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AFL-CIO and DNC Services Corp./DNC v. FEC (01-1522 and 02-5069)


On June 20, 2003, the U.S. Court of Appeals for the District of Columbia Circuit upheld the U.S. District Court for the District of Columbia's decision in this case. The appeals court found that the FEC's practice of disclosing documents obtained during an investigation was based on a regulation that, "while 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."


On June 17, 1997, the Commission found reason to believe that the plaintiffs had violated the Federal Election Campaign Act (the Act) during the 1995-96 election cycle (Matters Under Review (MURs) 4291, et al.). At the conclusion of its investigation, the Commission voted to take no further action on MURs 4291, et al., and to close the files. In keeping with its long-standing practice of disclosing the investigatory record once a MUR is closed, the Commission planned to make public a portion of the investigatory file.

The plaintiffs claimed that public disclosure of the files would cause irreparable injury by revealing confidential information and by chilling the plaintiffs' future efforts to engage in political activities. The plaintiffs asked the Commission not to make the documents public; however, the Commission denied their requests on the grounds that the Commission's regulations under the Act and the Freedom of Information Act (FOIA) required disclosure of the MUR files.

District court decision

The plaintiffs had requested summary judgment from the district court, arguing, among other things, that disclosure of the documents would violate the confidentiality provision of the Act, which states that:

"Any notification or investigation made under [the enforcement] 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).

The Commission had argued that the Act only protects the confidentiality of ongoing investigations. Once a MUR is closed, the Act requires the Commission to make public the conciliation agreement or the Commission's determination that the Act has not been violated. 2 U.S.C. §437g(a)(4)(B)(ii). The Commission asserted that the Act's confidentiality provision was intended to protect a MUR respondent from disclosure of the fact that the respondent was under investigation. When the Commission made public its MUR determination, it would also reveal the fact that the respondent had been investigated, leaving nothing to be protected by the confidentiality provision. 2 U.S.C. §437g(a)(12)(A).

The district court, however, concluded that the plain language of the Act barred the Commission from publicizing investigative materials and, thus, that the Commission's interpretation of the statute ran counter to Congressional intent. 2 U.S.C. §437g(a)(12)(A). The court found that the Act's provision requiring that MUR determinations be made public was a limited exception to the Act's confidentiality provision, not a directive to end the protection of that provision. Moreover, the court concluded that publication of the materials would violate 11 CFR 111.21(a), which implements the Act's confidentiality provision.

Appeals court decision

The appeals court carried out its deliberations under the framework developed by the U.S. Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). In the Chevron framework, when a court reviews an agency's interpretation of the statute which it administers, the court must address two questions:

  • Whether Congress has directly spoken on the question at issue; and
  • In a case where the statute is silent or ambiguous with respect to the specific issue, whether the agency's approach is based on a permissible construction of statute.

The first question in this case was whether the Act provides a clear indication of Congressional intent regarding the disclosure of investigatory materials from closed investigations. The Commission argued that 2 U.S.C. §437g(a)(12)(A) was silent on whether materials from closed investigations could be released. The plaintiffs argued that this provision requires the Commission to keep investigatory files confidential even after the closing of an investigation. According to them, the permissible disclosures are limited to those set out in a separate section of the Act (2 U.S.C. §437g(a)(4)(B)(ii)) that requires the Commission's disclosure of signed conciliation agreements and its findings that a violation has not occurred.

The court determined that since the statute itself appears to support two plausible interpretations, it is ambiguous enough to proceed to the second stage of the Chevron analysis.

In examining whether, in the absence of Congressional intent, the Commission's disclosure policy represents a reasonable construction of the statute, the court noted that "[C]ourts . . . balance the burdens imposed on individuals and associations against the significance of the governmental interest in disclosure and consider the degree to which the government has tailored the disclosure requirement to serve its interests."

As mentioned above, the plaintiffs argued that the disclosure of the files would cause them irreparable injury by revealing confidential information and by chilling their future efforts to engage in political activities. The Commission argued that its disclosure regulation at 11 CFR 5.4(a)(4) was justified by deterring future violations of the Act, and by providing public accountability for the Commission's actions. Additionally, the Commission argued that it was entitled to deference, as its disclosure policy represented a long-standing practice.

However, the court found that the regulation's requirement that all investigatory materials not already exempted by FOIA be disclosed was not sufficiently tailored "to avoid unnecessarily burdening the First Amendment rights of the political organizations it investigates," like the plaintiffs.

Source:   FEC RecordAugust 2003; March 2002; February 2002. 177 F. Supp.2d. 48


Court of Appeals (DC Circuit)

Court decisions:

Opinion (06/20/2003)

Related documents: