Opposition Brief — Republican National Committee v. Federal Election Commission

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No. 96-415

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OCTOBER TERM, 1996

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

PETITIONERS

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

LAWRENCE M. NOBLE

General Counsel

RICHARD B. BADER

Associate General Counsel

DAVID KOLKER

Attorney

Federal Election Commission

Washington, D.C. 20463

QUESTION PRESENTED

Whether the court of appeals properly upheld the

Federal Election Commission’s regulation defining

what constitutes the “best efforts” of political com-

mittees to obtain and report identifying information

about their contributors under 2 U.S.C. 482(i).

(I)

TABLE OF CONTENTS

. Page

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TABLE OF AUTHORITIES

Cases:

American Hosp. Ass’n v. NLRB, 499 U.S. 606

SUPINE Sculls aiiadinsaeadsdaddoainedbemekincemeedsbedaaebeasitetasenens 16

Buckley v. Valeo, 424 U.S. 1 (1976) .............000 2, 6, 8, 13

Chevron U.S.A. Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984) ............06. 15, 17

City of Ladue v. Gilleo, 114 S. Ct. 2038 (1994)........... 14

FEC v. Democratic Senatorial Campaign Comm.,

NE BEE IED chicken uvstabiceseGedbasacbnaishsdcecvialinniteeis 16

Finley v. United States, 490 U.S. 545 (1989) ........... 15

Good Samaritan Hosp. v. Shalala, 508 U.S. 402

SRIUUEE shdsdacathadssbthaededechstscichssbvndnudbsetnsubiiactodiniuasevese 14, 15

International Union v. Donovan, 746 F.2d 855 (D.C.

Cir. 1984), cert. denied, 474 U.S. 825 (1985) ............ 16

Madsen v. Womens Health Ctr., 1148S. Ct. 2516

RO eat ees ei Oa checeubenialien 1]

McIntyre v. Ohio Elections Comm’n, 1158. Ct. 1511

SNEED Avie. canbe. esbbtebadlehbtetinaiansies induarbatbabbessoehanmeenies 11

Rust v. Sullivan, 500 U.S. 173 (1991) .............ceseeeeee 15

United States v. Grace, 461 U.S. 171 (1988) ............ 10

Ward v. Rock Against Racism, 491 U.S. 781

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Constitution, statutes and regulations:

i a a cduasoncenonsiaees 2, 6, 7, 10

Administrative Procedure Act, 5 U.S.C. 551

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Statutes and regulations—Continued: Page

Federal Election Campaign Act of 1971, 2 U.S.C.

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Federal Election Campaign Act Amendments of

1976, Pub. L. No. 94-283, Tit. I, § 104, 90 Stat.

480 (2 U.S.C: 4B4(D) (1GTE)) o....ccseccccccccsccvesssseseess 3, 6

Federal Election Campaign Act Amendments of

1979, Pub. L. No. 96-187, Tit. I, § 102, 93 Stat.

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11 C.F.R.:

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Miscellaneous:

122 Cong. Rec. (1976):

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58 Fed. Reg. (1993):

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H.R. Rep. No. 422, 96th Cong., Ist Sess. (1979) ......... 6, 12-

13, 15, 16

In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-415

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

PETITIONERS

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

22a) is reported at 76 F.3d 400. The opinion and

judgment of the district court (Pet. App. 23a-35a) are

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 20, 1996. A petition for rehearing was

denied on June 11, 1996 (Pet. App. 36a-37a). The

petition for a writ of certiorari was filed on

September 9, 1996. This Court has jurisdiction under

28 U.S.C. 1254(1).

(1)

STATEMENT

1. This case concerns a regulation under the

Federal Election Campaign Act of 1971 (FECA or

Act), 2 U.S.C. 481 et seg. The Act requires political

committees to disclose to the Federal Election Com-

mission (FEC),' inter alia, the name, mailing ad-

dress, occupation, and employer of each contributor

whose aggregate annual contributions exceed $200.

