John Doe v. Fed. Election Comm'n

Decision Date12 April 2019
Docket NumberNo. 18-5099,18-5099
Citation920 F.3d 866
Parties John DOE, 1 and John Doe, 2, Appellants v. FEDERAL ELECTION COMMISSION, Appellee
CourtU.S. Court of Appeals — District of Columbia Circuit

John P. Elwood, Washington, DC, argued the cause for appellants. With him on the briefs were Michael S. Dry, Washington, DC, Katherine Cooperstein, William W. Taylor III, Washington, DC, Carlos T. Angulo, and Dermot Lynch, Washington, DC.

Haven G. Ward, Attorney, Federal Election Commission, argued the cause for appellee. With her on the brief were Kevin Deeley, Associate General Counsel, Charles Kitcher, Acting Assistant General Counsel, and Robert W. Bonham III, Senior Attorney.

Adav Noti, Mark P. Gaber, Stuart C. McPhail, and Adam J. Rappoport were on the brief for amici curiae Citizens for Responsibility and Ethics in Washington and Anne Weismann, Washington, DC, in support of Federal Election Commission and affirmance.

Before: Garland, Chief Judge, Henderson, Circuit Judge, and Randolph, Senior Circuit Judge.

Opinion concurring in part and dissenting in part filed by Circuit Judge Henderson.

Randolph, Senior Circuit Judge:1

This is an appeal from the decision of the district court refusing to enjoin the Federal Election Commission from releasing information identifying a trust and its trustee in connection with a misreported federal campaign contribution. Doe v. FEC , 302 F.Supp.3d 160 (D.D.C. 2018).

Plaintiffs — the trust and its trustee — appear incognita as John Doe 2 and John Doe 1. They claim that the Commission’s release of documents identifying them would violate the First Amendment to the Constitution, the Federal Election Campaign Act (FECA), and the Freedom of Information Act (FOIA). Plaintiffs and the Commission have filed some of the documents bearing on this case under seal.

The case began when an organization — Citizens for Responsibility and Ethics in Washington (CREW), which appears here as amicus curiae — filed a complaint with the Commission alleging that a $1.71 million contribution to a political action committee in October 2012 was made and reported in the name of someone other than the actual donor.

The Commission’s regulation, implementing 52 U.S.C. § 30122,2 states that no person shall "[m]ake a contribution in the name of another;" "[k]nowingly permit his or her name to be used to effect that contribution;" "[k]nowingly help or assist any person in making a contribution in the name of another;" or "[k]nowingly accept a contribution made by one person in the name of another." 11 C.F.R. § 110.4(b)(1)(i)-(iv).3

In this case the Commission, acting on CREW’s allegations, voted 6-0 finding reason to believe that the American Conservative Union violated § 30122"by knowingly permitting its name to be used to effect a $1.71 million contribution in the name of another to Now or Never PAC, an independent expenditure-only political committee. The Commission also found reason to believe that [others implicated in CREW’s complaint] violated 52 U.S.C. § 30122 by making the contribution in the name of another." Memorandum from Lisa Stevenson, Acting Gen. Counsel, to FEC 1 (Aug. 4, 2017) (footnote omitted), The Commission therefore authorized an investigation. Id.; see also 52 U.S.C. § 30109(a)(2).

The investigation, conducted by the General Counsel, traced the $1.71 million contribution and revealed the following undisputed facts. Government Integrity, LLC, a Delaware limited liability corporation, was formed in September 2012 for the purpose of making political contributions. [redacted] On or about October 31, 2012, the trust, presumably at the direction of its trustee, wired $2.5 million to Government Integrity. Minutes after receipt, Government Integrity wired $1.8 million to the American Conservation Union, which then wired the $1.71 million contribution to the political action committee, the Now or Never PAC. [redacted]

While participating in these sequential transactions on October 31, 2012, James C. Thomas, III served as the lawyer for Government Integrity and, at the same time, as the treasurer of the Now or Never PAC. Thomas filed a report with the Commission, on behalf of the PAC, listing the American Conservative Union (ACU) as the source of the $1.71 million even though ACU considered itself merely a "pass through" for the contribution.

