237 F.3d 657 (D.C. Cir. 2001)
In re:  Sealed Case 00-5116
No. 00-5116 Consolidated with 00-5302
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2000Decided January 26, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeals from the United States District Court  for the District of Columbia (No. 00ms00162)
Thomas W. Kirby argued the cause for appellants.  With  him on the briefs was Jan Witold Baran.
David Kolker, Attorney, Federal Election Commission, argued the cause for appellee.  With him on the brief were  Lawrence M. Noble, General Counsel, and Richard B. Bader,  Associate General Counsel.
Before:  Edwards, Chief Judge, Sentelle and Henderson,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
In conjunction with an ongoing  investigation of Appellants, the Federal Election Commission  ("FEC" or "Commission") issued a subpoena to a third-party  witness.  When the witness refused to comply with the  subpoena, the FEC petitioned the district court to enforce it. As part of the petition, the FEC included a number of  exhibits providing information about the ongoing investigation.  Immediately after the FEC filed its petition, Appellants  moved to intervene and asked the court to place the enforcement action under seal pursuant to 2 U.S.C. § 437g(a)(12)(A). After a brief hearing, the district court denied Appellants'  motion.


2
On appeal, Appellants argue that the district court abused  its discretion in refusing to seal the case.  They submit that  § 437g(a)(12)(A) plainly protects the confidentiality of the  subjects of ongoing FEC investigations.  In response, the  Commission contends that we do not have jurisdiction over  this case because (1) Appellantsdid not properly intervene  and (2) the district court's denial of Appellants' motion was  not a final, appealable judgment.  The Commission also suggests that the statutory context, the legislative history, and  an FEC regulation demonstrate that § 437g does not protect  subjects' confidentiality in the context of subpoena enforcement actions.


3
For reasons more fully set out below, we conclude that this  Court has jurisdiction over Appellants' case.  Furthermore,  we hold that the FEC failed to act in accordance with law by  submitting the exhibits on the public record.  The district  court's decision is therefore reversed.

I. BACKGROUND

4
Appellants are the focus of an ongoing FEC investigation  concerning alleged violations of the Federal Election Campaign Act ("FECA"), 2 U.S.C. § 431 et seq.  During the course of its investigation, the FEC issued a subpoena to a  third-party witness seeking information concerning Appellants' activities.  After the third party declined to comply  with the subpoena, the FEC decided to petition the district  court for an order enforcing it.  On March 16, 2000, FEC  counsel notified Appellants that it planned to file the petition. That filing would include a number of exhibits containing  information about the ongoing investigation.  The next morning, Friday March 17, Appellants asked the FEC to refrain  from disclosing the information or to file it under seal.  The  FEC refused and later that afternoon filed the petition and  exhibits.  Among the exhibits, the FEC included a copy of  the complaint that prompted the investigation, an FECprepared "Factual and Legal Analysis" detailing Appellants'  alleged FECA violations, an FEC certification finding "reason to believe" that Appellants had violated FECA, and  information referencing a separate FEC investigation that  had no bearing on the subpoena enforcement action or the  investigation of Appellants.


5
Within moments of the petition being filed, Appellants filed  an Emergency Motion to seal the case.  In support of this  motion, Appellants argued that by placing the exhibits in the  public record the Commission violated the broad confidentiality federal law affords the subjects of FEC investigations. After holding an abbreviated hearing that same afternoon,  the district court denied Appellants' motion.  Contending that  public disclosure of the exhibits would be irrevocable, Appellants immediately moved for "an administrative ruling holding  this matter" so that they could appeal the court's decision. The court denied this motion as well.


6
Fortunately for Appellants, the hearing ended after the  district court clerk's office had closed for the weekend.  As a  result, the exhibits would not be available to the public until  Monday afternoon, March 20.  Appellants took advantage of  "this fortuitous de facto stay of disclosure" by filing a notice  of appeal.  Appellants' Brief at 10.  They also filed an  emergency motion asking this Court to seal the case to  permit the parties to file briefs on the merits of the appeal. Meanwhile, the district court issued two written orders addressing the same questions decided at the March 17 hearing. The first order denied Appellants' Emergency Motion.  The  second order denied what the court described as Appellants'  "certification for interlocutory appeal."  That same day, in  response to Appellant's motion to this Court, we ordered the  district court to place the case under seal pending our consideration of the merits of Appellants' motion.  Subsequently, on  June 7, the district court issued a final order enforcing the  subpoena against the third-party witness.  In due course, the  FEC obtained the information it sought from the witness.


