Lead Opinion
Opinion for the Court filed by Circuit Judge TATEL.
Opinion concurring in the judgment filed by Circuit Judge KAREN LeCRAFT HENDERSON.
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-Pattisan Political League,
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 аbout to commit a violation, the Commission must proceed with an investigation. 2 U.S.C. § 437g(a)(l), (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).
(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 regulatiоn, 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,
Pursuant to 11 C.F.R. § 5.4(a)(4), the Commission then redacted certain FOIAexempt 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 notificаtion 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.,
The Commission apрeals, 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 judgment de novo. Nat'l Mining Ass’n v. Fowler,
II.
Because the Cоmmission is charged with administering FECA, we analyze its regulations under the Chevron framework. See, e.g., Republican Nat'l Comm. v. FEC,
Before considering the Commission’s plea for Chevron deference, we must address the AFL-CIO’s argument that it should prevail at Chevron step one. Echoing the district court’s reasoning, it argues that subsection (a)(12)(A) — “[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” — speaks directly to the question at issue by prohibiting the release of investigatory file materials in both open and closed cases. For its part, the Commission asserts that the term “investigation” refers only to the act of investigating a complaint, not to the fruits of the inquiry. According to the Commission, once a pending investigation has closed and later stages of the enforcement process have implicitly revealed the fact that the Commission engaged in the act of investigation, the statute simply does not address the confidentiality of related files.
As we read subsection (a)(12)(A), we cannot agree with the AFL-CIO that the term “investigation” unambiguously encompasses files compiled during a Commission proceeding. All other uses of “investigation” in section 437g(a) refer to a fact-finding process, not to materials compiled during that process. See 2 U.S.C § 437g(a)(l) (Commission “may not conduct any investigation or take any other action” based solely on anonymous complaints); id. § 437g(a)(2) (Commission “shall make an investigation of ... [an] alleged violation, which may include a field investigation or audit,” upon a finding of “reason to believe”); id. § 437g(a)(ll) (Commission may petition to hold a party in civil contempt if it “determines after an investigation” that the party violated a couit order). Moreover, we think it telling that in contrast to subsection (a)(12)(A), section 437g(a)’s other confidentiality provision expressly protects information revealed in the course of Commission enforcement actions. Specifically, subsection (a)(4)(B)(i) forbids the disclosure of both “action[s] by the Commission or any person ... in connection with any conciliation attempt” and “information derived” in connection with such attempts. Id. § 437g(a)(4)(B)(i). Finally, the fact that subsection (a)(12)(A) permits disclosure upon written consent of “the person with respect to whom such investigation is made” without addressing the interests of third party witnesses who have provided confidential materials to investigators also implies that Congress was concerned about protecting the targets of Commission investigations, not the agency’s sources of information.
The AFL-CIO argues that its interpretation is supported by viewing subsection (a)(12)(A) in the context of section 437g(a)’s larger structure, but we think that exercise further demonstrates that the statute has two possible meanings. According to the AFL-CIO, section 437g(a)’s express requirement to release Commission no-violation determinations and signed conciliation agreements, id. § 437g(a)(4)(B)(ii), would be superfluous if Congress had intended the Commission to
The AFL-CIO next argues that the statute’s legislative history supports its interpretation of the statute. To the extent the sparse legislative record provides any clue of Congress’s intent, however, we think it supports the Commission’s interpretation. Congress provided no explanation when it enacted the original version of subsection (a)(12)(A) in 1974. Pub.L. No. 93-443, § 208(a) (1974). Scattered references in the legislative history of FECA’s 1976 amendments, which added a civil penalty for subsection (a)(12)(A) violations and the confidentiality and disclosure requirements in what is now subsection (a)(4)(B), emphasize the importance of protecting the confidentiality of pending investigations and indicate that some members believed that subsection (a)(12)(A) helps to prevent political opponents from bringing baseless charges against each othеr for purposes of generating negative publicity. See, e.g., H.R. Conf. Rep. No. 94-1057, at 49-50 (1976) (“The conferees’ intent is that a violation within the meaning of [subsection (a)(12)(A) ] occurs when publicity is given to a pending investigation, but [a violation] does not occur when actions taken in carrying out an investigation lead to public awareness of the investigation.”); H.R.Rep. No. 94-917, at 66 (1976) (indicating that the penalty for violating subsection (a)(12)(A) applies to any party who reveals “the identity of any person under investigation”); 122 Cong. Rec. 8566 (1976) (comments of Rep. Wayne Hays) (arguing when presenting the bill on the House floor that subsection (a)(12)(A) limits unfair publicity by prohibiting disclosure of “the fact that an individual is being investigated or is about to be investigated” until after the Commission has determined whether charges have merit). The legislative record, however, contains no references to protecting the confidentiality of closed Commission files or to the interests of parties who provide information during the course of an investigation.
