell,

540 U.S. at 118-19.

Although in Buckley v. Valeo, 424 U.S. 1 (1976) (per

curiam), the Supreme Court upheld FECA’s contribution

limitations as well as various reporting and disclosure

requirements, the Court invalidated expenditure limits for

4

individual donors, candidates, and campaigns. See id. at 143-44.

(Though unchallenged in Buckley, FECA also codified a pre-

existing ban on election-related spending by corporations and

unions. See 2 U.S.C. § 441b; McConnell, 540 U.S. at 116-17,

122; FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 247-48

(1986).) In addition, invoking constitutional avoidance, the

Buckley Court construed the term “expenditure” to cover

communications only where they “advocate the election or

defeat of a clearly identified candidate for federal office,” and

do so using “express terms” such as “‘vote for,’ ‘elect,’

‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote

against,’ ‘defeat,’ ‘reject.’” 424 U.S. at 43-44 & n.52.

In the political world, several terms of art emerged to

describe the boundaries of this pre-BCRA law—terms we shall

use throughout this opinion. Most important, contributions

subject to federal source, amount, and disclosure requirements

are called “hard money” or “federal money.” See McConnell,

540 U.S. at 122. Funds outside FECA’s sphere are called

“nonfederal” or “soft.” See id. at 122-23. Due to its reliance on

specific phrases like “vote for” and “vote against,” the express

advocacy standard became known as the “magic words” test.

See id. at 126.

Because FECA defined both “contribution” and

“expenditure” in terms of the “purpose of influencing any

election for federal office,” see 2 U.S.C. §§ 431(8)(A), (9)(A)

(emphasis added), donations aimed at state and local elections

were unregulated, i.e., “soft.” Thus, as McConnell explains,

“questions arose concerning the treatment of contributions

intended to influence both federal and state elections.” 540 U.S.

at 123. Charged with administering federal campaign finance

laws, the Federal Election Commission (“FEC”) took a

permissive view. “Although a literal reading of FECA’s

definition of ‘contribution’ would have required funding such

activities with hard money, the FEC ruled that political parties

5

could fund mixed-purpose activities—including get-out-the-vote

drives and generic party advertising—in part with soft money.”

Id. Parties had to allocate such costs between hard and soft

accounts, but rules in place after 1990 allowed national parties

to fund as much as 35-40% of their mixed-purpose activities

with soft money. Id. at 123 n.7. Even more generous, rules for

state and local party organizations allowed allocation based on

the ratio of federal to nonfederal offices on a given ballot,

“which in practice meant that they could expend a substantially

greater proportion of soft money than national parties to fund

mixed-purpose activities.” Id.

Over time, political parties took increasing advantage of

these soft money opportunities. Although the two major parties

spent only $21.6 million in soft money in the 1984 election

cycle, by 2000 that figure had risen to $498 million—roughly

42% of their total spending. Id. at 124. Because this “soft”

money fell outside FECA’s contribution limitations, parties

could raise it in massive dollops from single contributors,

including corporations and unions. See id. at 124-25. Though

federal candidates often played a key role in raising these funds,

the parties shifted much of their soft money ($280 million in

2000) to the state level, where the FEC’s more generous state-

party allocation rules applied, and where certain disclosure

regulations applicable to national parties did not. See id. at 124-

26; McConnell v. FEC, 251 F. Supp. 2d 176, 198-99 (D.D.C.

2003) (per curiam) (decision of three-judge district court).

Just as soft money spending was exploding, a related

phenomenon, “sham issue ads,” also developed. The term

“issue ad” derives from Buckley’s “magic words” construction

of FECA, the idea being that express advocacy relates to

candidates whereas non-express advocacy relates to “issues.”

See McConnell, 540 U.S. at 126. However “neat in theory,” this

distinction proved meaningless in practice—hence the “sham.”

See id. at 126-27. Free to mention candidates by name and even

6

discuss their views and voting records, those financing non-

express advocacy could generate ads “functionally identical” to

campaign ads, notwithstanding the absence of “magic words.”

See id. at 126. “Little difference existed, for example, between

an ad that urged viewers to ‘vote against Jane Doe’ and one that

condemned Jane Doe’s record on a particular issue before

exhorting viewers to ‘call Jane Doe and tell her what you

think,’” id. at 126-27, a ruse employed in many ostensibly issue-

oriented ads, see McConnell, 251 F. Supp. 2d at 301

(Henderson, J., concurring in the judgment in part and dissenting

in part). Indeed, the record in the McConnell litigation showed

that even when permitted to employ express advocacy,

advertisers typically used more indirect language. See

McConnell, 540 U.S. at 127 & n.18.

Beginning in about 1996, corporations and unions—both

barred from direct contributions and expenditures, see 2 U.S.C.

§ 441b(a), but permitted to finance non-express advocacy under

the “magic words” construal of “expenditure,” see Mass.

Citizens for Life, Inc., 479 U.S. at 249—began spending large

sums on such issue advertising. See McConnell, 540 U.S. at

127-28; McConnell, 251 F. Supp. 2d at 201. Apparently

negligible before that point, such spending climbed to hundreds

of millions of dollars by 2000. McConnell, 540 U.S. at 127;

McConnell, 251 F. Supp. 2d at 201. The FEC, compounding the

problem, construed “expenditure” to mean “magic words” for

political parties, too, thus freeing them to spend their soft money

war chests on still more sham issue advertising. McConnell, 540

U.S. at 123-24; McConnell, 251 F. Supp. 2d at 199 & n.14.

Surveying the landscape in 1998, a Senate investigative

committee concluded that the campaign finance system had

suffered a “‘meltdown.’” See McConnell, 540 U.S. at 129

(quoting S. Rep. No. 105-167, vol. 4, at 4611 (1998)). Four

years later, enacting reforms proposed by that committee,

Congress passed BCRA. See id. at 132. Among other changes,

7

the new law barred federal candidates and national parties from

soft-money fundraising, restricted activities to which state and

local parties could devote nonfederal funds, and replaced the

“magic words” standard for issue ads with a more robust

concept termed “electioneering communication.” At the same

time, compensating to some degree for these new restrictions,

the statute raised hard money contribution limits. Various

plaintiffs challenged BCRA’s constitutionality, but the Supreme

Court largely rejected their claims in McConnell. See 540 U.S.

at 224.

Now we confront a lawsuit cutting the opposite

way—arguments not that BCRA is too tough, but that FEC

implementing regulations are too lax. Plaintiffs, appellees

herein, are Christopher Shays and Martin Meehan, Members of

Congress from Connecticut and Massachusetts, respectively,

who were BCRA’s principal sponsors in the House of

Representatives. (The Senate sponsors John McCain and

Russell Feingold, joining the suit as amici, support this

challenge.) Claiming standing not based on their sponsorship of

the legislation, but rather as candidates waging reelection

contests governed by BCRA, Shays and Meehan challenged

numerous FEC interpretive rules in the U.S. District Court for

the District of Columbia. They argued that by construing

BCRA’s prohibitions too narrowly, these rules effectively

permit conduct that BCRA bans, an effect that arises because the

statute gives a defense against “any sanction” to “any person”

relying in good faith on FEC regulations. 2 U.S.C. § 438(e). In

an exceptionally thorough opinion ruling on cross-motions for

summary judgment, the district court invalidated and remanded

some fifteen rules, while upholding a few more. See Shays v.

FEC, 337 F. Supp. 2d 28, 130-31 (D.D.C. 2004). Despite a

request from the FEC, the court declined to stay its remand

pending appeal. See Shays v. FEC, 340 F. Supp. 2d 39, 54

(D.D.C. 2004).

8

The FEC now appeals the district court’s summary

judgment decision with respect to five rules: (1) standards for

“coordinated communication”; (2) definitions of the terms

“solicit” and “direct”; (3) the interpretation of “electioneering

communication”; (4) allocation rules for state party employee

salaries; and (5) a de minimis exemption from allocation rules

governing certain contributions, known as “Levin funds,” to

state and local parties. Following a preliminary discussion of

our jurisdiction, we address each rule in turn.

II.

As a threshold matter, the FEC challenges our jurisdiction,

asserting both that Shays and Meehan lack standing and that

their claims are unripe. With respect to standing, the district

court held that because “the regulations shape the environment

in which Plaintiffs must operate” as officeholders and

candidates, Shays and Meehan could bring suit challenging

those rules. See 337 F. Supp. 2d at 44. As to ripeness, the court

explained that despite the pre-enforcement timing of Shays’s

and Meehan’s suit, the purely legal nature of the issues removed

any constitutional or prudential impediment to immediate

consideration of their claims. See id. at 47-50. Reviewing de

novo, see, e.g., Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,

366 F.3d 930, 937 (D.C. Cir. 2004), cert. denied, __ S.Ct. __

(2005); Fed. Express Corp. v. Air Line Pilots Ass’n, 67 F.3d

961, 964 (D.C. Cir. 1995), we agree with both conclusions.

Standing

Derived from the Constitution’s “case-or-controversy”

requirement for federal court jurisdiction, Article III standing

requires plaintiffs to establish, as an “irreducible constitutional

minimum,” that they face “injury in fact” caused by the

challenged conduct and redressable through relief sought from

the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

9

(1992); see also Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., Inc., 528 U.S. 167, 180-81 (2000). The first element,

“injury in fact,” requires “an invasion of a concrete and

particularized legally protected interest.” See McConnell, 540

U.S. at 227. Harm must be “actual or imminent,” not

“conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal

quotation marks omitted). The second element, causation,

demands “a causal connection between the injury and the

conduct complained of—the injury has to be fairly traceable to

the challenged action of the defendant, and not the result of the

independent action of some third party not before the court.” Id.

(internal quotation marks, alterations, and ellipses omitted).

Finally, redressability requires that it be “likely, as opposed to

merely speculative, that the injury will be redressed by a

favorable decision.” Id. (internal quotation marks omitted). In

addition to these constitutional requirements, parties claiming

standing under the APA must show that their claims fall

“arguably within the zone of interests to be protected or

regulated by the statute in question.” Nat’l Credit Union Admin.

v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488 (1998)

(internal quotation marks omitted); see also Amgen, Inc. v.

Smith, 357 F.3d 103, 108 (D.C. Cir. 2004).

We begin with the last—and easiest—of these

requirements. Never “especially demanding,” Amgen, 357 F.3d

at 108 (internal quotation marks omitted), the zone of interests

standard easily encompasses Shays’s and Meehan’s claims,

considering that, as officeholders and candidates for office, they

are among those who benefit from BCRA’s restrictions on

practices Congress believed to be corrupting. Of course, they

are also “among the targets of regulation,” as the FEC points

out, see Reply Br. at 3, but that poses no obstacle. Indeed, the

statute’s regulation of candidates is part of the reason why

candidates like Shays and Meehan possess APA standing, for

who suffers more directly when political rivals get elected using

illegal financing? Cf. PDK Labs., Inc. v. DEA, 362 F.3d 786,

10

791 (D.C. Cir. 2004) (deeming the zone of interests test satisfied

where agency orders, by regulating petitioner’s supplier,

“necessarily regulate[d]” petitioner). Indeed, the FEC can

hardly maintain otherwise, for in arguing that this facial

challenge is unripe, the Commission urges Shays and Meehan

to await specific abuses and then challenge them through

FECA’s and BCRA’s “unusual” judicial review provision,

which permits aggrieved parties “to challenge the FEC’s

decision not to enforce,” see Chamber of Commerce of the U.S.

v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) (discussing 2 U.S.C.

§ 437g(a)(8))—an option that would make no sense if

enforcement of these statutes couldn’t protect the two

Congressmen’s interests. Accordingly, like the district court, we

consider it “self-evident that Plaintiffs meet the ‘zone of

interests’ test.” 337 F. Supp. 2d at 47.

Turning to the constitutional analysis, Shays and Meehan

argue that because BCRA thus protects them from prohibited

campaign practices, the challenged rules, which they argue

permit those very practices, cause them injury redressable

through judicial review. Recall that FECA precludes “any

sanction” as to “any person” who relies in good faith on FEC

rules, “[n]otwithstanding any other provision of law.” 2 U.S.C.

§ 438(e); see also supra at 7. Given this defense, Shays’s and

Meehan’s opponents may undertake any conduct permitted by

the challenged regulations without fear of penalty, even if that

conduct violates campaign statutes. Thus, as Shays and Meehan

see it, the FEC rules infringe their BCRA-protected interest in

BCRA-compliant elections—an injury the Congressmen believe

supports standing. Disagreeing, and relying chiefly on the

Supreme Court’s denial of standing as to two sets of

constitutional claimants in McConnell, the FEC disputes Shays’s

and Meehan’s theory with respect to both injury in fact and

causation. Specifically, the Commission argues that because

Shays and Meehan challenge what the rules permit rather than

what they constrain and because Shays’s and Meehan’s

11

affidavits demonstrate no specific use of the rules by their

political opponents, the two Congressmen cannot show injury.

In addition, the Commission asserts that because the rules grant

Shays and Meehan the same legal options as their opponents,

any disadvantage they suffer stems not from those rules, but

from their own choice not to exploit them. We address these

arguments in turn, starting with injury in fact and proceeding

from there to causation.

Since parties invoking jurisdiction at summary judgment

may not rest on “‘mere allegations,’ but must ‘set forth’ by

affidavit or other evidence ‘specific facts’” demonstrating

standing, Lujan, 504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e)),

Shays and Meehan submitted affidavits in the district court

supporting their standing claim. They assert that, as Members

of Congress and candidates for reelection, they are not only

“subject to regulation under [FECA], BCRA, and the

Commission’s implementing rules,” but also “directly affected”

by opportunities those statutes and regulations create for their

“potential election opponents” and “contributors to and

supporters of [their] opponents.” (Shays Decl. ¶ 3; Meehan

Decl. ¶ 3.) Thus, they aver that “[i]f any of the campaign

finance reforms embodied in BCRA is subverted, eroded, or

circumvented by the Commission’s implementing regulations,

I will be forced once again to raise money, campaign, and

attempt to discharge my important public responsibilities in a

system that is widely perceived to be, and I believe in many

respects will be, significantly corrupted by the influence of

special-interest money.” (Shays Decl. ¶ 4; Meehan Decl. ¶ 4.)

Particularizing this claim of injury, the Congressmen then

identify consequences for their own campaigns flowing from

FEC subversion of each key category of BCRA restrictions. For

example, as to BCRA’s “soft-money provisions,” Shays and

Meehan state, “[i]f [FEC] regulations do not faithfully

implement the soft-money ban, I face the strong risk that

unregulated soft money contributions will again be used in an

12

attempt to influence federal elections in which I am a

candidate.” (Shays Decl. ¶ 5; Meehan Decl. ¶ 5.) As to the

“sham issue ad provisions,” they assert, “[i]f those regulations

do not faithfully implement [BCRA], I will be open to attack,

during critical time periods just before the primary and general

elections, in broadcast advertising campaigns mounted by

groups seeking to evade the contribution limits, source

prohibitions, and disclosure requirements imposed by

Congress.” (Shays Decl. ¶ 7; Meehan Decl. ¶ 7.)

Through these and other like assertions, Shays and Meehan

aver that under FEC regulations permitting what BCRA

prohibits, they suffer injury to their interest, protected by that

statute, in seeking reelection through contests untainted by

BCRA-banned practices. They assert, in other words, that under

such illegal rules, they are “open to attack” by BCRA-banned

advertising, face the “strong risk” that opponents will use

improper soft money spending against them, and generally must

“raise money, campaign, and attempt to discharge [their]

important public responsibilities” in an environment rife with

practices Congress has proscribed.

In analogous cases, courts have routinely recognized this

type of injury—i.e., illegal structuring of a competitive

environment—as sufficient to support Article III standing. In

the administrative context, for example, we have held that when

agencies adopt procedures inconsistent with statutory

guarantees, parties who appear regularly before the agency

suffer injury to a legally protected interest in “‘fair

decisionmaking.’” Electric Power Supply Ass’n v. FERC, 391

F.3d 1255, 1262 (D.C. Cir. 2004) (“EPSA”) (quoting Prof’l Air

Traffic Controllers Org. v. FLRA, 685 F.2d 547, 563 (D.C. Cir.

1982) (“PATCO”)) (upholding repeat litigant’s standing to

challenge allegedly unlawful agency rules on ex parte

communication); see also Lujan, 504 U.S. at 572-73 & nn.7-8

(indicating that plaintiffs possess standing “to enforce a

13

procedural requirement the disregard of which could impair a

separate concrete interest of theirs” and giving as an example

“the procedural requirement for an environmental impact

statement before a federal facility is constructed next door to

them”); Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C.

