 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 20, 2015           Decided January 21, 2016

                       No. 15-5016

              CHRISTOPHER VAN HOLLEN, JR.,
                       APPELLEE

                             v.

             FEDERAL ELECTION COMMISSION,
                      APPELLEES

      CENTER FOR INDIVIDUAL FREEDOM AND HISPANIC
                   LEADERSHIP FUND,
               INTERVENOR-APPELLANTS


                Consolidated with 15-5017


       Appeals from the United States District Court
               for the District of Columbia
                   (No. 1:11-cv-00766)


     Thomas W. Kirby argued the cause for appellant Center
for Individual Freedom. With him on the briefs were Jan
Witold Baran, Caleb P. Burns, and Samuel B. Gedge.

    Jason Torchinsky was on the brief for appellant Hispanic
Leadership Fund.
                               2

     Daniel Z. Epstein and Joshua N. Schopf were on the brief
for amicus curiae Cause of Action in support of appellants.

    Catherine M.A. Carroll argued the cause for appellee
Christopher Van Hollen Jr. With her on the brief were Roger
M. Witten, Donald J. Simon, Trevor Potter, J. Gerald Hebert,
Fred Wertheimer, and Scott L. Nelson.

    Kevin A. Deeley, Acting Associate General Counsel,
Harry J. Summers, Assistant General Counsel, Holly J. Baker
and Seth E. Nesin, Attorneys, Federal Election Commission,
were on the brief for appellee Federal Election Commission.

   Before: BROWN, Circuit Judge,              SENTELLE      and
RANDOLPH, Senior Circuit Judges.

    Opinion for the Court filed by Circuit Judge BROWN.

     BROWN, Circuit Judge: The arc of campaign finance law
has been ambivalent, bending toward speech and disclosure.
Indeed what has made this area of election law so challenging
is that these two values exist in unmistakable tension.
Disclosure chills speech. Speech without disclosure risks
corruption. And the Supreme Court’s track record of
expanding who may speak while simultaneously blessing
robust disclosure rules has set these two values on an
ineluctable collision course.

     That tension is on full display in this appeal. At issue is
whether to uphold the FEC’s rule requiring corporations and
labor organizations to disclose only those donations “made for
the purpose of furthering electioneering communications” or
whether the Bipartisan Campaign Reform Act requires
disclosure of all donations irrespective of donative purpose.
                                3
Christopher Van Hollen, Jr.—a member of the United States
House of Representatives—challenged this rule under the
familiar Chevron and State Farm frameworks. In a previous
judgment, we reversed the district court and held the rule
survived Chevron Step One. We now consider whether the
rule survives Step Two and State Farm’s “arbitrary and
capricious” test. We hold that it does.

                                I

     Congressman Van Hollen’s challenge to the FEC’s
disclosure rules is best understood in its broader context, the
century-long conflict over campaign finance reform. That
context is a protean cascade of perspectives, supplied by each
branch of government, on how best to safeguard democracy
without unnecessarily sacrificing liberty.

     Throughout the twentieth and early twenty-first centuries,
campaign finance reform efforts endeavored both to ban
corporate contributions and to expand disclosure
requirements. These efforts date as far back as President
Theodore Roosevelt’s State of the Union address in 1905.
Nine years earlier, William McKinley defeated populist
William Jennings Bryan with a war chest of $16 million,
dwarfing Bryan’s paltry $600,000. Public opinion steadily
galvanized in favor of campaign finance reform, prompting
Roosevelt to champion the cause. Roosevelt urged Congress
to forbid “[a]ll contributions by corporations . . . for any
political purpose” and to “secure by law the full and verified
publication in detail of all [political contributions].” President
Theodore Roosevelt, State of the Union Address (Dec. 5,
1905), available at http://www.presidency.ucsb.edu/ws/index.
php?pid=29546. Two years later, Congress heeded his call
with the Tillman Act of 1907. See Ch. 420, 34 Stat. 864.
                              4
    The Tillman Act was just the beginning. Over the
ensuing decades, Congress passed, in piecemeal fashion,
several reform measures. The Federal Corrupt Practices Act,
the Hatch Act, the Smith-Connolly Act of 1943, and the Taft-
Hartley Act of 1947 each contained provisions aimed at
tackling political corruption in campaign finance, either
through restricting speech or requiring disclosure. And in
1974, Congress completed a massive campaign finance
overhaul with passage of the Federal Election Campaign Act
(FECA).

