920 F.3d 866
D.C. Cir.2019Background
- A trust (John Doe 2) and its trustee (John Doe 1) were implicated in a transaction that resulted in a $1.71 million contribution to Now or Never PAC routed through Government Integrity, LLC and the American Conservative Union (ACU). The FEC investigation concluded the routing disguised the true source of funds.
- The FEC negotiated a conciliation agreement with Government Integrity, ACU, Now or Never PAC, and an individual respondent; the trust and trustee were not parties and were not named in the conciliation agreement. The Commission then closed the file.
- Under its 2016 Disclosure Policy and 11 C.F.R. § 111.20, the FEC planned to publish investigative materials showing the basis for closing the matter; some documents contained the trust’s and trustee’s names. The FEC initially redacted those names pending resolution of this suit.
- Plaintiffs sued seeking an injunction to prevent the FEC from revealing their identities, arguing the disclosure violated the First Amendment, FECA, and FOIA. The district court denied relief; the D.C. Circuit affirmed in part and rejected plaintiffs’ First Amendment, FECA, and FOIA-based arguments.
- Judge Henderson concurred in parts II–III but dissented on Part I, arguing FECA’s disclosure scheme authorizes only two mandatory disclosures (signed conciliation agreements and no-violation determinations) and that the FEC lacks discretionary authority to disclose other investigatory records identifying non-respondent parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FECA bars the FEC from disclosing investigatory records identifying the trust/trustee | FECA’s disclosure provisions enumerate only two mandatory disclosures, so any other disclosure (including identities) is unlawful; §30109(a)(12)(A) and (a)(4)(B)(i) protect investigative records | FEC has rulemaking authority under FECA to promulgate disclosure regulations and its §111.20 regulation and 2016 Disclosure Policy reasonably implement FECA and authorize publishing the basis for terminating proceedings | Majority: FEC regulation is "authorized by law" and reasonably related to FECA’s purposes; disclosure lawful. Henderson: dissents — FECA allows only two disclosures, so release is unlawful. |
| Whether the FEC’s disclosure regulation and policy are "law" under the APA so that agency action conforms to law | Plaintiffs: regulation cannot override FECA’s statutory limits; releases beyond §30109 violate APA §706(2)(A) | FEC: properly promulgated regulation is "authorized by law" (Chrysler/Mourning) and its Disclosure Policy balanced public/private interests | Held: Regulation qualifies as law; the disclosure policy reasonably balances interests and supports disclosure. Dissent disagrees. |
| First Amendment: whether disclosure would chill associational or political activity or cause threats/reprisals | Plaintiffs: disclosure will chill political activity and implicate associational privacy | FEC: Citizens United permits disclosure regimes; as-applied challenge requires evidence of likely threats/reprisals, which plaintiffs do not provide | Held: Citizens United forecloses a broad First Amendment bar; plaintiffs offered no evidence of threats or reprisals, so disclosure is not prevented by the First Amendment. |
| FOIA/Exemption 7(C): whether FOIA privacy exemption prevents disclosure | Plaintiffs: Exemption 7(C) protects privacy and entitled them to injunctive relief preventing release | FEC: FOIA is a disclosure statute that does not restrict an agency’s voluntary disclosure under other statutory/regulatory authority; Exemption 7(C) protects individuals not corporations/trusts, so trust identity is not protected | Held: FOIA does not bar FEC-initiated disclosure here; Exemption 7(C) would not protect the trust (an artificial entity) and the trustee’s privacy interest is minimal; disclosure permitted. |
Key Cases Cited
- Citizens United v. FEC, 558 U.S. 310 (2010) (upheld disclosure regime against general First Amendment challenge; as-applied claim requires evidence of likely threats or reprisals)
- AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) (discusses FEC disclosure interests and investigatory confidentiality)
- Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (agency regulations properly promulgated can be "authorized by law" for purposes of limiting disclosure constraints)
- Mourning v. Family Publications Serv., 411 U.S. 356 (1973) (regulation under a broad enabling clause is valid if reasonably related to statutory purpose)
- Bartholdi Cable Co. v. FCC, 114 F.3d 274 (D.C. Cir. 1997) (agency disclosure/regulation authority considered in context of statutory limits)
- FCC v. AT&T Inc., 562 U.S. 397 (2011) (Exemption 7(C) "personal privacy" protects individuals, not corporations)
- In re Sealed Case, 237 F.3d 657 (D.C. Cir. 2001) (interpreting §30109(a)(12)(A) confidentiality for ongoing FEC investigations)
- Colorado River Indian Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134 (D.C. Cir. 2006) (agency general rulemaking authority does not validate regulations lacking statutory basis)
- NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010) (general policy language does not validate agency action inconsistent with statutory delegation)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency may withhold certain third-party identifying information under FOIA exceptions)