# Shays v. Federal Election Commission

> District Court, District of Columbia · September 18, 2004 · 337 F. Supp. 2d 28

URL: https://www.frixlaw.com/law-library/cases/2470116

## Case

- **Full name:** Christopher SHAYS & Martin Meehan, Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant
- **Court:** District Court, District of Columbia
- **Decided:** September 18, 2004
- **Citations:** 337 F. Supp. 2d 28; 2004 U.S. Dist. LEXIS 18694; 2004 WL 2097498
- **Precedential status:** Published
- **Opinion:** Opinion by Kollar-Kotelly
- **Judges:** Kollar-Kotelly
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2470116

## How later opinions describe it (automated extraction)

- holding that the FEC violated the APA’s notice requirements in promulgating these definitions because interested parties could not reasonably have anticipated the final rule-makings from the notice of proposed rule-making
- rejecting Mourning deference because the defendant agency "provides no citation to a case that suggests that a regulation may be salvaged if it is 'reasonably related to the purposes of the enabling statute’ even if it fails Chevron step one”
- finding fault with the FEC’s failure to consider potential problems that might emerge by effectively del egating the enforcement of election law to the IRS
- declining to enjoin regulations after finding them invalid and remanding them to the FEC

## Opinion text

MEMORANDUM OPINION
KOLLAR-KOTELLY, District Judge.
On October 8, 2002, Christopher Shays (“Shays”) and Martin Meehan (“Meehan”) (collectively “Plaintiffs”), both members of the United States House of Representatives, filed the above-captioned action against the Federal Election Commission (“FEC” or “Commission” or “Defendant”).
1
Through their Complaint, Plaintiffs challenge the FEC’s regulations implementing Titles I and II of the Bipartisan Campaign Reform Act (“BCRA”). Plaintiffs contend that “[t]he FEC’s new regulations, in multiple and interrelated ways, thwart and undermine the language and congressional purposes of Titles I and II of BCRA.” Am. Compl. ¶ 6.
At the same time this case was filed,
McConnell v. Federal Election Commission
and ten related actions challenging the constitutionality of BCRA were pending before a three-judge panel of this District Court. The three-judge panel issued
*36
its decision on May 1, 2003,
see McConnell v. Federal Election Commission,
251 F.Supp.2d 176 (D.D.C.2003), and the case was immediately appealed to the United States Supreme Court. On September 29, 2003, in response to motions by the two sides in this current case advocating different methods of proceeding, the Court stayed proceedings in this case pending the Supreme Court’s decision in
McConnell v. Federal Election Commission.
The Supreme Court issued its decision on December 10, 2003, upholding almost all of Titles I and II of BCRA.
McConnell v. Federal Election Commission,
540 U.S. 93 , 124 S.Ct. 619 , 157 L.Ed.2d 491 (2003). This Court, after hearing the parties’ views, set a briefing schedule for the pending cross-motions for summary judgment.
2
On February 27, 2004, the parties filed their respective Motions for Summary Judgment. Opposition briefs were filed on March 31, 2004.
3
The Court did not require the filing of Reply briefs, and the parties did not seek leave to
file
such briefs.
After considering the parties’ briefing, the administrative record, and the relevant law, the Court shall grant-in-part and deny-in-part Plaintiffs’ Motion for Summary Judgment and grant-in-part and deny-in-part Defendant’s Motion for Summary Judgment.
I: BACKGROUND
The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h)). As such, in resolving the present summary judgment motions, this Court “assumes that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” LCvR 56.1. In this instance, as the parties cross move for summary judgment, the Court looks to each party’s statement to cull the relevant undisputed facts and to determine those facts that are conceded by the cross moving party. Having set forth these preliminaries, the Court moves to a discussion of the material facts not genuinely in dispute.
On February 13, 2002, the House of Representatives passed H.R. 2356.
*37
McConnell,
251 F.Supp.2d at 205 (per curiam). The bill was then adopted by the Senate on March 18 and 20, 2002. Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s Stmt.”) ¶ 1. President George W. Bush signed H.R. 2356 into law on March 27, 2002.
Id.
¶ 2. The Act is commonly referred to as the Bipartisan Campaign Reform Act or “BCRA.” id
4
BCRA represents the most recent amendment to the Federal Election Campaign Act of 1971 (the “Act” or “FECA”).
Id.
¶ 3.
The Federal Election Commission (“FEC” or “Commission” or “Defendant”) is the independent agency of the United States government with exclusive jurisdiction to administer, interpret and civilly enforce FECA.
Id.
¶ 4. Section 402(c)(2) of BCRA required the FEC to promulgate rules within 90 days of BCRA’s enactment to carry out the provisions found in Title I of BCRA, which added new limitations on party, candidate, and officeholder solicitations and use of nonfederal funds.
5
Id.
¶ 6. On May 20, 2002, the Commission published its Notice of Proposed Rulemaking (“NPRM”) on “Prohibited and Excessive Contributions; Non-Federal Funds or Soft Money.”
Id.;
Pis.’ Stmt, of Genuine Issues in Opp’n to Def.’s Stmt. (“Pls.’ Opp’n Stmt.”) ¶ 6. In its NPRM, the Commission solicited comments on its proposed rules, and in response received many public comments, and heard testimony on June 4 and 5, 2002. Def.’s Stmt. ¶ 7. The Commission held an open meeting on June 19, 20 and 22, 2002, and adopted its Title I regulations on June 22, 2002. Pls.’ Statement of Material Facts as to Which Plaintiffs Contend There is No Genuine Issue (“Pls.’ Stmt.”) ¶ 4. On July 16, 2002, the FEC transmitted to Congress, and on July 29, 2002, the Commission promulgated in the Federal Register, its final rules and Explanation and Justification (“E
&
J”) on “Prohibited and Excessive Contributions: Non-federal Funds or Soft Money.” Def.’s Stmt. ¶ 7. These regulations became effective on November 6, 2002. Pls.’ Stmt. ¶ 4.
Section 402(c)(1) of BCRA required the FEC to promulgate within 270 days of its enactment the remaining regulations required to carry out BCRA. Def.’s Stmt. ¶ 8. On August 7, 2002, the Commission published its NPRM for Electioneering Communications in the Federal Register, which sought comments on its proposed rules.
Id.
In response, the Commission received many comments, and it heard testimony on its proposed rules on August 28 and 29, 2002.
Id.
¶ 9. The Commission also conducted an open meeting, and on October 10, 2002, adopted the regulations. Pls.’ Stmt. ¶ 5. On October 11, 2002, the Commission transmitted to Congress, and on October 23, 2002, the Commission promulgated in the Federal Register, its final rules and E
&
J on “Electioneering Communications.” Def.’s Stmt. ¶ 9. These regulations became effective November 22, 2002. Pls.’Stmt. ¶ 5.
On August 22, 2002, the Commission published its NPRM on “Contribution Limitations and Prohibitions” in the Federal Register, which sought comments on proposed changes to the Commission’s rules related to campaign contribution limitations and prohibitions under FECA as amended by BCRA. Def.’s Stmt. ¶ 10. In response, the Commission received many comments, and on November 8, 2002, the FEC transmitted to Congress, and on No
*38
vember 19, 2002, the Commission promulgated in the Federal Register, its final rules and E & J on “Contribution Limitations and Prohibitions.”
Id.
¶ 11.
On September 24, 2002, the FEC published its NPRM on “Coordinated and Independent Expenditures” in the Federal Register, which sought comments on proposed changes to its rules relating to payments for communications that are coordinated with a candidate and independent expenditures under FECA as amended by BCRA.
Id.
¶ 12. In response, the Commission received many comments,
id.
¶ 13, and the Commission held a public hearing on its proposed rules on October 23 and 24, 2002, at which it heard testimony from various witnesses, Pis.’ Stmt. ¶ 6. After conducting an open meeting, the Commission adopted the regulations on December 5, 2002.
Id.
On December 18, 2002, the FEC transmitted to Congress, and on January 3, 2003, promulgated in the Federal Register, its final rules on “Coordinated and Independent Expenditures.” Def.’s Stmt. ¶ 13. These regulations became effective on February 3, 2003. Pls.’ Stmt. ¶ 6.
Plaintiffs are both citizens of the United States, Members of Congress, candidates, voters, recipients of campaign contributions, fundraisers, and members of political parties.
Id.
¶ 11. Plaintiff Christopher Shays is a Member of the United States House of Representatives from the Fourth Congressional District of the State of Connecticut.
Id.
¶ 7. He was first elected in 1987, was re-elected in 1992, and has been re-elected every two years thereafter and is running for re-election in November 2004.
Id.
Plaintiff Martin Meehan is a Member of the United States House of Representatives from the Fifth Congressional District of the Commonwealth of Massachusetts.
Id.
¶ 8. He was first elected to Congress in 1988, and has been reelected every two years thereafter and is running for re-election in November 2004.
Id.
Plaintiffs are subject to regulation under FECA, BCRA, and the Commission’s implementing regulations.
Id.
¶ 11.
Both Plaintiffs were principal sponsors in the House of Representatives of the legislation enacted as BCRA and spent many years seeking to promote its enactment.
Id.
¶ 9. They, along with other cosponsors of BCRA, submitted written comments on the FEC’s proposed rules implementing BCRA’s provisions.
Id.
¶ 10. The Commission did not adopt some of their views in its final rules.
Id.;
Def.’s Resps. & Objections to Pls.’ Stmt. (“Def.’s Resp. Stmt.”) ¶ 10.
6
II: DISCUSSION
A. Justiciability Arguments
Before the Court can address the merits of the pending motions, it must first resolve two justiciability issues raised by Defendant. Defendant asserts that Plaintiffs lack standing to bring their claims. Defendant also contends that Plaintiffs’ claims are not ripe for review. The Court addresses each claim in turn.
1. Standing
a. Article III Standing
As an Article III court, this Court’s judicial power extends only to “Cases” and “Controversies.”
National Treasury Employees Union v. United States,
101 F.3d 1423, 1427 (D.C.Cir.1996) (quoting U.S. Const. art. III, § 2). “In an attempt to give meaning to Article Ill’s case-or-con
*39
troversy requirement, the courts have developed a series of principles termed ‘justi-ciability doctrines,’ among which are standing[,] ripeness, mootness, and the political question doctrine.”
Id.
(citing
Allen v. Wright,
468 U.S. 737, 750 , 104 S.Ct. 3315 , 82 L.Ed.2d 556 (1984)). These doctrines incorporate both the prudential elements, which “Congress is free to override,”
id.
(quoting
Fair Employment Council of Greater Wash., Inc. v. BMC Mktg. Corp.,
28 F.3d 1268, 1278 (D.C.Cir. 1994)), and “core component^]” which are “essential and unchanging part[s] of the case-or-controversy requirement of Article III,”
id.
(quoting
Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (internal quotations omitted)).
In order to satisfy the constitutional standing requirements, the party invoking federal jurisdiction must establish that he or she has (1) suffered an injury in fact, (2) which is fairly traceable to the challenged act, and (3) is likely to be redressed by a favorable decision.
Lujan,
504 U.S. at 560-61 , 112 S.Ct. 2130 . The “injury in fact” requirement requires the plaintiff to have suffered “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”
Id.
at 560 , 112 S.Ct. 2130 (internal quotation marks and citations omitted).
Defendant attacks Plaintiffs’ standing to bring this suit, focusing on the injury prong of the analysis.
See
Def.’s Mem. in Supp. of its Mot. for Summ. J. (“Def.’s Mem.”) at 3-11. Plaintiffs contend that they do meet Article Ill’s standing requirements. In so doing, Plaintiffs rely predominantly on the three-judge
McConnell
panel’s decision finding that they had standing to intervene in that case to defend the constitutionality of BCRA. Pls.’ Mem. in Supp. of Pls.’ Mot for Summ. J. (“Pls.’ Mem.”) at 84. There, the panel found the proposed defendant-intervenors’ allegations that they were “among those whose conduct the Act regulates, and among those whom the Act seeks to insulate from the actual and apparent corrupting influence of special interest money,” that “[tjhey want to run in elections, participate in a political system, and serve in a government in which all participants comply with the ... campaign finance regulations that the Act imposes in order to stop evasion and to prevent actual and apparent corruption,” and that “[i]f any of the reforms embodied in the Act are struck down ... [the] movants will once again be forced to attempt to discharge their public responsibilities, raise money, and campaign in a system that [they believe to be] significantly corrupted by special-interest money,” to be “sufficient to support Article III standing.”
