1. The court ruled that the FEC’s rationale was not of “ideal clarity.” Shouldn’t an agency have to at least be clear about its rationale to avoid a finding of arbitrariness?

2. Why do you think Van Hollen objected to these rules?

3. Recall the discussion of First Amendment rights for political speech of corporations from Chapter 2, Business and the Constitution. Does the BCRA violate the rights of corporations and unions by banning electioneering completely? Why or why not?

In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA) to regulate electioneering communications, which the law defines as communications that refer to a clearly identified candidate made within 60 days of a general election or 30 days of a primary election. Among other provisions, the BCRA banned corporations and unions from using their general treasuries to fund electioneering communications. In BCRA’s wake, the Federal Elections Commission (FEC) promulgated several rules to enforce the various statutory reforms. Christopher Van Hollen, Jr. (Van Hollen), a member of the United States House of Representatives, challenged this rule as arbitrary and capricious. The trial court ruled in favor of Van Hollen that the new rules represented an arbitrary and capricious use of the FEC’s regulatory authority. 

The Court of Appeals for the D.C. Circuit reversed the trial court’s decision and ruled in favor of the FEC.  The court rejected Van Hollen’s argument that the FEC failed to adequately explain its decision to adopt the new rules. The court held that, while an agency is required to adequately explain its decision, this does not mean that its explanation must be a model of analytical precision. Rather, so long as the reviewing court can reasonably discern the agency’s analytical path, that is sufficient to satisfy the reasoned decision-making standard. The court concluded that the FEC cleared that low hurdle because it examined the relevant data and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.

“Here, we acknowledge the FEC’s explanation was not one of ‘ideal clarity,’ but, again, ideal clarity is not the standard. The FEC advanced three explanations for its [rule], which we refer to as the ‘support,’ ‘burden,’ and ‘privacy’ rationales. Because we can reasonably discern the FEC’s analytical path from these three rationales, we uphold its purpose requirement against Van Hollen’s challenge. . . . Granted, as Van Hollen is quick to point out, the FEC’s assertions here were not corroborated with any hard evidence [to support its decision]. But these assertions are, at the very least, speculation based firmly in common sense and economic reality.”