Cir. 1996) (en banc) (holding that litigants may establish injury

in fact by “show[ing] that the government act performed without

the procedure in question will cause a distinct risk to a

particularized interest of the plaintiff”). By the same logic,

Shays and Meehan, as regular candidates for reelection, suffer

injury to a statutorily protected interest if under FEC rules they

must compete for office in contests tainted by BCRA-banned

practices. True, the forum here is an election, not agency

rulemaking or adjudication, but much as administrative

procedures determine how interested regulated parties may go

about persuading agencies, so do the challenged FEC campaign

finance rules structure candidates’ regulated opportunities to

persuade the electorate. Thus, given that regulated litigants

suffer legal injury when agencies set the rules of the game in

violation of statutory directives, the same is true here insofar as

the FEC has exposed these regulated candidates to BCRA-

proscribed campaign practices.

Likewise indicating that illegal structuring of a competitive

environment injures those who are regulated in that

environment, longstanding precedent establishes that when a

statute “reflect[s] a legislative purpose to protect a competitive

interest, [an] injured competitor has standing to require

compliance with that provision.” Hardin v. Ky. Utils. Co., 390

U.S. 1, 6 (1968). Accordingly, when an agency authorizes

certain brokerage services by regulated banks, rival securities

dealers may challenge that decision based on their interest in

limiting market competition. See Clarke v. Secs. Indus. Ass’n,

479 U.S. 388, 390-94, 403 (1987) (upholding standing based on

zone of interests test without specifically addressing Article III

requirements); see also Nat’l Credit Union Admin., 522 U.S. at

14

488 (stating that “competitors of financial institutions have

standing to challenge agency action relaxing statutory

restrictions on the activities of those institutions”); Ass’n of Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970)

(indicating “[t]here can be no doubt” as to injury in fact where

an agency authorized competition in a market served by

petitioner). And when the government grants an application to

produce controlled substances, a current manufacturer of the

same drugs may challenge that action because “‘increased

competition represents a cognizable Article III injury.’” Md.

Pharm., Inc. v. DEA, 133 F.3d 8, 11 (D.C. Cir. 1998) (quoting

Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 701 (D.C.

Cir. 1994)).

To be sure, in this case, the challenged rules create neither

more nor different rival candidates—the electoral analogue to

participants in a market. Nor, as the FEC points out, do Shays’s

and Meehan’s rivals enjoy “special benefits” unavailable to the

two Congressmen, Reply Br. at 5. Yet Shays and Meehan do

face intensified competition. That is, under FEC rules

permitting what BCRA prohibits, the two Congressmen must

anticipate and respond to a broader range of competitive tactics

than federal law would otherwise allow. For example, under

one challenged regulation (described in detail below), rival

candidates may have supporters finance issue ads more than 120

days before the election; according to Shays and Meehan,

BCRA restricts such spending. See infra at 34-36 (discussing 11

C.F.R. § 109.21). Likewise, rival state parties may spend soft

money to pay employees devoting a quarter of their time to

defeating Shays and Meehan; the Congressmen believe BCRA

requires hard money for such salaries. See infra at 57-58

(discussing 11 C.F.R. §§ 106.7(c)(1), (d)(1), 300.33(c)(2)).

Given that accounting for additional rivals constitutes injury

in fact, see, e.g., Md. Pharm., 133 F.3d at 11, Shays’s and

Meehan’s need to account for additional practices—and thus, as

15

the dissent concedes, additional campaign activity, see sep. op.

at 14 (Henderson, J., dissenting)—likewise supports Article III

standing. As with promulgation of illegal administrative

procedures, both these changes—additional competitors and

additional tactics—fundamentally alter the environment in

which rival parties defend their concrete interests (e.g., their

interest in persuading regulators, retaining customers, or

winning reelection). Considering that competitors may

challenge one such form of change—authorization of rivals—it

would be odd if they couldn’t challenge more elementary

distortions that alter the competitive environment’s overall rules.

Cf. Bennett v. Spear, 520 U.S. 154, 157, 167-68 (1997) (holding

that parties who “have competing economic and other interests”

in a certain water supply could challenge agency action reducing

that supply in the aggregate). To draw an example from the case

law, if drug producers may challenge permits for other

manufacturers, see Md. Pharm., 133 F.3d at 11-12; cf. Bristol-

Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1497-99 (D.C. Cir.

1996) (upholding drug manufacturer’s standing to challenge

regulations governing approval of competing generic drugs),

couldn’t they also challenge rules, say, allowing all producers to

forgo mandated warnings, or to advertise in ways Congress has

forbidden? And if securities dealers may challenge rules

allowing banks to broker stocks, see Clarke, 479 U.S. at 403; cf.

Inv. Co. Inst. v. Camp, 401 U.S. 617, 618-19, 621 (1971)

(upholding investment companies’ standing to challenge

regulations authorizing banks to operate mutual funds), couldn’t

they likewise dispute regulations allowing all

brokerages—bank-based or not—to stay open until ten o’clock

though a statute mandates closure by five? No less than when

agencies unleash illegal competitors or implement illegal

procedures, such across-the-board changes undermine statutorily

protected expectations, requiring competitors to account for

adverse activity prohibited by law. Because Shays and Meehan

have asserted equivalent injury—competition intensified by

16

BCRA-banned practices—and thus face an equivalent need to

adjust their campaign strategy, they too suffer harm to their

legally protected interests.

Indeed, our own case law, though avoiding resolving the

issue definitively, supports applying competitor standing to

politics as well as business. In Gottlieb v. FEC, 143 F.3d 618

(D.C. Cir. 1998), although rejecting a PAC’s standing to

challenge use of public matching funds by a candidate it

opposed, we explained, “AmeriPAC cannot claim standing as a

‘competitor’ . . . because it was never in a position to receive

matching funds itself. Only another candidate could make such

a claim.” Id. at 621 (emphasis added); see also Common Cause

v. FEC, 108 F.3d 413, 419 n.1 (D.C. Cir. 1997) (per curiam)

(observing that a candidate-plaintiff who had not appealed “may

be a political competitor” of political parties). Moreover, we

stated in Chamber of Commerce v. FEC, albeit in dicta, that if

the FEC declined to enforce certain rules affecting the plaintiff,

“a political competitor could challenge the Commission’s

dismissal of its complaint” under FECA’s judicial review

provision, 2 U.S.C. § 437g(a)(8). See 69 F.3d at 603 (emphasis

added). Given that Shays and Meehan—unlike the Gottlieb

plaintiffs—clearly do face genuine rivalry from candidates and

parties “in a position,” Gottlieb, 143 F.3d at 621, to exploit

FEC-created loopholes, our cases thus support analogizing their

situation to business rivalry, a context where, as explained

above, ample precedent supports standing, see, e.g., Clarke, 479

U.S. at 403; Inv. Co. Inst., 401 U.S. at 621; Md. Pharm., 133

F.3d at 11-12; Bristol-Myers Squibb, 91 F.3d at 1497-99.

Thus, at least two lines of precedent (procedural rights and

competitor standing cases) embody a principle that supports

Shays’s and Meehan’s standing: that when regulations illegally

structure a competitive environment—whether an agency

proceeding, a market, or a reelection race—parties defending

concrete interests (e.g., retention of elected office) in that

17

environment suffer legal harm under Article III. As the district

court recognized, opponents’ campaign finance options

necessarily “affect[] the way these politicians . . . will run their

campaigns,” such that Shays and Meehan “are at the very least

harmed by having to anticipate other actors taking advantage of

the regulations to engage in activities that otherwise would be

barred.” 337 F. Supp. 2d at 42-43; see also Vote Choice, Inc. v.

DiStefano, 4 F.3d 26, 36-37 (1st Cir. 1993) (holding that where

state law required candidates to choose between public and

private financing, that choice’s “impact on the strategy and

conduct of an office-seeker’s political campaign constitutes an

injury of a kind sufficient to confer standing”). Based on our

case law and the Supreme Court’s, this harm is sufficient for

Article III standing.

Resisting this conclusion, the FEC makes two arguments,

both embraced by the dissent and both flawed. First, the

Commission points out that campaign finance restrictions

benefit the general public as well as candidates. Yet the same is

true of other statutes that structure rivals’ playing

fields—statutes routinely held to support such rivals’ standing.

Consider: although Congress may well have “designed,” Lujan,

504 U.S. at 573 n.8, environmental assessment requirements to

advance a general public interest in environmental protection,

Lujan makes clear that “one living adjacent to the site for

proposed construction of a federally licensed dam has standing

to challenge the licensing agency’s failure to prepare an

environmental impact statement” when following that procedure

could prevent concrete injury (e.g., the flooding of plaintiff’s

home), see id. at 572 & n.7. Likewise, although statutory

restrictions on brokerage services and drug manufacturing serve

(one hopes) to protect the public rather than simply to create

monopolistic fiefs, businesses benefitting from such barriers to

entry possess standing to enforce them. See Clarke, 479 U.S. at

403; Md. Pharm., 133 F.3d at 11-12. By the same token,

because BCRA-banned practices may harm Shays’s and

18

Meehan’s electoral prospects, and given that Shays and Meehan

actively seek reelection in contests governed by the challenged

rules—a far cry from living “at the other end of the country from

[a challenged] dam,” sep. op. at 9 (Henderson, J., dissenting)

(quoting Lujan, 504 U.S. at 573 n.7)—the two Congressmen

may demand adherence to BCRA’s requirements,

notwithstanding that statute’s intended public benefits such as

preventing corruption and supporting informed voting. Cf.

Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial

power exists only to redress or otherwise to protect against

injury to the complaining party, even though the court’s

judgment may benefit others collaterally.”).

The FEC’s second argument is that McConnell forecloses

Shays’s and Meehan’s standing. It is true that in McConnell the

Supreme Court dismissed plaintiffs asserting a supposed

“competitive injury”—specifically, “fundraising disadvantage”

due to BCRA’s elevated hard money caps. 540 U.S. at 228. In

citing this dismissal, however, the FEC removes McConnell’s

holding entirely from its context.

In McConnell, the so-called “Adams plaintiffs”—a group of

voters, voter organizations, and candidates asserting

constitutional challenges to BCRA’s elevation of hard money

limits—presented two standing theories. First, they argued that

“the increases in hard money limits enacted by [BCRA] deprive

them of an equal ability to participate in the election process

based on their economic status.” Id. at 227. Disagreeing, the

Court explained that because “‘[p]olitical “free trade” does not

necessarily require that all who participate in the political

marketplace do so with exactly equal resources,’” the asserted

injury implicated no “legally cognizable right” and thus failed

to show invasion of any legally protected interest, as required

for standing. Id. (quoting Mass. Citizens for Life, Inc., 479 U.S.

at 257). Second, the Adams plaintiffs asserted that because the

federal candidates in their group would refuse on principle to

19

accept large contributions, those candidates suffered

“‘fundraising disadvantage,’ making it more difficult for them

to compete in elections.” Id. at 228 (quoting complaint).

Rejecting this theory, too, the Court explained: “Their alleged

inability to compete stems not from the operation of [the

elevated caps], but from their own personal ‘wish’ not to solicit

or accept large contributions, i.e., their personal choice.

Accordingly, the Adams plaintiffs fail here to allege an injury in

fact that is ‘fairly traceable’ to BCRA.” Id.

As the district court recognized, McConnell’s analysis is

distinguishable from this case because here, unlike in

McConnell where plaintiffs had no right to equal funding, a

statute—namely, BCRA—specifically protects the interest in

fair reelection contests that Shays and Meehan assert. As the

Supreme Court has long recognized, “Congress may enact

statutes creating legal rights, the invasion of which creates

standing, even though no injury would exist without the statute.”

Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973); see also

Lujan, 504 U.S. at 578 (reaffirming this principle). Here, by

banning certain campaign practices, Congress has created such

rights. And because Shays and Meehan fall within the “zone of

interests” protected by BCRA, see supra at 9-10, the

Congressmen hold a “legally cognizable right,” McConnell, 540

U.S. at 227, to enforce the statute’s prohibitions under the APA.

See Clarke, 479 U.S. at 399 (1987) (“The ‘zone of interest’ test

is a guide for deciding whether . . . a particular plaintiff should

be heard to complain of a particular agency decision.”); Mudd

v. White, 309 F.3d 819, 824 (D.C. Cir. 2002) (describing the

“zone of interests” test as assessing whether the plaintiff’s

“asserted interest is among the group of claims that is envisioned

by the relevant statute”).

Obviously distinguishing the Supreme Court’s first holding

on the Adams plaintiffs (lack of legally protected interest), this

difference also places Shays’s and Meehan’s suit outside

20

McConnell’s competitive injury analysis. True, much as the

Adams plaintiffs could “choose” to accept hard money up to

BCRA’s maximum, Shays and Meehan could perhaps reduce or

even neutralize their opponents’ advantages by exploiting illegal

FEC safe harbors themselves. To repeat examples given above,

they too could have supporters finance issue ads or commit state

party employees 25% to federal races. But because being put to

the choice of either violating BCRA or suffering disadvantage

in their campaigns is itself a predicament the statute spares

them, having to make that choice constitutes Article III injury.

Cf. Vote Choice, 4 F.3d at 36-37 (upholding standing in a

candidate’s constitutional challenge to state campaign finance

laws requiring her to choose “either to shun or to embrace public

financing”). Indeed, in a constitutional system based on the rule

of law, it would be ironic, to say the least, if Article III barred

the courthouse doors to citizens like Shays and Meehan who,

because of unlawful government action, may protect their

interest in election to Congress only by violating that lawmaking

body’s own dictates. Given that BCRA’s prohibitions would

apply absent the challenged safe harbors, Shays’s and Meehan’s

asserted injury—having to defend their office in illegally

constituted reelection fights—is not a matter of “their personal

choice,” as it was in McConnell, 540 U.S. at 228. Rather, it

stems from the “operation,” id., of regulations permitting what

BCRA bans. Thus, the dissent wrongly views the claimed

predicaments in McConnell and in this case as identical: there

no right existed; here one does. See sep. op. at 12-13

(Henderson, J., dissenting).

McConnell itself emphasizes the connection between its two

Adams holdings (lack of legal harm and lack of competitive

injury). As the Court put it, the Adams plaintiffs’ twin standing

theories shared “the same premise”—that BCRA’s “increased

hard-money limits allow plaintiffs-candidates’ opponents to

raise more money, and, consequently, the plaintiffs-candidates’

ability to compete or participate in the electoral process is

21

diminished.” Id. Having already rejected the premise

(cognizable funding inequity), the Court naturally rejected the

deduction (wrongful disadvantage) posed by plaintiffs’ second

theory. Instead, the court attributed the asserted injury to

plaintiffs’ own choice—for if funding inequity wasn’t

cognizable, what besides choice could explain the candidates’

disadvantage? Here, in contrast, due to BCRA and the APA,

Shays’s and Meehan’s asserted interest in getting elected

through legally financed campaigns is fully cognizable.

Accordingly, their claimed injury, having to seek reelection in

illegally structured contests (and thus needing either to violate

BCRA or to suffer disadvantage), may support Article III

standing.

Furthermore, and clinching the point, McConnell gives no

indication of modifying, much less overruling, cases supporting

Shays’s and Meehan’s standing—cases like Lujan, Clarke, and

Hardin (not to mention this court’s decisions in EPSA,

Maryland Pharmaceutical, and Gottlieb, among others). Nor

did the Court suggest that campaign finance laws require unique

standing rules; quite the opposite, McConnell applies an entirely

conventional standing analysis. See id. at 225-26 (applying

Article III standing test after observing that “[o]n many

occasions, we have reiterated the three requirements that

constitute the irreducible constitutional minimum of standing”

(internal quotation marks omitted)). Given the analogous

precedent supporting standing, and considering that McConnell

is distinguishable in any event, Shays and Meehan have

presented a valid theory of injury in fact.

This same precedent—cases involving illegally structured

environments—further assures us that notwithstanding Shays’s

and Meehan’s failure to show specific adverse use of challenged

safe harbors, the Congressmen’s asserted injury is sufficiently

“concrete and particularized,” as well as “actual or imminent,

not conjectural or hypothetical,” e.g., Laidlaw, 528 U.S. at 180.

22

Although the FEC insists that the Congressmen must

demonstrate that specific rivals have exploited each challenged

rule, our cases hold that when adverse use of illegally granted

opportunities appears inevitable, affected parties may challenge

the government’s authorization of those opportunities without

waiting for specific competitors to seize them. See, e.g., La.

Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir.

1998) (noting that “we have not required litigants to wait until

increased competition actually occurs”); Associated Gas

Distribs. v. FERC, 899 F.2d 1250, 1259 (D.C. Cir. 1990)

(“[P]etitioners sufficiently establish their constitutional standing

by showing that the challenged action authorizes allegedly

illegal transactions that have the clear and immediate potential

to compete with petitioners’ own sales.”).