McConnell v. Federal Election Commission,
Civ. No. 02-582 slip op. at 6 (D.D.C. May 3, 2002) (Pls.’ Ex. 163)
(‘McConnell
Intervention Order”). The panel noted that “as opposed to members of the general public, the movants have a concrete, direct, and personal stake — as candidates and potential candidates — in the outcome of a constitutional challenge to a law regulating the processes by which they may attain office.”
Id.
at 7 (citing
Buchanan v. Federal Election Commission,
112 F.Supp.2d 58, 65 (D.D.C.2000);
Vote Choice Inc. v. DiStefano,
4 F.3d 26, 37 (1st Cir.1993)).
7
*40
Plaintiffs contend that just as they “had a ‘concrete and particularized’ personal interest in defending BCRA from constitutional attack, so too do they have a strong personal stake in seeking to overturn unlawful agency rules that threaten to subvert, erode, and circumvent the reforms enacted by BCRA.” Pls.’ Mem. at 84 (citation omitted);
see also
Pls.’ Mem. in Opp’n to Def.’s Mot. for Summ. J. (Pls.’ Opp’n”) at 15 (stating Plaintiffs are injured because “the challenged regulations authorize campaign finance activities that subvert, erode, and circumvent FECA and BCRA.”). They make clear that they are not seeking to vindicate a sponsorship interest in the Act; rather, much like their interest in
McConnell v. Federal Election Commission,
they claim to have a “tangible stake in the outcome of an APA challenge to rules that” allegedly “threaten to undermine federal campaign finance law, that seek to
deregulate
conduct that Congress specifically ordered to be regulated, and that would perpetuate much of the corrupt soft-money system that BCRA was intended to eradicate root and branch.”
Id.
at 85 (emphasis in original). In support of their contentions, both Shays and Meehan attest that they are subject to FECA and BCRA as candidates, voters, recipients of campaign contributions, fundraisers, and political party members. Decl. of PI. Meehan (“Meehan Decl.”) ¶ 3; Decl. of Pl. Shays (“Shays Deck”) ¶ 3. They state that in addition to being directly regulated by these laws and regulations, their “activities are also directly affected by the fact that others, including ... potential contributors and supporters, ... potential election opponents, contributors to and supporters of ... opponents, and contributors to and supporters of both political parties are subject to the same regulation under FECA, BCRA, and the Commission’s implementing rules.”
Id.
They also specifically discuss the impact of the alleged deficiencies in the regulatory regime implementing BCRA:
If 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. The FEC regulations that implement the soft-money provisions of Title I of BCRA directly affect me. If those regulations do not implement the soft-money ban, I face
*41
the strong risk that unregulated soft money contributions will again be used in an attempt to influence federal elections in which I am a candidate. The rules implementing the soft money ban also will affect the perception the public will form of me, my fellow office-holders, and fellow party members.
Likewise, the FEC regulations that implement the loophole-closing extension of the soft money provisions to the funding for certain state and local activities that affect federal elections ... will directly and personally impact me as a candidate who runs in elections that could be affected by those very state and local party activities, as well as in my capacity as a party member who might be expected to raise soft money directly or indirectly for use at the state and local party level.
The Commission’s regulations implementing the sham issue ad provisions in Title II-A of BCRA also directly affect me as a candidate. If those regulations do not faithfully implement Title II-A, I will be open to attack, during critical time periods just before 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. Similarly, I will be directly affected as a candidate by the Commission’s regulations regarding coordinated communications .... If those regulations do not faithfully implement Congressional intent, my election opponents will be able to interact and coordinate with their parties, their supporters, and interest groups in ways that evade the contribution limits, source prohibitions, and disclosure requirements of federal law. Many FECA and BCRA provisions require the disclosure of campaign finance information by covered persons and entities. If the FEC regulations do not faithfully implement these disclosure provisions, I will be deprived of information to which I am entitled under FECA and BCRA.
Id.
¶¶ 4-9.
The FEC claims that Plaintiffs have not met their burden of establishing their standing to bring this suit. The FEC contends that Plaintiffs do not challenge the regulations as they affect their own actions, but rather allege that the regulations fail “to regulate the activities of
other people
more strictly.” Def.’s Mem. at 4 (emphasis in the original). This fact, Defendant maintains, increases the burden Plaintiffs must meet to establish standing.
Id.
at 4-5. In addition, since this case is at the summary judgment stage, Defendant points out that Plaintiffs must support their standing arguments with evidence and argues that they have failed to do so. Def.’s Resp. in Supp. of its Mot. & in Opp’n to Pls.’ Mot. for Summ. J. (“Def.’s Opp’n”) at 2 & n. 2, 7-8.
Defendant is correct that at the summary judgment stage, “the plaintiff [may not] rest on ... ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for the purposes of the summary judgment motion will be taken to be true.”
Lujan,
504 U.S. at 561 , 112 S.Ct. 2130 (quoting Fed. R.Civ.P. 56(e));
see also id.
at 567, 112 S.Ct. 2130 (noting that at the summary judgment stage the standing inquiry demands “a factual showing of perceptible harm.”).
As noted
supra,
Plaintiffs argue that the
McConnell
panel’s decision finding that they had standing to defend the constitutionality of BCRA is instructive here. The
McConnell
panel found that the interve-nors had a “direct, and personal stake — as candidates and potential candidates — in
*42
the outcome of a constitutional challenge to a law regulating the processes by which they may attain office.”
McConnell
Intervention Order at 7. The Court finds that the present case implicates the same interest. Just as Plaintiffs would have been affected — adversely in their view — from the striking down of BCRA on constitutional grounds, so are they affected by the regulations they claim improperly implement BCRA and “regulat[e] the processes by which they may attain office.”
Id.
This finding, however, does not end the Court’s inquiry, as Defendant notes that the
McConnell
panel’s decision was made at the pleading stage and not revisited, whereas here the Court is faced with a standing challenge at the summary judgment stage.
As noted
supra,
Plaintiffs support their injury claims with declarations. These sworn statements appear to be the only factual basis presented in support of Plaintiffs’ claim that they have standing. It is clear from these submissions that Plaintiffs are or will be affected by the campaign finance regime established by the current regulations. They claim that their campaign activities are affected by other participants in the political process who are subject to the same rules, and that the current regulations — by being, in then-view, unfaithful to the terms of BCRA— force them to raise money in a system that is perceived to be and in their view is “corrupted by the influence of special-interest money.” Meehan Decl. ¶¶ 3-4; Shays Decl. ¶¶ 3-4. Defendant dismisses the sufficiency of these statements, arguing that Plaintiffs
have presented no facts suggesting that any identifiable party has any plans to engage in any of the activities they think should be prohibited in connection with their own election campaigns, and they have not offered any factual basis for thinking any such activities by third parties that may materialize are more likely to oppose than to support their own reelection chances.
Def.’s Opp’n at 2. The Commission also cites, to substantive areas of Plaintiffs’ opening brief where they complain of loopholes and provisions unfaithful to BCRA and contends that these arguments are not supported by any evidence that entities are actually engaging in the actions to which Plaintiffs object.
Id.
at 2-3. The FEC states that “[i]n the absence of any factual showing that the activities [Plaintiffs] think should be prohibited are going to be used to help defeat them in them own elections, plaintiffs have failed to satisfy their threshold burden to demonstrate ‘concrete’ harm to themselves that is ‘actual or imminent.’ ”
Id.
at 4 (quoting
McConnell,
124 S.Ct. at 707 ).
The Court finds that Defendant’s attacks on Plaintiffs’ factual support for the injury-in-fact prong miss the point of Plaintiffs’ alleged harm. Plaintiffs are undisputedly participants in the federal campaign finance system. They attest that their activities are affected not only by the manner in which they respond to the campaign finance rules, but also by the way in which other participants, both allies and adversaries, respond to the rules. Meehan Decl. ¶¶ 3-4; Shays Decl. ¶¶ 3-4. Whether or not they have alleged that some entity has in fact taken advantage of an alleged FEC-created loophole in BCRA, the fact that such a loophole exists affects the way these politicians, who face election in a matter of months, will run their campaigns. If the FEC has promulgated regulations unfaithful to BCRA, then Plaintiffs are at the very least harmed by having to anticipate other actors taking advantage of the regulations to engage in activities that otherwise would
*43
be barred.
8
The First Circuit has recognized that “an impact on the strategy and conduct of an office-seeker’s political campaign constitutes an injury of a kind sufficient to confer standing.”
Becker v. Federal Election Commission,
230 F.3d 381, 386 (1st Cir.2000) (quoting
Vote Choice, Inc. v. DiStefano,
4 F.3d 26, 37 (1st Cir. 1993)). In fact, the First Circuit has held such an injury to exist even when the change in strategy is speculative, and the planned-for circumstance fails to materialize.
Vote Choice, Inc., 4
F.3d at 31, 37;
see also Becker,
230 F.3d at 387 (“We similarly granted credence in
Vote Choice
to plaintiff Leonard’s claim that she had to adjust her campaign to account for the possibility of facing a publicly funded opponent, even though in the end that possibility did not materialize.”).
9
The First Circuit has also found it improper “to second-guess a candidate’s reasonable assessment of his own campaign.”
Becker,
230 F.3d at 387 .
10
Therefore, contrary to De
*44
fendant’s assertion, the current case does not represent a situation “when the plaintiff is not himself the object of the government action or inaction he challenges,” in which case “standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish,”
Lujan,
504 U.S. at 562 , 112 S.Ct. 2130 . Rather, Plaintiffs are directly regulated by the rules they challenge in that the regulations shape the environment in which Plaintiffs must operate.
Defendant maintains that this conclusion is foreclosed by the Supreme Court and the three judge panel’s decisions in
McConnell v. Federal Election Commission.
Def.’s Mem. at 8-10; Def.’s Opp’n at 4-5. The Commission notes that the Supreme Court determined that Senator Mitch McConnell lacked standing to challenge Section 305 of BCRA. Def.’s Opp’n at 4-5 (“After all, Senator McConnell is, like plaintiffs, an officeholder and candidate whose activities in those roles are subject to the campaign finance statutes, but he lacked standing to litigate over BCRA § 305 because he could not show that then provision would cause
him
any direct personal injury that was imminent.”) (emphasis in original) (citing
McConnell,
124 S.Ct. at 707-08 , 124 S.Ct. 619 ). A review of the
McConnell
opinion, however, shows that the Supreme Court’s decision that Senator McConnell lacked standing to challenge the provision was based on the fact that Senator McConnell could not be affected by the challenged provision until “45 days before the Republican primary election in 2008.”
McConnell,
124 S.Ct. at 708 , 124 S.Ct. 619 . This fact led the Supreme Court to conclude that Senator McConnell’s “alleged injury in fact is too remote temporally to satisfy
Article III
standing.”
Id.
(emphasis in original). By contrast, Plaintiffs here are in the midst of general election contests. Accordingly, the Court finds that the Supreme Court’s decision on Senator McConnell’s standing to challenge Section 305 of BCRA does not control the present inquiry.
The FEC argues that the Supreme Court’s determination that another group of
McConnell
plaintiffs lacked standing also forecloses finding that Plaintiffs have standing in the present suit. Def.’s Opp’n at 5 (“Similarly, the Adams plaintiffs, who were candidates, lacked standing to litigate the validity of BCRA’s new contribution limits that would govern their own election campaigns and those of their opponents because they were unable to show that they suffered a personal injury from that provision, regardless of their general ‘stake’ in the electoral system as eandi-
*45
dates.”)- The Adams plaintiffs
11
challenged the constitutionality of Section 307 of BCRA, which raised FECA’s contribution limits.
McConnell,
124 S.Ct. at 708 . In attempting to establish their Article III standing, the Adams plaintiffs argued that increases in “hard money” contribution limits “deprivefd] them of an equal ability to participate in the election process based on their economic status.”
Id.
The Supreme Court determined that since its precedent holds that “political ‘free trade’ does not necessarily require that all who participate in the political marketplace do so with exactly equal resources,” the Adams plaintiffs’ alleged injury of “a curtailment of the scope of their participation in the electoral process” did not constitute an injury “to a legally cognizable right.”
Id.
at 708-09 (quoting
Federal Election Commission v. Massachusetts Citizens for Life, Inc.,
479 U.S. 238, 257 , 107 S.Ct. 616 , 93 L.Ed.2d 539 (1986)). Here Plaintiffs contend that they are harmed by the FEC’s regulations’ failure to faithfully adhere to the terms Congress mandated in BCRA. Accordingly the rights they seek to vindicate — in essence, to campaign in a regime that reflects Congress’s mandate as articulated in BCRA — are legally cognizable.