     FECA confronted headlong the “who” and “how much”
of campaign contributions. The Act established caps on
contributions and expenditures, restricted corporations and
unions from making independent expenditures, and required
that the identities of any individuals making a contribution or
expenditure be disclosed to the newly created Federal
Elections Commission. The Supreme Court blessed most of
FECA’s reforms in Buckley v. Valeo, 424 U.S. 1 (1976),
striking only the caps on individual, candidate, and campaign
expenditures. But critically, while upholding FECA’s
disclosure requirements, the Court construed them narrowly
to reach only “contributions earmarked for political purposes”
and “expenditures for communications that expressly
advocate the election or defeat of a clearly identified
candidate.” Id. at 80.

     The Court’s gloss on FECA’s disclosure requirements
turned out to be a pyrrhic victory for campaign finance
reformers. The “express advocacy” carve-out opened a
gaping new loophole: advertising expenditures that eschewed
magic words like “elect Mary Smith” or “defeat John Brown”
could now go undisclosed. Corporations, unions, and political
parties took full advantage by sponsoring “issue ads,” which
                              5
were functionally equivalent to express advocacy but
comfortably skirted FECA’s disclosure requirements.

      Determined to close this loop, Congress passed the
Bipartisan Campaign Reform Act (BCRA) in 2002. BCRA
recognized and regulated a new category of political
advertising called “electioneering communications,” defined
as communications that “refer[] to a clearly identified
candidate” “made within” sixty days of a general election or
thirty days of a primary election. 2 U.S.C. § 434(f)(3)(A)(i)
(2002). These communications were precisely the sort left
unregulated by Buckley’s construction of FECA, and BCRA
now subjected them to robust disclosure requirements. It
required any person making an expenditure (referred to as a
“disbursement”) totaling more than $10,000 to disclose “all
persons sharing the costs of the disbursement.” Id. §§
434(f)(2)(A), (B), and (D). BCRA also went one step further:
it altogether banned corporations and unions from using their
general treasuries to fund electioneering communications. Id.
§ 441b(b)(2). These provisions were upheld by a sharply
divided Court in McConnell v. FEC, 540 U.S. 93 (2003).

     In BCRA’s wake, the FEC promulgated several rules
to enforce the various reforms, two of which are relevant
to today’s appeal. First, the FEC promulgated a rule enforcing
BCRA’s ban on corporate and union expenditures
for     electioneering      communications.    Electioneering
Communications, 67 Fed. Reg. 65190, 65190 (Oct. 23, 2002).
Second, the FEC promulgated a rule to enforce BCRA’s
requirement for disclosure of “the names and addresses of all
contributors who contributed an aggregate amount of $1,000
or more to the person making the disbursement.” 52 U.S.C.
434(f)(2)(E)–(F). The FEC’s rule mirrored this language
almost identically but replaced the words “contributor” and
“contributed” with “donor” and “donated.” Bipartisan
                                6
Campaign Reform Act of 2002 Reporting, 68 Fed. Reg. 404,
420 (Jan. 3, 2003). Whatever the import of that choice, it is
clear that as of 2003, (1) corporations and unions could not
fund electioneering communications out of their general
treasuries, and (2) with certain exceptions not relevant to this
opinion, persons making disbursements for electioneering
communications had to disclose the names of anyone who
donated $1,000 or more to them.

     But the Supreme Court would soon deliver a heavy
blow to BCRA’s attempt to regulate electioneering
communications. With its ruling in FEC v. Wisconsin Right to
Life, Inc., 551 U.S. 449 (2007), another sharply divided
decision, and this time without even a majority opinion, the
Court held corporations and unions could not be barred from
electioneering communications unless they are “the functional
equivalent of express advocacy.” Id. at 465. And an ad is only
the functional equivalent of express advocacy, the Court said,
when it “is susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candidate.”
Id. at 469–70. The three ads before the Court in Wisconsin
Right to Life couldn’t satisfy this exacting test, and neither, it
seems, could the vast majority of issue ads funded through
independent expenditures. See Id. at 476. For restrictions on
core political speech, the Court announced it would “give the
benefit of the doubt to speech, not censorship.” Id. at 482.
BCRA’s prohibition on corporate- and union-funded
electioneering communications, beaten and tattered by
Wisconsin Right to Life, was left on life support. 1



1
  The Court’s subsequent decision in Citizens United v. FEC pulled
the plug on this ban once and for all, ruling unconstitutional the
prohibition on corporate- and union-funded “express advocacy.”
558 U.S. 310, 365 (2010).
                              7
      The FEC was now left to decide how BCRA’s disclosure
requirements should apply to a class of speakers Congress
never expected would have anything to disclose. The FEC
published a Notice of Proposed Rulemaking (NPRM) and
requested comments on proposed rules that “would
implement the Supreme Court’s decision in Wisconsin Right
to Life.” 72 Fed. Reg. 50261, 50262 (Aug. 31, 2007). That
NPRM advanced two proposals for applying BCRA’s
disclosure provisions to corporations and unions. Under the
first, the FEC would simply apply the existing disclosure
requirements for individuals and qualified nonprofit
corporations (QNCs) to corporations and unions, which would
require disclosure of all $1,000 contributors. Id. Under the
second, the FEC proposed to exempt corporations and unions
from the disclosure requirements altogether. Id.