Given what McConnell calls the “hard lesson of

circumvention” evident in “the entire history of campaign

finance regulation,” 540 U.S. at 165, it is indisputable here that

regulated parties will seize opportunities created by the

challenged rules and thus taint contests through which Shays

and Meehan seek reelection. To give two simple examples, one

of the challenged regulations permits state and local parties to

finance certain salaries with soft money; another allows such

parties to use unregulated funds for generic party advertising

costing less than $5,000. It seems obvious that party

organizations fighting Shays’s and Meehan’s reelection will

employ these options, rather than complying unnecessarily with

hard money strictures. Cf. United Transp. Union v. ICC, 891

F.2d 908, 912 n.7 (D.C. Cir. 1989) (observing that “courts

routinely credit” assertions founded on “basic economic logic”

in upholding standing). Accordingly, FEC safe harbors will

“almost surely cause” Shays and Meehan harm, Bristol-Myers

Squibb, 91 F.3d at 1497 (quoting El Paso Natural Gas Co. v.

FERC, 50 F.3d 23, 27 (D.C. Cir. 1995), and the Congressmen

must therefore account for use of those safe harbors in their own

campaign strategy, cf. Vote Choice, 4 F.3d at 37 (noting that

23

because “the coerced choice between public and private

financing colored [a candidate’s] campaign strategy from the

outset,” the “impact” of that choice “on the strategy and conduct

of [the candidate’s] political campaign” supported standing

(internal quotation marks omitted)). Hence, “there is no need to

wait for injury from specific transactions to claim standing.”

Bristol-Myers Squibb, 91 F.3d at 1497 (quoting El Paso Natural

Gas, 50 F.3d at 27).

Cases in the administrative context point to the same

conclusion. Although we have described administrative

litigants’ interest in “‘fair decisionmaking,’” EPSA, 391 F.3d at

1262 (quoting PATCO, 685 F.2d at 563)—analogous to Shays’s

and Meehan’s interest in “fair” reelection fights—as

“substantive,” see Ctr. for Law & Educ. v. Dep’t of Educ., 396

F.3d 1152, 1161 n.3 (D.C. Cir. 2005), Shays’s and Meehan’s

right to BCRA-compliant electoral contests is also “procedural”

insofar as campaign finance rules establish procedures through

which candidates seek reelection. When parties claim standing

based on violations of a procedural right, they “can assert that

right without meeting all the normal standards for redressability

and immediacy.” Lujan, 504 U.S. at 572 n.7; see also Wyo.

Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 51 (D.C. Cir.

1999) (indicating that in procedural rights cases the “necessary

showing” supporting the “constitutional minima of injury-in-

fact, causation, and redressability . . . is reduced”). Specifically,

“so long as the procedures in question are designed to protect

some threatened concrete interest of [the plaintiff’s] that is the

ultimate basis of his standing,” Lujan, 504 U.S. at 573 n.8, the

party invoking jurisdiction may establish injury in fact by

“show[ing] that the government act performed without the

procedure in question will cause a distinct risk to a

particularized interest of [that party],” Fla. Audubon, 94 F.3d at

664. Thus, to repeat Lujan’s example mentioned earlier, parties

living alongside a proposed dam may challenge errors in the

construction licensing procedure, “even though [they] cannot

24

establish with any certainty that [adherence to the procedure]

will cause the license to be withheld or altered.” Lujan, 504

U.S. at 572 n.7. And as we held in EPSA, a repeat litigant may

challenge rules on ex parte communications between the Federal

Energy Regulatory Commission and certain outside parties, even

before FERC ever applies them. See 391 F.3d at 1262. Insofar

as the litigant “is seeking to enforce procedural requirements

designed to protect [its] concrete interest in the outcome of

hearings to which [it] is a party,” its standing, we explained, “is

not defeated by the fact that it cannot show, with any certainty,

that its or its members’ financial interests will be damaged by

the operation of the . . . exemption.” Id.

By the same token, Shays and Meehan may challenge FEC

subversion of BCRA’s guarantees without “establish[ing] with

any certainty,” Lujan, 504 U.S. at 572 n.7, that the challenged

rules will disadvantage their reelection campaigns. Indeed,

given the multiplicity of factors bearing on elections and the

extreme political sensitivity of judgments about what caused

particular candidates to win, requiring candidates to establish

that but for certain campaign finance rules they could have won

an election seems no more reasonable than requiring plaintiffs

to “demonstrate that, but for the procedural defect, the final

outcome of the rulemaking process would have been

different”—precisely the showing that administrative cases do

not require. See Ctr. for Law & Educ., 396 F.3d at 1160 (citing

Lujan, 504 U.S. at 572 n.7). Because BCRA establishes

campaign procedures “designed to protect [the Congressmen’s]

threatened concrete interest,” Lujan, 504 U.S. at 573 n.8, in

winning reelection, Shays and Meehan possess standing to insist

on those procedures based on the “distinct risk,” Fla. Audubon,

94 F.3d at 664, documented in their affidavits, that political

rivals will exploit the challenged rules to their disadvantage.

See Ctr. for Law & Educ., 396 F.3d at 1161 n.3 (indicating that

“a federal agency’s arguably ultra vires publications of

regulations purporting to authorize ex parte communications in

25

violation of the Sunshine Act” violates “substantive rights

created under the Act,” thus conferring standing on affected

litigants challenging those rules (discussing EPSA, 391 F.3d at

1261-62)).

Again, the FEC, like the dissent, cites McConnell as

contrary authority, but again the analogy falls short. Dismissing

different parties from those mentioned earlier (“McConnell

plaintiffs” as opposed to “Adams plaintiffs”), the McConnell

Court found no standing as to plaintiffs challenging time-limited

broadcast restrictions based on one senator’s stated desire to

violate them during his next reelection campaign—then over

four years away. See McConnell, 540 U.S. at 224-25. “Because

Senator McConnell’s current term does not expire until 2009,”

the Court observed, “the earliest day he could be affected by [the

challenged provision] is 45 days before the Republican primary

election in 2008. This alleged injury in fact is too remote

temporally to satisfy Article III standing.” Id. at 226. Contrary

to the dissent’s suggestion that McConnell broadly requires

identification of “some specific injury arising from the

regulations,” sep. op. at 14 (Henderson, J., dissenting), the Court

thus relied entirely on lack of immediacy in finding the

McConnell plaintiffs’ injury insufficient for standing. In other

words, far from foreclosing standing for regulated parties like

Shays and Meehan, the McConnell Court concluded that because

any relevant application of the challenged rules would occur far

in the future, the McConnell plaintiffs were not in fact “subject

to regulation” at all, id. at 15. As House members, Shays and

Meehan face reelection every two years—and indeed underwent

reelection during the pendency of this appeal. Accordingly, no

comparable imminence problem exists here. Following

analogous cases such as Lujan, EPSA, and Louisiana

Energy—precedent untouched by McConnell—we therefore

conclude that Shays and Meehan suffer injury in fact insofar as

FEC rules permit BCRA-banned practices, thereby depriving the

26

Congressmen of their right to reelection contests conducted in

accordance with that statute.

As to causation, the two Congressmen argue that their

asserted injury—deprivation of fair reelection contests

guaranteed by BCRA—is fairly traceable to the FEC’s rules

because absent those rules BCRA’s prohibitions would prevent

their opponents from tainting their electoral fights (or at least

impose a “sanction” for doing so, 2 U.S.C. § 438(e); see also

supra at 7, 10). The FEC sees the issue quite differently. Since

the challenged rules merely permit conduct by others rather than

“restrict[]” conduct Shays and Meehan would themselves

undertake, the Commission insists its rules have caused the

Congressmen no harm. Appellant’s Br. at 13.

Abundant precedent contradicts the FEC’s view. In fact,

“the causation requirement for constitutional standing is met

when a plaintiff demonstrates that the challenged agency action

authorizes the conduct that allegedly caused the plaintiff’s

injuries, if that conduct would allegedly be illegal otherwise.”

Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440

(D.C. Cir. 1998) (en banc) (upholding standing in a facial

challenge to regulations allegedly authorizing statutorily

proscribed inhumane treatment of animals) (citing Simon v. E.

Ky. Welfare Rts. Org., 426 U.S. 26, 45 n.25 (1976)). Thus, for

example, in Japan Whaling Association v. American Cretacean

Society, 478 U.S. 221 (1986), scientists and whale-watchers

possessed standing even though the agency action they

challenged—failure to certify Japan as a bad apple under

international whaling conventions—limited restraints on whale-

hunting rather than imposing them on whale-watching. See id.

at 230 n.4. Likewise, to repeat examples given above, FERC

litigants may challenge administrative procedures that could

benefit rivals, see EPSA, 391 F.3d at 1261-62, and economic

competitors may challenge decisions allowing additional

entrants into their markets, see, e.g., Nat’l Credit Union Admin.,

27

522 U.S. at 488. If it makes no difference in such cases that

actual injury depends on action by non-governmental third-

parties—those spearing whales, competing economically, or

trading secret missives with FERC—neither should it matter

here that the challenged rules unchain Shays’s and Meehan’s

opponents, rather than chaining the two Congressmen.

Attempting to show otherwise, the FEC once again cites

McConnell’s dismissal of the Adams plaintiffs. It insists that

based on the Supreme Court’s holding, the only cause of

Shays’s and Meehan’s asserted injury is the Congressmen’s own

“choice” not to fight fire with fire by exploiting FEC safe

harbors themselves. This causation theory fails for the same

reason the FEC’s injury argument fails. Whereas in McConnell

the asserted injury stemmed from no law’s “operation,” 540 U.S.

at 228, Shays’s and Meehan’s injury—deprivation of BCRA-

compliant reelection contests—exists only insofar as FEC safe

harbors permit what BCRA forbids. Consequently, regardless

of how Shays and Meehan “choose” to negotiate the illegally

structured environment in which the FEC has placed them,

Shays’s and Meehan’s injury is “fairly traceable,” e.g., Laidlaw,

528 U.S. at 180, to the FEC’s alleged violation of congressional

commands.

Again, substantial precedent reassures us of this

conclusion—precedent McConnell never mentions, much less

questions. At bottom, though dealing with the same subject-

matter as that case, Shays’s and Meehan’s suit is an entirely

conventional administrative law claim, i.e., a facial challenge to

allegedly invalid regulations affecting the Congressmen’s

interests. Viewed in such terms, Shays’s and Meehan’s

causation theory is unremarkable. As noted earlier, we held in

ALDF, based in part on Supreme Court precedent, that “a

plaintiff satisfies the causation prong of constitutional standing

by establishing that the challenged agency rule permitted the

activity that allegedly injured her, when that activity would

28

allegedly have been illegal otherwise.” 154 F.3d at 440-41.

Japan Whaling rests on the same view. Although there the

injury-defining law was a whale-harvesting treaty rather than a

campaign finance statute, the causal theory was identical: by

tolerating what the law condemned, the government caused

plaintiffs’ injury. See Japan Whaling, 478 U.S. at 230 n.4.

Likewise, in competition cases, the Supreme Court has upheld

challenges to rules allowing competition allegedly prohibited by

statute—again, a claim that parallels Shays’s and Meehan’s.

See, e.g., Nat’l Credit Union Admin., 522 U.S. at 488; Data

Processing, 397 U.S. at 151.

Although the FEC insists this case falls outside the

conventional rule because Shays and Meehan possess the same

legal options as their rivals and thus could potentially benefit

from the challenged rules, our case law shows otherwise.

Ordinarily, of course, mimicking injurious conduct does nothing

to interrupt causation: the whale-watchers in Japan Whaling

could hardly protect their pastime by joining the hunt. And

while here use of challenged rules could perhaps mitigate any

harm to Shays’s and Meehan’s electoral prospects, the same was

true in EPSA, where the disputed regulations, which allowed ex

parte communication with certain third parties called market

monitors, could well have helped, rather than hurt, the

petitioner. There, far from suggesting that potential benefit

foreclosed standing, we held that petitioner satisfied Article III

because it “routinely appear[ed] before FERC in contested

hearings in which market monitors have an interest,” 391 F.3d

at 1262—a condition that created opportunity for benefit as well

as detriment. Similarly, in Lujan’s dam example, affected

parties could insist on statutorily required procedures even

though adherence to those procedures might well hasten, not

prevent, the dam’s construction. See 504 U.S. at 572-73 & nn.7-

8. As in these cases, Shays’s and Meehan’s injury entails

deprivation of a statutory right to “‘fair decisionmaking,’”

EPSA, 391 F.3d at 1262 (quoting PATCO, 685 F.2d at 563).

29

Accordingly, FEC rules structuring reelection contests in

violation of that right cause harm regardless of whether those

rules ultimately hurt or help the Congressmen’s reelection

prospects.

To illustrate the counterintuitive character of the FEC’s

position, we think it worth noting that were the Commission’s

causation argument correct, Shays and Meehan would never

have standing to challenge the rules. Even if an opponent made

express use of illegal safe harbors, even if that use demonstrably

influenced voters, and indeed even if Shays and Meehan

responded by seeking administrative enforcement and then

challenging the FEC’s dismissal of their complaint—a review

procedure the Commission urges the Congressmen to follow in

its ripeness argument, see infra at 31-32—the Congressmen

would nevertheless lack standing. As the FEC sees it, even then,

Shays’s and Meehan’s own scruples, not allegedly illegal FEC

rules, would have caused their injury. Although “an inescapable

result of any standing doctrine application is that at least some

disputes will not receive judicial review,” Fla. Audubon, 94 F.3d

at 665, that result would be surprising here given that Shays and

Meehan, as directly regulated parties, are the most natural

challengers for these rules, and agency regulations are ordinarily

subject to review. Cf. Bowen v. Mich. Acad. of Family

Physicians, 476 U.S. 667, 670 (1986) (noting “the strong

presumption that Congress intends judicial review of

administrative action”); United States v. Nourse, 34 U.S. (9 Pet.)

8, 28-29 (1835) (Marshall, C.J.) (“It would excite some surprise

if, in a government of laws and of principle, . . . a ministerial

officer might, at his discretion, issue this powerful process, . . .

leaving to that debtor no remedy, no appeal to the laws of his

country . . . .”).

Accordingly, finding McConnell distinguishable, and

following the long line of cases holding that affected parties may

challenge regulations allowing what a statute prohibits, see, e.g.,

30

Nat’l Credit Union Admin., 522 U.S. at 488; Data Processing,

397 U.S. at 151; Japan Whaling, 478 U.S. at 230 n.4; ALDF,

154 F.3d at 440, we conclude that Shays and Meehan have

shown causation, as well as injury in fact.

This leaves only redressability. The FEC doesn’t dispute

this element, nor could it, for “[w]here an agency rule causes the

injury, as here, the redressability requirement may be satisfied

by vacating the challenged rule.” Ctr. for Energy & Econ. Dev.

v. EPA, 398 F.3d 653, 657 (D.C. Cir. 2005) (internal quotation

marks and ellipsis omitted). Thus, Shays and Meehan have

satisfied all three requirements of constitutional standing.

“[F]orced,” as they put it, to seek reelection in illegally

structured contests, the Congressmen seek no mere “advisory

opinion”—the evil Article III averts, see Flast v. Cohen, 392

U.S. 83, 96-97 & n.14 (1968). Rather, because invalidation of

FEC safe harbors permitting what BCRA bans would vindicate

Shays’s and Meehan’s right to BCRA-compliant elections, the

two Congressmen possess “such a personal stake in the outcome

of the controversy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the court so

largely depends for illumination of difficult . . . questions,”

Baker v. Carr, 369 U.S. 186, 204 (1962). Having reached this

conclusion, we need not consider Shays’s and Meehan’s

fallback argument that the challenged rules’ effects on

disclosure requirements give them “informational standing.”

Ripeness

In addition to challenging standing, the FEC argues that

Shays’s and Meehan’s suit is unripe. A further requirement of

justiciability, albeit one “‘drawn both from Article III limitations

on judicial power and from prudential reasons for refusing to

exercise jurisdiction,’” ripeness “requires us to evaluate (1) the

fitness of the issues for judicial decision and (2) the hardship to

the parties of withholding court consideration.” Nat’l Park

31

Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)

(quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18

(1993)). Under our case law, “the primary focus of the ripeness

doctrine is to balance the petitioners’ interest in prompt

consideration of allegedly unlawful agency action against the

agency’s interest in crystallizing its policy before that policy is

subject to review and the court’s interest in avoiding

unnecessary adjudication and in deciding issues in a concrete

setting.” AT&T Corp. v. FCC, 349 F.3d 692, 699 (D.C. Cir.