12
The FEC also argues that Plaintiffs have the burden of establishing “that they will suffer a personal injury in fact from
each
of the regulations they challenge here; demonstrating such an injury from one regulation would not suffice to establish their standing to contest any other regulations.” Def.’s Mem. at 6 (emphasis in original). This implicates the second prong of the standing inquiry, causation. Plaintiffs do not contest Defendant’s articulation of the state of the law; rather, they note that the Supreme Court has recognized that BCRA and the changes it made
*46
to FECA, created a “delicate and interconnected regulatory scheme.” Pls.’ Opp’n at 8 (quoting
McConnell,
124 S.Ct. at 677 ). While this is true,
13
the Court does not find this fact to be dispositive. It is correct, as Defendants have noted, that Article III “standing requires an injury with a nexus to the substantive character of the statute or regulation at issue.”
Diamond v. Charles,
476 U.S. 54, 70 , 106 S.Ct. 1697 , 90 L.Ed.2d 48 (1986). The harm that Plaintiffs have alleged, having to adjust their campaigns to account for activities that they maintain should be banned but are permitted by the regulations, is connected to all of the regulations they challenge. The Court therefore finds that Plaintiffs’ harm is “fairly traceable to the challenged” regulations, and they have established the causation prong of the standing inquiry.
In terms of the redressability prong, Defendant does not argue that Plaintiffs have failed to meet this standing requirement. Plaintiffs maintain that their injury “plainly would be redressed by a judicial decree plugging the loopholes and ordering that the rules be corrected to comply with the statute.” Pis.’ Opp’n at 15-16. Although the Court disagrees with the appropriateness of the relief Plaintiffs request,
see infra
at 129, the Court agrees that favorable rulings for Plaintiffs will result in changes to the regulations they challenge that the Court finds to be improper. Therefore, the Court finds that Plaintiffs have satisfied the redressability prong of the standing analysis.
Accordingly, the Court is satisfied that Plaintiffs have alleged, and supported with evidence, a concrete and actual harm constituting an injury in fact for purposes of the Article III standing inquiry, that this harm is connected to the contested regulations and would be redressed by a favorable decision by this Court.
b. Prudential Standing
Plaintiffs note that Defendant does not argue that they fail to meet the prudential standing requirement found in Section 10(a) of the APA. Pls.’ Opp’n at 3. The provision provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702 . The Supreme Court has interpreted this provision “to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury-in-fact.”
Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co.,
522 U.S. 479, 488 , 118 S.Ct. 927 , 140 L.Ed.2d 1 (1998). To establish prudential standing under the APA, “the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute ... in question.”
Id.
(quoting
Association of Data Processing Serv. Organizations, Inc. v. Camp,
397 U.S. 150, 153 , 90 S.Ct. 827 , 25 L.Ed.2d 184 (1970));
see also Amgen, Inc. v. Smith,
357 F.3d 103, 108 (D.C.Cir. 2004).
[I]n applying the “zone of interests” test, [a court does] not ask whether, in enacting the statutory provision at issue,
*47
Congress specifically intended to benefit the plaintiff. Instead, [the court] first discernís] the interests “arguably ... to be protected” by the statutory provision at issue; [the court] then inquire[s] whether the plaintiffs interests affected by the agency action in question are among them.
Nat’l Credit Union Admin., 522
U.S. at 492, 118 S.Ct. 927 . The “zone of interests” test “is not meant to be especially demanding.”
Amgen, Inc., 357
F.3d at 108 (quoting
Clarke v. Securities Indus. Ass’n,
479 U.S. 388, 396-97 , 107 S.Ct. 750 , 93 L.Ed.2d 757 (1987)).
Plaintiffs contend that they “are directly regulated by FECA and BCRA, and fall within several of the classes intended to be protected — they are elected officials, candidates, fundraisers, party members, and voters.” Pls.’ Opp’n at 3-4; Pls.’ Mem. at 87 n. 146.
14
Since it strikes the Court as self-evident that Plaintiffs meet the “zone of interests” test, and given that Defendant has not responded to Plaintiffs’ argument on the matter,
see
Def.’s Opp’n at 2-8, the Court finds that Plaintiffs meet the APA’s prudential standing requirement.
2. Ripeness
Defendant also contends that Plaintiffs’ claims are not ripe for review. Def.’s Mem. at 11. A Court may not entertain a suit that is not ripe for review. The basic rationale behind the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”
Abbott Labs. v. Gardner,
387 U.S. 136, 148-49 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967),
overruled on other grounds, Califano v. Sanders,
430 U.S. 99 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977). The Supreme Court has cautioned against premature litigation over regulatory actions:
Under the terms of the APA, respondent must direct its attack against some particular “agency action” that causes it harm. Some statutes permit broad regulations to serve as the “agency action,” and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action “ripe” for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant’s situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is “ripe” for review at once, whether or not explicit
*48
statutory review apart from the APA is provided.
See Abbott Laboratories v. Gardner,
387 U.S. 136, 152-154 , 87 S.Ct. 1507, 1517-1518 , 18 L.Ed.2d 681 (1967);
Gardner v. Toilet Goods Ass’n, Inc.,
387 U.S. 167, 171-173 , 87 S.Ct. 1526, 1528-1530 , 18 L.Ed.2d 704 (1967).
Cf. Toilet Goods Assn., Inc. v. Gardner,
387 U.S. 158, 164-166 , 87 S.Ct. 1520, 1524-1526 , 18 L.Ed.2d 697 (1967).)
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 891 , 110 S.Ct. 3177 , 111 L.Ed.2d 695 (1990).
15
Therefore, Plaintiffs’ suit is of a type “ordinarily” considered unripe for review. However, a court may find such challenges ripe for review after evaluating “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.”
Nat’l Park Hospitality Ass’n v. Dep’t of the Interior,
538 U.S. 803 , 123 S.Ct. 2026, 2030 , 155 L.Ed.2d 1017 (2003)
(“NPHA
”) (citing
Abbott Labs.,
387 U.S. at 149, 87 S.Ct. 1507 ). This Circuit has characterized the ripeness inquiry as a balancing test, where the court “balance[s] the petitioner’s 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. Federal Communications Commission,
349 F.3d 692, 699 (D.C.Cir.2003) (quoting
City of Houston v. Dep’t of Housing & Urban Dev.,
24 F.3d 1421, 1430 (D.C.Cir. 1994)) (internal quotation marks omitted). Therefore, under
AT&T’s
guidance, the fitness for review prong actually consists of two considerations: (1) “whether the disputed claims [are] presumptively suitable for judicial review;” and (2) “whether the court or the agency would benefit from postponing review until the policy in question has sufficiently crystallized by taking a more definite form.”
Id.
at 699-700 (internal quotation marks and citations omitted).
The Court considers the “fitness for review” and “hardship” prongs in turn.
a. Fitness for Review
“Among other things, the fitness of an issue for judicial decision depends on whether it is ‘purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency’s action is sufficiently final.’ ”
Atlantic States Legal Found, v. Environmental Protection Agency,
325 F.3d 281, 284 (D.C.Cir.2003) (quoting
Clean Air Implementation Project v. Environmental Protection Agency,
150 F.3d 1200, 1204 (D.C.Cir.1998)). “Claims that an agency’s action is arbitrary and capricious or contrary to law present purely legal issues. But even purely legal issues may be unfit for review.”
Id.
(citation omitted);
see also NPHA
123 S.Ct. at 2032 (finding issue unfit for review, even though the issue was “a purely legal one” and “constitute[d] ‘final agency action’ within the meaning of § 10 of the APA”).
Plaintiffs contend that their challenge is ripe for review. Pls.’ Mem. at 87. They note that “the BCRA rules clearly constitute ‘final agency action’ within the meaning of 5 U.S.C. § 704 , and have the force and effect of law.”
Id.
Moreover, they contend that “the issues in this facial challenge involve purely legal questions of statutory construction and compliance with the APA.”
Id.
Defendant does not dispute
*49
these assertions. Def.’s Opp’n at 9.
16
Nor does the Commission suggest any institutional considerations weighing against review at this time. Rather, the Commission contends that this action involves purely legal issues that are not ripe for review because “plaintiffs’ arguments are grounded largely on their own speculation about how the Commission would construe and apply the general language of the regulations in specific factual circumstances.... They ask this Court to review the legality of possible constructions of the regulations that the Commission itself has not adopted.”
Id.
at 11 . This, the FEC contends, demonstrates that the Court needs to wait to see how the rules will be applied in order to know what their effects truly are.
Id.
The Court has reviewed Plaintiffs’ challenges and finds that none of them rely on speculation as to how the regulations will be applied.
17
Plaintiffs’ challenges are limited to arguments claiming that the FEC has not followed Congress’s instructions in promulgating the regulations implementing BCRA. As these challenges are purely legal, and the Court observes no judicial or agency considerations warranting delay in reviewing the regulations, Plaintiffs have satisfied the “fitness for review” prong of the ripeness analysis.
b. Hardship to the Plaintiffs of Withholding Court Consideration
Plaintiffs contend that since this case presents purely legal issues, this Court need not decide the hardship prong of the
Abbott Laboratories
test. Pls.’ Mem. at 89 n. 149. In this Circuit, “[t]he ‘hardship’ prong of the
Abbott Laboratories
test is not an independent requirement divorced from the consideration of the institutional interests of the court and agency. Thus, where there are no institutional interests favoring postponement of review, a petitioner need not satisfy the hardship prong.”
AT&T Corp.,
349 F.3d at 700 (citation omitted).
18
Defendant at
*50
tempts to distinguish this precedent from the case at bar, noting that
AT&T
was a case brought pursuant to the “specific statutory authorization of pre-enforcement review” of the Federal Communications Act. Def.’s Opp’n at 9-10 n. 13. Defendant then cursorily surmises that “when review is sought under the APA, the hardship test is the first and most important factor.”
Id.
at 10 n. 13. In support of this latter argument, Defendant cites to
NPHA,
a case brought pursuant to the APA, where the Supreme Court in making its ripeness determination, began by examining “the hardship inquiry.”
NPHA
123 S.Ct. at 2030 . The Court finds both of these arguments lack merit.
First, nowhere in
NPHA
does the Supreme Court state that “the hardship test is the first and most important factor,” and the Court does not impute that principle from the fact that the
NPHA
Court elected to take the
Abbott Laboratories
factors out of turn.
See id.
Second, there is nothing in
AT&T
or any other case the Court has reviewed that suggests that its holding is limited to challenges to regulations brought under statutes authorizing pre-enforcement review, rather than those brought pursuant to the APA, and Defendant has not cited to one.
See, e.g., AT&T,
349 F.3d at 700 . It is clear that the
Abbott Laboratories
test applies to cases brought pursuant to the APA as the test itself was first applied in a case brought under the APA.
Abbott Labs.,
387 U.S. at 148, 153, 87 S.Ct. 1507 . Moreover, this Circuit has dispensed with the hardship prong in a case brought under the APA where it found the legal issues were fit for review.
Air Transport Ass’n of America v. Dep’t of Transp.,
900 F.2d 369 , 374 (D.C.Cir.1990),
judgment vacated on other grounds,
498 U.S. 1077 , 111 S.Ct. 944 , 112 L.Ed.2d 1033 (1991),
vacated by
933 F.2d 1043 (D.C.Cir. 1991).
19
Accordingly, the Court finds that under this Circuit’s precedent, once a plaintiff has established that no institutional considerations caution in favor of postponing review, the Court need not address the “hardship” prong of the ripeness analysis.
20
The Court therefore finds that Plaintiffs’ suit is ripe for review.
*51
B. Legal Standards
1. Summary Judgment
Summary judgment is appropriate only if the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
See Tao v. Freeh,
27 F.3d 635, 638 (D.C.Cir.1994); Fed.R.Civ.P. 56(c). In ruling upon a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986);
Bayer v. United States Dep’t of Treasury,
956 F.2d 330, 333 (D.C.Cir.1992). Similarly, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.
See Rhoads v. McFerran,
517 F.2d 66, 67 (2d Cir.1975);
Long v. Gaines,
167 F.Supp.2d 75, 85 (D.D.C.2001). Each moving party discharges its burden to support its motion by “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett,
477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).