7
Appellants appeal from the district court's decision not to  seal the subpoena enforcement action.  They argue that  because 2 U.S.C. § 437g(a)(12)(A) provides that information  concerning an ongoing investigation "shall not" be made  public, thedistrict court abused its discretion in denying their  Emergency Motion.

II. ANALYSIS
A. Jurisdiction

8
The FEC asserts that we lack jurisdiction to consider this  case.  Its assertion is based on two separate premises.  First,  the FEC suggests that Appellants were not parties to the  subpoena enforcement action and did not seek to intervene. See Fed. R. Civ. P. 24(c).  The FEC claims that because  Appellants did not move to intervene, the district court did  not deny any motion from which Appellants could appeal. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896 & n.5  (1990).  Second, the FEC submits that Appellants seek review of the district court's March 17 and March 20 orders,  which simply declined Appellants' motion to place the case  under seal.  According to the FEC, these decisions are not  appealable because they did not "end[ ] the litigation on the  merits"--that is, they did not address the underlying subpoena enforcement action.  Coopers & Lybrand v. Livesay, 437  U.S. 463, 467 (1978) (internal quotes omitted).  In relying on  these premises, the FEC misconstrues the facts of this case  and misapprehends the law in this area.


9
This Court unquestionably has jurisdiction to hear the  present case.  Appellants attempted to intervene, and the  district court effectively--and erroneously--denied that attempt.  Even if Appellants had not intervened, they could,  and did, bring a simple motion to preserve their rights as  contemplated in United States v. Hubbard, 650 F.2d 293  (1980).  Under either approach, Appellants properly appealed  from the district court's denial of its Emergency Motion  pursuant to the collateral order doctrine.


10
Appellants' March 17 Emergency Motion expressly stated  that Appellants


11
"move[] for leave to intervene in the FEC  subpoena enforcement action for the limited purpose of preventing unauthorized disclosures."  Emergency Motion to  Place Under Seal and for All Other Appropriate Relief at 2,  In re Sealed Case, No. 00-MS-162 (D.D.C. Mar. 17, 2000). Both the district court and the FEC were aware of Appellants' desire to intervene.  The March 17 Motion was entered  on the district court's docket sheet as a motion "to intervene." Likewise, at the March 17 hearing, FEC counsel argued that  Appellants were "not a party" and should not be permitted to  intervene because they must "show harm to intervene." Transcript of Emergency Hearing at 18, In re Sealed Case,  No. MISC. 00-162 (D.D.C. Mar. 17, 2000).


12
At the close of the hearing, the district court denied  Appellants' motion to seal the record in the subpoena enforcement action.  Three days later, the court issued a written  order memorializing that decision.  See Order, In re Sealed  Case, No. 00-162 (D.D.C. Mar. 20, 2000).  Although neither  the court's oral nor written order specifically addressed Appellants' motion to intervene, they both denied the Emergency Motion as a whole, thereby effectively denying the intervention motion.


13
Under Rule 24(a) of the Federal Rules of Civil Procedure,  an applicant may intervene as of right when it "claims an  interest relating to the property or transaction which is the  subject of the action and the applicant is so situated that  disposition of the action may as a practical matter impair or  impede the applicant's ability to protect that interest."  Fed. R. Civ. P. 24(a).  An applicant does not possess a right to  intervene, however, if its "interest is adequately represented  by existing parties."  Id.


14
Appellants readily meet the basic requirements necessary  to intervene as of right.  First, Appellants have a protected  interest in the "transaction which is the subject of the action." As we explain below in more detail, they have a legally cognizable interest in maintaining the confidentiality of the  documents the FEC seeks to disclose in the public record. See 2 U.S.C. § 437g(a)(12)(A);  cf. United States v. AT&T, 642  F.2d 1285, 1292 (D.C. Cir. 1980) (explaining that by asserting  the work product privilege to protect the confidentiality of  certain documents a third party had asserted a "legal interest" of "direct and immediate character" (internal quotes  omitted)).


15
Second, if the FEC's enforcement action were allowed to  proceed on the public docket, then "as a practical matter"  Appellants' ability to protect their confidentiality would be  irrevocably impaired.  Once the information included in the  FEC's subpoena enforcement action is released, "the cat is  out of the bag," and Appellants' statutorily guaranteed confidentiality would be forever lost.  In re Papandreou, 139 F.3d  247, 251 (D.C. Cir. 1998).