2003) (internal quotation marks omitted).

Here, as to fitness, because this case is “purely one of

statutory interpretation,” Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457, 479 (2001), the issues are “purely legal” and thus

“presumptively suitable to judicial review,” AT&T, 349 F.3d at

699 (internal quotation marks omitted). In fact, in this case, no

“crystalliz[ation]” of the disputed policies will ever occur, for as

Shays and Meehan point out, conduct protected by the

challenged safe harbors will never be subject to enforcement

proceedings. (As noted earlier, good-faith reliance on FEC

regulations affords a defense against FEC sanction, see 2 U.S.C.

§ 438(e).) For that very reason, moreover, the regulations also

cause hardship. By removing certain conduct from any risk of

enforcement, the challenged safe harbors establish “legal rights”

to engage in that conduct, thus “creat[ing] adverse effects of a

strictly legal kind.” See Ohio Forestry Ass’n v. Sierra Club, 523

U.S. 726, 733 (1998).

Making a related point, the FEC also suggests that because

FECA permits judicial review to determine whether even non-

enforcement decisions are “contrary to law,” see 2 U.S.C. §

437g(a)(8); supra at 10, Shays and Meehan cannot show that

“no other adequate remedy in a court” exists, as required for

APA jurisdiction, 5 U.S.C. § 704; see generally Nat’l Wrestling

Coaches Ass’n, 366 F.3d at 945. We think this claim even

weaker. To begin with, although we have identified

32

“impermissible interpretation of the Act” as an element of the

“contrary to law” test, we did so in a case reviewing an advisory

opinion, not an FEC regulation. See Orloski v. FEC, 795 F.2d

156, 161 (D.C. Cir. 1986). Were a regulation applicable, given

that reliance on that regulation would afford a defense to “any

sanction,” see 2 U.S.C. § 438(e), the court might well uphold

FEC non-enforcement without ever reaching the regulation’s

validity. Cf. Chamber of Commerce, 69 F.3d at 603 (identifying

the risk of enforcement under section 437g(a)(8) as a basis for

standing though going on to invalidate the rule that would thus

be enforced). Moreover, because of that defense, the particular

conduct at issue could never be sanctioned, though penalties

might have been possible under valid rules. Given these

deficiencies, this alternative remedy hardly appears adequate,

and so poses no barrier to Shays’s and Meehan’s facial

challenge here.

III.

On the merits, we undertake our analysis pursuant to two

familiar standards of review: Chevron and the Administrative

Procedure Act. As both sides agree, because the regulations at

issue interpret statutes the FEC administers, we review them

under the two-step analysis set forth in Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

asking first “whether Congress has spoken ‘directly . . . to the

precise question at issue,’” and second, if it has not, whether the

agency’s interpretation is “reasonable.” See AFL-CIO v. FEC,

333 F.3d 168, 172-73 (D.C. Cir. 2003) (quoting Chevron, 467

U.S. at 842-43) (reviewing FEC regulations). At the same time,

because the regulations reflect final agency action under the

APA, we ask whether they are “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A).

33

Applying these standards here, we affirm the district court’s

invalidation of all five rules at issue in this appeal. In reviewing

each rule, we begin with Chevron step one, asking whether the

rule runs counter to the “unambiguously expressed intent of

Congress,” Chevron, 467 U.S. at 843. We conclude that two

rules—the “solicit”/“direct” and “electioneering

communication” definitions—fail this threshold inquiry. As to

the remaining three—the coordinated communication standard,

salary allocation provision, and de minimis exemption—we

affirm the district court’s invalidation on APA grounds without

reaching Chevron step two. As our cases explain, “our inquiry

at the second step of Chevron, i.e., whether an ambiguous statute

has been interpreted reasonably, overlaps with the arbitrary and

capricious standard,” Chamber of Commerce of the U.S. v. FEC,

76 F.3d 1234, 1235 (D.C. Cir. 1996) (citing Nat’l Ass’n of

Regulatory Utility Comm’rs v. ICC, 41 F.3d 721, 726-27 (D.C.

Cir. 1994)), for “[w]hether a statute is unreasonably interpreted

is close analytically to the issue whether an agency’s actions

under a statute are unreasonable,” Gen. Instrument Corp. v.

FCC, 213 F.3d 724, 732 (D.C. Cir. 2000); see also Gen. Am.

Transp. Co. v. ICC, 872 F.2d 1048, 1053 (D.C. Cir. 1989)

(“Both questions require us to determine whether the

Commission, in effecting a reconciliation of competing statutory

aims, has rationally considered the factors deemed relevant by

the Act.”). Here, we need not decide whether these three rules

represent altogether impermissible interpretations of FECA and

BCRA—the Chevron step two inquiry, see Bluewater Network

v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) (indicating that at

Chevron step two we “defer to the agency’s interpretation as

long as it is ‘based on a permissible construction of the statute’”

(quoting Chevron, 467 U.S. at 843))—because in any event the

FEC has given no rational justification for them, as required by

the APA’s arbitrary and capricious standard, see Motor Vehicle

Mfrs. of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983) (interpreting the APA to require that agencies

34

“articulate a satisfactory explanation for [their] action including

‘a rational connection between the facts found and the choice

made’” (quoting Burlington Truck Lines, Inc. v. United States,

371 U.S. 156, 168 (1962))).

Coordinated Communication

FECA has long restricted coordination of election-related

spending between official campaigns and outside groups. The

reason for this is obvious. Without a coordination rule,

politicians could evade contribution limits and other restrictions

by having donors finance campaign activity directly—say,

paying for a TV ad or printing and distributing posters. To

avoid such subterfuge, FECA defines “contribution” to include

any “expenditure[] made . . . in cooperation, consultation, or

concert, with, or at the request or suggestion of, a candidate,”

2 U.S.C. § 441a(a)(7)(B)(i), and then defines “expenditure” as

any purchase, payment, loan, or gift “made . . . for the purpose

of influencing” a federal election, id. § 431(9)(A). Thus, if

someone makes a purchase or gift with the purpose of

influencing an election and does so in cooperation with a

candidate, FECA counts that payment as a campaign

contribution. At the same time, and as a further stopgap,

FECA’s coordination provision designates any “financing . . . of

the dissemination, distribution, or republication” of campaign

materials as an “expenditure,” and thus as a “contribution” when

coordinated. Id. § 441a(a)(7)(B)(iii).

BCRA made two important changes to these provisions.

First, as part of its effort to reign in party fundraising, the statute

added a coordination rule for parties comparable to the

preexisting rule for candidates. See id. § 441a(a)(7)(B)(ii).

Second, and more important here, Congress ordered the FEC to

rewrite its regulations interpreting these provisions with respect

to “coordinated communication.” See BCRA § 214(c), 116 Stat.

81, 95.

35

Under pre-BCRA regulations, the FEC determined whether

public communications such as radio and television ads were

“coordinated” based largely on whether the candidate had

engaged in “substantial discussion or negotiation” with an

outsider, resulting in “collaboration or agreement.” See Shays,

337 F. Supp. 2d at 55-56 & n.25 (quoting old regulation).

Absent that degree of cooperation, the communication was

considered uncoordinated and thus would not count as a FECA

contribution. BCRA instructed the Commission to scrap this

approach. “The regulations on coordinated communications . .

. are repealed,” Congress declared. “The Federal Election

Commission shall promulgate new regulations on coordinated

communications paid for by persons other than candidates,

authorized committees of candidates, and party committees.

The regulations shall not require agreement or formal

collaboration to establish coordination.” BCRA § 214(c), 116

Stat. at 95. Apart from this negative command—“shall not

require”—BCRA merely listed several topics the rules “shall

address,” providing no guidance as to how the FEC should

address them. See id.

Acting pursuant to this open-ended directive, the FEC

adopted the regulation at issue here. Under its new test,

communications count as “coordinated” (and thus as

contributions) if: (1) someone other than the candidate, party,

or official campaign pays for them, (2) the communication itself

meets specified “content standards,” and (3) the payer’s

interaction with the candidate/party satisfies specified “conduct

standards.” 11 C.F.R. § 109.21. Under the “content”

element—the only component at issue here—communications

made within 120 days of a general election or primary and

“directed” at the relevant electorate may qualify as

“coordinated” if they refer to a political party or “clearly

identified candidate for Federal office.” Id. § 109.21(c)(4).

Before the 120-day mark, the rule covers only communications

that either recycle official campaign materials or “expressly

36

advocate[] the election or defeat of a clearly identified candidate

for federal office.” See id. § 109.21(c)(2)-(3).

According to Shays and Meehan, this limitation on the

rule’s coverage outside the 120-day window offers politicians

and their supporters an unreasonably generous safe harbor.

Several examples should help illustrate their concerns. Under

the new rules, more than 120 days before an election or primary,

a candidate may sit down with a well-heeled supporter and say,

“Why don’t you run some ads about my record on tax cuts?”

The two may even sign a formal written agreement providing for

such ads. Yet so long as the supporter neither recycles

campaign materials nor employs the “magic words” of express

advocacy—“vote for,” “vote against,” “elect,” and so forth—the

ads won’t qualify as contributions subject to FECA. Ads stating

“Congressman X voted 85 times to lower your taxes” or “tell

candidate Y your family can’t pay the government more” are

just fine. And even within 120 days of the election (though

Shays and Meehan appear not to challenge this aspect of the

rule), supporters need only avoid communications that identify

candidates or parties by name. Ads regarding, say, economic

effects of high taxes or tragic consequences of foreign wars are

not contributions—again, even if formally coordinated with the

official campaign.

The district court held that nothing in BCRA permits such

content-based exclusions. Although the court rejected Shays’s

and Meehan’s Chevron one argument, explaining that because

BCRA ordered promulgation of new regulations while

“provid[ing] no express guidance on the matter of content

restrictions,” Congress had not spoken directly to the issue, see

337 F. Supp. 2d at 61-62, it held that the FEC’s regulations

“undercut[] FECA’s statutory purposes” and thus were “entitled

to no [Chevron two] deference.” Id. at 64-65. “A

communication that is coordinated with a candidate or political

party,” the district court wrote, “has value to the political actor.

37

To exclude certain types of communications regardless of

whether or not they are coordinated would create an immense

loophole that would facilitate the circumvention of the Act’s

contribution limits, thereby creating ‘the potential for gross

abuse.’” Id. at 65 (quoting Orloski, 795 F.2d at 165).

We reach the same result, though for slightly different

reasons. Regarding Chevron step one, we agree that Congress

has not spoken directly to the issue at hand. To be sure, it seems

hard to imagine that Representatives and Senators voting for

BCRA would have expected regulations like these. Although

Congress abrogated the FEC’s old “collaboration or agreement”

standard, the new rule permits significant categories of

expression—e.g., non-express advocacy more than 120 days

before an election—even where formal collaboration or

agreement occurs. And while BCRA’s “electioneering

communication” provisions (mentioned earlier and discussed

below, see infra at 41, 52-53) disavow the “express advocacy”

test—a standard McConnell describes as “functionally

meaningless,” 540 U.S. at 193—the FEC has resurrected that

standard here, allowing unrestricted collaboration outside the

120 days so long as the communication’s paymasters avoid

magic words and redistribution. That said, in the BCRA

provision most clearly on point—the directive calling for new

regulations—Congress studiously avoided prescribing any

specific standard, save abrogation of the “collaboration or

agreement” test. Given this “lack of guidance in the statute,” we

cannot say that BCRA clearly forecloses the FEC’s approach.

See George E. Warren Corp. v. EPA, 159 F.3d 616, 624 (D.C.

Cir. 1998).

Nor do we see clearly contrary intent, as do Shays and

Meehan, in FECA’s preexisting “expenditure” and

“contribution” definitions. True, under the statute, coordinated

expenditures “shall be considered to be a contribution,” so if a

communication involves “expenditure” and is made “in

38

cooperation, consultation, or concert with, or at the request or

suggestion of” a candidate or party—the provision’s two

elements, see 2 U.S.C. §§ 441a(7)(B)(i), (ii)—then the FEC

lacks discretion to exclude that communication from its

coordinated communication rule. Yet to qualify as

“expenditure” in the first place, spending must be undertaken

“for the purpose of influencing” a federal election (or else

involve “financing” for redistribution of campaign materials).

See 2 U.S.C. §§ 431(9)(A), 441a(a)(7)(B)(iii). And as the FEC

points out, time, place, and content may be critical indicia of

communicative purpose. While election-related intent is

obvious, for example, in statements urging voters to “elect” or

“defeat” a specified candidate or party, the same may not be true

of ads identifying a federal politician but focusing on pending

legislation—a proposed budget, for example, or government

reform initiatives—and appearing three years before the next

election. Nor is such purpose necessarily evident in statements

referring, say, to a Connecticut senator but running only in San

Francisco media markets.

Insofar as such statements may relate to political or

legislative goals independent from any electoral race—goals like

influencing legislators’ votes or increasing public

awareness—we cannot conclude that Congress unambiguously

intended to count them as “expenditures” (and thus as

“contributions” when coordinated). To the contrary, giving

appropriate Chevron deference, we think the FEC could construe

the expenditure definition’s purposive language as leaving space

for collaboration between politicians and outsiders on legislative

and political issues involving only a weak nexus to any electoral

campaign. Moreover, we can hardly fault the FEC’s effort to

develop an “objective, bright-line test [that] does not unduly

compromise the Act’s purposes,” considering that we approved

just such a test for “contribution” in Orloski. 795 F.2d at 165.

Accordingly, we reject Shays’s and Meehan’s argument that

FECA precludes content-based standards under Chevron step

39

one. And for the same reasons, we disagree with the district

court’s suggestion that any standard looking beyond

collaboration to content would necessarily “create an immense

loophole,” thus exceeding the range of permissible readings

under Chevron step two, 337 F. Supp. 2d at 65.

In our view, the challenged regulation’s fatal defect is not

that the FEC drew distinctions based on content, time, and place,

but rather that, contrary to the APA, the Commission offered no

persuasive justification for the provisions challenged by Shays

and Meehan, i.e., the 120-day time-frame and the weak

restraints applying outside of it. As noted earlier, McConnell

describes the express advocacy test, which before BCRA

distinguished advocacy subject to FECA from unregulated

“issue” ads, as “functionally meaningless.” 540 U.S. at 193.

“Not only can advertisers easily evade the line by eschewing use

of magic words, but they would seldom choose to use such

words even if permitted.” Id. “In the 1998 election cycle, just

4% of candidate advertisements used magic words; in 2000, that

number was a mere 5%.” Id. at 127 n.18. Of course, express

advocacy could hardly fail to count as expenditure; statements

like “vote for” clearly aim to influence elections. Nor could the

FEC permit redistribution of campaign material, since the statute

unambiguously designates that activity as “expenditure” for

purposes of this provision. See 2 U.S.C. § 441a(7)(B)(iii). Yet

the Commission took the further step of deeming these two

categories adequate by themselves to capture the universe of

electorally oriented communication outside the 120-day

window. That action requires some cogent explanation, not

least because by employing a “functionally meaningless”

standard outside that period, the FEC has in effect allowed a

coordinated communication free-for-all for much of each

election cycle.

We see nothing in the FEC’s official explanation that

satisfies APA standards. The Commission’s source for the 120-

40

day period was an unrelated BCRA provision requiring hard

money financing for state party voter registration drives within

120 days of an election. See 68 Fed. Reg. at 430 (describing the

120-day period for coordinated communication as “based on 2

U.S.C. 431(20)(A)(i),” which defines such registration drives as

“Federal election activity”); 2 U.S.C. § 441i(b) (restricting

financing of “Federal election activity”). Drawing on this

provision, the FEC explained that “Congress has, in part,

defined ‘Federal election activity’ in terms of a 120-day time

frame, deeming that period of time before an election to be

reasonably related to that election.” 68 Fed. Reg. at 430. Yet

this observation has no bearing on the issue before us absent

evidence that registration activity and electoral advocacy occur

on similar cycles. For all we know from this record, registration

efforts may significantly influence elections only in the

immediate run-up to the vote, whereas candidate-centered

advertisements may affect voters even when broadcast more

than 120 days before the race closes. In fact, in a companion

provision to the voter registration rule, BCRA imposes even

stricter financing restrictions—without temporal limitation—on

“public communication[s] that refer[] to a clearly identified

candidate for Federal office . . . and that promote[] or support[]

a candidate for that office, or attack[] or oppose[] a candidate for

that office.” 2 U.S.C. § 431(20)(A)(iii). Although the FEC

acknowledged that its 120-day content standard was “more

conservative” than this provision, see 68 Fed. Reg. at 430, it

never explained why the time-frame for voter registration was

more relevant than BCRA’s rule for “public communications,”

seemingly a far more comparable subject-matter.