2 U.S.C. 431(13), 484(b)(3)(A). This Court held that

reporting requirement, first enacted in 1971, against

a First Amendment challenge in Buckley v. Valeo,

424 U.S. 1, 61-84 (1976), although at that time the

annual threshold for requiring occupation § and

employer information for individuals was only $100.

Id. at 68. The Court found the reporting thresholds

“low” and recognized that “[t]hese strict require-

ments may well discourage participation by some

citizens in the political process.” Jd. at 88. Nonethe-

less, it upheld them as “the least restrictive means of

curbing the evils of campaign ignorance and corrup-

tion that Congress found to exist.” Jd. at 68.

The regulation at issue has its origins in a post-

Buckley amendment to the FECA that added the

following sentence to the subsection specifying the

information political committees must provide in

their reports to the Commission:

! The Commission is an independent agency charged with

the administration, interpretation, and civil enforcement of the

FECA. See 2 U.S.C. 487c(b)(1), 487d(a) and (e), 487f, and

437g. Congress has expressly authorized the FEC to “formu-

late policy” under the Act, 2 U.S.C. 437¢(b)(1), and to “make,

amend, and repeal such rules * * * as are necessary to carry

out the provisions of this Act,” 2 U.S.C. 437d(a)(8).

When committee treasurers and candidates show

that best efforts have been used to obtain and

submit the information required by this subsec-

tion, they shall be deemed to be in compliance

with this subsection.

FECA Amendments of 1976 (1976 Amendments), Pub.

L. No. 94-283, Tit. I, § 104, 90 Stat. 480 (codified at 2

U.S.C. 434(b) (1976)) (emphasis added). Four years

later, the “best efforts” provision was recodified to its

current form with only minor changes in the original

language:

When the treasurer of a political committee

shows that best efforts have been used to obtain,

maintain, and submit the information required by

this Act for the political committee, any report or

any records of such committee shall be consid-

ered in compliance with this Act or chapter 95 or

chapter 96 of [title 26].

FECA Amendments of 1979 (1979 Amendments), Pub.

L. No. 96-187, Tit. I, § 102, 93 Stat. 1347 (codified at

2 U.S.C. 432(i)) (emphasis added). The only substan-

tive changes in the provision were the extension of

the “best efforts” standard to record keeping as well

as reporting, and the deletion of “candidates” as per-

sons to whom the “best efforts” standard is directly

applicable; the standard itself was untouched. The

FECA has never defined the term “best efforts.”

2. As originally promulgated, the regulation imple-

menting the “best efforts” language permitted politi-

cal committees to satisfy the provision by including a

“clear request” for the donor information with their

original solicitations. 11C.F.R. 104.7 (1981). No fur-

ther efforts to obtain donor information were re-

quired. Experience with that regulation, however,

revealed that “weaknesses in the current ‘best

efforts’ regulations appear to have led to a significant

percentage of incomplete itemizable contributions for

some committees.” Pet. App. 56a. For example,

during the rulemaking process leading to promulga-

tion of the changed regulation at issue in this case,

one group provided a study indicating that, through

June 1992, the presidential and congressional (general

election) candidates had “failed to identify the donor’s

occupation and employer for contributions totaling

over $36 million” (C.A. App. 169). In particular, the

“political committees of President Bush and Gover-

nor Clinton failed to report the donor occupa-

tion/employer information for well over half their

large individual contributions.” Jbid. With respect to

the cause of these low response rates, the Republican

National Committee acknowledged that “some cam-

paigns make a more serious effort * * * than oth-

ers”; another witness “revealed that some commit-

tees put their requests for donor information in small

print, or buried them among other material.”

Pet. App. 12a.

Such experiences led the FEC in 1993 to revise the

regulation implementing the “best efforts” provision.