16
Finally, neither party to the enforcement action could have  adequately represented Appellants' interest.  Because the  third-party witness was not the subject of the FEC's investigation, the witness was not entitled to the same legal protection afforded to Appellants.  See § 437g(a)(12)(A).  In addition, it is unclear on what grounds the witness even could  have asked the court to place the case under seal.  Obviously,  the FEC refused to represent Appellants' interest and instead sought to run roughshod over that interest by seeking--unjustifiably and unexplainably--to place legally confidential information on the public record.  The FEC chose this  misguided course despite commands in its own governing  statutes and regulations to keep ongoing investigations confidential.  Because Appellants met the necessary criteria to intervene as of right, the district court erred by denying their  motion to intervene.  See Fed. R. Civ. P. 24(a).


17
Even if Appellants did not move to intervene under Rule  24(a) as the FEC now argues, as noted above, Appellants  could, and did, bring a simple motion to preserve their own  rights as contemplated in United States v. Hubbard, 650 F.2d  293 (D.C. Cir. 1980).  In Hubbard, this Court held that a  third party may attempt to "maintain the confidentiality" of  materials that are under the control of a court in a pending  case by filing a motion initiating a distinct ancillary proceeding without intervening in the underlying case.  Id. at 311. In Hubbard, the third party had a protectible "combination of  property and privacy interests" in the materials controlled by  the court.  Id. at 307.  Similarly, Appellants have a protectible interest in the confidentiality of the petition and exhibits  the FEC filed in the district court.  As we explain below,  Congress explicitly established this interest with respect to  the subjects of FEC investigations.  See § 437g(a)(12)(A). Accordingly, under Hubbard, Appellants properly initiated an  ancillary proceeding in the district court in order to protect  this interest by moving to place the subpoena enforcement  action under seal.  See Hubbard, 650 F.2d at 311-12;  cf.  United States v. RMI Co., 599 F.2d 1183, 1186 (3d Cir. 1979)  (discussing the "principle in permitting intervention for the  assertion of claims of privilege when subpoenas are addressed  to third parties").


18
Whether the district court's order in this case denied  Appellants' application to intervene or denied their Hubbard  motion to place the subpoena enforcement action under seal,  Appellants properly appealed that order to this Court pursuant to the collateral order doctrine.  See Hubbard, 650 F.2d  at 314;  AT&T, 642 F.2d at 1296.  Under that doctrine, an  order is appealable if it "conclusively determine[s] the disputed question, resolve[s] an important issue completely separate  from the merits of the action, and [is] effectively unreviewable  on appeal from a final judgment."  Coopers & Lybrand, 437  U.S. at 468;  accord In re Sealed Case, 192 F.3d 995, 999  (D.C. Cir. 1999).  In this case, the district court conclusively  determined that the record would not be sealed, an issue completely separate from the underlying subpoena enforcement action.  See In re Reporters Cmte. for Freedom of the  Press, 773 F.2d 1325, 1330 (D.C. Cir. 1985).  Because the  public would have had immediate access to the record, the  issue would have been effectively unreviewable by the time  the district court had decided whether to enforce the FEC  subpoena.  See Hubbard, 650 F.2d at 314 ("[B]ecause public  access to the documents at issue will to some extent irreparably damage the interests asserted, an order which has the  effect of permitting such an invasion, as a practical matter,  'finally determine[s]' the claim.").  Consequently, the district  court's March 17 and March 20 orders are appealable under  the collateral order doctrine.  See AT&T, 642 F.2d at 129596;  cf. RMI, 599 F.2d at 1186.


19
Alternatively, were we to conclude that the district court's  March 17 and March 20 orders did not deny Appellants'  motion to intervene, as the FEC suggests, the court's final  June 7 order did so.  That order ended all issues related to  the enforcement proceeding, including the motion to intervene.  See Catlin v. United States, 324 U.S. 229, 233 (1945). At that point, Appellants could properly appeal the final  order, see 28 U.S.C. § 1291, which they did with a timely  notice of appeal on July 24.  See Fed. R. App. P. 4(a)(2).


20
Because our jurisdiction to hear this case is firmly established, we now turn our attention to the merits of Appellants'  appeal.

