Shays v. U.S. Federal Election Com'n, Civil Action No. 06-1247 (CKK).

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Colleen Kollar-Kotelly
• Citation: 508 F.Supp.2d 10
• Parties: Christopher SHAYS, Plaintiff, v. UNITED STATES FEDERAL ELECTION COMMISSION, Defendant.
• Decision Date: 12 September 2007
• Docket Number: Civil Action No. 06-1247 (CKK).

508 F.Supp.2d 10 Christopher SHAYS, Plaintiff,
v.
UNITED STATES FEDERAL ELECTION COMMISSION, Defendant. Civil Action No. 06-1247 (CKK). United States District Court, District of Columbia. September 12, 2007.

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Michelle M. Umberger, Charles G. Curtis, Jr., David L. Anstaett, Lissa R. Koop, Heller, Ehrman, White & Mcauliffe, L.L.P., Madison, WI, for Plaintiff.

David Brett Kolker, Gregory John Mueller, Richard Blair Bader, Vivien Clair, Federal Election Commission, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Currently pending before the Court are cross-motions for summary judgment filed by Plaintiff, Christopher Shays ("Shays" or "Plaintiff"), a member of the. United States House of. Representatives, and Defendant, the Federal Election Commission ("FEC" or "Commission" or "Defendant"). Plaintiff's Complaint in this action challenges the FEC's alleged "continuing failure to promulgate lawful regulations" implementing Titles I and II of the Bipartisan Campaign Reform Act ("BCRA") — specifically regulations governing "coordinated communications," "Federal election activity," and solicitations of nonfederal money by federal officeholders and candidates at state, district, and local fundraising events.

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Compl. ¶ 2.¹ The above-captioned action represents Plaintiff's second challenge to these regulations — Plaintiff previously filed a related action, Shays v. Federal Election Commission, Civil Action No. 02-1984(CKK), in which he challenged the then-effective versions of these regulations. See Shays v. FEC, 337 F.Supp.2d 28, 35 (D.D.C.2004) ("Shays I").² This Court granted-in-part and denied-in-part each party's motion for summary judgment in Shays I, and invalidated and remanded fifteen regulations promulgated by the FEC, including the regulations at issue in the instant action. See id. at 130-31. The FEC subsequently appealed this Court's summary judgment decision in Shays I with respect to five rules, only one of which is challenged herein, and on July 15, 2005, the United States Court of Appeals for the District of Columbia Circuit affirmed this Court's "invalidation of all five rules at issue." See Shays v. FEC, 414 F.3d 76, 82, 105 (D.C.Cir.2005) ("Shays. I Appeal").

Following the decisions in Shays I and the Shays I Appeal, the Commission initiated rulemaking proceedings for each of the regulations challenged herein, and either promulgated a revised regulation or retained its previous regulation while revising the accompanying Explanation and Justification ("E & J"). Plaintiff's Complaint in this action challenges the FEC's alleged "continuing failure to promulgate lawful regulations ... as required by the opinions and judgment in Shays I and by [BCRA]." Compl. ¶ 2. Upon searching consideration of the parties' briefing, the administrative record of the relevant rulemaking proceedings, the relevant case law and statutes, and the entire record herein, the Court shall grant-in-part and deny-in-part Plaintiff's Motion for Summary Judgment and shall grant-in-part and deny-in-part Defendant's Motion for Summary Judgment.

Summary of Conclusions

The Court concludes that the revised coordinated communications content standard contained in 11 C.F.R. § 109.21(c)(4) survives Chevron analysis, but does not meet the Administrative Procedure Act's ("APA") requirement of reasoned decision-making.

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See infra at 37-49. With respect to the revised coordinated communications conduct standards at 11 C.F.R. § 109.21(d), the Court finds that the revised temporal limit for the common vendor and former employee conduct standards in 11 C.F.R. §§ 109.21(d)(4) and (d)(5) survives Chevron step two analysis but is nevertheless arbitrary and capricious, in violation of the APA. See infra at 48-52. The Court further concludes that the new firewall safe harbor included in the conduct standards fails Chevron step two analysis and is also arbitrary and capricious, in violation of the APA. See infra at 52-57. As to the exemption for solicitation by federal candidates and officeholders at state, district, or local party fundraising events, found at 11 C.F.R. § 300.64(b), the Court concludes that the provision survives APA review. See infra at 56-62. Finally, the Court finds that the definitions of "voter registration activity" and `get-out-the-vote activity" contained in the Commission's regulations governing "Federal election activity," 11 C.F.R. §§ 100.24(a)(2)-(a)(3), fail both Chevron step two and APA analysis. See infra at 62-70. The Court therefore remands the following regulations to the Commission for further action consistent with this Memorandum Opinion and the accompanying Order: 11 C.F.R. § 109.21(c); 11 C.F.R. § 109.21(d); 11 C.F.R. § 100.24(a)(2); and 11 C.F.R. § 100.24(a)(3).

