United States Court of Appeals, District of Columbia Circuit
October 19, 2018
from the United States District Court for the District of
Columbia (No. l:17-cv-02694)
P. Elwood argued the cause for appellants. With him on the
briefs were Michael S. Dry, Katherine Cooperstein, William W.
Taylor III, Carlos T. Angulo, and Dermot Lynch,
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.
AdavNoti, Mark P. Gaber, Stuart C McPhail, and Adam J.
Rappaport were on the brief for amici curiae Citizens for
Responsibility and Ethics in Washington and Anne Weismann in
support of Federal Election Commission and affirmance.
Before: GARLAND, Chief Judge, HENDERSON, Circuit Judge, and
RANDOLPH, Senior Circuit Judge.
RANDOLPH, SENIOR CIRCUIT JUDGE 
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).
- 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.
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.
Commission's regulation, implementing 52 U.S.C. §
30122,  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. §
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), https://www.fec.gov/files/legal/murs/6920
/17044435462.pdf. The Commission therefore authorized an
investigation. Id; see also 52 U.S.C. §
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
[XXXXX] 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 [XXXXX].
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.
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),
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,
44434756.pdf; 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 [XXXXX] were not identified within it.
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.
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.
basic claim of the trust and the trustee is that the
Commission had no statutory authority to disclose any
documents identifying them. 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), ...