B. The Merits of the Motion to Seal

21
The FEC is authorized to investigate potential violations of  the Federal Election Campaign Act.  See 2 U.S.C.  § 437g(a)(2).  When the FEC receives a complaint alleging  FECA violations, it must provide written notification to the  person accused of committing the violation and provide that  person with an opportunity to respond to the accusation.  See  id. § 437g(a)(1).  The Commission then determines, based on  a vote of its members, if there is "reason to believe that [the]  person has committed" a FECA violation.  Id. § 437g(a)(2). If this standard is met, the FEC investigates the alleged violation.  See id.  During the course of its investigation, the  FEC is empowered to (1) order any person to submit written  reports and answer questions, and (2) subpoena witnesses to  testify or to produce documentary evidence.  See 2 U.S.C.  § 437d(a)(1), (3).  Although the FEC has no power to enforce  such orders and subpoenas, it may petition the district court  for judicial enforcement.  See id. § 437d(b).


22
Following its investigation, the Commission may vote to  determine if there is "probable cause to believe that [the]  person has committed" a FECA violation.  § 437g(a)(4)(A)(i). If the Commission finds probable cause, it must attempt "to  correct or prevent such violation by informal methods of  conference, conciliation, and persuasion."  Id.  If the FEC's  attempt at conciliation is unsuccessful, the Commission is  authorized to enforce FECA through a civil suit brought in  district court.  See id. § 437g(a)(6)(A).


23
In the statutory section detailing the Commission's enforcement authority, FECA states that:


24
Any 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. Id. § 437g(a)(12)(A).  Similarly, the FEC's regulations provide that:


25
[N]o complaint filed with the Commission, nor any notification sent by the Commission, nor any investigation conducted by the Commission, nor any findings made by the Commission shall be made public by the Commission or by any person or entity without the written consent of the respondent with respect to whom the complaint was filed, the notification sent, the investigation conducted, or the finding made.


26
11 C.F.R. § 111.21(a).


27
Appellants point to these two provisions to argue that the  district court abused its discretion in denying their March 17  Emergency Motion to seal the record of the subpoena enforcement action.  According to Appellants, both the statute  and the regulation permit disclosure of information concerning an ongoing FEC investigation only if the subject of that  investigation provides written consent.  Because Appellants  did not consent, they contend that the district court erred in  allowing the action and accompanying exhibits to be placed on  the public record.


28
Ordinarily, we review a district court's decision not to seal  court records for abuse of discretion.  See EEOC v. Nat'l  Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996).  In  the general case, there is a "strong presumption in favor of  public access to judicial proceedings."  Johnson v. Greater  Southeast Community Hosp. Corp., 951 F.2d 1268, 1277 (D.C.  Cir. 1991).  As we explained in Hubbard, this presumption  can be overcome based on the following six factors:


29
(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person;  (4) the strength of any property and privacy interests asserted;  (5) the possibility of prejudice to those opposing disclosure;  and (6) the purposes for which the documents were introduced during the judicial proceedings.


30
Nat'l Children's Ctr., 98 F.3d at 1409 (citing Hubbard, 650  F.2d at 317-22).


31
The district court denied Appellants' March 17 Emergency  Motion, treating it "sort of as a TRO request."  Transcript of  Emergency Hearing, In re Sealed Case, No. MISC. 00-162, at  12 (D.D.C. Mar. 17, 2000).  In explaining its decision, the  court recognized the general understanding that "there is a  very strong presumption against filing pleadings under seal." Id.  The court's decision rested on this presumption, as well  as two other rationales.  First, the district court concluded  that the FEC's regulations permit it to file unsealed pleadings.  See id. at 12-13 (citing 11 C.F.R. § 111.21(c)).  Second,  the court reasoned that there was not "any possibility of  irreparable harm" because the press had already published several stories about the FEC's investigation of Appellants. Id. at 13.


32
If this were a typical case, we would hold that the district  court abused its discretion for treating Appellants' motion as  "sort of a TRO request" and for failing to consider any of the  Hubbard factors.  That failure is particularly glaring in the  present case, because, as we discuss below, both FECA and  the FEC's regulations interpreting the statute create an  extraordinarily strong privacy interest in keeping the records  sealed absent a party's express written consent to the contrary.  So strong is that interest that only rarely, if ever,  might the remaining five Hubbard factors counterbalance the  "strength of [the] ... privacy interests asserted."  Moreover,  as we discuss below, the district court incorrectly interpreted  the FEC's regulations--they (and, more importantly, the  FEC's authorizing statute) plainly do not permit it to file  pleadings relating to an ongoing investigation on the record. See infra at 12-13.  Further, the existence of press reports  about an investigation has no bearing on the issue raised by  Appellants.  See infra at 17-18.