Besides citing the voter registration rule, the FEC listed two

“advantages” of the 120-day time-frame: “First, it provides a

‘bright-line’ rule. Second, it focuses the regulation on activity

reasonably close to an election, but not so distant from the

election as to implicate political discussion at other times.” 68

Fed. Reg. at 430. The first of these bromides provides no

41

independent basis for the rule: a bright line can be drawn in the

wrong place. The second does not so much answer the question

as ask it. Why is 120 days “reasonably close” but not “so

distant”? Without further explanation, we have no assurance

that 120 days reasonably defines the period before an election

when non-express advocacy likely relates to purposes other than

“influencing” a federal election—the line drawn by the statute’s

“expenditure” definition, 2 U.S.C. § 431(9)(A).

Taking a new tack in its briefs, the FEC now argues that

BCRA itself indicates that 120 days is reasonable because a

statutory provision on “electioneering communications”—ads

that automatically count as “contributions” when coordinated

with a candidate—includes a 30/60-day time-frame. See id. §§

434(f)(3), 441a(a)(7)(C). The “electioneering communication”

concept, discussed at greater length below, covers radio and

television advertisements that (1) clearly identify a candidate or

party, (2) target the relevant electorate, and (3) appear within 60

days of a general election or 30 days of a primary. See id. §

434(f)(3)(A); infra at 52-53. Obviously similar to the content

standard for the 120-day period, the “electioneering

communication” definition differs principally in that it is limited

to radio and television, whereas the content standard applies to

other media as well. See 68 Fed. Reg. at 429-30. Although in

its explanation the FEC sought to distinguish the shorter time-

frame for these communications rather than rely on it as

justification for the 120-day rule, see 68 Fed. Reg. at 430, the

Commission now insists that if 30-60 days is reasonable for

these ads, then “the Commission’s drawing of a temporal line

two to four times as far from the election for similar

communications that are coordinated is surely permissible.”

Appellant’s Br. at 32-33. Even assuming this “post hoc

rationalization[] for agency action” is properly before us, see

Secs. Indus. Ass’n v. Bd. of Governors of the Fed. Reserve Sys.,

468 U.S. 137, 143-44 (1984), we reject it.

42

For one thing, the proposition that 120 is twice 60 and four

times 30, though arithmetically indisputable, is no reason to

select that number over any other. Why not triple 60, or

multiply 30 by one-and-a-half? Alternatively, if 30 to 60 days

is too short, as the FEC indicated in its explanation, see 68 Fed.

Reg. at 430, why not go all the way and apply the standard at all

times, as in the “public communication” provision discussed

earlier? In any event, while “electioneering” ads are clearly one

category of communications that may count as coordinated

expenditures under BCRA, nothing in the statute suggests they

represent the only—or even primary—such category.

Acknowledging as much, the FEC’s own rule rejects the

electioneering definition’s time limit (expanding it to 120 from

30/60), as well as its media limitations (including print

advertising and other media besides radio and TV). By the same

token, nothing should prevent the FEC from regulating other

categories of non-electioneering speech—non-express advocacy,

for example—outside the 120 days.

Finally, the FEC points out that limiting its standard to

express advocacy and campaign redistribution outside the 120

days preserves space for political activities unrelated to

elections. True enough, but so would regulating nothing at all,

and that would hardly comport with the statute.

Notwithstanding its obligation to “attempt to avoid

unnecessarily infringing on First Amendment interests,” AFL-

CIO, 333 F.3d at 179, the Commission must establish, consistent

with APA standards, that its rule rationally separates election-

related advocacy from other activity falling outside FECA’s

expenditure definition. See State Farm, 463 U.S. at 43 (“[T]he

agency must examine the relevant data and articulate a

satisfactory explanation for its action including a rational

connection between the facts found and the choice made.”

(internal quotation marks omitted)). The record before us,

however, provides no assurance that the FEC’s standard does

not permit substantial coordinated expenditure, thus tossing out

43

the proverbial baby (spending qualifying as contributions) with

the bath water (political advocacy). Cf. AFL-CIO, 333 F.3d at

179 (invalidating rule where FEC “fail[ed] to undertake . . .

tailoring” consistent with First Amendment interests).

For their part, Shays and Meehan argue not only that the

FEC has in fact failed to justify its standard, but also that doing

so would be impossible. In support of this claim, they urge us

to take judicial notice that substantial election-oriented

advertising occurred beyond the 120-day window in recent

presidential races, a fact that, if true, would undercut the

Commission’s view that it has drawn the line in the right place.

That factual assertion, however, is better directed to the FEC’s

expertise, and indeed illustrates the sort of inquiry the

Commission should have undertaken. Do candidates in fact

limit campaign-related advocacy to the four months surrounding

elections, or does substantial election-related communication

occur outside that window? Do congressional, senatorial, and

presidential races—all covered by this rule—occur on the same

cycle, or should different rules apply to each? And, perhaps

most important, to the extent election-related advocacy now

occurs primarily within 120 days, would candidates and

collaborators aiming to influence elections simply shift

coordinated spending outside that period to avoid the challenged

rules’ restrictions? The FEC must carefully consider these

questions, for if it draws the line in the wrong place, its action

will permit exactly what BCRA aims to prevent: evasion of

campaign finance restrictions through unregulated collaboration.

In sum, while we accept the FEC’s premise that time, place,

and content may illuminate communicative purpose and thus

distinguish FECA “expenditures” from other communications,

we detect no support in the record for the specific content-based

standard the Commission has promulgated. Accordingly,

finding the rule arbitrary and capricious under the APA, we shall

affirm the district court’s invalidation.

44

“Solicit” and “Direct”

As noted earlier, one of BCRA’s main objectives is to shut

down the so-called “soft money” system whereby political

parties employed funds outside FECA’s controls to finance

political activities related to federal elections. The

“cornerstone” of this effort, McConnell, 540 U.S. at 133, a new

prohibition on soft-money fundraising by national party

organizations, provides as follows:

A national committee of a political party (including a

national congressional campaign committee of a political

party) may not solicit, receive, or direct to another person

a contribution, donation, or transfer of funds or any other

thing of value, or spend any funds, that are not subject to

the limitations, prohibitions, and reporting requirements of

this Act.

2 U.S.C. § 441i(a)(1). The same prohibition extends to the

national party committees’ officers and agents, as well as

subordinate entities. See id. § 441i(a)(2). In addition, federal

candidates and officeholders may not “solicit, receive, direct,

transfer, or spend” soft money, id. § 441i(e), nor may national,

state, or local party organizations “solicit” or “make or direct”

contributions to certain tax-exempt groups, id. § 441i(d).

Shays and Meehan challenge FEC regulations interpreting

“solicit” and “direct” with respect to these provisions. In effect,

the Commission has interpreted both terms to mean “ask.”

Under its new regulations, “to solicit means to ask that another

person make a contribution, donation, transfer of funds, or

otherwise provide anything of value,” whether that gift is made

“directly” or “through a conduit or intermediary.” 11 C.F.R. §

300.2(m). “[T]o direct means to ask a person who has expressed

an intent to make a contribution, donation, or transfer of funds,

or to provide anything of value, to make that contribution,

donation, or transfer of funds, or to provide that thing of value,

45

including through a conduit or intermediary.” Id. § 300.2(n).

Thus, in the FEC’s view, fundraisers “solicit” money when they

ask for it (as in, “please give to the party”) and they “direct”

contributions when they ask for them following an expression of

interest, such as when a donor says, “I’ve got money to burn”

and the politician responds, “why not give it to X?”

Whether this interpretation is reasonable depends on the

meaning of “ask.” Shays and Meehan argue that this term, as

used in the regulations, requires “an outright, explicit

request—‘please give’—that is contained in a single

communication.” Appellee’s Br. at 28. The district court shared

this view, finding it supported by the FEC’s explanatory

statement that “[b]y using the term ‘ask,’ the Commission

defined ‘solicit’ to require some affirmative verbalization or

writing, thereby providing members of Congress, candidates and

committees with an understandable standard,” Contribution

Limitations & Prohibitions, 67 Fed. Reg. 69,928, 69,942 (Nov.

19, 2002). See Shays, 337 F. Supp. 2d at 78-79. Read this way,

as the district court observed, the rule permits national parties,

candidates, and officeholders “to funnel nonfederal money into

different organizations by simply not ‘asking’ the donors to do

so, but using more nuanced forms of solicitation.” Id. at 79.

Shays and Meehan offer the following examples. Under the

regulation, “a Senator who told a group of party donors that ‘it’s

important for our state party to receive at least $100,000 from

each of you in this election’—with or without an accompanying

wink—would not have ‘asked’ under the Commission’s

regulations,” and thus would have neither “solicited” nor

“directed” funds in violation of BCRA. Appellee’s Br. at 30.

Likewise, statements like “X is an effective state party

organization; it needs to get as many $100,000 contributions as

possible” would again neither “solicit” nor “direct” because they

would not “ask.” Id. at 31.

46

In its briefs, the FEC questions this reading of the

regulations, even calling it a “straw man.” Reply Br. at 11. At

oral argument, however, Commission counsel was unable to

reassure us that the rules would cover “nuanced” situations like

Shays’s and Meehan’s hypotheticals. Indeed, though pressed to

represent the FEC’s views, counsel went no further than to call

the Congressmen’s hypotheticals “gray area[s],” stating that he

“simply can’t predict how the Commission would vote on

them.” That response came as no surprise, for the FEC’s official

explanatory statement abundantly supports the narrow reading

that the Congressmen, like the district court, find embodied in

the regulations.

During the rulemaking, commenters called the FEC’s

definition “too narrow.” 67 Fed. Reg. at 69,942. They

advocated construing “solicit” to mean “request, suggest or

recommend,” as Commission staff had proposed. Id. Yet the

Commission rejected this alternative, deeming it inconsistent

with “the need for clear definitions to avoid ambiguity,

vagueness and confusion as to what activities or conversations

would constitute solicitations.” Id. Explaining the distinction,

the Commission observed that it objected to “the impressionistic

or subjective aspects of the term ‘suggest’ and ‘request.’” Id.

“[W]hile the terms ‘suggest’ or ‘request’ . . . encompass a wide

array of activity, it is not clear that they would cover more direct

verbalizations or writings captured by terms such as ‘demand,’

‘instruct,’ or ‘tell,’ which the Commission believes are captured

by the term ‘ask.’” Id. Further:

The Commission was unwilling to use the far more

expansive term “suggest,” for concern that such a vague

term could subject persons to investigation and prosecution

based on highly subjective judgments about whether a

particular remark or action constituted “suggestion.” The

definition of “solicit” is intended to include a palpable

47

communication intended to, and reasonably understood to,

convey a request for some action.

Id. (internal quotation marks omitted).

Although the FEC’s explanation thus suggested that

statements “reasonably understood” as “asking” could qualify as

such, the Commission could not have intended thereby to

suggest that its rule covered indirect requests, for that

interpretation would overlook the distinction the FEC drew

between “ask” and “suggest.” According to the FEC, “ask”

covers “direct” statements—expressions “captured” by verbs

such as “demand” and “tell”—whereas “suggest” does not.

Thus, by lopping off “suggest” (as well as “recommend”) from

the staff proposal and sticking just with “ask” (which the

Commission deemed “essentially synonymous” with “request,”

id.), the FEC eliminated the definition’s indirect component.

This produced a narrowing construction, one that “mark[s] the

boundary between permissible and impermissible solicitations,”

id., leaving unregulated a “wide array of activity”—like the

conduct in Shays’s and Meehan’s two hypotheticals—that the

term “solicit” could plausibly cover. Whereas “solicit” might

otherwise cover coded statements, not to mention winks and

nods, the FEC, by limiting its rule to “affirmative verbalization

or writing,” has spared itself any need to scrutinize such

exchanges. Nor will the FEC have any need to delve into

“subjective” meaning indicated by context. Under the rule, it

may simply determine whether the fundraiser in question made

an explicit request.

Reinforcing this view, we note that the FEC’s construction

of its regulations comports with the most natural meaning of

“ask.” Of course, we can imagine describing Shays’s and

Meehan’s hypothetical Senator as “asking” for money by saying

“it’s important that the party receive $100,000,” just as we can

imagine saying “my mother asked me to come home” when

what she said was “I love it when you visit.” But this is hardly

48

the most natural use of the word “ask,” which ordinarily means

“to call upon for an answer” or “to make a request”—terms

implying a direct question or demand, rather than a statement of

fact or opinion. See Webster’s Third New Int’l Dictionary 128

(1993). Moreover, using only “ask” rather than a series of verbs

would seem odd unless the FEC intended to narrow the statute’s

meaning to that word’s principle definition—i.e., “calling for an

answer” as opposed to “suggesting” or “indicating.”

Thus, in proceeding with our Chevron/APA inquiry, we

assume the regulations mean what the FEC’s official

explanation says they do, i.e., that the FEC definitions require an

explicit direct request for money—an interpretation FEC

counsel refused to disavow at oral argument. Adopting this

same view, the district court deemed the FEC’s definitions

unreasonable under Chevron step two. According to the court,

although the terms “solicit” and “direct” were not so clear as to

preclude the regulations under Chevron step one, the rules’

construction of these terms to cover only direct requests

“‘create[d] the potential for gross abuse,’” thus defying

Congress’s evident purpose of “divorc[ing] national political

parties, as well as candidates for federal office and federal

officeholders, from the nonfederal money business.” 337 F.

Supp. 2d at 74-76, 78-79 (quoting Orloski, 795 F.2d at 165).

We agree, though we locate our holding under Chevron one,

rather than two.

In undertaking our Chevron step one inquiry into “whether

Congress has directly spoken to the precise question at issue,”

we employ “the traditional tools of statutory construction,” see

Chevron, 467 U.S. at 842-43 & n.9, including “examination of

the statute’s text, legislative history, and structure[,] as well as

its purpose,” Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1047

(D.C. Cir. 1997) (citations omitted). As the Supreme Court has

emphasized, “[i]n determining whether Congress has

specifically addressed the question at issue, a reviewing court

49

should not confine itself to examining a particular statutory

provision in isolation. The meaning—or ambiguity—of certain

words or phrases may only become evident when placed in

context.” FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 132 (2000).

Here, even setting context aside, we think “solicit” (if not

also “direct”) more naturally connotes an indirect request than

does “ask,” at least in the narrow sense of “asking” that the

FEC’s rule employs. To give an example, a charity brochure on

starving children might well “solicit” though it doesn’t “ask” in

the sense of “calling for an answer.” Cf. Wis. Dep’t of Revenue

v. William Wrigley, Jr., Co., 505 U.S. 214, 223 (1992)

(considering it “evident” that the term “solicitation of orders”

“includes, not just explicit verbal requests for orders, but also

any speech or conduct that implicitly invites an order”). But in

any event, although “‘[s]olicit’ can, of course, mean a variety of

things,” Martin Tractor Co. v. FEC, 627 F.2d 375, 383 (D.C.

Cir. 1980), in the context of this case we find the FEC’s narrow

interpretation of that term (as well as “direct”) implausible.

Reflecting “Congress’s effort to plug the soft-money

loophole,” McConnell, 540 U.S. at 133, BCRA marshals

“solicit” and “direct” as reinforcements for other, more

straightforward prohibitions. Candidates may not “receive” or

“spend” soft money, nor may they “solicit . . . , direct, [or]

transfer” it—for themselves or anyone else. See 2 U.S.C. §

441i(e)(1). The same restrictions—spending, receiving,

transferring, soliciting, directing—likewise apply to national

parties. See id. § 441i(a). Further, BCRA surrounds these

restrictions with yet more stopgaps, providing, for example, that

even indirectly controlled entities count as “parties” for purposes

of these restrictions, 2 U.S.C. § 441i(a)(2), and then

“reinforc[ing],” McConnell, 540 U.S. at 133, the soft-money

rules by requiring that certain state-party activities receive

federal (i.e., non-soft-money) funding, 2 U.S.C. § 441i(b).

50

Given this context, and considering Congress’s intent to shut

down the soft-money system, we think it obvious that “solicit”

and “direct” serve to reinforce BCRA’s more direct prohibitions.

Barred from spending and receiving unregulated funds,

candidates and parties might switch to raising such money for

friendly outsiders. So BCRA bans “soliciting” and “directing”

as well.

The FEC’s definitions fly in the face of this purpose

because they reopen the very loophole the terms were designed

to close. Under the Commission’s interpretation, candidates and

parties may not spend or receive soft money, but apart from that

restriction, they need only avoid explicit direct requests.