58 Fed. Reg. 57,725. The amended (and current) regu-

lation provides that when a political committee is

unable to obtain and report all the information re-

quired by the Act about contributors of $200 or more,

the treasurer and committee will be deemed to have

satisfied that statutory obligation only if, inter alia,

the political committee sends a “stand-alone” follow-

up request for the information to donors who fail to

supply it in response to the committee’s original

solicitation. Jbid. The follow-up request cannot

contain “material on any other subject * * * except

that it may include language solely thanking the

contributor for the contribution.” rm GPR.

104.7(b)(2).”

In its Explanation and Justification for the revised

regulation, the FEC discussed the pertinent legisla-

tive history of “best efforts,” Pet. App. 47a-49a, and

stressed the “high priority” the Act places on “the

public interest in the disclosure of accurate and

complete contributor information.” Jd. at 43a. The

Commission “also weighed concerns regarding the

costs, burdensomeness, and effectiveness of various

modifications to the regulations” and “made every

effort to ensure that costs are reasonable.” Jbid. As

the court of appeals concluded, “[iJn the end, the

Commission’s new regulation result[ed] from exactly

the kind of agency balancing of various policy

considerations to which courts should generally

defer.” Id. at-14a.

3. After the “best efforts” regulation became final,

petitioners brought this action in district court to

challenge the regulation. In an unpublished decision,

the district court granted the Commission’s motion

for summary judgment. Pet. App. 23a-34a. The court

* The regulation also required the follow-up request to

include specific mandatory language describing political com-

mittees’ reporting requirements, but the court of appeals

invalidated and severed this portion of the regulation. Pet.

App. 9a-10a, 17a. No party now challenges that portion of the

court’s decision. Follow-up requests may thus include an

explanation of the reason for the information request, which

would be “material on [the same] subject” in compliance with

the regulation. See 11 C.F.R. 104.7(b)(2). Petitioners state

(Pet. 7 n.6, 10 n.7) that the Commission has “changed its

position” in this regard, but the Commission has simply

recognized the court of appeals’ decision. See Pet. App. 9a.

rejected petitioners’ arguments that the legislative

history of the “best efforts” provision precludes the

Commission’s construction and that the FEC had

improperly revised its regulation. The court also

rejected petitioners’ First Amendment challenges to

both the stand-alone follow-up requirement and the

language required to be used in information requests.

The court noted that the regulation only defines a

defense in the event political committees fail to report

ail required information, and thus “does not compel

political committees to do anything.” Jd. at 3la. It

also found that the “added costs imposed by the new

regulation are * * * a minimal burden [that] is not

unconstitutional in light of Buckley’s recognition of

the strong governmental interest involved.” /d. at

33a (citing Buckley, 424 U.S. at 66-68).

4. The court of appeals affirmed in part and re-

versed in part. Pet. App. la-22a. Noting (id. at 3a)

that Congress did not define “best efforts” when it

added the statutory requirement in the 1976 Amend-

ments or when it recodified the provision in the 1979

Amendments (see 93 Stat. 1347), the court afforded

deference to the FEC by determining that there is

“nothing in the phrase ‘best efforts’ to preclude the

Commission from requiring committees to make

more than one request for the information.” Pet. App.

6a. The court reasoned that a 1979 House report

carried “little probative weight” as “essentially post-

enactment history,” ibid., and it rejected petitioners’

other arguments that the legislative history limited

“best efforts” to a single request for information. Jd.

at 7a; see also H.R. Rep. No. 422, 96th Cong., Ist Sess.

14 (1979). The court also found reasonable the Com-

mission’s revision of the regulation in light of its

experience with the prior interpretation over the

| a a aa a

previous decade. Pet. App. 8a-9a. In addition, the

court rejected petitioners’ argument that the regula-

tion violated the Administrative Procedure Act, 5

U.S.C. 551 et seg. After examining the FEC’s rule-

making procedure in great detail (Pet. App. 10a-14a),

| the court concluded that “the Commission’s new

regulation results from exactly the kind of agency

balancing of various policy considerations to which

| courts should generally defer.” Jd. at 14a.

| With respect to the regulation’s mandatory state-

| ment to be included in information requests, however,

the court of appeals reversed the district court

because it found the statement to be inaccurate,

misleading, and contrary to the statute. Pet. App. 9a-

10a. “Because the Commission's initial proposed

regulation did not even include the requirement of a

mandatory statement,” however, the court found this

portion of the regulation to be severable from the

requirement of a stand-alone follow-up request. Jd. at

17a.

