Afl-Cio v. Federal Election Com'n

• Citation: 333 F.3d 168
• Decision Date: 20 June 2003
• Docket Number: No. 02-5069.,02-5069.
• Parties: AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS and DNC Services Corporation, Democratic National Committee, Appellees, v. FEDERAL ELECTION COMMISSION, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

333 F.3d 168

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS and DNC Services Corporation, Democratic National Committee, Appellees, v. FEDERAL ELECTION COMMISSION, Appellant.

No. 02-5069.

United States Court of Appeals, District of Columbia Circuit.

Argued March 14, 2003.

Decided June 20, 2003.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 01cv01522).

David B. Kolker, Attorney, Federal Election Commission, argued the cause for appellant. With him on the briefs was Richard B. Bader, Associate General Counsel.

Trevor Potter, Lisa J. Danetz and Lawrence M. Noble were on the brief for amicus curiae Campaign and Media Legal Center, et al. in support of appellant.

Laurence E. Gold argued the cause for appellees. With him on the brief were Joseph E. Sandler and Michael B. Trister.

James Bopp, Jr. and Raeanna S. Moore were on the brief for amicus curiae James Madison Center for Free Speech in support of appellees.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit Judge KAREN LeCRAFT HENDERSON.

TATEL, Circuit Judge.

Unique among federal administrative agencies, the Federal Election Commission has as its sole purpose the regulation of core constitutionally protected activity — "the behavior of individuals and groups only insofar as they act, speak and associate for political purposes." FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C.Cir.1981). As a result, Commission investigations into alleged election law violations frequently involve subpoenaing materials of a "delicate nature ... represent[ing] the very heart of the organism which the first amendment was intended to nurture and protect: political expression and association concerning federal elections and officeholding." Id. at 388. At the close of such investigations, a Commission regulation has long required public release of all investigatory file materials not exempted by the Freedom of Information Act. In this case, the subjects of a now-closed investigation challenge the regulation as inconsistent with both the Federal Election Campaign Act and the First Amendment. We hold that the regulation, though not contrary to the plain language of the statute, is nevertheless impermissible because it fails to account for the substantial First Amendment interests implicated in releasing political groups' strategic documents and other internal materials.

I.

The Federal Election Commission's administrative enforcement procedures are governed by 2 U.S.C. § 437g(a) of the Federal Election Campaign Act (FECA). When the Commission receives a sworn complaint alleging that an election law violation has occurred, it must first notify the alleged violator and give it an opportunity to respond to the accusation. If four Commission members find "reason to believe" that the respondent has committed or is about to commit a violation, the Commission must proceed with an investigation. 2 U.S.C. § 437g(a)(1), (2). If the Commission then finds "probable cause" to believe that a violation has occurred, it must attempt to reach an informal conciliation agreement with the respondent. Id. § 437g(a)(4)(A)(i). The Commission may bring a civil enforcement proceeding in U.S. District Court if conciliation negotiations fail. Id. § 437g(a)(6). Where the Commission decides to dismiss a complaint at any stage of the process, however, the statute allows "aggrieved" parties to challenge the dismissal in U.S. District Court. Id. § 437g(a)(8).

Two parts of section 437g(a) directly address confidentiality and disclosure of enforcement-related information. Subsection (a)(12)(A) — the provision at issue in this case — states that "[a]ny notification or investigation made under this section shall not be made public by the Commission or by any person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made." Id. § 437g(a)(12)(A). Subsection (a)(4)(B) addresses disclosures in post-investigation proceedings:

(i) No action by the Commission or any person, and no information derived, in connection with any conciliation attempt by the Commission ... may be made public by the Commission without the written consent of the respondent and the Commission.

(ii) If a conciliation agreement is agreed upon by the Commission and the respondent, the Commission shall make public any conciliation agreement signed by both the Commission and the respondent. If the Commission makes a determination that a person has not violated... [election laws], the Commission shall make public such determination.

Id. § 437g(a)(4)(B).