Instead, they must rely on winks, nods, and circumlocutions to

channel money in favored directions—anything that makes their

intention clear without overtly “asking” for money. Simply

stating these possibilities demonstrates the absurdity of the

FEC’s reading. Whereas BCRA aims to shut down the soft

money system, the Commission’s rules allow parties and

politicians to perpetuate it, provided they avoid the most explicit

forms of solicitation and direction.

Although this context alone satisfies us that the FEC’s

narrowing construction violates congressional intent, two further

considerations reassure us that Congress intended broader

meanings for “solicit” and “direct.” The first is BCRA’s repeal

of the “magic words” standard for issue advocacy. As noted

earlier, whereas pre-BCRA law permitted unregulated financing

of ads lacking “explicit words of advocacy of election or defeat

of a candidate,” Buckley, 424 U.S. at 43, BCRA adopts more

robust standards for communication oriented towards elections,

see infra at 52-53—a change understood to reflect Congress’s

judgment that the old standard was “functionally meaningless,”

McConnell, 540 U.S. at 193. Yet as the district court observed,

the FEC’s interpretation of “solicit” and “direct” is “not . . .

unlike that under pre-BCRA FECA, where the ‘express

51

advocacy’ rule permitted labor unions and corporations to avoid

regulation by simply avoiding Buckley’s magic words, which

effectively permitted such groups to sidestep FECA’s

prohibitions.” 337 F. Supp. 2d at 79. If imaginative advertisers

are able to make their meaning clear without employing express

terms like “vote for” and “vote against,” savvy politicians will

surely be able to convey fundraising desires without explicitly

asking for money. We see little reason why Congress would

have written BCRA to allow the latter practice while stamping

out the former.

Second, as Shays and Meehan point out, the FEC has long

construed “solicit” elsewhere in FECA as covering indirect

requests. While allowing corporations and labor unions to

create special accounts for political activity, FECA restricts

“solicitation” of contributions to those accounts. See 2 U.S.C.

441b(b)(4). Interpreting this restriction, FEC advisory opinions

have held that unions and companies may solicit funds merely

by praising contributors, see, e.g., FEC Advisory Op. 1979-13,

or even just describing contribution procedures, see, e.g., FEC

Advisory Op. 1999-6. As the Commission’s own campaign

guide puts it, “solicitations” are not limited to “a straightforward

request for contributions.” FEC Campaign Guide for

Corporations and Labor Organizations at 24 (2001). Although

the FEC could of course reconsider these advisory rulings, and

while “solicit” could perhaps carry different meanings in

different contexts, this background reinforces our sense that

Congress anticipated a similarly broad construction of that term

here. Cf. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.

184, 193-94 (2002) (“Congress’s repetition of a well-established

term generally implies that Congress intended the term to be

construed in accordance with pre-existing regulatory

interpretations.”).

For all these reasons, we hold that Congress has clearly

spoken to this issue and enacted a prohibition broader than the

52

one the FEC adopted. In context, BCRA’s terms “solicit” and

“direct” cover indirect requests. Because the FEC’s rule,

according to the Commission’s own explanation, does not, we

shall affirm its invalidation. In doing so, we express no view

regarding a further argument presented by Shays and

Meehan—that to avoid statutory redundancy, “direct” must

mean more than “ask in response,” when “solicit” means “ask”

plain and simple.

Electioneering Communication

Shays’s and Meehan’s third challenge relates to the FEC’s

regulatory definition of “electioneering communication”—a new

BCRA concept that replaces the old “magic words” standard for

issue ads. As noted earlier, in Buckley the Supreme Court, based

on constitutional avoidance, construed key FECA provisions as

applying only to “communications that include explicit words of

advocacy of election or defeat of a candidate,” i.e., “magic

words” such as “vote for” and “vote against.” See 424 U.S. at

43-44 & n.52, 80. This created a giant loophole. By simply

avoiding express advocacy, corporations and labor unions,

among others, could expend hundreds of millions of dollars in

unregulated funds on broadcasts that appeared “functionally

identical” to ordinary campaign advertising. McConnell, 540

U.S. 126-27. Now, BCRA provisions upheld against

constitutional challenge in McConnell, see id. at 189-95, 203-12,

bar corporations and unions (though not their PACs) from

financing ads meeting the statutory definition of “electioneering

communication,” 2 U.S.C. § 441b(b)(2); see also McConnell,

540 U.S. at 204. Further, BCRA requires certain disclosures for

electioneering communications, 2 U.S.C. § 434(f)(1)-(2), and,

as noted earlier, such communications automatically qualify as

FECA “contributions” when coordinated with a candidate, id. §

441a(a)(7)(C); see also supra at 41.

53

The key to these new restrictions is what counts as

“electioneering communication” in the first place. As a general

rule, the definition covers “any broadcast, cable, or satellite

communication” that (1) “refers to a clearly identified candidate

for Federal office,” (2) “is made within” 60 days before a

general election or 30 days before a primary, and (3) “is targeted

to the relevant electorate.” 2 U.S.C. § 434(f)(3). Certain

communications are then expressly exempted, among them news

stories, commentary, and editorials (unless the broadcaster is

controlled by a political party or candidate). See id. §

434(f)(3)(B)(i). In addition, BCRA authorizes the FEC to craft

exemptions, subject to certain limitations described below. Id.

§ 434(f)(3)(B)(iv).

In an exceedingly complex regulation, the FEC has laid out

its interpretation of provisions defining “electioneering

communication.” Although the district court invalidated other

aspects of this rule, only one point remains disputed: the

interpretation of “made.”

Recall that BCRA’s definition applies only to

communications “made within” specified time periods (i.e., 30

or 60 days before an election). Construing this phrase, the

FEC’s regulation defines “made” to mean “publicly distributed,”

11 C.F.R. § 100.29(a)(2), and then defines “publicly distributed”

to mean “aired, broadcast, cablecast or otherwise disseminated

for a fee through the facilities of a television station, radio

station, cable television system, or satellite system,” id. §

100.29(b)(3)(i) (emphasis added). The italicized words are the

rub. According to Shays and Meehan, nothing in the statute

supports limiting “electioneering communications” to purchased

transmissions. As the Congressmen see it, the statute applies

equally to unpaid broadcasts, such as public service

announcements. Indeed, they worry that sham PSAs could

become the new sham issue ads—communications evading

regulation though functionally indistinguishable from campaign

54

ads. To give an example used by the FEC in the very

rulemaking here, supporters could “us[e] a PSA to associate a

Federal candidate with a public-spirited endeavor”—say, a

blood drive or veterans’ support effort—“in an effort to promote

or support that candidate.” Electioneering Communications, 67

Fed. Reg. 65,190, 65,202 (Oct. 23, 2002). Indeed, given a

friendly broadcaster willing to forgo its fee, supporters could

even air unambiguous election aids, i.e., ads clearly identifying

a federal candidate, targeting the relevant electorate, and

appearing close to the election.

The district court found that the FEC’s definition violated

Congress’s clearly expressed intent under Chevron step one.

We agree. In effect, the Commission has taken the three parts

of BCRA’s standard—(1) candidate identification, (2) within 30

or 60 days, and (3) targeted at the electorate—and added a

fourth: “for a fee.” Nothing in the statute suggests that

Congress contemplated such an element. Certainly, the word

“made” carries no such connotation. When one says, “dinner is

made,” the implication is that dinner exists, not that someone

paid for it. Likewise here, to say a “broadcast, cable, or satellite

communication . . . is made” implies quite simply that the

communication exists—i.e., that it was transmitted—not that

someone paid a fee to make the transmission happen. Nor does

the context add any ambiguity. To the contrary, BCRA says,

“communication . . . made within” a certain time-frame, i.e., 60

days before a general election or 30 days before a primary.

Obviously, the temporal reference point—when the

communication “is made”—is the date of transmission, for that

is the point when the ad may influence the election. But given

that focus, it makes no sense to say that the communication is

“made” only if someone paid a fee, an event that likely occurred

earlier. The point, again, is simply that the transmission

occurred.

55

Attempting to concoct ambiguity, the FEC protests, “There

is simply no mention of funding anywhere in the definition.”

Appellant’s Br. at 41-42. True, but so what? The already

capacious U.S. Code would require even more volumes if

Congress could be clear only by ruling out every possible

limitation on statutory language. See, e.g., Ry. Labor

Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671

(D.C. Cir. 1994) (en banc) (rejecting the claim “that Chevron

step two is implicated any time a statute does not expressly

negate the existence of a claimed administrative power (i.e.,

when the statute is not written in ‘thou shalt not’ terms)”).

When Congress bans possession of a firearm or cocaine, we

hardly scratch our heads and ask, “Gee, maybe they meant

possession for a fee?” By the same token, when BCRA says

“made,” we presume, absent compelling indication otherwise,

that it means “made” and not “made for a fee.”

Of course, BCRA does permit FEC-crafted exemptions, and

one might characterize this rule as such, given that it effectively

excludes unpaid broadcasts from the definition. To be sure, the

FEC doesn’t characterize its action this way. Instead,

presumably because the district court held that the FEC’s action

exceeded the plain text of BCRA’s exemption clause, see 337 F.

Supp. 2d at 128-29, the Commission insists that its rule

represents an interpretation of the statute. No matter. As the

district court explained and as Shays and Meehan argue, the

FEC’s rule far exceeds any exemption BCRA would permit, for

the statute specifically provides that “a communication may not

be exempted” if it falls within another provision describing

“public communication[s] that refer[] to a clearly identified

candidate for Federal office . . . and that promote[] or support[]

a candidate for that office, or attack[] or oppose[] a candidate for

that office.” See 2 U.S.C. § 434(f)(3)(B)(iv) (referencing id. §

431(20)(A)(iii)). Exempting all fee-free communications

regardless of content, the FEC’s rule makes no pretense of

following this command. To the contrary, as noted earlier, it

56

permits broadcasters to run ad after ad lambasting or applauding

federal candidates, right up to election day, provided the

broadcaster sacrifices its bottom line for its beliefs. Because

BCRA’s limitation on the exemption power forecloses exactly

this possibility, the FEC’s rule again conflicts with Congress’s

unambiguous intent.

Rather than focusing on these textual problems, the FEC’s

briefs emphasize the “risk” that without its limiting construction,

BCRA’s electioneering communication restrictions could chill

“entertainment, educational, and documentary programs that

mention or portray a federal candidate only incidentally,” as

well as PSAs featuring federal candidates and “encouraging

citizens to donate blood, for example.” Appellant’s Br. at 41,

42-43, 44. Although this rationale is hardly apparent in the

rulemaking record, see 67 Fed. Reg. at 65,192-93 (“bas[ing]”

the rule “on the legislative history of BCRA”), and although in

any event we need not consider it given our Chevron one

holding, we nevertheless think it worth pointing out that

avoiding chilling particular types of communication could

hardly justify the FEC’s broad exclusion of all unpaid

broadcasts, regardless of content. Furthermore, because BCRA

already includes an express exemption for “communication[s]

appearing in a news story, commentary, or editorial,” 2 U.S.C.

§ 434(f)(3)(B)(i), no further exemption was necessary to avoid

chilling those. As for PSAs, excluding federal candidates from

broadcasts promoting blood drives and other worthy causes for

90 days out of every two years (30 days before the primary plus

60 days before the general election) would hardly seem

unreasonable given that such broadcasts could “associate a

Federal candidate with a public-spirited endeavor in an effort to

promote or support that candidate”—a risk the FEC itself

acknowledged, in the very same rulemaking, in justifying its

refusal to promulgate a general exemption for PSAs (whether

paid or unpaid), see 67 Fed. Reg. at 65,202.

57

To sum up, as an interpretation of “electioneering

communication,” the regulation contradicts BCRA’s plain text

and thus fails Chevron step one. Insofar as it instead constitutes

an exemption, it runs roughshod over express limitations on the

Commission’s power, thus again flunking Chevron one.

Accordingly, we shall affirm the district court’s invalidation of

this rule.

Salary Allocation

Yet another new BCRA concept is “federal election

activity” (“FEA” for short). Central to Congress’s effort to

eliminate soft money influence, this concept identifies activities

that state and local party organizations must finance with hard

money. Among them, as mentioned previously, are voter

registration drives within 120 days of an election, 2 U.S.C. §

431(20)(A)(i), and “public communications” attacking or

supporting identified federal candidates (whether or not state

and local candidates are also “mentioned or identified”), id. §

431(20)(A)(iii). Of course, even before BCRA, FECA’s

“expenditure” definition covered spending “for the purpose of

influencing” federal elections, including spending by state and

local parties. See id. § 431(9)(A); McConnell, 540 U.S. at 118-

19. But as mentioned earlier, FEC regulations governing

activities with combined state and federal implications—among

them, voter registration drives and generic party

advertising—allowed generous use of soft money by state and

local parties. See McConnell, 540 U.S. at 123 & n.7; see also

supra at 5. BCRA’s FEA provisions supplant these regulations,

making clear that the listed “mixed purpose” activities must be

financed with federally regulated money. See 2 U.S.C. §

441i(b).

The issue before us relates to one category of FEA: salaries

for employees devoting more than 25% of their paid time to

federal elections. See id. § 431(20)(A)(iv). In any month during

58

which a state or local party employee’s work crosses the 25%

threshold, the employee’s entire salary counts as FEA, thus

requiring the party to pay that salary exclusively with federally

regulated funds. See id. §§ 431(20)(A)(iv), 441i(b). In its

regulations, the FEC faithfully implemented this restriction,

declaring that such salaries “must be paid only with Federal

funds.” 11 C.F.R. § 300.33(c). But the FEC also drew an

inference that Shays and Meehan dispute. With respect to all

other salaries, i.e., those for employees devoting 25% of their

time or less to federal activities, the FEC eliminated any

allocation requirement, thus freeing state and local parties to pay

such employees’ salaries entirely with soft money. Id. §§

106.7(c)(1), (d)(1), 300.33(c)(2). Thus, under the Commission’s

rule, such parties may require every one of their employees to

work as much as quarter time—a day a week or more—on

federal elections without needing any federally regulated funds

for those salaries.

As stated in the official explanation, the FEC views this rule

on salaries below the 25% mark as an “implication” of BCRA’s

standard for salaries above that threshold. See Prohibited &

Excessive Contributions: Non-Federal Funds or Soft Money, 67

Fed. Reg. 49,064, 49,078 (July 29, 2002). “Congress appears to

have concluded,” the FEC wrote, “that salaries for employees

spending 25% or less of their time on activities in connection

with a Federal election or on Federal election activities do not

have to be paid from any mix of Federal funds.” Id. Shays and

Meehan disagree. Absent any change in FECA’s “expenditure”

definition, they argue, spending “for the purpose of influencing”

federal elections, including state party salaries, must still be

allocated. While holding that BCRA did not unambiguously

foreclose the Commission’s rule, the district court concluded

that because state parties could simply spread federal work over

multiple 25%-federal employees, exclusive use of unregulated

funds for such salaries would “compromise the Act’s purposes

of preventing circumvention of its national party committee

59

nonfederal money ban and stemming the flow of nonfederal

money into activities that impact federal elections.” 337 F.

Supp. 2d at 114. For this reason, the district court invalidated

the rule under Chevron step two. Again, we shall affirm.

First, to the extent Shays and Meehan assert a BCRA

violation under Chevron step one, we join the district court in

rejecting their position. As the district court explained, the

statute “speaks only to how state, district or local political party

committees should fund the activities of their employees who

spend more than 25 percent of their paid time on Federal

election activities.” Id. at 113. It says nothing at all about

salaries below that threshold, much less anything unambiguous,

as required by Chevron one. But for the very same reason—i.e.,

because BCRA says nothing at all—the statute’s 25% provision

also does not carry the “implication” the FEC attributes to it. In

fact, far from suggesting that 25%-or-less salaries may be

funded entirely with unregulated money, as the FEC believes,

the statute, by singling out certain employees (i.e., those above

the 25% level), suggests that others’ salaries remain subject to

preexisting law.

The statutory context confirms this reading. No exhaustive

canvass of federally-oriented electoral costs, BCRA’s FEA

definition covers just four categories, all of which involve

activities with combined state and federal implications that

could thus be used to disguise federally-oriented activities as a

state-related campaign. We have already mentioned three of the

categories—above-25% salaries, voter registration within 120

days of an election, and ads attacking or supporting federal

candidates in combination with state ones. See 2 U.S.C. §§

431(20)(A)(i), (iii), (iv). The fourth comprises “voter

identification, get-out-the-vote activity, or generic campaign

activity in connection with an election in which a candidate for

Federal office appears on the ballot (regardless of whether a

candidate for State or local office also appears on the ballot).”