Finally, the court of appeals addressed and rejected

(Pet. App. 15a-17a) petitioners’ First Amendment

challenge to the regulation’s prohibition on the stand-

alone follow-up request “contain{ing] anything other

than the request for the missing information, the

mandatory statement, and an expression of grati-

tude.” Jd. at 4a. The court noted Buckley’s holding

that the Act’s disclosure requirements are the “‘least

restrictive means’ of furthering * * * substantial

government interests,” id. at 15a, and found it

significant that the “best efforts” provision offers an

optional safe harbor that was added only after Buck-

ley upheld the statute’s absolute disclosure require-

ments, ?bid. The court affirmed the district court’s

observation that the “best efforts” regulation “does

not compel political committees to do anything, and

there is no penalty for violation of the ‘best efforts’

regulation.” Jd. at 16a. In addition, the court of

appeals concluded that the restriction of speech was

content-neutral. “It forbids additional speech not

because of any hostility to the content of that speech,

but to ‘ensure that a written request for the inforraa-

tion is not overlooked.’” Jbid. (quoting 58 Fed. Reg.

57,727 (1993)). The court further determined that the

regulation imposed only a minimal financial burden

that is not unconstitutional, especially in light of

Buckley’s conclusion that the Act’s disclosure

requirements serve interests compelling enough to

outweigh the fact that they “would financially burden

campaigns by deterring some donors from contribut-

ing.” Pet. App. 17a (citing Buckley, 424 U.S. at 68).

ARGUMENT

The decision of the court of appeals upholding the

best efforts regulation is correct and does not conflict

with any decision of this Court or any other court of

appeals. Further review is therefore not warranted.

l. In Buckley v. Valeo, 424 U.S. 1 (1976), this

Court upheld the FECA’s requirement that political

committees disclose to the FEC each significant

contributor’s “name and address, as well as his occu-

pation and principal place of business.” Jd. at 82. The

Court explained that such a mandate is constitutional

because it “serves informational functions, as well as

the prevention of corruption and the enforcement of

the contribution limitations.” Jd. at 83. When the

statute was upheld in Buckley, it contained no

exception for a committee that was unable to obtain

the required information. As the court of appeals con-

cluded:

Indeed, because the “best efforts” provision—

added to the Act after the Court decided

Buckley—essentially offers an optional safe

harbor or affirmative defense for political com-

mittees unable to secure the identifying informa-

tion, it actually makes the Act’s reporting

requirements less stringent than the absolute

disclosure requirements upheld in Buckley. As

the district court explained, “the ‘best efforts’

regulation does not compel political committees

to do anything, and there is no penalty for

violation of the ‘best efforts’ regulation.” Repub-

lican Nat'l Comm., No. 94-1017, slip op. at 11.

Because the absolute disclosure requirement at

issue in Buckley does not violate the First

Amendment, neither can an optional safe harbor

for those unable to comply with the absolute

disclosure requirement.

Pet. App. 15a-16a. Thus, petitioners are incorrect in

claiming that the regulation purports to “allow the

government unprecedented control over political

entities’ speech.” Pet. 12. By upholding the disclo-

sure provision of the FECA in Buckley, the Court has

made clear that the Commission may undertake rea-

sonable steps to meet the purposes underlying the

statute.

2.a. Contrary to petitioners’ assertion, the court

of appeals did not hold that “any manner in which the

FEC chose to define ‘best efforts’ as a lessening of the

disclosure requirement would also be constitutional.”