33
This is not a typical case, however, looking simply at  whether court records should be sealed.  Rather, the question  before us is more properly posed as whether the FEC has the  authority to file information concerning an ongoing investigation on the public record when it seeks to enforce a subpoena. See 5 U.S.C. § 706(2)(A).  We hold that both 2 U.S.C.  § 437g(a)(12)(A) and 11 C.F.R. § 111.21(a)plainly prohibit  the FEC from disclosing information concerning ongoing  investigations under any circumstances without the written  consent of the subject of the investigation.  Accordingly, we  conclude that the FEC failed to act in accordance with law  when it sought to file the subpoena enforcement action on the  public docket.


34
When interpreting a federal statute administered by an  agency such as the FEC, we employ the familiar two-step  inquiry of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 84243 (1984).  In the first step, we consider whether the statute  speaks directly to the precise question at issue.  If it does,  "the inquiry is at an end;  the court must give effect to the  unambiguously expressed intent of Congress."  FDA v.  Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1300 (2000) (internal quotes omitted).  If the statute is silent or  ambiguous concerning the question, we advance to the second  step, deferring to the "agency's interpretation of the statute if  it is reasonable and consistent with the statute's purpose." Independent Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638,  643 (D.C. Cir. 2000).


35
Likewise, we review an agency's interpretation of its own  regulations with "substantial deference."  See, e.g., Thomas  Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).  As the  Supreme Court recently stressed, however, judicial deference  towards an agency's interpretation "is warranted only when  the language of the regulation is ambiguous."  Christensen v.  Harris County, 120 S. Ct. 1655, 1663 (2000).  The agency's  interpretation thus "will prevail unless it is 'plainly erroneous  or inconsistent' with the plain terms of the disputed regulation."  Everett v. United States, 158 F.3d 1364, 1367 (D.C.  Cir. 1998) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)).


36
In this case, the statute and regulation at issue are unambiguous and directly address the issue presented in this case. Their plain meaning therefore controls our decision.  Section  437g(a)(12)(A) unequivocally states that any investigation  "shall not be made public by the Commission or by any  person without the written consent of the person ... with  respect to whom such investigation is made."  The FEC's  regulations are equally clear:  no FEC investigation or findings "shall be made public by the Commission or by any  person or entity without the written consent of the respondent with respect to whom ... the investigation [is] conducted."  11 C.F.R. § 111.21(a).  In other words, the Commission  shall not make public an ongoing investigation or its findings  concerning such an investigation without written consent. Neither the statute nor the regulation provide any exceptions  to this rule.  In light of these provisions' clear meaning, the  Commission shall not place information about an ongoing  investigation in the public record when it seeks to enforce a  subpoena.  By doing so, the Commission unquestionably violates Congress's mandate and its own regulations.


37
The plain language of these provisions and the overall  purpose and structure of the statutory scheme create a  strong confidentiality interest analogous to that protected by  Federal Rule of Criminal Procedure 6(e)(6).  In both contexts, secrecy is vital " 'to protect [an] innocent accused who  is exonerated from disclosure of the fact that he has been  under investigation.' "  United States v. Proctor & Gamble  Co., 356 U.S. 677, 682 n.6 (1958) (quoting United States v.  Rose, 215 F.2d 617, 628-29 (3d Cir. 1954)).  Given this  analogy, there is a strong presumption that, even if the FEC  possesses the power to file subpoena enforcement actions on  the public record, such actions should be sealed.  Cf. In re  Sealed Case, 199 F.3d 522, 526 (D.C. Cir. 2000) ("Unlike  typical proceedings, grand jury proceedings and related matters operate under a strong presumption of secrecy.").


38
We cannot help but question why the FEC opposed Appellants' Emergency Motion and why it continues to fight the  Motion on appeal.  We would hope that its strident opposition  is not politically motivated nor compelled by some vindictive  desire to publicize allegations that are yet to be established. Nevertheless, the weakness of the FEC's position in this case  invites the suspicion that its actions are externally motivated. Still, the FEC has proffered several arguments opposing  Appellants' motion, and we must consider them.