60

Id. § 431(20)(A)(ii); see also id. § 431(20)(B) (exempting

certain expenditures such as costs for buttons, bumper-stickers,

and local party conventions from all four categories of FEA).

As a general rule, BCRA requires exclusive hard money

financing for each of these four activities. See id. § 441i(b)(1).

The only exception, applicable only to limited types of FEA and

never to above-25% salaries, is the “Levin Amendment”—a

provision (described below) that permits partial financing of

certain generic campaign activity with funds raised subject to

special controls. See id. § 441i(b)(2); see also McConnell, 540

U.S. at 161-64; infra at 62-64.

The purpose of these restrictions, as McConnell says of the

25% rule, is “prophylactic.” See 540 U.S. at 170-71. Before

BCRA, donors could lavish soft money on generic state party

advertising and pre-election voter registration drives,

notwithstanding the obvious benefits such efforts would have for

federal candidates. Now, outside the carefully circumscribed

limits of the Levin Amendment, such activities must be financed

entirely with federal money, even though they relate to state as

well as federal elections. Cf. id. at 166 (describing the FEA

provisions as “captur[ing] some activities that affect state

campaigns for nonfederal offices”). Likewise, before BCRA,

under FEC allocation rules, see supra at 5, state parties could

pay their workers largely with soft money. Now those above the

25% level must be paid entirely with hard funds—again, even

though their activity benefits state as well as federal candidates.

Given this prophylactic thrust—sweeping state activities into the

federal orbit due to the risk of concealed federal

purpose—nothing in the FEA definition’s structure suggests

congressional intention to deregulate federal activity. The FEA

provisions supplement, not supplant, preexisting controls.

Indeed, the FEC’s rules acknowledge as much. Despite

categorically exempting 25%-or-less salaries from allocation,

FEC regulations continue to require that “administrative costs”

61

be spread between hard and soft money accounts. See 11 C.F.R.

§ 106.7(c)(2). As the Commission explained in the very same

statement promulgating the 25%-or-less rule, “nothing in BCRA

or the legislative history suggests that Congress intended the

Commission to abandon its longstanding allocation requirement

for these expenses.” 67 Fed. Reg. at 49,078. Likewise subject

to allocation are fundraising costs associated with joint

state/local and federal campaigns, see 11 C.F.R. § 106.7(c)(4),

as well as expenses (apart from salaries and wages) for “voter

identification, voter registration, and get-out-the-vote drives, and

any other activities that urge the general public to register or

vote, or that promote or oppose a political party . . . that do not

qualify as Federal election activities,” id. § 106.7(c)(5).

These regulations clearly rest on the same BCRA

interpretation that we have articulated—that while imposing

additional constraints on FEA activities, BCRA makes no

change to preexisting restrictions on non-FEA expenditures.

But if “nothing in BCRA” evinces congressional intent to

deregulate non-FEA expenses like administrative and

fundraising overhead, then neither does BCRA support

exclusion of non-FEA salaries, i.e., those for employees

devoting up to 25% of their time to federal elections. Cf. Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

__, __ (2005) (describing “[a]gency inconsistency” as a possible

“reason for holding an interpretation to be an arbitrary and

capricious change from agency practice under the [APA]”).

Indeed, the salary rule appears particularly irrational given the

FEC’s recognition that costs for voter registration, get-out-the-

vote drives, and generic party advertising—all matters, like

salaries, that the FEA definition specifically addresses—may

require allocation even when the activities “do not qualify” as

FEA. See 11 C.F.R. § 106.7(c)(5).

In sum, the FEC has construed a BCRA provision sweeping

state activities within FECA as an excuse to punt federal

62

activities outside it. Because this “implication” from the statute

makes no sense, and because the Commission gave no other

justification for its rule, the regulation exempting 25%-or-less

salaries from allocation is arbitrary and capricious. We shall

therefore affirm the district court’s invalidation of this rule as

well.

To be clear, because we thus rely on the APA rather than

Chevron, nothing in our holding necessarily precludes the FEC

from remedying deficiencies in its explanation and

repromulgating this rule on remand, though we are skeptical that

it may do so. Answering the district court’s concerns about

potential abuse, the FEC suggested in its briefs here that state

and local parties may possess neither “an incentive” nor “the

necessary flexibility in their workloads and staffing” to spread

federal work among under-25%-federal employees. Appellant’s

Br. at 36 n.9; see also Reply Br. at 18. But why so? Given the

massive soft money sums infused into pre-BCRA elections

(nearly half a billion dollars in 2000 alone), it strikes us as quite

plausible that wealthy donors would swallow costs for increased

state and local campaigning, were the result an army of workers

devoting more than a day a week to federal elections. Should

the FEC wish to adhere to its current view in future rulemaking,

it must summon more substantial support than the conclusory

assertions presented to us.

Levin Funds

Shays’s and Meehan’s final challenge involves an exception

to an exception. As noted in the last section, although “federal

election activity,” as defined in BCRA, generally requires hard

money, the statute contains an exception—the “Levin

Amendment.” See 2 U.S.C. § 441i(b); McConnell, 540 U.S. at

162-63. That provision allows state and local parties to finance

certain types of FEA with money, called “Levin funds,” subject

to far less onerous controls than those for hard money. See

63

generally McConnell, 540 U.S. at 162-63. The catch is that the

party must “allocate” these FEA costs between Levin funds and

hard money. See 2 U.S.C. § 441i(b)(2). But under a regulatory

exception to this exception—one Shays and Meehan challenge

—party organizations need not allocate if they spend no more

than $5,000 total on allocable expenditures, an amount the

Commission considers de minimis. See 11 C.F.R. §

300.32(c)(4); 67 Fed. Reg. at 49,097.

To understand the FEC’s rationale and Shays’s and

Meehan’s objection, yet more detail about this complex statute

is (unfortunately) necessary. First, “Levin funds” are a sort of

semi-soft money. Available to state and local party

organizations in sums up to $10,000 per donor per year, Levin

funds are exempted from federal disclosure requirements and

restrictions (though not from state law). See 2 U.S.C. §

441i(b)(2)(B)(iii); McConnell, 540 U.S. at 162-63. Party entities

using Levin funds must raise them on their own, without help

from national parties or even state and local affiliates. See 2

U.S.C. §§ 441i(a), (b)(2)(B)(iv), (e); McConnell, 540 U.S. at

163-64. Furthermore, parties may use Levin funds only for

certain types of FEA—specifically, generic party campaigning,

get-out-the-vote activity, and voter identification and

registration drives (activities covered by two of the four FEA

categories), see 2 U.S.C. § 441i(b)(2)(A) (referencing id. §

431(20)(A)(i)-(ii))—and under no circumstances may Levin

funds finance expenditures “refer[ring] to a clearly identified

candidate for Federal office,” 2 U.S.C. §§ 441i(b)(2)(B)(i). See

generally McConnell, 540 U.S. at 163. Nor may they bankroll

any “broadcasting, cable, or satellite communication,” save

those that “refer[] solely to a clearly identified candidate for

State or local office.” 2 U.S.C. § 441i(b)(2)(B)(ii).

Thus, a typical Levin Amendment activity might involve a

generic effort by some state or local party organization to

register voters and turn them out for an election where both state

64

and federal offices are at issue. The party entity could finance

that activity in part with money raised in $10,000 contributions.

Usual hard money requirements would not apply, but, as noted

earlier, the party would need to “allocate” the vote drive’s costs

between hard money accounts and the “Levin funds” raised in

these up-to-$10,000 donations.

By what criteria do parties “allocate”? Presumably the goal

is to approximate the relative state and federal components of

the activity (assigning Levin funds to the former and hard

money to the latter), but much as with the “coordinated

communication” issue discussed earlier, BCRA leaves the

question open. That is, rather than prescribing allocation rules

itself, BCRA simply refers to “regulations prescribed by the

Commission.” 2 U.S.C. § 441i(b)(2)(A). So the Commission

promulgated rules, and these rules, in addition to providing

guidance on allocation, include the $5,000 “de minimis”

exemption at issue in this appeal.

Our cases recognize that agencies may promulgate de

minimis exemptions to statutes they administer. See, e.g., Ass’n

of Admin. Law Judges v. FLRA, 397 F.3d 957, 961-62 (D.C. Cir.

2005); Envtl. Def. Fund, Inc. v. EPA, 82 F.3d 451, 466 (D.C.

Cir. 1996); Ala. Power Co. v. Costle, 636 F.2d 323, 360 (D.C.

Cir. 1979). Predicated on the notion that “the Congress is

always presumed to intend that pointless expenditures of effort

be avoided,” such authority “is inherent in most statutory

schemes, by implication.” Ass’n of ALJs, 397 F.3d at 962

(internal quotation marks omitted). But there are limits. First,

de minimis exemption power does not extend to “extraordinarily

rigid” statutes. See id. at 962; EDF, 82 F.3d at 466. By

promulgating a rigid regime, Congress signals that the strict

letter of its law applies in all circumstances, thus rebutting the

presumption against “pointless” applications. Second, even

absent rigidity, “[t]he authority to create these exceptions does

not extend to ‘a situation where the regulatory function does

65

provide benefits, in the sense of furthering regulatory objectives,

but the agency concludes that the acknowledged benefits are

exceeded by the costs.’” Public Citizen v FTC, 869 F.2d 1541,

1557 (D.C. Cir. 1989) (quoting Ala. Power, 636 F.2d at 360-61)

(emphasis removed). Instead, situations covered by a de

minimis exemption must be truly de minimis. That is, they must

cover only situations where “the burdens of regulation yield a

gain of trivial or no value,” EDF, 82 F.3d at 466 (internal

quotation marks omitted), for otherwise the exemption reflects

impermissible “second-guess[ing] [of] Congress’s calculations,”

Public Citizen, 869 F.2d at 1557, as opposed to avoidance of

“absurd or futile results,” EDF, 82 F.3d at 466 (internal

quotation marks omitted).

Apparently attempting to satisfy these requirements, the

FEC gave three reasons for its exemption here. First, the

Commission attempted to show that the Levin allocation rule is

not “extraordinarily rigid.” See 67 Fed. Reg. at 49,097

(observing that “the reporting requirements for Federal election

activity contain an exception for activity below $5,000 in the

aggregate in a calendar year” and therefore concluding that

“Congress did not take a rigid approach to low levels of Federal

election activity”) (citing 2 U.S.C. § 434(e)(2)(A)). We need

not consider that argument, however, for even if the FEC is

correct on this point, its remaining two rationales give no

assurance that exempted spending—i.e., Levin expenditures

totaling $5,000 or less in a given year for a given party

organization—is in fact de minimis.

In the first of the two remaining rationales, the FEC

observed, “[T]he Commission is particularly sensitive to the

nature of the Federal election activity to which this provision

applies: Grassroots activities for which references to Federal

candidates are prohibited.” 67 Fed. Reg. at 49,097. “There is a

far weaker nexus,” the Commission went on, “between Federal

candidates and this category of Federal election activity than

66

other types of Federal election activity for which Levin funds

are prohibited.” Id. The FEC’s point, we take it, is that the

Levin Amendment includes only “grassroots” FEA categories

(e.g., voter registration drives and generic party campaigning),

and that as such, the included FEA categories involve a “weaker

nexus” with federal candidates than those that Congress

excluded (e.g., over-25% salaries and public communications

referring to specific candidates).

Although this distinction may explain the pattern of

included and excluded FEA types—an issue we need not

address—Congress’s rationale for including activities in the

Levin Amendment obviously affords no justification for

excluding them from Levin allocation, the very form of

regulation Congress chose. See Public Citizen, 869 F.2d at 1557

(observing that de minimis exemptions may not “second-guess

Congress’s calculations”). Yet that is precisely the effect of the

FEC’s exemption with respect to Levin spending totaling $5,000

or less in a given year for a given party entity. To put the same

point somewhat differently, because the FEC’s observations

(that covered activities are “grassroots” and bear a “weaker

nexus”) relate to Levin FEA in general, these rationales would

apply equally to $50,000 or even $50,000,000 in Levin

spending—sums Congress could hardly have deemed “trivial,”

EDF, 82 F.3d at 466.

The FEC’s final rationale fares no better. Observing that

$5,000 is only half of $10,000, the amount each Levin

contributor may “donate (subject to State law) to each and every

State, district, and local party committee,” the Commission

declared: “[T]here is no danger that allowing a committee to

use entirely Levin funds for allocable Federal election activity

that aggregates $5,000 or less in a calendar year will somehow

lead to circumvention of the amount limitations set forth in [the

statute].” 67 Fed. Reg. at 49,097. This is certainly true. A party

with only $5,000 total expenditures can hardly evade the

67

$10,000 “amount limitation” on contributions. Id. But the point

of Levin allocation—the subject-matter of this exemption—is to

restrict spending, not donations. Specifically, allocation requires

state parties to raise hard money for the federal component of

mixed-purpose activities, despite using Levin funds for the

remainder. Thus, again, to establish that some level of FEA

spending—whether $5,000, $50,000, or $500—is de minimis,

the FEC must demonstrate that efforts below that level have

“trivial or no” impact on federal elections. See EDF, 82 F.3d at

466. The fact that donors could contribute more than that

amount to the state component of such activities does nothing to

reassure us that the federal component is thus insignificant. Nor

does $5,000 strike us as an obviously trivial amount, considering

that donors could give that amount to each and every state,

district, and local party organization—an observation the FEC

itself made, see 67 Fed. Reg. at 49,097.

Thus, even assuming the Levin Amendment is flexible

enough to permit de minimis exclusions, the record here

presents no coherent justification for the specific exemption the

FEC chose. Accordingly, the Commission’s action again falls

short of APA standards, so again we shall affirm the district

court’s invalidation.

IV.

As the Supreme Court (rather fatalistically) observed in

McConnell, “Money, like water, will always find an outlet.”

540 U.S. at 224. Offered there as a reason for “no illusion that

BCRA will be the last congressional statement on [campaign

finance],” id., this comment serves equally well here to illustrate

the importance of faithfully implementing the statute Congress

has passed. For if regulatory safe harbors permit what BCRA

bans, we have no doubt that savvy campaign operators will

exploit them to the hilt, reopening the very soft money

floodgates BCRA aimed to close. Because the rules at issue in

68

this appeal either fall short of Congress’s mandate or lack record

support showing otherwise, we affirm their invalidation by the

district court.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

I dissent from the majority opinion because I believe the

appellees lack standing to bring this action under Article III of

the United States Constitution. In McConnell v. FEC, 540 U.S.

93 (2003), the United States Supreme Court iterated the “three

requirements that constitute the ‘irreducible constitutional

minimum’ of standing”:

First, a plaintiff must demonstrate an “injury in fact,” which

is “concrete,” “distinct and palpable,” and “actual or

imminent.” Second, a plaintiff must establish “a causal

connection between the injury and the conduct complained

of–the injury has to be ‘fairly trace[able] to the challenged

action of the defendant, and not . . . th[e] result [of] some third

party not before the court.’ ” Third, a plaintiff must show the

“ ‘substantial likelihood’ that the requested relief will remedy

the alleged injury in fact.”

540 U.S. at 225-26 (alteration original; internal citations

omitted). The appellees have failed to make this minimum

showing because they have not identified an actual or imminent,

concrete injury-in-fact that is caused by the challenged

regulations implementing the Bipartisan Campaign Reform Act

of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81 (2002).

Instead they speculate that they may suffer vaguely described

injuries at some future time. See Decls. of Shays and Meehan

¶¶ 6, 7, 8 (averring each appellee will be “impact[ed]” “as a

candidate who runs in elections that could be affected” by soft-

money funding of “state and local activities that affect federal

elections,” each “will be open to attack . . . by groups seeking to

evade the contribution limits, source prohibitions, and disclosure

requirements imposed by Congress” and opponents “will be able

to interact and coordinate . . . . in [unidentified] ways that evade

the contribution limits, source prohibitions, and disclosure

requirements of federal law”) (emphases added). Or they

complain of the subjective indignity of campaigning in a

purportedly tainted electoral environment. See id. ¶¶ 4, 5

(averring each “will be forced” to run for re-election “in a

2

system that is widely perceived to be, and [he] believe[s] in

many respects will be, significantly corrupted by the influence

of special-interest money,” each “will face the strong risk that

unregulated soft money contributions will again be used in an

attempt to influence federal elections in which [he is] a

candidate” and the soft-money contribution regulations “will

affect the perception the public will form of me, my fellow

office-holders, and fellow party members”). Such wispish

injury claims fall far short of the injury showing required for

Article III standing. See Allen v. Wright, 468 U.S. 737, 751

(1984) (to satisfy constitutional component of standing doctrine

“injury alleged must be . . . distinct and palpable, and not

abstract or conjectural or hypothetical”) (internal quotations

omitted). The majority attempts to fill the gaps in the appellees’

allegations by invoking two standing doctrines—conflated under

the novel heading “illegal structuring of a competitive

environment,” maj. op. 12, 13—which neither the Supreme

Court nor we have ever before applied in a similar context. In

its eagerness to manufacture standing, the majority stretches

both doctrines past their breaking points.

