have presented no facts suggesting that any identifiable party has any plans to engage in any of the activities they think should be prohibited in connection with their own election campaigns, and they have not offered any factual basis for thinking any such activities by third parties that may materialize are more likely to oppose than to support their own reelection chances.
[I]n applying the “zone of interests” test, [a court does] not ask whether, in enacting the statutory provision at issue, *47 Congress specifically intended to benefit the plaintiff. Instead, [the court] first discern[s] the interests “arguably ... to be protected” by the statutory provision at issue; [the court] then inquire[s] whether the plaintiff's interests affected by the agency action in question are among them.
Under the terms of the APA, respondent must direct its attack against some particular “agency action” that causes it harm. Some statutes permit broad regulations to serve as the “agency action,” and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action “ripe” for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is “ripe” for review at once, whether or not explicit *48 statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152–154, 87 S.Ct. 1507, 1517–1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Ass'n, Inc., 387 U.S. 167, 171–173, 87 S.Ct. 1526, 1528–1530, 18 L.Ed.2d 704 (1967). Cf. Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164–166, 87 S.Ct. 1520, 1524–1526, 18 L.Ed.2d 697 (1967).)
The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation *54 for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: We may not supply a reasoned basis for the agency's action that the agency itself has not given. We will, however, uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.
readily apparent that ... Congress left a large gap between the obviously impermissible and the obviously permissible. This gap creates the potential for a broad range of differing interpretations of the Act, the legitimacy of each being heavily dependent upon the degree to which it undercuts the statutory purposes.... If the FEC's interpretation unduly compromises the Act's purposes, it is not a reasonable accommodation under the Act, and it would therefore not be entitled to deference.
intentionally avoided promulgating a regulation based on apparent authority, which is the authority of an actor as perceived by a third party, because such authority is often difficult to discern and would place the definition of ‘agent’ in the hands of a third party. Therefore, in the Commission's judgment, apparent authority is not a sufficient basis for agency for the purposes of revised 11 CFR part 109. The commenter's suggested approach would necessitate a determination of agency solely on the basis of apparent authority and is therefore inconsistent with the structure and purpose of the regulations.
[t]he main goal of § 323(a) is modest. In large part, it simply effects a return to the scheme that was approved in Buckley and that was subverted by the creation of the FEC's allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money.
5 a: to request or enjoin esp. with authority <the judge ~ed the clerk to pass him the paper> <the resolution ~ed the commission to prepare proposals> < I ~ my executors to present my library intact to my alma matter>; also: to issue an order to <Lee ~ed Jackson to make a wide march to the southwest.>
any person who has actual oral or written authority, either express or implied, to make or to authorize the making of expenditures on behalf of a candidate, or means any person who has been placed in a position within the campaign organization where it would reasonably appear that in the ordinary course of campaign-related activities he or she may authorize expenditures.
so long as they kept their principals sufficiently ignorant of their particular practices—or at least communicated only through winks and nods—agents with apparent authority could exploit their positions to continue soliciting and directing soft money contributions, continue peddling access to their principals, and continue by virtue of their apparent authority to perpetuate the appearance if not the reality of corruption.
to follow the governing analysis set forth in cases like ASME; fail[ing] altogether to consider whether exempting agents with apparent authority might perpetuate the appearance of corruption that BCRA was designed to eliminate; fail[ing] to evaluate the potential dangers of ‘gross abuse’ and circumvention that would be opened by allowing agents with apparent authority to operate just beyond BCRA's reach ...; fail[ing] to explain why it was necessary or appropriate to abandon the broad definition of “agent” that it had followed for the past generation; and fail[ing] to consider whether compliance with BCRA would be enhanced by placing the burden on principals to take reasonable steps to train and monitor all of their agents.
This conclusion is compelled by the plain language of the section and the structure of the section within BCRA. The structure of the statute requires the Commission to construe the provision as a total exemption to the solicitation prohibition, applicable to Federal candidates and officeholders, when attending and speaking at party fundraising events, because the statutory section is styled as such. To conclude otherwise would require the Commission to read the restrictions itemized in the general prohibition into a statutory exemption that clearly and unambiguously excludes those restrictions by it [sic ] own terms. It would also require the Commission to regulate and potentially restrict what candidates and officeholders say at political events, which is contrary to the plain meaning of the statutory exemption and would raise serious constitutional concerns.
restrictions on solicitations are justified as valid anticircumvention measures. Large soft-money donations at a candidate's or officeholder's behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself. Without some restriction on solicitations, federal candidates and officeholders could easily avoid FECA's contribution limits by soliciting funds from large donors and restricted sources to like-minded organizations engaging in federal election activities. As the record demonstrates, even before the passage of BCRA, federal candidates and officeholders had already begun soliciting donations to state and local parties, as well as tax-exempt organizations, in order to help their own, as well as their party's, electoral cause.
On or after November 6, 2002, an entity shall not be deemed to be directly or indirectly established, maintained, or controlled by another entity unless, based on the entities' actions and activities solely after November 6, 2002, they satisfy the requirements of this section. If an entity receives funds from another entity prior to November 6, 2002, and the recipient entity disposes of the funds prior to November 6, 2002, the receipt of such funds prior to November 6, 2002 shall have no bearing on determining whether the recipient entity is financed by the sponsoring entity within the meaning of this section.