2. Standards for Administrative Agency Review
Plaintiffs’ central challenge to the FEC’s regulations is that they are contrary to the statutory instructions given by Congress when it enacted BCRA. The standard for the Court’s review of such challenges is known as
Chevron
review, after the Supreme Court’s decision in
Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). The central question for the reviewing court under
Chevron
“is whether the agency’s construction of the statute is faithful to its plain meaning, or, if the statute has no plain meaning, whether the agency’s interpretation ‘is based on a permissible construction of the statute.’ ”
Arent v. Shalala,
70 F.3d 610, 615 (D.C.Cir.1995) (quoting
Chevron,
467 U.S. at 843 , 104 S.Ct. 2778 ). Under the
Chevron
analysis, a court first asks “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”
Chevron,
467 U.S. at 842-43 , 104 S.Ct. 2778 ;
see also id.
at 843 n. 9, 104 S.Ct. 2778 (“[A]d-ministrative constructions which are contrary to clear congressional intent” must be rejected by the court). “When performing this first step, [courts] employ traditional tools of statutory construction.”
Independent Ins. Agents of Am., Inc. v. Hawke,
211 F.3d 638, 643 (D.C.Cir.2000) (citing
Chevron,
467 U.S. at 842-43 , 104 S.Ct. 2778 ;
INS v. Cardoza-Fonseca,
480 U.S. 421, 446 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987)). Among these tools is a statute’s legislative history.
See American Fed’n of Labor & Congress of Indus. Orgs. v. Federal Election Commission,
333 F.3d 168, 172 (D.C.Cir.2003)
(“AFL-CIO
”);
American Bankers Ass’n v. Nat’l Credit Union Admin.,
38 F.Supp.2d 114, 134 (D.D.C.1999);
see also Natural Res. Def. Council v. Browner,
57 F.3d 1122, 1127 (D.C.Cir.1995) (“Reference to statutory design and pertinent legislative history may often shed new light on congressional intent, notwithstanding statutory language that appears ‘superficially clear.’ ”) (quot
*52
ing
American Scholastic TV Programming Found, v. Federal Communications Commission,
46 F.3d 1173 , 1178 (D.C.Cir. 1995)). However, canons of construction are only to be used during step one of the
Chevron
analysis to determine if “Congress had a
specific
intent on the issue in question.”
Mich. Citizens for an Indep. Press v. Thornburgh,
868 F.2d 1285, 1292-93 (D.C.Cir.1989) (emphasis in original). In conducting this stage of the
Chevron
analysis, the Court “giv[es] no deference to the agency’s interpretation.”
AFL-CIO,
333 F.3d at 173 .
If the court finds that “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Chevron,
467 U.S. at 843 , 104 S.Ct. 2778 . “A statute is considered ambiguous if it can be read more than one way.”
AFL-CIO,
333 F.3d at 173 . “The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.”
Chevron,
467 U.S. at 843 n. 11, 104 S.Ct. 2778 . Therefore
[w]hen a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: “Our Constitution vests such responsibilities in the political branches.”
Id.
at 866 , 104 S.Ct. 2778 (quoting
TVA v. Hill,
437 U.S. 153, 195 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978)). However, “[i]f the FEC’s interpretation unduly compromises the Act’s purposes, it is not a ‘reasonable accommodation’ under the Act, and it would therefore not be entitled to deference.”
Orloski v. Federal Election Commission,
795 F.2d 156, 164 (D.C.Cir.1986) (quoting
Chevron,
467 U.S. at 845 , 104 S.Ct. 2778 );
see also Chevron,
467 U.S. at 845 , 104 S.Ct. 2778 (providing that if the agency’s “choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”) (quoting
United States v. Shimer,
367 U.S. 374, 382 , 81 S.Ct. 1554 , 6 L.Ed.2d 908 (1961));
Common Cause v. Federal Election Commission,
692 F.Supp. 1391, 1396 (D.D.C.1987) (“[W]here the agency interprets its statute in a way that flatly contradicts Congress’s express purpose, the court may — indeed must — intervene and correct the agency.”).
21
*53
In addition to their
Chevron
challenge, Plaintiffs also claim that the Commission, in promulgating the challenged regulations, failed to engage in the “reasoned analysis” required in order for a regulation not to be rendered “arbitrary and capricious.” The Administrative Procedure Act (“APA”) provides that “[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 (2)(A).
The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the 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. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an expla
*54
nation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: We may not supply a reasoned basis for the agency’s action that the agency itself has not given. We will, however, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.
Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mutual Auto. Ins. Co.,
463 U.S. 29, 43 , 103 S.Ct. 2856 , 77 L.Ed.2d 443 (1983) (internal citations and quotation marks omitted);
see also Cellco P’ship v. Federal Communications Commission,
357 F.3d 88 , 93-94 (D.C.Cir.2004) (noting “arbitrary and capricious” review is “highly deferential ... presuming] the validity of agency action ... [which] must [be] affirm[ed] unless the Commission failed to consider relevant factors or made a clear error in judgment.”). The “reasoned analysis” requirement is “not ‘particularly demanding,’ ” and “is satisfied if the agency ‘enables us to see what major issues of policy were ventilated and why the agency reacted to them as it did.’ ”
Republican Nat’l Comm. v. Federal Election Commission,
76 F.3d 400, 407 (D.C.Cir.1996),
cert. denied,
519 U.S. 1055 , 117 S.Ct. 682 , 136 L.Ed.2d 607 (1997) (quoting
Public Citizen, Inc. v. Federal Aviation Admin.,
988 F.2d 186, 197 (D.C.Cir.1993) (internal punctuation omitted)). Moreover, the Court “must affirm if a rational basis for the agency’s decision exists.”
Appeal of Bolden,
848 F.2d 201, 205 (D.C.Cir.1988). The degree of deference a court should pay an agency’s construction is, however, affected by “the thoroughness, validity, and consistency of an agency’s reasoning.”
Federal Election Commission v. Democratic Senatorial Campaign Comm.,
454 U.S. 27, 37 , 102 S.Ct. 38 , 70 L.Ed.2d 23 (1981). Moreover, this Circuit has noted that “a permissible statutory construction under
Chevron
is not always reasonable under
State Farm:
‘we might determine that although
not
barred by statute, an agency’s action is arbitrary and capricious because the agency has not considered certain relevant factors or articulated any rationale for its choice.’ ”
Republican Nat’l Comm.,
76 F.3d at 407 (quoting
Arent v. Shalala,
70 F.3d 610, 620 (D.C.Cir.1995) (Wald, J., concurring in the judgment)).
Finally, since Plaintiffs are mounting a facial challenge to the FEC’s regulations, to prevail they “must establish that no set of circumstances exists under which the regulation would be valid.”
Reno v. Flores,
507 U.S. 292, 301 , 113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993);
see also Amfac Resorts, L.L.C. v. United States Dep’t of the Interior,
282 F.3d 818, 826-28 (D.C.Cir. 2002) (acknowledging the
Reno
holding, but noting potential problems in its application),
vacated, sub nom. National Park Hospitality Ass’n v. Dep’t of Interior,
538 U.S. 803 , 123 S.Ct. 2026 , 155 L.Ed.2d 1017 (2003);
but cf. Mineral Policy Ctr. v. Norton,
292 F.Supp.2d 30, 39 (D.D.C.2003) (Kennedy, J.) (noting confusion in the wake of the
Reno
decision).
C. Challenged Regulations
The Court now turns to the merits of this case. Plaintiffs have challenged numerous regulations promulgated by the FEC pursuant to Congress’s enactment of BCRA. The Court addresses each in turn.
22
*55
1. Regulations Governing Coordinated Communications
In the modern era of campaign finance, Congress and the courts have acknowledged the distinction between those expenditures that are independent and those that are made in coordination with a campaign.
McConnell,
124 S.Ct. at 704 (“Ever since our decision in
Buckley,
it has been settled that expenditures by a noncandidate that are ‘controlled by or coordinated with the candidate and his campaign’ may be treated as indirect contributions subject to FECA’s source and amount limitations.”) (quoting
Buckley,
424 U.S. at 46, 96 S.Ct. 612 ). Those expenditures
23
that are made in coordination .with certain political entities and candidates for federal office
24
are deemed to be “contributions” under campaign finance law.
See
2 U.S.C. § 441a(a)(7)(B)(i) (“[Expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”);
Buckley v. Valeo,
424 U.S. 1, 46-47 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976) (noting that “coordinated expenditures are treated as contributions rather than expenditures under [FECA], [FECA’s] contribution ceilings rather than [its] independent expenditure limitation prevent attempts to circumvent [FECA] through prearranged or coordinated expenditures amounting to disguised contributions.”). While conceptually cogent, this formulation created practical concerns for courts forced to determine the line that separates an independent expenditure from a coordinated one, especially when the expenditure in question is an expressive one that implicates First Amendment considerations.
See McConnell,
251 F.Supp.2d at 255-57 (per curiam) (discussing
Federal Election Commission v. Christian Coalition,
52 F.Supp.2d 45 (D.D.C.1999)
& Federal Election Commission v. Colo. Republican Fed. Campaign Comm.,
533 U.S. 431 , 121 S.Ct. 2351 , 150 L.Ed.2d 461 (2001)).
Prior to the passage of BCRA, the then-existing regulation on coordinated communications “placed significant weight on whether a communication had resulted from a ‘substantial discussion or negotiation ... the result of which is collaboration or agreement’ between the candidate and outside spender_” Pls.’ Mem. at 8 n. 15 (quoting 11 C.F.R. § 100.23 (c)(2)(iii) (2001)
(repealed)).
25
Section 214 of BCRA re
*56
pealed this regulation and instructed the FEC to
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. In addition to any subject determined by the Commission, the regulations shall address—
(1) payments for the republication of campaign materials;
(2) payments for the use of a common vendor;
(3) payments for communications directed or made by persons who previously served as an employee of a candidate or a political party; and
(4) payments for communications made by a person after substantial discussion about the communication with a candidate or a political party.
2 U.S.C. § 441a note; BCRA § 214(b)-(c). On January 3, 2003, the FEC issued its Final Rules on coordinated communications in response to BCRA, which included a repeal of 11 C.F.R. § 100.23 . Coordinated & Independent Expenditures, 68 Fed. Reg. 421 (Jan. 3, 2003). Plaintiffs challenge three aspects of these regulations. The Court addresses each in turn.
a.
Content Standards
The FEC explains that under its new regulations,
[a] communication is coordinated with a candidate, an authorized committee, a political party committee, or an agent of any of the foregoing when the communication:
(1) Is paid for by a person other than that candidate, authorized committee, political party committee, or agent of any of the foregoing;
(2) Satisfies at least one of the content standards in paragraph (c) of this section; and
(3) Satisfies at least one of the conduct standards in paragraph (d) of this section.
Coordinated & Independent Expenditures, 68 Fed.Reg. at 453. Plaintiffs argue that the content standards promulgated by the FEC for coordinated communications should be invalidated. The content standards are as follows:
(c) Content standards. Each of the types of content described in paragraphs (c)(1) through (c)(4) satisfies the content standard of this section.
*57
(1) A communication that is an electioneering communication under 11 CFR 100.29.
(2) A public communication that disseminates, distributes, or republishes, in whole or in part, campaign materials prepared by a candidate, the candidate’s authorized committee, or an agent of any of the foregoing ....
(3) A public communication that expressly advocates the election or defeat of a clearly identified candidate for Federal office.
(4) A communication that is a public communication, as defined in 11 CFR 100.26, and about which each of the following statements in paragraphs (e)(4)(i), (ii), and (iii) of this section are true.
(i) The communication refers to a political party or to a clearly identified candidate for Federal office;
(ii) The public communication is publicly distributed or otherwise publicly disseminated 120 days or fewer before a general, special, or runoff election, or 120 days or fewer before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate; and
(iii)The public communication is directed to voters in the jurisdiction of the clearly identified candidate or to voters in a jurisdiction in which one or more candidates of the political party appear on the ballot.
11 C.F.R. § 109.21 (c)(1)-(4). Plaintiffs object to the fact that under this regulation, unless the communication constitutes “express advocacy”
26
or is a republication of a candidate’s own materials, the regulation only bars coordinated communications within 120 days of an election, primary or convention.
27
Pis.’ Mem. at 10. They contend that
under the plain language of the new rules, a candidate will now be able to
*58
help create an advertisement touting his virtues or attacking his opponent’s, and then persuade a corporation or union to sponsor it using treasury funds, so long as the advertisement is run more than 120 days before any primary, convention, or general election and avoids any “express advocacy” or republication of campaign materials.