39
First, the FEC argues that the confidentiality provision in  § 437g(a)(12)(A) does not apply to the statutory section that  authorizes the Commission to issue subpoenas and petition  the district court for their enforcement.  This argument is  based on the fact that § 437g(a)(12)(A) refers only to "investigation[s] made under this section," while the subpoena authority is provided in a separate section, § 437d.  At first  blush, this argument seems colorable--indeed, it appears to  be the strongest argument presented by the Commission. On closer inspection, however, we see that, like the other  justifications proffered by the FEC, it is hollow.


40
Section 437g provides the basic scheme for the process the  Commission must follow in enforcing FECA.  It sets forth,  for example, the steps the Commission must take in investigating an alleged violation.  See § 437g(a)(1), (2).  The Commission's power "to conduct investigations," however, is found  in § 437d, see § 437d(a)(9), the same section that authorizes  the Commission to issue subpoenas, see id. § 437d(a)(3), (4). In this case, the subpoena in question was issued as part of  the FEC's ongoing investigation of Appellants.  At oral argument, FEC counsel acknowledged that the Commission issues  subpoenas as part of its investigations.  This acknowledgment  is completely inconsistent with the FEC's strained interpretation of § 437g.  We cannot fathom why the FEC's issuance of  a subpoena in furtherance of an ongoing investigation would  not be considered part of that "investigation" within the  meaning of § 437g.  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."  The FEC's position contemplates a bizarre result: the FEC would be obligated to keep a subpoena confidential  until the target refused to comply, at which point the FEC  could publicize the subpoena.  Of course, there is no basis in  the statute for this interpretation.  Even if we assume that  the FEC's argument was correct (which it is not) and the  Commission could disclose the subpoenas themselves (which  it can not), the Commission would still lack the authority to  divulge information pertaining to the underlying investigation  as it has attempted to do here.


41
Second, the FEC contends that the legislative history of  § 437g demonstrates that the Commission is authorized to  disclose subpoenas issued in furtherance of an ongoing investigation.  Specifically, the FEC directs us to two pieces of  "evidence" from which it claims to have intuited Congress's  intent.  Initially, it asks us to consider the Conference Report  for the 1976 Amendments to FECA, which states that  § 437g(a)(12) is not violated "when actions taken carrying out  an investigation lead to public awareness of the investigation." H.R. Conf. Rep. No. 94-1057, at 50 (1976) quoted in Brief for  the Appellee at 23.  Next, it provides us with a clipped  excerpt from the House of Representatives' debate over these  amendments.  During the debate the Manager of the bill  stated, "The Commission ... sent nine investigators into Mr. Rose's district, with eight-column headlines saying that he  had been charged with a flagrant violation of the election  law."  122 Cong. Rec. 8,566 (1976) (statement of Rep. Hays)  quoted in Brief for the Appellee at 22.


42
The FEC claims to have divined the meaning of an unambiguous statutory provision through this ambiguous legislative history.  The FEC accomplishes this feat while acknowledging that the "legislative history does not mention judicial  proceedings."  We also note that it does not mention, or even  allude to, FEC subpoenas.  Still, the FEC relies on these two  disconnected bits of legislative history to urge a reading of  § 437g that calls for otherwise confidential information to lose  all protection whenever the Commission files a subpoena  enforcement action in the district court.


43
The limits on the Commission's authority--like that authority itself--are derived from statutory provisions, not from  loosely worded fragments extracted from congressional reports and speeches.  "The law, as it passed, is the will of the  majority of both houses, and the only mode in which that will  is spoken is in the act itself."  Aldridge v. Williams, 44 U.S.  (3 How.) 9, 24 (1845).  Here, the Act explicitly requires that  the FEC "shall not" make public its ongoing investigations. Nothing in the Act can be rationally read to make an exception for subpoena enforcement actions.  In the future, the  Commission would be best served if its counsel did "not  resort to legislative history to cloud a statutory text that is  clear."  Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994).


44
Third, the FEC suggests that it has promulgated a regulation, 11 C.F.R. § 111.21(c), that interprets § 437g(a)(12)(A). According to the regulation,


45
Nothing in these regulations shall be construed to prevent the introduction of evidence in the courts of the United States which could properly be introduced pursuant to the Federal Rules of Evidence or Federal Rules of Civil Procedure.