Pet. 11 (emphasis added). Instead, as petitioners later

concede (Pet. 18), the court of appeals “also consid-

ered the speech ban in the required follow-up inquir-

ies on its own terms.” See Pet. App. 16a-17a.

The court of appeals properly determined that the

regulation’s restrictions on additional speech in the

follow-up request are content-neutral and thus valid

“if they are ‘narrowly tailored to serve a significant

government interest, and leave open ample alternative

channels of communication.” Pet. App. 16a (quoting

United States v. Grace, 461 U.S. 171, 177 (1983)). The

regulation prohibits all extraneous material from the

follow-up request that would clutter and obscure the

information. request. As the court of appeals ex-

plained, the regulation “forbids additional speech not

because of any hostility to the content of that speech,

but to ‘ensure that a written request for the informa-

tion is not overlooked.’” Pet. App. 16a (quoting 58

Fed. Reg. 57,727 (1993)). But since petitioners remain

entirely free to express their views to their contribu-

tors on any subject in all other communications, the

regulation amounts to nothing more than a reason-

able time, place, or manner restriction on such

speech. See Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989). As the Court stated in Ward, the

“controlling consideration” for courts in assessing a

First Amendment challenge is the government’s

purpose for the restriction. Jbid. The Commission’s

rationale for the rule is to maximize the likelihood

that recipients will not overlook the information

request, not to suppress the political messages of

committees.

Petitioners essentially concede that the regulation

is content-neutral when they state that “the regula-

iion may operate against all speech,” Pet. 19 n.16, but

they nonetheless contend that because the “ban

occurs in a forum for pure political speech, * * * the

regulation actually focuses the ban on _ political

speech,” ibid., and thus is invalid. The purported

“forum,” however, derives solely from the regula-

tion’s requirement that political committees make

one additional request for donor information without

being fettered by other information about politics or

other subjects. That requirement does not become

“content-based” because petitioners desire to trans-

form the follow-up letter into a vehicle for the

dissemination of messages unrelated to the narrowly-

tailored, legitimate purpose the letter is required to

address. See Madsen v. Women’s Health Ctr., 114 S.

Ct. 2516, 2523 (1994) (injunction preventing protesters

from interfering with abortion clinic was content-

neutral, despite anti-abortion views of particular

protesters).°

b. The regulation is narrowly tailored to serve a

compelling government interest and leaves open

ample alternative channels of communication. As the

court of appeals found:

The administrative record identifies as one cause

of low donor response rates the burying of

requests for donor information among other

material. Because the regulation prohibits that

practice, we are satisfied that it promotes the

* Petitioners also cite (Pet. 18) McIntyre v. Ohio Elections

Comm’n, 115 S. Ct. 1511 (1995), for the proposition that the

“best efforts” regulation is content-based. Mc/ ntyre, however,

dealt very specifically with an individual’s right to circulate

anonymous campaign literature, and the Court explicitly

distinguished Buckley and the disclosure provisions of the

FECA. Jd. at 1522. Moreover, unlike the Commission’s

regulation, the provision at issue in McIntyre “covered

documents * * * defined by their content—only ~ those

publications containing speech designed to influence the voters

in an election need bear the required markings.” Jd. at 1518.

very gathering of information that Buckley found

to be in the public interest.