Id.
at 10-11 . Furthermore, Plaintiffs note that under the regulations, if the coordinated communication does not refer to a candidate or political party by name then the communication may be broadcast at any time.
Id.
at 12 . Defendant does not dispute Plaintiffs’ reading of its regulations.
See
Def.’s Opp’n at 53-58;
see also
Def.’s Mem. at 79 (“[DJuring the last 120 days before an election, a communication that is not a republication of a candidate’s own campaign materials will not be treated as a ‘coordinated expenditure’ if it does not at least mention a candidate or political party.”). In fact, in its publication of the rule, the Commission noted that “[i]n effect, the content standard of paragraph (c)(4)(ii) operates as a ‘safe harbor’ in that communications that are publicly disseminated or distributed more than 120 days before the primary or general election will not be deemed to be ‘coordinated’ under this particular content standard
under any circumstances.”
Coordinated & Independent Expenditures, 68 Fed.Reg. at 430 n. 2 (emphasis added). However, the Commission does contend that the universe of permissible coordinated communications under the rule is narrower than Plaintiffs suggest. Def.’s Opp’n at 57. It points out that “express advocacy”
28
and “the dissemination of a candidate’s own campaign materials,” are barred year-round.
Id.
at 58 . The Commission also notes that the 120-day window applies to numerous political events which occur at different time periods, and that “these multiple 120-day windows will usually include a majority of the days in even-numbered years preceding the November election.”
Id.
29
Applying the
Chevron
analysis, the Court first inquires as to whether or not “Congress has directly spoken on the precise question at issue.”
Chevron
467 U.S. at 842 , 104 S.Ct. 2778 . The Court does so “using traditional tools of statutory construction and legislative history.”
AFL-CIO,
333 F.3d at 172 . Plaintiffs contend that the fact that Congress included a 120-day window in a separate provision of BCRA
30
suggests, “[u]nder the canon
ex-
*59
pressio unius est exclusio alterius
” that Congress “intended for no temporal restrictions to apply to provisions it did not similarly limit.” Pls.’ Mem. at 14. Defendant rejects this conclusion, arguing that “under
Chevron
the ‘contrast between Congress’s mandate in one context with its silence in another suggests not a prohibition but simply a decision
not to mandate
any solution in the second context, ie., to leave the question to agency discretion.’ ” Def.’s Opp’n at 23 (quoting
Amax Land Co. v. Quarterman,
181 F.3d 1356, 1365 (D.C.Cir.1999) (omitting citations) (emphasis in original)). Indeed, this Circuit has noted the academic criticism of the canon, and has held that
[wjhatever its general force, we think it an especially feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved. Here the contrast between Congress’s mandate in one context with its silence in another suggests not a prohibition but simply a decision
not to mandate
any solution in the second context,
ie.,
to leave the question to agency discretion. Such a contrast (standing alone) can rarely if ever be the “direct[ ]” congressional answer required by
Chevron .
Cheney R.R. Co. v. Interstate Commerce Comm’n,
902 F.2d 66, 69 (D.C.Cir.1990) (emphasis in original). However, this general rule is not without its exceptions. As Plaintiffs point out, this Circuit recently found an agency regulation to be contrary to Congress’s express intent relying in part on the canon of
expressio unius est exclusio alterius.
Pls.’ Mem. at 14 n. 24. In
Independent Insurance Agents of America v. Hawke,
the D.C. Circuit acknowledged that it had “rejected the canon in some administrative law cases, but only where the logic of the maxim — that the special mention of one thing indicates an intent for another thing not be included elsewhere — did not hold up in the statutory context.” 211 F.3d 638 , 644 (D.C.Cir. 2000) (citing
Texas Rural Legal Aid, Inc. v. Legal Servs. Corp.,
940 F.2d 685, 694 (D.C.Cir.1991);
Clinchfield Coal Co. v. FMSHRC,
895 F.2d 773, 779 (D.C.Cir. 1990);
Cheney R.R. Co.,
902 F.2d at 68-69 ). The
Hawke
court noted further that “if there are other reasonable explanations for an omission in a statute,
expressio uni-us
may not be a useful tool.”
Id.
“But, where the context shows that the ‘draftsmen’s mention of one thing, like a grant of authority, does really necessarily, or at least reasonably, imply the preclusion of alternatives,’ the canon is a useful aid.”
Id.
(quoting
Shook v. District of Columbia Fin. Responsibility & Mgmt. Assistance Auth.,
132 F.3d 775, 782 (D.C.Cir.1998)).
A review of the provision in question reveals that the
expressio unius
canon does not demonstrate that Congress has spoken directly on the question of time limits. Indeed, BCRA Section 214 expressly provides the Commission with the authority to promulgate new regulations addressing coordinated communications, with some guidance regarding what matters should be covered by the regulations and a single prohibition against equating coordination with “agreement or formal collaboration.” 2 U.S.C. § 441a note (quoted
supra
at 56). Otherwise, the regulation is silent on the parameters of this delegation of authority. The Court does not find persuasive the argument that the inclusion of a 120-day period in a separate and unrelated section of BCRA, but not in Section 214, means that Congress has spoken clearly on whether or not such a requirement may be included in the
*60
coordinated communications regulations. Accordingly, the Court rejects Plaintiffs’ argument that the
expressio unius
canon of statutory construction reveals Congress’s specific intent on this matter.
Plaintiffs also appear to make an argument under the legislative reenactment doctrine, although they do not invoke the doctrine by name. Noting that the FEC had consistently treated the content of communications as irrelevant for purposes of determining whether or not they were coordinated under FECA, Plaintiffs argue that the “Commission was not at liberty to depart from [this] long-standing construction relied upon by Congress as it fine-tuned the campaign finance laws.” Pls.’ Mem. at 16-17;
see also id.
at- 17 n. 31 (citing legislative reenactment doctrine cases). Defendant contends that the doctrine is inapplicable to the current case. Def.’s Opp’n at 15 n. 26, 55-56 n. 83.
The legislative reenactment doctrine provides that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change[.]”
Lorillard v. Pons,
434 U.S. 575, 580 , 98 S.Ct. 866 , 55 L.Ed.2d 40 (1978). This Circuit has noted that while “courts have stated this general proposition, usually as a defense to a later attack against the same interpretation,
no
case has rested on this presumption alone as a basis for holding that the statute required that interpretation.”
American Fed’n of Labor & Congress of Indus. Orgs. v. Brock,
835 F.2d 912 , 916 n. 6 (1987) (emphasis in original) (listing cases including
Lorillard)
31
The
Brock
court observed that
*61
[t]he authority to whom the Supreme Court as well as lower courts refer for this rule of statutory construction makes this qualification explicit: “[The rule of implied adoption of an agency interpretation on reenactment] does not apply where nothing indicates that the legislature had its attention directed to the administrative interpretation upon reenactment.” C. Sands, Sutherland on Statutory Construction § 49.09, at 400 (footnote omitted) (4th ed.1984).
Id.
Therefore, the
Brock
court held that [t]o freeze an agency interpretation, Congress must give a strong affirmative indication that it wishes the present interpretation to remain in place.”
Id.
at 916;
see also ZB
Norman J. Singer, Sutherland Statutes & Statutory Construction § 49.9 (6th ed.2004) (noting that the doctrine “does not apply where nothing indicates that the legislature had its attention directed to the administrative interpretation upon reenactment.”); Pls.’ Mem. at 17 n. 31 (citing same).
In support of their legislative reenactment argument, Plaintiffs point the Court to Senator Russell Feingold’s statement on the Senate floor noting that “[ejxisting law provides that a campaign-related communication that is coordinated with a candidate or party is a contribution to the candidate or party, regardless of whether the communication contains ‘express advocacy.’ ” Pls.’ Mem. at 17 (quoting 148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002) (statement of Sen. Feingold)). The Court finds that while this statement does shed some light on Congress’s understanding of the FEC’s approach to coordinated communications, and does provide some indication of an expectation that this approach would continue after the passage of BCRA, the Court does not find that it meets the
Brock
test of constituting a “a strong affirmative indication that [Congress] wishe[d] the present interpretation to remain in place.”
Brock,
835 F.2d at 916. The statement is devoid of any reference to maintaining the same approach to coordinated communications. Moreover, the other cases cited by Plaintiffs that discuss the legislative reenactment doctrine contain substantially stronger affirmative indications of Congress’s intention to retain the agency’s interpretation.
See supra
note 31. Accordingly, Plaintiffs’ legislative reenactment argument is unavailing.
Plaintiffs also make numerous arguments about the legislative history of Section 214, and Congress’s purposes and objectives in passing the provision, claiming that these factors demonstrate Congress’s clear intent and that the Commission’s regulations have run afoul of that intent. Pls.’ Mem. at 15-18. It is true that when deciding
Chevron
step one, a court looks to see “whether Congress has directly spoken to the precise question at issue ... through the statute’s purposes;” however, this analysis is not done “in a vacuum; rather [courts] look to how th[o]se purposes are expressed through the statutory language. ‘The invocation of disembodied purposes, reasons cut loose from the language is a sure way to frustrate rather than to implement the statute.’ ”
Orloski,
795 F.2d at 163 -64 (quoting
Walton v. United Consumers Club, Inc.,
786 F.2d 303, 310 (7th Cir.1986)). Looking at the statutory language, it is clear that Congress ordered the FEC to promulgate new regulations and provided some guidance.
See
2 U.S.C. § 441a note. However, Congress provided no express guidance on the matter of content restrictions, and therefore the Court finds that the statute is “silent ... with respect to the specific
*62
issue.”
Chevron,
467 U.S. at 843 , 104 S.Ct. 2778 . Accordingly, the Court, following the D.C. Circuit’s model in
Orloski
turns to the second prong of the
Chevron
analysis.
See Orloski,
795 F.2d at 164 .
32
Under
Chevron
step two, since the Court has found that “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Chevron,
467 U.S. at 843 , 104 S.Ct. 2778 . “The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.”
Id.
at 843 n. 11, 104 S.Ct. 2778 . Like the situation the
Orloski
court faced, here it is
readily apparent that ... Congress left a large gap between the obviously impermissible and the obviously permissible. This gap creates the potential for a broad range of differing interpretations of the Act, the legitimacy of each being heavily dependent upon the degree to which it undercuts the statutory purposes.... If the FEC’s interpretation unduly compromises the Act’s purposes, it is not a reasonable accommodation under the Act, and it would' therefore not be entitled to deference.
Orloski,
795 F.2d at 164 (internal quotation marks omitted). Given the vast discretion Congress delegated to the FEC in enacting BCRA Section 214, the Court finds that its construction of the statute is facially permissible. The Court now turns to Plaintiffs’ argument that the agency’s regulations undercuts FECA’s purposes.
As explained
supra,
it has been a tenet of campaign finance law since
Buckley
that FECA, in an effort to prevent circumvention of campaign finance regulations, treats expenditures coordinated with candidates or political parties as contributions to those with whom the expenditures were coordinated.
McConnell,
124 S.Ct. at 705 (“Congress has always treated expenditures made ‘at the request or suggestion of a candidate as coordinated.”) (quoting 2 U.S.C. § 441a(a)(7)(B)(i)). The basic premise of coordinated expenditure restrictions is that if political campaigns and outside entities are able to coordinate the outside entity’s political expenditures, then the campaign finance contribution and expenditure regulations could be eviscerated. FECA, in an effort to prevent circumvention, provides that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate.” 2 U.S.C. § 441a(a)(7)(B)(i);
see also id.
§ 441a(a)(7)(B)(ii) (same for political parties). BCRA Section 214 did nothing to change this requirement; it merely ordered the FEC to promulgate new regulations regarding coordinated communications, and provided some guidance. Nor did Congress evince any intent to qualify the reach of this provision of FECA, or to exclude from its reach any particular type of “coordination.” Such a move would run counter to the basic notion that a coordinated expenditure, by virtue of its coordi
*63
nation (not its content), is valuable to the political entity with which it is coordinated. As the
Buckley
Court observed, “prearranged or coordinated expenditures” circumvent campaign finance laws because they “amount[ ] to disguised contributions.”
Buckley,
424 U.S. at 47 , 96 S.Ct. 612 . Such expenditures differ from truly independent expenditures because “[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that the expenditures will be given as a quid pro quo for improper commitments from the candidates.”
Id.