46
11 C.F.R. § 111.21(c).  The FEC declares that this provision  "specif[ies] that the confidentiality provision is simply not applicable when evidence, like the exhibits to the Commission's enforcement petition, is filed in court."  Brief for the  Appellee at 27.  The Commission asserts that its interpretation of this regulation and § 437g(a)(12)(A) is due substantial  deference.  See FEC v. Democratic Senatorial Campaign  Cmte., 454 U.S. 27, 37 (1981).


47
The FEC's interpretation is not entitled to substantial--or  any--deference here.  We only defer to an agency interpretation if a statute or regulation is unclear.  See Brown &  Williamson, 120 S. Ct. at 1300;  Thomas Jefferson Univ., 512  U.S. at 512.  As explained above, the confidentiality provision  in § 437g is clear.  See supra at 667-68.  So too is 11 C.F.R.  § 111.21(c).  This regulation simply states that the FEC's  regulations do not "prevent the introduction of evidence in  the courts" if that evidence could otherwise be properly  introduced.  § 111.21(c).  This text plainly addresses only  what evidence can be introduced, not how it should be  introduced.  There is only one way to read this regulation  consistently with § 437g and § 111.21(a):  the FEC can introduce evidence pursuant to the Federal Rules, but it cannot  introduce evidence concerning an ongoing investigation on the  public record--that is, any evidence may be introduced as  long as it is placed under seal.  The resulting procedure does  not undercut the Federal Rules or adversely affect the FEC's  ability to enforce subpoenas.  Cf. In re Motions of Dow Jones  & Co., 142 F.3d 496, 501 (D.C. Cir. 1998) (discussing advantages of closing judicial proceedings ancillary to grand jury  proceedings).  Allowing the FEC to interpret § 111.21(c), an  entirely unambiguous regulation, as it suggests "would be to  permit the agency, under the guise of interpreting a regulation to create de facto a new regulation."  Christensen, 120  S. Ct. at 1663.


48
The FEC's proposed interpretation would produce an absurd result:  the FEC could not reveal information about an ongoing investigation unless it did so in open court proceedings.  This reading not only is "plainly inconsistent with the  wording of the regulation," LaRouche v. FEC, 28 F.3d 137,  140 (D.C. Cir. 1994) (internal quotes omitted), it also would  undermine Congress's clear directive that the FEC "shall not" make information about investigations public.  Section  111.21(c) merely states that the Commission's "regulations"  do not prevent the introduction of evidence;  it does not  undercut the statute's mandate--nor could it.  Agencies are  not empowered to carve out exceptions to statutory limits on  their authority.  Cf. Ry. Labor Executives' Ass'n v. Nat'l  Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc)  ("Were courts to presume a delegation of power absent an  express withholding of such power, agencies would enjoy  virtually limitless hegemony, a result plainly out of keeping  with Chevron and quite likely with the Constitution as well."  (emphasis in original)).


49
The FEC further submits that its interpretation of the  statute and regulation merits deference in light of its continued practice of filing subpoena enforcement actions on the  public record.  Even if the statute in question were ambiguous, such a supposed practice does not produce an agency  interpretation to which we accord deference.  Cf. Christensen, 120 S. Ct. at 1662.  The deference afforded to an  agency's interpretation of either a statute or a regulation  presupposes that the interpretation is presented as part of  notice-and-comment rulemaking or at least a reasoned decision-making process.  See id.;  cf. Democratic Senatorial  Campaign Cmte., 454 U.S. at 37-38 (addressing situation in  which the Commission formally adopted an interpretation on  three separate occasions).  Choices made by FEC attorneys--without the Commission's ratification or acceptance-do not stand as the authoritative interpretation of the agency  requiring deference.


50
Finally, the FEC suggests that Appellants would not suffer  any harm from the Commission breaching its duty of confidentiality because the press already has reported on some  aspects of the investigation.  This also is unconvincing.  Stories in the media have no bearing on the confidentiality  requirement Congress imposed on the FEC.  It does not  matter that the media has published some information concerning the investigation--the FEC has a straightforward  duty not to disclose information about an ongoing investigation.  Only the subject's written consent can relieve the FEC  of this duty.  See § 437g(a)(12)(A).

III. CONCLUSION

51
For the foregoing reasons, the district court's decision is


52
Reversed.