Pet. App. 16a-17a. Petitioners may urge support for

particular candidates and solicit funds to pay for their

political activities—in all communications other than

the follow-up request—without running afoul of the

“best efforts” regulation.*

That the law does not obligate contributors to pro-

vide the personal identifying information does not

lessen the importance of the governmental interest at

stake, as petitioners assert, or suggest that “best

efforts” should be interpreted to require only a

nominal effort by political committees to solicit the

information. See Pet. 20. To the contrary, Congress

imposed a requirement of “best efforts” on political

committees to stress the importance of their making

a substantial, rather than pro forma, effort to solicit

this information from contributors who otherwise

may not be aware of the statutory disclosure

provisions. Thus, when the “best efforts” provision

was recodified in 1979, the Committee on House

Administration noted that “(t]he best efforts test is

crucial since contributor information is voluntarily

supplied by persons who are not under the control of

4 Thus, petitioners are free to explain in their written

solicitations that unless the contributor provides the requested

information, petitioners will need to expend part of the

contribution to make a written or oral stand-alone request for

missing contributor information (for contributors over the $200

threshold). Such an explanation would not only be permissible

under the regulation, but might also persuade many con-

tributors concerned about petitioners’ use of resources to pro-

vide the requested information initially, so that fewer follow-up

requests would be necessary.

the committee.” H.R. Rep. No. 422, supra, at 14.5

Similarly, this Court has already ruled that donors’

privacy interests do not render the disclosure

provision invalid or reduce the importance of the gov-

ernmental interest. As the court of appeals explained:

The Supreme Court considered the important

privacy and association rights at stake for

donors, acknowledged that “public disclosure of

contributions to candidates and political parties

will deter some individuals who otherwise might

contribute,” and held that the disclosure require-

ments were “the least restrictive means” of

furthering the substantial government interests.

Pet. App. 15a (quoting Buckley, 424 U.S. at 67-68). In

sum, the regulation’s restriction on extraneous mes-

sages in follow-up requests is content-neutral and

narrowly tailored, leaves ample opportunity for

petitioners to speak on any subject in all of their

® In 1976 the Senate rejected an effort to eliminate the re-

quirement of reporting a contributor’s occupation and

employer. 122 Cong. Rec. 6963. Senator Clark explained that

“[djisclosure of a contributor’s occupation and place of business,

including the name of the firm where the person is employed,

is vitally important if the public is to know and understand the

source of a candidate’s campaign funds.” Jbid. When Senator

Packwood introduced the “best efforts” amendment only a

week later, he did not suggest that it was intended significantly

to weaken this reporting requirement or to protect the privacy

rights of contributors. Instead, he called it an “anti-nit-picking

amendment” that was designed to do no more than protect

political committee treasurers when they are unable to obtain

the information from contributors even though they tried to do

so. See id. at 7922.

other communications, and serves compelling govern-

mental interests.°

3.a. The “best efforts” regulation is a reasonable

interpretation of the FECA. “The starting point in

interpreting a statute is its language.” Good Sa-

maritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993).

Congress did not define “best efforts,” but the

statutory phrase clearly embraces a range of per-

missible interpretations, and the Commission’s regu-

lation falls easily within that range. First, “best” is

an adjective of the superlative degree. Congress did

not require “some,” “good,” or “inexpensive” efforts,

but rather “best” efforts. Second, as a plural noun,

the term “efforts” on its face is contrary to petition-

ers’ argument (Pet. 24) that the statute precludes the

Commission from requiring more than “a single,

clear request accompanying each solicitation.”

Third, the term “efforts” denotes affirmative exertion

or work, not passive receptivity. Petitioners’ pro-

posal of a single effort that may be fettered by compet-

ing information is thus inconsistent with the stat-

ute’s plain meaning.

Moreover, because “best efforts” is not defined by

statute, the Commission’s interpretation is entitled

to deference. Good Samaritan Hosp., 508 U.S. at 414,

417-418. Here, the amount of effort required of

6 Petitioners’ reliance (Pet. 20 n.18) on City of Ladue v.

Gilleo, 114 S. Ct. 2038 (1994), is misplaced. In that case, a city

sought to reduce visual clutter as an end unto itself, an interest

that was “valid” but not compelling. See id. at 2045. Here, the

Commission did not act in order to make follow-up requests

more attractive, but rather because there was record evidence

that requests for donor information had become buried in clut-

tered texts, thereby depressing the disclosure rate of informa-

tion that helps prevent the corruption of federal elections.