Considering all of these factors together, we think the Commission may well be correct that subsection (a)(12)(A) is silent with regard to the confidentiality of investigatory files in closed cases and that Congress merely intended to prevent disclosure of the fact that an investigation is pending. But even if the AFL-CIO could convince us that its alternate construction represents the more natural reading of subsection (a)(12)(A), the fact that the provision can support two plausible interpretations renders it ambiguous for purposes of Chevron analysis. Nofaiger,
Contrary to the AFL-CIO’s contention, nothing in In re Sealed Case,
III.
We turn, then, to the Chevron step two issue — whether the Commission’s post-investigation disclosure policy reflects “a permissible construction of the statute.” Chevron,
We begin with a little background. The Supreme Court has long recognized that compelled disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direct regulation. See, e.g., Buckley v. Valeo,
In affidavits submitted in the district court, the AFL-CIO and DNC assert that releasing the names of hundreds of volunteers, members, and employees will make it more difficult for the organizations to recruit future personnel. The Commission urges us to dismiss this assertion of a chilling effect as speculative. Although we agree that the evidence in this case is far less compelling than the evidence presented in cases involving groups whose members had been subjected to violence, economic reprisals, and police or private harassment, see, e.g., Brown v. Socialist Workers ’74 Campaign Comm. (Ohio),
Moreover, in addition to arguing that disclosure will chill future individual political activity, the AFL-CIO and DNC affidavits charge that disclosing detailed descriptions of training programs, member mobilization campaigns, polling data, and
For example, in Eu v. San Francisco County Democratic Central Committee,
In this case, the AFL-CIO and DNC affidavits indicate that compelled disclosure of internal planning materials, though less direct than regulation of political group leadership or structure, will similarly frustrate those groups’ decisions as to “how to organize ... [themselves], conduct ... [their] affairs, and select ... [their] leaders,” as well as their selection of a “message and ... the best means to promote that message.” Eu,
Having concluded that the AFL-CIO and DNC have asserted substantial First Amendment interests in the disclosure of their own internal materials and at least marginal interests in preventing the chilling of political participation by their members and officials, we proceed to assess the strength of the government’s proffered interest in disclosure. The Commission offers two justifications for 11 C.F.R. § 5.4(a)(4): The regulation deters FECA violations, and it promotes the agency’s own public accountability. Although we have no doubt that these interests are valid, we need not engage in a detailed balancing analysis, for the Commission made no attempt to tailor its policy to avoid unnecessarily burdening the First Amendment rights of the political organizations it investigates. See, e.g., United States v. Popa,
Adding to the First Amendment concerns in this case, the AFL-CIO and James Madison Center argue — persuasively in our view — that when combined with the Commission’s broad subpoena practices, the automatic disclosure regulation “encourages political opponents to file charges against their competitors to serve the dual purpose of ‘chilling’ the expressive efforts of their competitor and learning their political strategy so that it can be exploited to the complainant’s advantage.” Madison Amicus Br. at 20. We have no doubt, as agency counsel explained at oral argument, that the Commission does its best to screen out frivolous complaints at the “reason to believe” stage, but such efforts do nothing to reduce the incentive for political adversaries to attempt to turn the Commission’s disclosure regulation to their own advantage. As this case demonstrates, the release policy gives parties a large potential “bonus” for filing a complaint because even if their allegations of wrongdoing are rejected, they may still obtain access to thousands of pages of their opponents’ internal strategic information.
The Commission argues that no First Amendment problem exists here because it is “merely disclosing its own agency records to the public ..., rather than coercing a private party to produce information.” Commission Reply Br. at 24. This position is quite remarkable. FECA authorizes the Commission to order any person to submit written reports and answer its questions, to subpoena witnesses
In sum, although we agree that deterring future violations and promoting Commission accountability may well justify releasing more information than the minimum disclosures required by section 437g(a), the Commission must attempt to avoid unnecessarily infringing on First Amendment interests where it regularly subpoenas materials of a “delicate nature ... representing] the very heart of the organism which the first amendment was intended to nurture and protect.” Machinists Non-Partisan Political League,
We end with a comment about the concurring opinion, which reads Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council,
The judgment of the district court is affirmed.