The Commission promulgated two regulations implementing these provisions, 11 C.F.R. §§ 111.20, 111.21, plus a third that reconciles FECA with the Freedom of Information Act, 5 U.S.C. § 552. The latter regulation, 11 C.F.R. § 5.4(a)(4), requires the disclosure of investigatory file materials in closed cases:

Opinions of Commissioners rendered in enforcement cases and General Counsel's Reports and non-exempt 2 U.S.C. 437g investigatory materials shall be placed on the public record of the Agency no later than 30 days from the date on which all respondents are notified that the Commission has voted to close such an enforcement file.

11 C.F.R. § 5.4(a)(4).

The roots of this case reach back to the mid-1990s when the National Republican Senatorial Committee, the National Republican Congressional Committee, and an independent political action committee chaired by Oliver North filed eleven complaints with the Commission alleging, among other things, that the AFL-CIO and various individual unions had unlawfully coordinated their "Labor '96" campaign expenditures with political candidates and party committees. Finding "reason to believe" that FECA violations had occurred, the Commission embarked on a three-year investigation during which it subpoenaed approximately 50,000 pages of documents from the AFL-CIO, the Democratic National Committee (DNC), and 150 other respondents, as well as third-party witnesses. The AFL-CIO turned over documents containing detailed descriptions of meetings with elected officials, training programs for union activists, convention and get-out-the-vote activities, and polling data analyzing union members' political attitudes and the effectiveness of particular political messages. The DNC provided memoranda concerning internal deliberations between state and national party leaders, as well as "Coordinated Campaign" plans describing state officials' strategies, techniques, and timetables for winning upcoming elections across the country.

After the U.S. District Court for the District of Columbia issued a decision narrowing the circumstances under which the Commission could regulate coordination practices under FECA, FEC v. Christian Coalition, 52 F.Supp.2d 45 (D.D.C.1999), the Commission dismissed the complaints in this case. At that time, Commission investigators had yet to review an estimated 10,000 to 20,000 pages of the materials gathered during the course of the proceedings. FEC General Counsel's Report, In re AFL-CIO, et al., at 11 n. 6 (June 12, 2000). None of the complainants sought judicial review of the dismissal under 2 U.S.C. § 437g(a)(8).

Pursuant to 11 C.F.R. § 5.4(a)(4), the Commission then redacted certain FOIA-exempt materials and made available an initial 6000 pages of investigatory files in its public records office. The AFL-CIO and DNC petitioned the Commission to withdraw the released files from the records office and to withhold virtually all remaining documents, arguing that the materials were protected by certain FOIA exemptions and by section 437g(a)(12)(A)'s prohibition against disclosing "[a]ny notification or investigation made under this section" without written consent of the respondent. According to the petitioners, disclosure of the materials would disadvantage them by revealing political tactics and strategies to their opponents and by needlessly releasing information identifying hundreds of officials, employees, and volunteers named in the documents, making it harder for the two organizations to recruit such personnel in the future. (Like the parties, we shall refer to the two petitioners as the AFL-CIO.) The Commission denied both the section 437g and FOIA claims.

The AFL-CIO then filed suit against the Commission in the U.S. District Court for the District of Columbia. Applying Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), the district court held that section 437g(a)(12)(A)'s plain language protects investigatory files from disclosure. AFL-CIO v. FEC, 177 F.Supp.2d 48, 55-59 (D.D.C.2001). The court also concluded that the Commission's position violated 11 C.F.R. § 111.21 and FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C). AFL-CIO, 177 F.Supp.2d at 59-61.

The Commission appeals, arguing that its longstanding disclosure policy warrants Chevron deference. In support of the Commission, the Campaign and Media Legal Center, the Center for Responsive Politics, and the National Voting Rights Institute assert in their amicus brief that disclosure of investigatory files is essential to public oversight of the Commission. The AFL-CIO defends the district court's Chevron analysis and argues that even if FECA is ambiguous, the Commission deserves no deference because its interpretation raises serious First Amendment problems. Amplifying the latter point, the James Madison Center for Free Speech argues in its amicus brief that the Commission's policy creates an incentive for political groups to file complaints against their opponents in order to gain access to their strategic plans, as well as to chill the opponents' activities. We review the district court's grant of summary...