The
McConnell
Court reiterated this rationale, noting that “[ijndepen-dent expenditures are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate’s point of view. By contrast, expenditures made after a “wink or nod’ often will be as useful to the candidate as cash.”
McConnell,
124 S.Ct. at 705 (internal quotation marks and citations omitted). If an outside entity or individual makes a coordinated communication, that communication presumably has value to the political entity it is coordinated with, regardless of when it is broadcast or its contents.
See Federal Election Commission v. Christian Coalition,
52 F.Supp.2d 45, 92 (D.D.C.1999) (“The fact that the candidate has requested or suggested that a spender engage in certain speech indicates that the speech is valuable to the candidate, giving such expenditures sufficient contribution-like qualities to fall within [FECA’s] prohibition on contributions.”). To exempt certain types of communications runs completely afoul of this basic tenet of campaign finance law, thereby undercutting FECA’s statutory purpose of regulating campaign finance and preventing circumvention of the campaign finance rules, and therefore the regulation is entitled to no deference.
The text and legislative history of Section 214 demonstrate that Congress had no intention of modifying this fundamental understanding of campaign finance law. Plaintiffs’ citations to the floor statements of BCRA co-sponsors Senators John McCain and Russell Feingold bear this out.
33
The Commission notes that these statements “when read in context, [make it] clear that the Senators were discussing the requirement that the new regulations must not require an agreement or formal collaboration, not the issues raised in the regulation’s
content
provisions.” Def.’s Opp’n at 55 n. 82 (emphasis in original). A review of the statements reveals that the Commission is correct that the focus of the sponsors’ comments is on defining what constitutes coordination, not on content restrictions. The regulation Congress repealed provided that an otherwise independent political communication would be deemed coordinated if
[a]fter substantial discussion or negotiation between the creator, producer or distributor of the communication, or the person paying for the communication, and the candidate, the candidate’s authorized committee, a party committee, or the agent of such candidate or committee, regarding the content, timing, location, mode, intended audience, vol
*64
ume of distribution or frequency of placement of that communication, the result of which is collaboration or agreement. Substantial discussion or negotiation may be evidenced by one or more meetings, conversations or conferences regarding the value or importance of the communication for a particular election.
11 C.F.R. § 100.23 (c)(2)(iii) (2001)
(repealed
). Senator Feingold commented that the “[a]fter substantial discussion” and the “the result of which is collaboration or agreement” language “set[] too high a bar to the finding of ‘coordination.’ This standard would miss many cases of coordination that result from de facto understandings. Accordingly, section 214 states that the Commission’s new regulations ‘shall not require agreement or formal collaboration to establish coordination.’” 148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002) (statement of Sen. Fein-gold). Senator McCain echoed Senator Feingold’s comments, noting that
[i]nformal understandings and de facto arrangements can result in actual coordination as effectively as explicit agreement or formal collaboration. In drafting new regulations to implement the existing statutory standard for coordination — an expenditure made “in cooperation, consultation or concert, with, or at the request or suggestion of’ a candidate — we expect the FEC to cover “coordination” whenever it occurs, not simply when there has been an agreement or formal collaboration.
Id.
(statement of Sen. McCain).
While it is true that these statements are silent on the matter of content restrictions, it is clear that this omission was not the result of a desire to allow the Commission freedom to create whatever content rules it wanted, but rather from the basic understanding that established campaign finance law treats coordinated communications expenditures as contributions regardless of their content or when they are broadcast. This is evident from Senator McCain’s statement that the sponsors of BCRA “expect[ed] the FEC to cover ‘coordination’
whenever it occurs,
not simply when there has been an agreement or formal collaboration.”
Id.
(emphasis added).
Given the state of the law, it is not surprising that the repealed regulation included no guidance on content restrictions and that the sponsors focused their comments on what was troublesome about the previous regulation, not what provisions would have been troublesome had they been included in the provision. Clearly, the statements by Senators McCain and Feingold make clear that the purpose of passing Section 214 of BCRA was not to exempt certain acts of coordination, but rather to enlarge the concept of what constitutes “coordination” under campaign finance law.
See
148 Cong. Rec. S2145 (statement of Sen. Feingold) (Section 214 “does not change the basic statutory standard for coordination, which defines and sets parameters for the FEC’s authority to develop rules describing the circumstances in which coordination is deemed to exist.”).
34
The Court therefore concludes that pursuant to step two of the
Chevron
analysis, the FEC’s exclusion of coordinated communications made more than 120 days before a political convention, general or primary election, as well as any that do not refer to a candidate for federal office or a
*65
political party and any not aimed at a particular candidate’s electorate or electorate where a named political party has a candidate in the race, undercuts FECA’s statutory purposes and therefore these aspects of the regulations are entitled to no deference. A communication that is coordinated with a candidate or political party has value to the political actor. 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.”
Orloski
795 F.2d at 165 . The FEC’s regulation therefore is “not a reasonable accommodation under the Act,”
Orloski
795 F.2d at 164 (internal quotation marks omitted), and fails
Chevron
step two.
b. Exclusion of the Internet
The coordinated communication regulation, excerpted
supra,
applies only to “public communications” unless the communication constitutes an “electioneering communication.” 11 C.F.R. § 109.21 (c)(4). Congress defined “public communication” in BCRA to mean “a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” 2 U.S.C. § 481 (22). The FEC promulgated a regulation defining “public communication” as “a communication by means of any broadcast, cable or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing or telephone bank to the general public, or any other form of general public political advertising. The term public communication shall not include communications over the Internet.” 11 C.F.R. § 100.26 . Therefore, Internet communications, no matter how closely they are coordinated with political parties or a candidate’s campaign, cannot be considered “coordinated” under the FEC’s regulations. This exclusion marks a contrast from the Commission’s prior rule, which deemed all “general public political communication^]” that met certain conduct requirements to be “coordinated.” 11 C.F.R. § 100.23 (c)(2)(iii) (2001)
(repealed); see also supra
note 25 (quoting 11 C.F.R. § 100.23 (c)(2)(iii)). “General public communications” were defined to “include those made through a broadcasting station (including a cable television operator), newspaper, magazine, outdoor advertising facility, mailing
or any electronic medium, including the Internet or on a web site,
with an intended audience of over one hundred people.” 11 C.F.R. § 100.23 (e)(1) (2001)(repealed) (emphasis added). Plaintiffs claim that the new regulation’s exclusion of all Internet communications from treatment as “coordinated communications” runs contrary to Congress’s intent.
35
Pls.’ Mem. at 20. Defendant disagrees, but devotes much of its discussion about 11 C.F.R. § 100.26 to the “context of the ‘soft money’ rulemaking.” Def.’s Opp’n at 42-48, 43 n. 64.
Applying
Chevron
step one, the Court asks whether “Congress has directly spoken on the precise question at issue.”
Chevron,
467 U.S. at 842 , 104 S.Ct. 2778 . Plaintiffs claim that the regulation fails
Chevron
step one. Pls.’ Mem. at 21-23. To assess this argument, the Court begins by examining the FEC’s explanation for excluding the Internet from the definition of “public communication.”
*66
In its Explanation and Justification (“E & J”), the Commission explained that it applied its definition of “public communication” promulgated for its regulations related to “Federal election activity” to its regulations on coordinated communications in order to “provide[ ] consistency within the regulations and [to] distinguish[ ] covered communications from, for example, private correspondence and internal communications between a corporation or labor organization and its restricted class.” Coordinated & Independent Expenditures, 68 Fed.Reg. at 430. In its separate E
&
J issued for its definition of “public communication,” the FEC began by noting that its rulemaking was guided by BCRA’s amendment of 2 U.S.C. § 431 ,
36
to include a definition for “public communication.” Prohibited
&
Excessive Contributions: Non-Federal Funds or Soft Money, 67 Fed.Reg. 49,064, 49,071 (July 29, 2002). FECA, as amended by BCRA, provides that “[t]he term ‘public communication’ means a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” 2 U.S.C. § 431 (22). The FEC decided not to include the Internet in its definition of “public communication” concluding that the exclusion “is consistent with the plain meaning of the statute, consistent with Congress’ decision not to include the Internet in the statutory definition of ‘public communication,’ and is the best policy decision with regard to implementation of BCRA.” Prohibited
&
Excessive Contributions, 67 Fed.Reg. at 49,072. The Commission explained that its statutory construction was based on the fact that Congress “excluded [the Internet] from the list of media that constitute public communication under the statute. BCRA does not reference the ‘Internet’ or ‘electronic mail’ in this section, although Congress used the terms ‘Internet,’ ‘website,’ and “World Wide Web address’ in other sections of BCRA.”
Id.
(citing 2 U.S.C. §§ 434 note, 438a).
37
The Commission also pointed out that “Congress has also used the terms ‘Internet’ and ‘electronic mail’ in other statutes and distinguished them from ‘telecommunications services.’ ”
Id.
Acknowledging that BCRA does include the phrase “any other form of general political advertising” in the definition of “public communication,” the Commission explained that
[g]eneral language following a listing of specific terms, however, does not evidence Congressional intent to include a separate and distinct term that is not listed, such as the Internet.
See
Sutherland Statutes and Statutory Construction, section 47; 17
Ejusdem generis,
Vol. 2A (6th ed.2000). It is also noted that there is no indication in the legislative history that Congress contemplated including the Internet in the definition of public communication.
Id.
The Commission then explained the “significant policy reasons” for excluding the Internet from the definition.
Plaintiffs argue that
[o]n its face, the phrase
“any other form
of general political advertising” plainly includes at least certain communications over the Internet. There can be no question that ‘political advertising’ takes place on the Internet (in exponentially
*67
increasing amounts), and that there are various mechanisms by which such advertising over the Internet is targeted at the “general public.”
Pls.’ Mem. at 22. Defendant counters that this argument “amounts to a concession that BCRA does not speak to the precise question at issue under
Chevron
step one.” Def.’s Opp’n at 43;
see also
Def.’s Mem. at 36 (“Since the Internet is not one of the eight types of mass communication Congress listed in 2 U.S.C. § 431 (22), it is not even arguable that the statute speaks directly to the precise question at issue.”) (internal quotation marks omitted).
As already noted, Congress did not expressly include the term “Internet” in its statutory definition of “public communication,” but it did include the phrase “any other form of general public political advertising.” 2 U.S.C. § 431 (22). While all Internet communications do not fall within this descriptive phrase, some clearly do. Consequently, it is difficult to argue that the statutory terms evidence Congressional intent for the Internet, or any other forms of communications that constitute “general public political advertising,” to be excluded wholesale from its definition of “public communication.”
However, the Commission contends, as noted
supra,
that as a matter of statutory construction its position is correct. It explained in its E & J that the doctrine of
ejusdem generis
supports its position that Congress did not intend for the Internet to be included in the definition of “public communications.”
See also
Def.’s Mem. at 37-38. The doctrine provides that “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” 2A Norman J. Singer, Sutherland Statutes and Statutory Construction § 47:17 (6th ed.2004). The Court finds that the doctrine of
ejusdem generis
is inapplicable'to the case at bar. The Supreme Court has explained that the doctrine “is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty.”
Harrison v. PPG Indus., Inc.,
446 U.S. 578, 588 , 100 S.Ct. 1889 , 64 L.Ed.2d 525 (1980) (quoting
United States v. Powell,
423 U.S. 87, 91 , 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975)). In
Harrison ,
the Supreme Court addressed a provision of the Clean Air Act which granted “direct review in a federal court of appeals of certain locally and regionally applicable actions taken by the Administrator of the Environmental Protection Agency (EPA) under specifically enumerated provisions of the Act, and of
‘any other final action
of the Administrator under [the Act] ... which is locally or regionally applicable.’ ”
Id.
at 579 , 100 S.Ct. 1889 (emphasis added by Supreme Court) (quoting Section 307(b)(1) of the Clean Air Act). The
Harrison
Court “discern[ed] no uncertainty in the meaning of the phrase ‘any other final action,’ ” finding that “[t]his expansive language offers no indication whatever that Congress intended the limiting construction ... that the respondents now urge,” and that “in the absence of legislative history to the contrary, [the provision] must be construed to mean exactly what it says, namely
any other
final action.”
Id.
at 588-89 , 100 S.Ct. 1889 (emphasis in original). This reasoning is no less applicable here.
38
Congress, by the plain terms of
*69
the statute, clearly intended for the term “public communication” to capture all forms of “general public political advertising” and the FEC has provided no legislative history that persuades the Court to ignore the plain meaning of the statute.