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 instant cross-motions for summary judgment, the Court "assumes that facts identified by the moving party in the 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; 7(h). Specifically, the Court looks to each party's statement to cull out the relevant undisputed facts and to determine those facts that are conceded by the cross-moving party.

The Court further notes that the events, statutes, and case law underlying this action have been the subject of numerous opinions of this Court,. the United States Court of Appeals for the District of Columbia Circuit, and the United States Supreme Court. See McConnell, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491; Shays I, 337 F.Supp.2d 28; Shays I Appeal, 414 F.3d 76. Accordingly, the Court shall recite herein only those facts that are relevant in resolving the instant cross-motions for summary judgment.

A. Events Prior to Shays I

The Bipartisan Campaign Reform Act, H.R. 2356, was signed into law on March 27, 2002, and amended the Federal Election Campaign Act of 1971 (the "Act" or "FECA"). Shays I, 337 F.Supp.2d at 36-37. The Federal Election Commission is the independent agency of the United States government with exclusive jurisdiction to administer, interpret, and civilly. enforce FECA. Id. at 37. As directed in BCRA, the Commission initiated rulemaking proceedings and subsequently promulgated regulations implementing BCRA. Id. Those regulations included, inter alia, rules governing Federal election activity of state, district, and local parties, and solicitation by federal candidates and officeholders at state, district, and local party fundraising events, all of which became effective on November 6, 2002, as well as a rule governing "Coordinated and Independent Expenditures," which became effective on February 3, 2003. Shays I, 337 F.Supp.2d at 37-38; Pl.'s Statement of

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Material Facts As To Which Plaintiffs Contend There is No Genuine Issue ("Pl.'s Stmt.") ¶¶ 4-5; Def.'s Stmt. of Material Facts Not in Genuine Dispute ("Def.'s Stmt.") ¶¶ 3-6.

Plaintiff Christopher Shays is a citizen of the United States, a Member of Congress, candidate, voter, recipient of campaign contributions, fundraiser, and member of a political party. Pl.'s Stmt. ¶ 18. Plaintiff Shays is a Member of the United States House of Representatives from the Fourth Congressional District of the State of Connecticut. Id. ¶ 14. He was first elected in 1987, was re-elected in 1988, has been re-elected every two years thereafter, and is running for re-election in November 2008. Id. Plaintiff is subject to regulation under FECA, BCRA, and the Commission's implementing regulations. Id. ¶ 18. Along with Martin Meehan, the former Member of the United States House of Representatives from the Fifth Congressional District of Massachusetts, id. ¶ 15, Plaintiff Shays was one of the principal House sponsors of the legislation enacted as BCRA and spent many years seeking to promote its enactment, id. ¶ 16. Shays and Meehan, along with other co-sponsors of BCRA, submitted written comments on the FEC's proposed rules implementing BCRA's provisions, including the rulemaking proceedings undertaken in response to the decisions of this Court in Shays I and the D.C. Circuit in the Shays I Appeal. Id. ¶ 17. The Commission did not adopt some of Shays' and Meehan's views in its final rules. Id.; Def.'s Stmt. of Gen. Issues ("Def.'s Resp. Stmt.") ¶ 17.

B. Shays I

Plaintiff's Complaint and Amended Complaint in Shays I challenged a number of the Commission's regulations implementing Titles I and II of BCRA. Shays I, 337 F.Supp.2d at 35. This Court's September 18, 2004 Memorandum Opinion and Order invalidated some of those regulations including, inter alia, 11 C.F.R. §§ 100.24(a)(2) and (a)(3), 109.21(c), and 300.64(b), the regulations governing Federal election activity, coordinated communications, and solicitation by federal officeholders and candidates at state, district, and local fundraising events. Id. at 55-65, 88-93, 97-107, 129-30.³ The FEC appealed this Court's resolution of Plaintiff's challenge to the coordinated communications regulations, as well as with four other regulations, and on July 15, 2005, the United States Court of Appeals for the District of Columbia Circuit affirmed this Court's invalidation of those regulations. Shays I Appeal, 414 F.3d at 97-102.⁴

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C. Post-Shays I Rulemaking Proceedings

1. Solicitation At Party Fundraising Events

On February 24, 2005, the Commission issued a Notice of Proposed Rulemaking ("NPRM") on "Solicitation at State, District, and Local Party Fundraising Events" by federal candidates and officeholders. Def.'s...