So ordered.
Concurrence Opinion
Circuit Judge, concurring in the judgment:
We are asked in this case, as in so many others, to dance the Chevron two-step, under which
the court must first exhaust the traditional tools of statutory construction to determine whether Congress has spoken to the precise question at issue.... If the court can determine congressional intent, then that interpretation must be given effect.... If, on the other hand, the statute is silent or ambiguоus with respect to the specific issue, then the court will defer to a permissible agency construction of the statute.
NRDC v. Browner,
My inquiry into the Congress’s intent proceeds, as it must, from “the fundаmental canon that statutory interpretation begins with the language of the statute itself.” Butler v. West,
[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.
2 U.S.C. § 437g(a)(12)(A). Stretching the text in hopes of reaching the deference it enjoys under Chevron step two, the Commission contends that section 437g(a)(12)(A) “does not specifically address closed cases, and its silence about whether and when the confidentiality requirement expires leaves Congress’s intent on that question ambiguous.” Br. of Appellant at 14; see id. at 16-17 (citing United States v. Kanchanalak,
Moreover, the fact that the provision does not specify “when the confidentiality requirement expires” suggests to me that it never expires. Resisting this logic, the Commission contends that the “disclosures ... required by other provisions of section 437g(a) when the administrative proceeding concludes ... make section 437g(a)(12)(A) inapplicable to closed cases.” Br. of Appellant at 20-21. In doing so, the FEC again neglects the plain language of the statute; section 437g(a)(12)(A)’s prohibition against disclosure of an “investigation” or a “notification” admits of no textual exceptions. See Sealed Case,
In a belated nod to ordinary meaning, and in the absence of a statutory definition, the Commission claims that “investigation” refers to “a process for discovering facts, not a file of documents.”
Although we observed in Sealed Case that the main purpose of section 437g(a)(12)(A) is “to protect [an] ... accused who is exonerated from disclosure of the fact that he has been under investigation,” Sealed Case,
When the FEC issues a subpoena as part of an investigation, § 437g mandates those subpoenas, like other components of the investigation, “shall not be made public.”.... Even if we assume that the FEC’s argument is correct (which it is not) and the Commission could disclose the subpoenas themselves (which it cannot), the Commission would still lack the authority to divulge information pertaining to the underlying investigation....
Sealed Case,
Among the “traditional tools of statutoiy construction” “the court must first exhaust” under Chevron and its progeny are the linguistic and substantive canons of interpretation, one of which — the canon of “constitutional avoidance” — is particularly useful in resolving the dispute before us. Invoking the canon in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council,
not only reflects the prudential concern that constitutional issues [should] not be needlessly confronted, but also recognizes that Congress, likе this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.
DeBartolo,
In sum, I do not believe the Congress intended section 437g(a)(12)(A) to apply so narrowly as to permit the Commission to publicize the documents at issue, in light of the “serious constitutional difficulties” attending such publication.
* * *
For the foregоing reasons, I would hold that section 437g(a)(12)(A) plainly prohibits the FEC from disclosing investigative records pertaining to a completed investigation if the investigated party does not consent to disclosure. While I disagree somewhat with the reasoning of my colleagues, I do agree that the district court’s December 19, 2001 judgment should be affirmed because the Commission’s interpretation of the Act is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A).
Notes
. There are far fewer open cases at any given time than there are closed ones — a disparity that will inevitably grow over time as ongoing investigations are completed.
. As the appellees point out, the FEC did not articulate this proposition “in its administrative dispositions of [the appellees’] objections to public release of the investigative file, where the Commission оtherwise extensively analyzed FECA, its legislative history, the FEC's regulations and FOIA.’’ Br. of Appellees at 19 n.ll. “Rather,” they note, "this argument first surfaced in the FEC’s briefs on the cross-motions for summary judgment.” Id.
. Even if the Commission's reading of "investigation” were correct, section 437g(a)(12)(A) would nonetheless prohibit the FEC from disclosing several of the documents it planned to (and initially did) publicize in April 2001. The written correspondence among and between the appellees, their counsel and the Commission, for example, would inevitably reveal upon publication the fact that the appellees had been investigated. Because the correspondence is neither a “conciliation agreement signed by both the Commission and the [appellees],” 2 U.S.C. § 437g(a)(4)(B)(ii), nor a “determination that [the appellees have] not violated this Act,” id., the Act would plainly foreclose publication of the correspondence even under the Commission's “process” interpretation of "investigation.”