[u]nder the [regulation's] affiliation inquiry ... no one factor or group of factors is dispositive in determining whether an entity is subject to the soft-money prohibitions of [2 U.S.C. § 441i]. Contrary to the FEC's justification, there is thus no need for a categorical exclusion of pre-BCRA evidence of affiliation. Without such an exclusion, entities established or maintained by party committees before November 6, 2002 will not necessarily be deemed affiliated because of that pre-BCRA activity; nor, however, will they necessarily be deemed unaffiliated despite that activity. And where such an entity wishes to establish that its relationship with the party committee has ended, the FEC regulations afford a mechanism specifically for that purpose.
The Commission included this exclusion because it finds it implausible that Congress intended to federalize State and local election activity to such an extent *104 without any mention of the issue during the floor debate for BCRA. BCRA makes voter identification a subset of Federal election activity, and the regulatory implications of engaging in Federal election activity are significant. For the Commission to exercise its discretion so as to sweep within Federal regulation candidates for city council, or the local school board, who join together to identify potential voters for their own candidacies, the Commission would require more explicit instruction from Congress.
creating or enhancing voter lists by verifying or adding information about the voters' likelihood of voting in an upcoming election or their likelihood of voting for specific candidates. This paragraph shall not apply to an association or similar group of candidates for State or local office or of individuals holding State or local office if the association or group engages in voter identification that refers only to one or more State or local candidates.
implied authority is not available for a situation where the regulatory function does provide benefits, in the sense of furthering regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs. For such a situation any implied authority to make cost-benefit decisions must be based not on a general doctrine but on a fair reading of the specific statute, its aims and legislative history.
an anomaly where small phone banks that make no mention of any federal candidate are regulated as “Federal election activity” while those that promote, *111 support, attack or oppose a clearly identified federal candidate are not. There is no language in BCRA or other evidence that suggests that Congress allowed the use of soft money for such candidate-specific communications but required the Commission to permit only federal and Levin funds to be used for more general communications solely concerning a political party. Thus, applying the same cutoff to “generic campaign activity” is a reasonable policy choice about where to draw the line on intruding into state election activities.
Salaries and wages for employees who spend more than 25% of their compensated time in a given month on Federal election activity or activities in connection with a Federal election must not be allocated between or among Federal, non-Federal, and Levin accounts. Only Federal funds may be used. Salaries and wages for employees who spend 25% or less of their compensated time in a given month on Federal election activity or activities in connection with a Federal election shall be paid from funds that comply with State law.
*115 The disbursements for allocable Federal election activity that exceed in the aggregate $5,000 in a calendar year may be paid for entirely with Federal funds or may be allocated between Federal funds and Levin funds according to 11 CFR [§ ] 300.33. Disbursements for Federal election activity that may be allocated and that aggregate $5,000 or less in a calendar year may be paid for entirely with Federal funds, entirely with Levin funds, or may be allocated between Federal funds and Levin funds according to 11 CFR [§ ] 300.33.
First, the Commission notes that the reporting requirements for Federal election activity contain an exception for activity below $5,000 in the aggregate in a calendar year. See 2 U.S.C. [§ ] 434(e)(2)(A). While that exception applies *116 to aggregate receipts and disbursements, rather than just aggregate disbursements, it does suggest that Congress did not take a rigid approach to low levels of Federal election activity. Second, the Commission is particularly sensitive to the nature of the Federal election activity to which this provision applies: Grassroots activities for which references to Federal candidates are prohibited. There is a far weaker nexus between Federal candidates and this category of Federal election activity than other types of Federal election activity for which Levin funds are prohibited. Finally, the Commission notes that $5,000 is only half of what any single donor may donate (subject to State law) to each and every State, district, and local party committee under 2 U.S.C. [§ ] 441i(b)(2), so there is no danger that allowing a committee to use entirely Levin funds for allocable Federal election activity that aggregates $5,000 or less in a calendar year will somehow lead to circumvention of the amount limitations set forth in 2 U.S.C. [§ ] 441i(b)(2).
An amount spent by a person described in subsection (a) or (b) of this section to raise funds that are used, in whole or in part, for expenditures and disbursements for a Federal election activity shall be made from funds subject to the limitations prohibitions, and reporting requirements of this Act.
State, district, and local party committees that raise Levin funds to be used, in whole or in part, for Federal election activity must pay the direct costs of such fundraising with either Federal or Levin funds. The direct costs of a fundraising program or event include expenses for the solicitation of funds and for the planning and administration of actual fundraising programs and events.
public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate)
exclude[s] any pre-election reference to a candidate that is aired without charge, such as public service announcements, any program run on a public access cable channel or any other ad that a local broadcaster chooses for whatever reason to air without charge (e.g., friendship, ideological reasons, desire to curry favor with a powerful incumbent, etc.).
that the Commission shall, within (30) days from the date of this Order, report to the Court on its progress in issuing the interim regulations ordered above *130 and in conducting proceedings to promulgate new regulations that comply with this Order and the accompanying Memorandum Opinion, and that the Commission shall continue to report to the Court at such intervals to be established by the Court.
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