The General Counsel, in recommending that the Commission take enforcement action, concluded that this nearly simultaneous three-step transaction — from the trust to Government Integrity, from Government Integrity to ACU, and from ACU to the PAC — "suggests that the parties went through significant lengths to disguise the true source of the funds." Third General Counsel’s Report at 11, Am. Conservative Union, No. MUR 6920 (FEC Sept. 15, 2017),

In 2017, the Commission, rather than bringing an enforcement action, entered into a "conciliation agreement" with Government Integrity, LLC, the American Conservative Union, the Now or Never PAC, and Thomas. Conciliation Agreement, Am. Conservative Union, No. MUR 6920 (FEC Nov. 3, 2017),; see also 52 U.S.C. § 30109(a)(4)(A)(i). These respondents to CREW’s complaint agreed not to contest the Commission’s determination that each of them violated § 30122 because the source of the $1.71 million contribution had been disguised. The conciliation agreement imposed an overall civil penalty of $350,000. The trust and the trustee were not parties to the agreement and, [redacted] were not identified within it.

Because it accepted the conciliation agreement, the Commission voted to close its file. Pursuant to its disclosure policy, the Commission announced that it would release documents from the investigation, some of which identified the trust and trustee. See generally Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 50,702, 50,702 -03 (Aug. 2, 2016) [hereinafter Disclosure Policy]. The Commission later issued those documents. It removed the disputed identifying information before publication pending the outcome of this lawsuit.

Plaintiffs’ complaint sought an injunction barring the Commission from revealing their identities. They did not deny the Commission’s assertion that the trust was the source of the $1.71 million contribution. Distinguishing AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003), the district court held that the First Amendment did not prevent the Commission from disclosing the identity of the trust and trustee; that the application of the Commission’s disclosure policy to plaintiffs was reasonable; and that FECA’s provisions and the regulations thereunder did not bar the disclosure and authorized the Commission’s action. Doe , 302 F.Supp.3d at 165-74.


The basic claim of the trust and the trustee is that the Commission had no statutory authority to disclose any documents identifying them.4 They point out that FECA "affirmatively and unambiguously provides for disclosure of two — and only two — items: (1) ‘any conciliation agreement signed by both the Commission and the respondent and (2) FEC ‘determination[s] that a person has not violated [FECA or other federal election laws].’ 52U.S.C. § 30109(a)(4)(B)(ii)." Does’ Br. 32 (alterations in original). As to (1), the Commission has made the conciliation agreement public. As to (2), the Commission did not decide whether plaintiffs violated FECA.

Plaintiffs’ theory must be that FECA’s specification of what the Commission is required to disclose deprives the Commission of authority to disclose anything else.5 And so they say that if the Commission publicly releases the additional material it would be acting "not in accordance with law" under the Administrative Procedure Act. 5 U.S.C. § 706(2)(A).6

Plaintiffs’ argument presents an obvious question: "not in accordance with" what "law"? The Commission has a long-standing regulation requiring it to make public its action terminating a proceeding and "the basis therefor." 11 C.F.R. § 111.20(a).

Does an agency’s disclosure regulation constitute "law" within the meaning of § 706 of the Administrative Procedure Act? A similar question was presented in Chrysler Corp. v. Brown , 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). The Supreme Court answered: "authorized by law" includes "properly promulgated, substantive agency regulations." 441 U.S. at 295, 99 S.Ct. 1705. We gave the same answer in Bartholdi Cable Co. v. FCC, 114 F.3d 274, 281 (D.C. Cir. 1997). Although these FOIA cases were interpreting the Trade Secrets Act, 18 U.S.C. § 1905, their statements apply as well to the quoted language in the Administrative Procedure Act.

Plaintiffs have not argued that § 111.20(a) is anything other than a "properly promulgated" regulation.7 FECA empowers the Commission to "prescribe[ ] forms and to make, amend, and repeal such rules ... as are necessary to carry out the provisions of this Act," 52 U.S.C. § 30107(a)(8), and to "formulate policy with respect to" the Act, 52 U.S.C. § 30106(b)(1).8 When an agency’s "empowering provision" contains such language, the courts will sustain a regulation that is "reasonably related" to the purposes of the legislation. Mourning , 411 U.S. at 369, 93 S.Ct. 1652 (quoting Thorpe v. Hous. Auth . of Durham, 393 U.S. 268, 280, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) ). This regulation — like the regulation in Mourning — requires more disclosure than the governing statute, but that is no reason for rejecting it. Id. at 371-73, 93 S.Ct. 1652. The Supreme Court long has recognized that "[g]rants of agency authority comparable in scope" to FECA’s provisions at issue here "have been held to authorize public disclosure of information ..., as the agency may determine to be proper upon a balancing of the public interests involved." FCC v. Schreiber, 381 U.S. 279, 291-92, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965...

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