First, the majority finds standing based on the “procedural

rights” cases. Under the procedural rights doctrine, courts have

lowered the standing bar somewhat “in cases in which a party

‘has been accorded a procedural right to protect his concrete

interests’ ” before an agency so that “the primary focus of the

standing inquiry is not the imminence or redressability of the

injury to the plaintiff, but whether a plaintiff who has suffered

personal and particularized injury has sued a defendant who has

caused that injury.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d

658, 664 (D.C. Cir. 1996) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 572 n.7 (1992)). In Electric Power

Supply Ass’n v. FERC, 391 F.3d 1255 (D.C. Cir. 2004), on

which the majority relies, we applied the procedural rights

doctrine to conclude that the Electric Power Supply Association

(EPSA), a national trade association, and its members, which

3

“routinely appear before FERC in contested hearings,” 391 F.3d

at 1262, had standing to challenge a regulation creating an

exception to the Sunshine Act’s statutory prohibition on ex parte

communications in agency proceedings, see 5 U.S.C. §

557(d)(1)(A), (B). The court reasoned that to establish standing,

the plaintiffs did not need to show any certainty of financial loss

because, “[a]s regular participants in contested FERC hearings,

EPSA and its members have a right, protected by the Sunshine

Act's proscription against ex parte communications, to ‘fair

decisionmaking’ by the Commission.” 391 F.3d at 1262

(quoting Prof’l Air Traffic Controllers Org. v. FLRA, 685 F.2d

547, 563 (D.C. Cir. 1982)). Similarly, in cases challenging an

agency’s refusal to prepare an environmental impact statement

regarding a proposed federal project, we and other courts have

found that a landowner whose property is threatened by the

project has standing to challenge the agency’s refusal based on

the Congress’s intent to protect the landowner’s procedural right

to an environmental impact statement from the agency. See,

e.g., Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 51

(D.C. Cir. 1999); see also Lujan v. Defenders of Wildlife, 504

U.S. 555, 572 n.7 (1992) (“[U]nder our case law, one living

adjacent to the site for proposed construction of a federally

licensed dam has standing to challenge the licensing agency's

failure to prepare an environmental impact statement, even

though he cannot establish with any certainty that the statement

will cause the license to be withheld or altered, and even though

the dam will not be completed for many years.”). The majority

finds such cases “analogous to” this one. Maj. op. 12. The

analogy does not hold up.

In Electric Power, EPSA had standing to challenge the

regulation because it was “seeking to enforce procedural

requirements designed to protect [its] concrete interest in the

outcome of hearings to which EPSA is a party.” 391 F.3d at

1262. EPSA enjoyed a procedural right to an administrative

proceeding free from ex parte communications because it was

4

the beneficiary of one of the two interests underlying the

Sunshine Act—to ensure disclosure “ ‘as an instrument of fair

decisionmaking,’ ” for “ ‘only if a party knows the arguments

presented to a decisionmaker can the party respond effectively

and ensure that its position is fairly considered.’ ” Id. (quoting

Prof’l Air Traffic Controllers Org., 685 F.2d at 563). As the

Supreme Court explained in Defenders of Wildlife, “ ‘procedural

rights’ are special: The person who has been accorded a

procedural right to protect his concrete interests can assert that

right without meeting all the normal standards for redressability

and immediacy.” 504 U.S. at 573 n.7. The appellees do not

qualify for this special relaxation of the usual injury standard for

three reasons.

First, in the procedural rights cases, the courts have found a

party has standing to challenge an agency decision which

deprives the challenger of a procedural right that the Congress

intended to protect in proceedings before the same agency. See

Committee for Full Employment v. Blumenthal, 606 F.2d 1062,

1065 n.11 (D.C. Cir. 1979) (“On many occasions we have

reviewed agency action or inaction at the request of a party who

alleged that its procedural rights (as created either by the

agency’s own regulations, or the Administrative Procedure Act)

had been violated.”). In Electric Power, for example, we

concluded that the EPSA and its members had standing to seek

review of the decision by the Federal Energy Regulatory

Commission to permit ex parte communication in its own

proceedings which the Congress had intended to prohibit in the

Sunshine Act in order to protect the right of fair decisionmaking

in proceedings before the Federal Energy Regulatory

Commission. See Electric Power, 391 F.3d at 1262 (“As regular

participants in contested FERC hearings, EPSA and its members

have a right, protected by the Sunshine Act’s proscription

against ex parte communications, to ‘fair decisionmaking’ by

the Commission.”) (emphasis added). Similarly, in the cases

challenging an agency’s refusal to prepare an environmental

5

impact statement regarding a proposed federal project, to which

the Supreme Court alluded in Defenders of Wildlife, see maj. op.

23-24, courts have found that a landowner whose property is

threatened by the project has standing to challenge the agency’s

refusal based on the Congress’s intent to protect the landowner’s

procedural right to obtain an environmental impact statement

from the agency undertaking the project. Here, there is no such

connection between the FEC or its rulemaking proceeding and

the “procedural right” allegedly denied the appellees. The

majority finds the appellee congressmen have standing to

challenge the FEC’s rulemaking procedure based not on a right

to some guaranteed procedural protection before the

Commission but rather on an “interest in ‘fair’ reelection fights”

in future public elections. See maj. op. 23. This unprecedented

reliance on a right independent of any agency proceeding turns

the procedural rights doctrine on its head and creates a wholly

new and insupportable theory of standing.

Second, even assuming candidates could have standing to

challenge an agency proceeding based on a procedural right

available and violable only in a future election campaign, BCRA

accords no such special right to the appellees or to any other

candidate 1 because BCRA’s requirements were not designed to

1

I know of no authority to support the majority’s suggestion, maj.

op. 19, that if the appellees come within BCRA’s “zone of interests”

for prudential standing under the APA—a requirement the majority

acknowledges is “ ‘[n]ever especially demanding,’ ” maj. op. 9

(quoting Amgen, Inc. v. Smith, 357 F.3d 103, 108 (D.C. Cir. 2004)—

they necessarily have standing under Article III as well. See Bennett

v. Spear, 520 U.S. 154, 162 (1997) (zone of interests requirement is

part of “a set of prudential principles that bear on the question of

standing” “[i]n addition to the immutable requirements of Article III”).

It is true that the Congress “may enact statutes creating legal rights,

the invasion of which creates standing, even though no injury would

exist without the statute,” Linda R.S. v. Richard D., 410 U.S. 614, 617

6

protect any interest, much less a concrete interest, belonging to

a candidate in his capacity as candidate (as opposed to his

capacity as voter). See Fla. Audubon Soc’y, 94 F.3d at 658

(“According to Defenders of Wildlife, a plaintiff may have

standing to challenge the failure of an agency to abide by a

procedural requirement only if that requirement was ‘designed

to protect some threatened concrete interest’ of the plaintiff.”

(quoting Defenders of Wildlife, 504 U.S. at 573 n. 8; emphasis

added)). In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme

Court determined that the “primary purpose” of the Federal

Election Campaign Act of 1971 (FECA), which BCRA amends,

was “ ‘to limit the actuality and appearance of corruption

resulting from large individual financial contributions,’ ”

McConnell, 540 U.S. at 120 (quoting Buckley, 424 U.S. at 26),

by which “the integrity of our system of representative

democracy is undermined,” Buckley, 424 U.S. at 26-27. The

Buckley Court found, the McConnell Court noted, that FECA’s

substantive contribution limits “serve[] an interest in protecting

‘the integrity of our system of representative democracy.’ ” 540

U.S. at 120 (quoting Buckley, 424 U.S. at 26-27). Those BCRA

provisions which may be considered “procedural”—that is, the

provisions governing disclosure, recordkeeping and

reporting—“vindicate[] three important interests: providing the

electorate with relevant information about the candidates and

n.3 (1973), quoted at maj. op. 19, but to do so it must under Electric

Power and the other procedural rights cases have “designed” the

statute with the purpose to confer a right or benefit on the party

asserting the right. See also infra pp. 9-10 (discussing competitive

injury standing and need for legislative intent to confer it). This

legislative purpose standard is more stringent than the “zone of

interests” inquiry in which "there need be no indication of

congressional purpose to benefit the would-be plaintiff.” Clarke v.

Secs. Indus. Ass’n, 479 U.S. 388, 399-400 (1987) (analyzing zone of

interests to establish prudential standing).

7

their supporters; deterring actual corruption and discouraging

the use of money for improper purposes; and facilitating

enforcement of the prohibitions in the Act.” McConnell, 504

U.S. at 121 (citing Buckley, 424 U.S. at 66-68). None of these

interests accrues to candidates qua candidates. The first two

plainly benefit the general electorate; as the Court explained in

Buckley, “[a] public armed with information about a candidate’s

most generous supporters is better able to detect any post-

election special favors that may be given in return.” Buckley v.

Valeo, 424 U.S. at 67. As for the third, “recordkeeping,

reporting and disclosure requirements are an essential means of

gathering the data necessary to detect violations of the

contribution limitations,” Buckley, 424 U.S. at 67-68, thereby

serving FECA’s primary—public—interest in reducing

corruption and its appearance by limiting contributions. Thus,

BCRA’s procedural provisions were designed to protect only the

rights of voters generally to be informed about candidates and

to exercise their franchise in an electoral system untainted (or

less tainted) by corruption. They were not designed to benefit

or protect candidates running for office. Because each

congressman appellee is “claiming only harm to his and every

citizen’s interest in proper application of the Constitution and

laws, and seeking relief that no more directly and tangibly

benefits him than it does the public at large,” he “does not state

an Article III case or controversy.” Defenders of Wildlife, 504

U.S. at 573-74. In short, he has no more standing than any other

voter—which is to say none.2

To support a candidate’s standing to challenge a campaign

finance law violation under the procedural rights doctrine, the

majority cites the example in Defenders of a landowner who has

2

The majority offers no support for its bald statement that BCRA

“specifically protects the interest in fair reelection contests that Shays

and Meehan assert.” Maj. op. 19 (emphasis added).

8

a procedural right to challenge an agency’s failure to prepare an

environmental impact statement regarding a proposed dam on

land adjacent to his own. But there is a key distinction. The

landowner has a concrete, particularized claim—beyond the

general public’s—to the interest which the environmental

assessment requirements were designed to protect: his particular

corner of the environment may be adversely affected by the dam

because of its proximity. Thus, he has standing “even though he

cannot establish with any certainty that the statement will cause

the license to be withheld or altered, and even though the dam

will not be completed for many years.” Defenders of Wildlife,

504 U.S. at 573 n.7. A candidate for public office, however, has

no such special claim to the interest advanced by

BCRA—namely, preserving the integrity of our system of

government by eliminating corruption. With regard to this

interest, he is like one of those “persons who live (and propose

to live) at the other end of the country from the dam” and

therefore “have no concrete interests affected.” Defenders of

Wildlife, 504 U.S. at 573 n.7.3

Finally, to the extent that BCRA creates any procedural

protections (and I would be reluctant to characterize BCRA’s

disclosure, recordkeeping and reporting requirements as

“protections” for candidates), it is not the regulations’

procedural requirements that cause the appellees’ alleged

injuries but rather the purported relaxation of BCRA’s

substantive restrictions on contributions and expenditures. See

supra pp. 1-2 (quoting from the appellees’ declarations).

3

In this respect, the majority’s characterization of Defenders’

persons living “at the other end of the country” as “a far cry from”

from the appellees is wrong. See maj. op. 17-18. The appellees are in

the same position as any voter and have no more personal stake in

enforcing BCRA than Defenders’ remote landowner would in

enforcing environmental assessment requirements.

9

In addition to the procedural rights cases, the majority also

finds standing based on a line of cases establishing “the rule . . .

that when [a] particular statutory provision invoked [] reflect[s]

a legislative purpose to protect a competitive interest, the injured

competitor has standing to require compliance with that

provision.” Hardin v. Ky. Utils. Co., 390 U.S. 1, 6 (1968)

(citations omitted). The majority’s competitive standing theory

also suffers from three fatal defects.4

First, as I just explained, BCRA does not “reflect a legislative

purpose to protect a competitive interest” of the appellees; for

4

In the past we have consistently viewed competitor standing in the

political arena with skepticism. See Gottlieb v. FEC, 143 F.3d 618,

620 (D.C. Cir. 1998) (“As to AmeriPAC’s ‘political competitor’

theory, we have never completely resolved this ‘thorny issue.’ ”

(quoting Common Cause v. FEC, 108 F.3d 413, 419 n.1 (D.C. Cir.

1997); citing Akins v. FEC, 101 F.3d 731, 737 (D.C. Cir. 1997) (en

banc), vacated, 524 U.S. 11 (1998); Fulani v. Brady, 935 F.2d 1324

(D.C. Cir. 1991)). In Gottlieb, on which the majority relies, maj. op.

16, the court rejected the competitive standing claim of a political

action committee challenging a candidate’s receipt of federal matching

funds, citing our decision in Fulani, in which we had similarly

rejected a third party candidate’s challenge to the tax exempt status of

a presidential debate sponsor. The Gottlieb court noted that in Fulani

“[w]e speculated that ‘[a]rguably’ Fulani would have had standing ‘if

the IRS were depriving Fulani of a benefit that it afforded to others

similarly placed.’ ” 143 F.3d at 621 (quoting Fulani, 935 F.2d at

1328) (emphases added). I do not agree with the majority that the

court’s finding that the plaintiff lacked standing, particularly in light

of the quoted language, “supports applying competitive standing to

politics as well as business.” Maj. Op. 16. Even assuming, however,

that competitive injury standing is viable in the political context, the

appellees are, like the plaintiffs in Gottlieb and Fulani, “not in a

position,” Gottlieb, 143 F.3d at 620, to claim competitive standing

because, as I explain below, they have not alleged a competitive

injury.

10

the provisions the appellees seek to enforce are “in no way

concerned with protecting against competitive injury.” Hardin,

390 U.S. at 6 (explaining cases in which court found no standing

notwithstanding existence of competitive economic injury).

Second, the Commission’s regulations have not caused the

appellees a competitive injury. In Association of Data

Processing Serv. Orgs. v. Camp, 397 U.S. 150 (1970), cited at

maj. op. 14, the Supreme Court found sufficient injury-in-fact

under Article III because the petitioners experienced increased

competition for their customers as a result of the challenged

government action. 5 The Supreme Court held that the

petitioners, data processing service providers, had standing to

challenge a ruling by the Comptroller of the Currency that

authorized national banks to provide data processing services to

other banks and to bank customers because the petitioner “not

only allege[d] that competition by national banks in the business

of providing data processing services might entail some future

loss of profits for the petitioners, they also allege[d] that

respondent American National Bank & Trust Company was

performing or preparing to perform such services for two

customers for whom petitioner Data Systems, Inc., had

previously agreed or negotiated to perform such services.” 397

U.S. at 152. As the majority acknowledges, however, the

appellees have suffered no increased competition as a result of

the Commission’s regulations which “create neither more nor

different rival candidates.” Maj. op. 14. The majority also

concedes that the regulations offer no “special benefits” to the

appellees’ rivals so as to implicate the other basis for

competitive standing: creating marketplace advantage for

5

In Clarke v. Secs. Indus Ass’n, 479 U.S. 388 (1987), and National

Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479

(1998), cited along with Data Processing, maj. op. 13-14, the

Supreme Court addressed only prudential, not constitutional, standing.

See supra n. 1.

11

competitors. Id.; See, e.g., DIRECTV, Inc. v. FCC, 110 F.3d

816, 830 (D.C. Cir. 1997) (holding prospective auction bidder

had standing to challenge rule that put it at “a substantial

competitive disadvantage vis- a-vis other bidders”). As in

McConnell, because the challenged action neither confers a

competitive benefit on competing candidates nor subjects the

appellees to any competitive disadvantage, the appellees lack

Article III standing.

In McConnell, the “Adams plaintiffs” alleged their candidates

suffered a “competitive injury” from section 307 of BCRA

which increased the ceiling on certain individual contributions,

unconstitutionally in their view. As injury they alleged that

under section 307 their candidates would be at a “ ‘fundraising

disadvantage’ ” given that they “ ‘d[id] not wish to solicit or

accept large campaign contributions as permitted by BCRA’

because ‘[t]hey believe such contributions create the appearance

of unequal access and influence.’ ” 540

This text is long and has been trimmed here. Open the source document for the complete record.