See Cole v. Harris,
571 F.2d 590, 597 (D.C.Cir.1977) (“[T]he plainer the language [of the statute], the more convincing contrary legislative history must be” for the Court to read the statute in a manner that contradicts its plain language) (quoting
United States v. United States Steel Corp.,
482 F.2d 439, 444 (7th Cir.1973)).
39
Ac
*70
cordingly, the Court finds that under
Chevron
step one, Congress intended all other forms of “general public political advertising” to be covered by the term “public communication.” What constitutes “general public political advertising” in the world of the Internet is a matter for the FEC to determine.
The Court finds in the alternative, that even if 11 C.F.R. § 100.26 met the requirements of
Chevron
step one, it would still fail
Chevron
step two, for the same reasons the Court articulated above for the Commission’s coordination regulations.
See supra
at 62-65. The Commission’s exclusion of Internet communications from the coordinated communications regulation severely undermines FECA’s purposes and therefore violates the second prong of
Chevron .
As discussed
supra,
when Congress repealed the coordination regulations, it did so out of concern that the definition of “coordination” in the then-existing rules was too limited in the types of
conduct
necessary to render a communication to be “coordinated.” The fact that the legislative history contains no discussion about the content of such communications is not surprising, since, as explained
supra,
under the existing campaign finance law and judicial precedent interpreting that law, a communication’s content was irrelevant to the determination of whether or not a communication was coordinated. Indeed, the whole rationale behind the distinction made for coordinated expenditures is that if a candidate or political party coordinates an expenditure with an outside person or entity, that expenditure is presumed to be aimed at assisting that candidate or political party. To allow such expenditures to be made unregulated would permit rampant circumvention of the campaign finance laws and foster corruption or the appearance of corruption.
Christian Coalition,
52 F.Supp.2d at 88 .
40
FECA clearly declares that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate.” 2 U.S.C. § 441a(a)(7)(B)(i);
see also id.
§ 441a(a)(7)(B)(ii) (same for political parties). To permit an entire class of political communications to be completely unregulated irrespective of the level of coordination between the communication’s publisher and a political party or federal candidate, would permit an evasion of campaign finance laws, thus “unduly compromis[ing] the Act’s purposes,” and “creat[ing] the potential for gross abuse.”
Orloski,
795 F.2d at 164, 165 . Accordingly, in the alternative, the Court finds that
*71
the Commission’s regulation, as it applies to coordinated communications, fails
Chevron
step two.
a
Definition of “Agent”
Plaintiffs also object to the FEC’s definition of “agent” as it relates to the coordinated communication regulations. Pls. Mem. at 9 n. 17.
41
They object to the fact that the FEC limited the definition of “agent” to persons who have “actual authority, express or implied, to engage” in certain activities on behalf of certain political entities. 11 C.F.R. § 109.3 ; Pls.’ Mem. at 9 n. 17. Plaintiffs contend that the definition should include those acting with apparent authority as well. Pls. Mem. at 9 n. 17, 41, 42 n. 71. Defendant relies on the arguments it set forth in their discussion of “agent” under the nonfederal money regulations.
See
Def.’s Mem. at 77 n. 26.
Plaintiffs’ arguments regarding 11 C.F.R. § 109.3 are relegated to two footnotes, essentially directing the Court to their analysis of 11 C.F.R. § 300.2 , which defines “agent” in the context of the Commission’s nonfederal money regulations. Plaintiffs provide no separate analysis for Section 109.3.
See id.
at 9 n. 17, 41-48; Pls.’ Opp’n at 33-36 (focusing on the definition promulgated to apply to the “soft money” regulations).
As an initial matter, it is clear that Section 214 of BCRA does not mention the word “agent” or provide any guidance for how the term should be read in the context of the coordination communications regulations. Plaintiffs do not provide the Court with any legislative history or cite to another provision in the statute that manifests clear Congressional intent with regard to the definition of this term as it relates to the coordinated communication regulations.
Id.
Accordingly, the Court cannot find that under
Chevron
step one that Congress has clearly spoken on this issue.
Moving to
Chevron
step two, the Court is provided no basis for concluding that the agency’s construction of the term is impermissible.
See Chevron,
467 U.S. at 843 n. 11, 104 S.Ct. 2778 . The Commission in promulgating the definition recognized “the Congressional determination that a spender can effectively coordinate a communication by acting in cooperation, consultation, or concert with, or at the request or suggestion of, an agent....” Coordinated & Independent Expenditures, 68 Fed. Reg. at 424 (citing 2 U.S.C. § 431 (17)
&
2 U.S.C. § 441a(a)(7)(B)(i)). As the Court finds
infra
at 84-86, there is nothing that demonstrates that the Commission has taken an impermissible construction of the term, and it would appear that this challenge “really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within the gap left open by Congress .... ”
Chevron,
467 U.S. at 866 , 104 S.Ct. 2778 (quoting
TVA
437 U.S. at 195 , 98 S.Ct. 2279 ). The only remaining avenue for voiding the regulation under
Chevron
review is if the regulation “unduly compromises the Act’s purposes.”
Orloski, 795
F.2d at 164. There is nothing in the record that suggests that this interpretation “unduly compromises” FECA, and Plaintiffs have not specifically explained why or if they believe the regulation has such an effect on the coordinated communications regulation.
See
Pls. Mem. at 9 n. 17. To be sure, as Plaintiffs’ citations to comments submitted during the Commission’s rulemaking demonstrate,
see
Pls.’ Mem. at 9 n. 17, there are concerns that
*72
the decision to exclude those acting with apparent authority from the definition of “agent” may lead to circumvention of the coordination regulations. However, the Court has been provided no basis for determining whether or not such instances would
“unduly
compromise[ ]” the Act or “create the potential for
gross
abuse.”
Orloski,
795 F.2d at 164, 165 (emphasis added). The Court does not disagree that the definition may compromise the Act or create the potential for abuse, just that the dangers of these effects are not, on the record presented or on their face, sufficiently great to meet the
OrlosJci
standard. In this way, the definition of “agent” in this context differs from the content provisions of the coordinated communication regulations that the Court found unduly compromise the Act’s purposes. Accordingly, the Court finds that 11 C.F.R. § 109.3 survives
Chevron
review.
Finally, turning to the question of whether or not the Commission violated the APA’s reasoned analysis requirement, the Court finds, as it does
infra
at 87, that the Commission did not adequately explain its decision to exclude “apparent authority” from the scope of its definition of “agent.” Examining the Commission’s E
&
J, the Commission explains that it
would place the definition of ‘agent’ in the hands of a third party. Therefore, in the Commission’s judgment, apparent authority is not a sufficient basis for agency for the purposes of revised 11 CFR part 109. The commenter’s suggested approach would necessitate a determination of agency solely on the basis of apparent authority and is therefore inconsistent with the structure and purpose of the regulations.
Coordinated & Independent Expenditures, 68 Fed.Reg. at 424-25. This explanation provides no indication that the Commission considered how their decision might facilitate circumvention or perpetuate the appearance of corruption, two policies Congress definitely sought to advance in passing BCRA. In this manner, the Commission has “entirely failed to consider an important aspect of the problem,” which renders the rule “arbitrary and capricious.”
State Farm,
463 U.S. at 43 , 103 S.Ct. 2856 .
42
2. “Soft Money” Regulations
Widely regarded as the main impetus for the passage of BCRA was the pervasiveness of so-called “soft money” in the campaign finance system.
McConnell,
124 S.Ct. at 654 (“BCRA’s central provisions are designed to address Congress’ concerns about the increasing use of soft money and issue advertising to influence federal elections.”); 147 Cong. Rec. S2696 (daily ed. Mar. 22, 2001) (statement of Sen. Feingold) (“The soft money ban is the centerpiece of this bill. Our legislation
*73
shuts down the soft money system, prohibiting all soft money contributions to the national political parties from corporations, labor unions, and wealthy individuals.”); 148 Cong. Rec. S2139 (daily ed. Mar. 20, 2002) (statement of Sen. McCain) (“It is a key purpose of the bill to stop the use of soft money as a means of buying influence and access with Federal officeholders and candidates.”); Def.’s Opp’n at 32 n. 51 (noting that “increased use of soft money ... led to BCRA’s enactment ....”);
see also McConnell,
251 F.Supp.2d at 199-201 (per curiam) (describing the growth of “soft money” spending in political campaigns). “Soft money” refers to donations that “the FEC permitted national and state party committees to solicit and accept ... outside of FECA’s source and amount limitations ... provided that these moneys were placed in separate accounts from federal funds.”
McConnell,
251 F.Supp.2d at 196 (per curiam) (footnote omitted). “Soft money” is also referred to as “nonfederal money.”
See id.
at 196
&
n. 9.
43
Title I of BCRA represents Congress’s attempt to address the nonfederal money problem. It was enacted “as an integrated whole to vindicate the Government’s important interest in preventing corruption and the appearance of corruption.”
McConnell,
124 S.Ct. at 659 . Plaintiffs attack numerous regulations promulgated to implement Title I’s ban on nonfederal money. The Court addresses each in turn.
a. Definitions of
“Solicit”
and “Direct”
Included in Title I of BCRA is Section 323(a) which provides that a “national 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’ FECA. 2 U.S.C. § 441i(a)(1). As the Supreme Court observed,
[t]he main goal of § 323(a) is modest. In large part, it simply effects a return to the scheme that was approved in
Buckley
and that was subverted by the creation of the FEC’s allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money.
McConnell,
124 S.Ct. at 660 . In addition, BCRA § 323(d), provides that political party committees “shall not solicit any funds for, or make or direct any donations to” certain organizations falling under Sections 501(c) and 527 of the Internal Revenue Code. 2 U.S.C. § 441i(d). BCRA also provides that candidates and federal officeholders “shall not solicit, receive, direct, transfer, or spend funds” that do not comport with FECA’s requirements.
Id.
§ 441i(e). These two latter provisions aim “to plug the soft-money loophole.”
McConnell,
124 S.Ct. at 681, 683 .
Plaintiffs challenge the FEC’s regulations defining the terms “solicit” and “direct.” Pls.’ Mem. at 30. These terms are used in the provisions of BCRA discussed
supra
related to the elimination of nonfederal money from the federal campaign finance regime in setting out prohibitions on various political actors’ involvement with nonfederal money. 2 U.S.C. §§ 441i(a), (d), (e). The FEC promulgated the following regulations defining these terms as they relate to its nonfederal money regulations:
(m) To solicit. For the purposes of part 300, to solicit means to ask that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value, whether the contribu
*74
tion, donation, transfer of funds, or thing of value, is to be made or proyided directly, or through a conduit or intermediary. A solicitation does not include merely providing information or guidance as to the requirement of particular law.
(n) To direct. For the purposes of part 300, to 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, including through a conduit or intermediary. Direction does not include merely providing information or guidance as to the requirement of particular law.
11 C.F.R. §§ 300.2 (m)-(n). The Commission explained that its definition of “solicit” was informed by concerns “that the ability to impute intent could lead to finding a violation when the individual who made the comment may have had no intention whatever of soliciting a contribution. Such a result is not dictated by BCRA’s statutory language, and would raise constitutional concerns.” Prohibited
&
Excessive Contributions, 67 Fed.Reg. at 49,087. Defendant therefore rejected comments concerning “whether the concept of soliciting should apply to a series of conversations which, when taken together, constitute a request for contributions or donations.”
Id.
The Commission also explained that it wanted to “avoid ambiguity, vagueness and confusion as to what activities or conversations would constitute solicitations.” Contribution Limitations & Prohibitions, 67 Fed.Reg. 69,928, 69,942 (Nov. 19, 2002). “By 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.”
Id.; see also id.
(noting that the term “suggest” is too vague, and that the Commission “believes” the term “ask” “capturéis]” “more direct verbalizations or writings captured by terms such as ‘demand,’ ‘instruct,’ or ‘tell[.]’ ”). As for the definition of “direct,” the Commission explained that its definition of the term derived from its conclusion “that a precise definition in this context is necessary to avoid vague and overbroad application of the term.” Prohibited
&
Excessive Contributions, 67 Fed.Reg. at 49,087.
Plaintiffs argue that the definitions of these terms run contrary to Congress’s intent as demonstrated in the express terms of BCRA. Pls.’ Mem. at 32. They contend that the “plain meaning of both ‘solicit’ and ‘direct’ is far broader” than the definitions promulgated by the Commission.
Id.