political committees in the “best efforts” regulation

is quite modest, and since the Commission’s “inter-

pretation of a statute is at least as plausible as

competing ones, there is little, if any, reason not to

defer to its construction.” Jd. at 417. See also

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). As the court of

appeals found, because the regulation does not raise

“serious constitutional questions,” there is no reason

“to assume Congress did not intend to authorize [the

regulation’s] issuance.” Pet. App. 15a (quoting Rust

v. Sullivan, 500 U.S. 173, 191 (1991)).

b. The regulation is consistent with the legislative

history of the Act. As the court of appeals explained

(Pet. App. 6a), the 1979 House report upon which

petitioners rely in arguing that Congress intended

for only a single request to suffice for “best efforts”

is “essentially post-enactment history, carrying

little probative weight” because the 1979 Amend-

ments merely recodified the 1976 provision without

substantial change. See pp.2-3, supra; Finley v.

United States, 490 U.S. 545, 554 (1989) (“Under

established canons of statutory construction, ‘it will

not be inferred that Congress, in revising and consoli-

dating the laws, intended to change their effect unless

such intention is clearly expressed.’”).

Petitioners rely (Pet. 23-24) primarily upon a

single sentence in the 1979 House Report, which

states: “If the committee [has] made an effort to

obtain the information in the initial solicitation and

the contributor ignored the request, the Commission

should not require the committee to make the same

request two, three, or four times.” H.R. Rep. No. 422,

supra, at 14, The very next sentence of that House

Report, however, makes clear the reasonableness of

the FEC’s construction of the “best efforts” lan-

guage: “On the other hand, if the best efforts test is

not met, the committee must be required to take

corrective action, such as contacting the contributor

and requesting the information.” Ibid. (emphasis

added). Placed in its proper context, the passage to

which petitioners refer suggests only that Congress

did not intend to authorize the Commission to require

repeated and persistent efforts by political commit-

tees to obtain the requisite donor information. A

single, unfettered follow-up by the recipient, however,

comports fully with Congress’s intent.’

c. Finally, the court of appeals properly concluded

that the Commission’s new regulation is not unrea-

7 In any event, in stating that the Commission “should not”

require committees to make repeated requests for the informa-

tion, the legislative history on this point at most expresses a

preference of “how Congress expected or intended the [agency]

to behave,” when what is dispositive for this Court is how

Congress “required [the agency] to behave” in the statutory

language itself. International Union v. Donovan, 746 F.2d 855,

860 (D.C. Cir. 1984), cert. denied, 474 U.S. 825 (1985). Such an

admonition may appropriately be read as “a form of notice”

that if the Commission required political committees to make

numerous redundant requests for applicable donor information,

“Congress might respond with a legislative remedy.” Ameri-

can Hosp. Ass’n v. NLRB, 499 U.S. 606, 617 (1991). Pursuant

to 2 U.S.C. 438(d), the Commission must transmit any proposed

rule or regulation to Congress, and such regulation cannot

become final until 30 legislative days have elapsed. With re-

spect to the “best efforts” regulation at issue here, no legisla-

tion or resolution was introduced to overrule the Commission’s

new regulatory interpretation of “best efforts,” thus providing

an important “indication that Congress does not look unfavora-

bly” upon the Commission’s construction of the Act. FEC v.

Democratic Senatorial Campaign Comm., 454 U.S. 27, 34

(1981).

sonable simply because its prior regulation required

only one clear request for contributor information:

As the Court stated in Chevron, “{a]n initial

agency interpretation is not instantly carved in

stone.” 467 U.S. at 863. “[T]o engage in informed

rulemaking,” the Court observed, an agency

“must consider varying interpretations and the

wisdom of its policy on a continuing basis.” Jd. at

863-64. That is exactly what the Commission did

here. The mere fact that the Commission changed

the prior regulation does not make the new

regulation an unreasonable construction of the

Statute.

Pet. App. 8a-9a. Accordingly, the Commission’s

explanation is entitled to deference. See, ¢.9.,

Chevron, 467 U.S. at 863.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.