Citing to dictionaries, Plaintiffs argue that
[t]he common understanding of “solicit” is not only to “ask,” but also more generally “to seek eagerly or actively,” “to seek to affect,” “to make petition to,” and to “strongly urge.” “Ask” by contrast, is commonly understood to be more limited, encompassing only those communications in which the speaker “call[s] upon for an answer” or “put[s] a question about.”
Pl.’s Mem. at 32 (quoting Webster’s Third New International Dictionary 2169, 128 (1981)
44
) (footnote omitted). Chevron’s step one requires this Court to ask if “Congress has directly spoken on the precise question at issue,” because courts and agencies “must give effect to the unambiguously expressed intent of Congress.”
*75
Chevron,
467 U.S. at 842-43 , 104 S.Ct. 2778 . “A statute is considered ambiguous if it can be read more than one way.”
AFL-CIO,
333 F.3d at 173 . Since Plaintiffs acknowledge that one “common understanding of ‘solicit’ is ... to ‘ask,’ ” they have acknowledged that the term has more than one meaning and is therefore ambiguous.
45
As this Circuit has noted, the term “ ‘solicit’ can, of course, mean a variety of things.”
Martin Tractor Co. v. Federal Election Commission,
627 F.2d 375, 383 (D.C.Cir.1980).
46
Therefore, the FEC’s definition of solicit survives
Chevron
step one.
As for the term “direct,” Plaintiffs argue that
the common understanding of the term “direct” bears little relationship to that of “ask.” To “direct” means to “show or point out the way for,” “to assist by giving advice, instruction, or supervision,” or “to point out, prescribe, or determine a course or procedure.” One thus “directs” a particular result by telling another to do an act or by showing him or her how to do so. Under the FEC’s definition of “direct,” however, such communication would not constitute “direction” because it would no“call for an answer” or “put a question about” the contemplated act. Indeed, under the FEC’s definition of “direct,” a speaker could literally state, “I direct -you to make a contribution” without being deemed to have- “direct[ed]” a contribution within the meaning of BCRA. Plainly this was not Congress’s intent, nor was it Congress’s intent to exempt more likely statements such as “X is a fíne organization; you should consider giving it $10,000.”
Pls.’ Mem. at 33-34 (quoting Webster’s Third New International Dictionary 640 (1981)) (footnote omitted). The Commission’s position is that the term was not defined by Congress, and instead was left to the agency to define. Def.’s Mem. at 47. The FEC claims its
definition of “to solicit” as “to ask” is ... entirely consistent with its common definition.
See e.g.,
Random House Dictionary. of the English Language (unabridged ed.1983) at 1354 (“1: to seek for by entreaty, earnest or respectful request, formal application, etc.”) The Commission’s decision to define “direct” in a similar manner properly reflects its placement in the statute in close association with “solicit,” and is also consistent with the word’s normal definition.
See id.
at 407 (“4. to give authoritative in-
*76
struetions to; commend; order or ordain (something):
I directed him to leave the room.”).
Id.
at 48 (emphasis in original). Defendant also notes that because the terms “are used in the statute to regulate the content of speech, these terms should be precisely defined.”
Id.; see also
Prohibited & Excessive Contributions, 67 Fed.Reg. at 49,087 (quoted
supra
at 63).
Defendant has provided no dictionary definition that supports equating the term “direct” with “ask.” The Commission has cited to the Random House Dictionary of the English Language’s definition of “direct” as “to give authoritative instructions to; command; order or ordain (something):
I directed him to leave the room.”
Def.’s Mem. at 48 (citing Random House Dictionary of the English Language 1354 (unabridged ed.1983)). Defendant also cites to Webster’s Third New International Dictionary, relied on by Plaintiffs, contending that it provides that “direct” can mean “to request or enjoin .... ” Def.’s Opp’n at 38. A review of that dictionary definition reveals that the definition states in full:
5 a: to request or enjoin esp. with authority ;
also:
to issue an order to -the-Vote Activity
The Commission’s regulation defining the term “get-out-the vote activity” includes the requirement that the activity “assist” voters “in engaging in the act of voting.”
Id.
§ 100.24(a)(3). The get-out-the vote (“GOTV”) regulation also provides that GOTV activity includes “[providing to individual voters, within 72
*102
hours of an election, information such as the date of the election, the times when polling places are open, and the location of particular polling places.”
Id.
The GOTV regulation also excludes from its parameters communications “by an association or similar group of candidates for State or local office or of individuals holding State or local office if such communication refers only to one or more State or local candidates.”
75
Plaintiffs raise some of the same arguments in challenging the FEC’s GOTV definition that they did in challenging the FEC’s “voter registration activity” definition. They object to the fact that the GOTV definition is limited to activities that “ ‘assist’ would-be voters,” contending that efforts that encourage would-be voters to get out to vote should also be covered by the definition. Pls.’ Mem. at 61. They also object to what they perceive to be the FEC’s effort “to engraft in certain circumstances a 72-hour rule onto the definition of ‘GOTV,’ ” claiming such a requirement “presumptively limit[s] much of the reach of the GOTV provision to conduct occurring within the
last three days
of the election” campaign.
Id.
at 65 (emphasis in original). They also protest the provision’s exclusion of GOTV activities by “an association or similar group of candidates for State or local office or of individuals holding State or local office,” arguing that “Congress provided the Commission with no authority to adopt such an exemption— and the exemption is, in fact, in direct contravention of legislative intent.”
Id.
at 66. Plaintiffs maintain that this exclusion will “invite just the sort of circumvention that BCRA sought to prevent,” because “[p]arties and candidates can easily conduct GOTV ... activities through associations of state or local candidates (such as the Democratic or Republican Governors Association), avoid mention of federal candidates on the ballot, and mobilize voters to the polls.”
Id.
at 67.
Commencing the
Chevron
step one analysis, the Court observes that Congress does not appear to have defined “get-out-the-vote activity.” 2 U.S.C. § 431 (20). Plaintiffs argue that under the “common usage” canon of construction, GOTV includes encouraging persons to vote, citing to the same sources for support as they did for the same argument they made challenging the “voter registration activities” definition. Pls.’ Mem. at 61-62 (relying on
McConnell,
251 F.Supp.2d at 702 (Kollar-Kotelly, J.)); Pls.’ Ex. 152 (FEC Advisory Op.1980-64); 11 C.F.R. §§ 100.133 , 106.5(a)(2)(iv);
see also supra
at 98 (discussing this argument in the context of voter registration activities).
76
The
*103
Court finds, as it did for “voter registration activities,”
supra
at 99, that the sources provided have not established that the “common usage” of GOTV includes mere encouragement of people to vote. The phrase itself is subject to different readings. It could mean, as Plaintiffs’ believe it does, any activity that is intended to get people to go out and vote, including encouraging them to do so. Another reading of GOTV is that it encompasses activities that actually physically gets people to the polls.
77
Given the ambiguity inherent in the term GOTV, the Court must find that Congress has not spoken directly on this issue and hence this aspect of the regulation survives review under
Chevron
step one.
78
Turning to the 72-hour provision of the regulation, the Court observes that the regulation provides that
one example
of GOTV activity is “[providing to individual voters, within 72 hours of an election, information such as the date of the election, the times when polling places are open, and the location of particular polling places.” 11 C.F.R. § 100.24 (a)(3). The regulation makes clear that the examples it provides are non-exhaustive.
Id.
Nonetheless, Plaintiffs view this illustration as a “temporal component” that exempts such activities outside of the 72-hour window from regulation. Pls.’ Mem. at 65-66. Defendant disagrees, contending that Plaintiffs are
incorrect when they suggest that 11 C.F.R. [§ ] 100.24 excludes from the definition of GOTV all activity that takes place more than 72 hours before an election. Although certain activity within 72 hours is specified as included within the definition, that specification is preceded by the clause, “Get-out-the-vote activity includes, but is not limited to.”
Def.’s Opp’n at 25 n. 44 (citation omitted). Given the plain reading of the provision, and the Commission’s insistence that the plain reading reflects its view of the provision’s scope, the Court finds that at this stage Plaintiffs’ concerns regarding the 72-hour language do not represent a live Case or Controversy.
79
Turning to the exemption for certain “associations,” Plaintiffs contend that there is “no authority” for the Commission’s adoption of this exemption. Pls. Mem. at 66. It is true that nothing on the face of the statute suggests that an exemption may be drawn.
See
2 U.S.C. § 431 (20)(A)(ii). The FEC’s E & J does not claim any statutory or legislative history basis for its creation of the exemption; rather, it notes the absence of legislative history and the implications of the plain reading of the text as supportive of its position.
The Commission included this exclusion because it finds it implausible that Congress intended to federalize State and local election activity to such an extent
*104
without any mention of the issue during the floor debate for BCRA. BCRA makes voter identification a subset of Federal election activity, and the regulatory implications of engaging in Federal election activity are significant. For the Commission to exercise its discretion so as to sweep within Federal regulation candidates for city council, or the local school board, who join together to identify potential voters for their own candidacies, the Commission would require more explicit instruction from Congress.
Prohibited & Excessive Contributions, 47 Fed.Reg. at 49,070. This statement in essence concedes that the text of BCRA does not provide for such an exemption; the Commission justifies its position by stating that Congress could not have meant what it actually said. The Court’s task under
Chevron
step one is to ask whether Congress has directly spoken on the question at issue. Congress clearly intended that “get-out-the-vote activity ... conducted in connection with an election in which a candidate for Federal office appears on the ballot” be 1 classified as “Federal election activity.” 2 U.S.C. § 431 (20)(A)(ii). To the extent that the Commission evokes federalism concerns to support its view, the Court observes that the Supreme Court rejected the federalism challenge mounted against BCRA.
McConnell,
124 S.Ct. at 685 . The Commission’s argument that Congress was sensitive to federalism concerns in enacting BCRA, pointing to its exception on state and local candidates’ funding of communications that “is in connection with an election for such State or local office and refers only” to candidates for state or local office,
80
lacks merit. Def.’s Opp’n at 30-31. While this provision clearly demonstrates Congress’s concern with “potential intrusion into state affairs,” the fact that it included such a provision with regard to “communications” but did not provide any such exemption for voter identification activities suggests that Congress did not intend to limit the scope of the statutory provision in such a manner.
See TRW Inc. v. Andrews,
534 U.S. 19, 28 , 122 S.Ct. 441 , 151 L.Ed.2d 339 (2001) (“Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”) (quoting
Andrus v. Glover Constr. Co.,
446 U.S. 608, 616-17 , 100 S.Ct. 1905 , 64 L.Ed.2d 548 (1980));
see also Cole,
571 F.2d at 597 . The Court therefore must conclude that Congress has spoken directly on this question, and that the Commission’s exemption for “association^] or similar group[s] of candidates for State or local office or of individuals holding State or local office” runs contrary to Congress’s clearly expressed intent and cannot stand.
81
*105
The Court now examines the regulation’s restriction of GOTV activities to those that “assist” voters under
Chevron
step two, asking whether the agency’s interpretation of the statute is a permissible one.
Chevron,
467 U.S. at 843 , 104 S.Ct. 2778 . As the Court found
supra,
the term GOTV can be read in different ways, and based on that analysis the Court finds that although the Commission’s construction may not functionally maximize Congress’s purposes, it is not a facially impermissible construction of the statute.
Turning to the
Orloski
analysis under
Chevron
step two, the Court cannot say that the regulation unduly compromises the Act’s purposes. Plaintiffs raise the same argument they did for their challenge to the voter registration activity provision. They contend that Congress enacted BCRA’s state and local party non-federal money provisions with the purpose of preventing circumvention of the national political party committee nonfederal money ban, and state that this purpose is compromised by the regulation. Pls.’ Mem. at 69. While this is certainly the general purpose of the nonfederal money restrictions placed on state and local political party committees, the Court cannot say at this stage that this purpose is “unduly compromise[d]” by the Commission’s regulation.
Orloski,
795 F.2d at 164 . As it found for the “voter registration activities” regulation, the Court finds ambiguity as to what acts are encompassed by the regulation. As noted
supra,
determining whether or not the Act’s purposes are compromised and the extent of the compromise requires an understanding of the regulation’s parameters. The regulation’s phrase “assist [registered voters] in engaging in the act of voting” is susceptible to broad and narrow readings.
See
Def.’s Opp’n at 25 (arguing that the “assist” requirement “is quite broad”). The Commission has made clear that providing a person with the date of the election constitutes GOTV activity if it occurs within 72 hours of an election. 11 C.F.R. §

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2470116. Public record. Not legal advice.