     The FEC received twenty-seven comments and held a
two-day hearing. Rather than embracing either of the
NPRM’s proposals, it adopted a middle path. See
Electioneering Communications, 72 Fed. Reg. 72899, 72900
(Dec. 26, 2007). Corporations and unions would not be
altogether exempted, but neither would they be required to
disclose every donation totaling $1,000 or more. Id. Rather,
corporations and unions would be required to disclose all
donations totaling $1,000 or more that were “made for the
purpose of furthering electioneering communications.” Id. at
72911. This new “purpose requirement” set corporate and
union     electioneering     communications       apart   from
communications funded by other persons, who were still
required to disclose all donations regardless of purpose.

    Representative Christopher Van Hollen challenged the
FEC’s new purpose requirement and persuaded the district
court that it violated BCRA’s text. Van Hollen v. FEC, 851
F.Supp.2d 69 (D.D.C. 2012); see Chevron, USA, Inc. v. Nat.
                                   8
Res. Def. Council, Inc., 467 U.S. 837 (1984). That decision
was appealed to and reversed by a panel of this court, which
concluded BCRA’s disclosure provisions were ambiguous,
and the FEC’s rule cleared Chevron Step One. Ctr. for
Individual Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C.
Cir. 2012). Congress’s use of the terms “contributors” and
“contributed,” the panel said, is “anything but clear.” Id. The
panel did “not agree with the District Court that the[se] words
. . . cannot be construed to include a ‘purpose’ requirement.”
Id. However, it concluded that it was “in no position to assess
the parties’ arguments on whether § 104.20(c)(9) is
reasonable, and thus entitled to deference under Chevron Step
Two, or whether the regulation survives arbitrary and
capricious review.” Id. at 112. The panel sent the case back to
the district court to sort these questions out. 2

     On remand, the district court concluded that the FEC’s
rule failed at both the Chevron Step Two and arbitrary and
capricious stages. The Center for Individual Freedom filed its
notice of appeal shortly thereafter. 3 We review the FEC’s
action de novo, according no particular deference to the

2
  Technically, the panel instructed that the matter be referred back
to the FEC in order to give it a chance to revisit and clarify its rule.
Ctr. for Individual Freedom, 694 F.3d at 112. But when the FEC
declined to comment further, Van Hollen’s challenge in district
court resumed.
3
  Our previous ruling affirmed the Center for Individual Freedom’s
and the Hispanic Leadership Fund’s standing to appeal the district
court’s judgment. Ctr. for Individual Freedom, 694 F.3d at 110
(“We are satisfied that the Intervenors have standing to pursue this
appeal, for they have convincingly demonstrated that the District
Court's decision . . . has caused them injury that will be redressed
by a favorable decision from this court.”). As the posture of this
appeal is identical to the previous, we have neither the occasion nor
inclination to reconsider our prior determination.
                              9
district court’s judgment. Fox v. Clinton, 684 F.3d 67, 74
(D.C. Cir. 2012).

                              II

     Our analysis of Van Hollen’s challenge picks up where
our prior judgment left off. Van Hollen argues the FEC’s
disclosure rule is both an impermissible construction of
BCRA and an arbitrary and capricious use of the FEC’s
regulatory authority, and the district court agreed on both
scores. For the reasons outlined below, we do not.

                              A

     We are first asked to decide whether the FEC’s purpose
requirement is “based on a permissible construction of
[BCRA] in light of its language, structure, and purpose.” Nat’l
Treasury Emp. Union v. FLRA, 754 F.3d 1031, 1042 (D.C.
Cir. 2014). This inquiry, often called Chevron Step Two,
“does not require the best interpretation, only a reasonable
one.” Am. Forest and Paper Ass’n v. FERC, 550 F.3d 1179,
1183 (D.C. Cir. 2008). “We are bound to uphold agency
interpretations . . . regardless whether there may be other
reasonable, or even more reasonable, views.” Gentiva
Healthcare Corp. v. Sebelius, 723 F.3d 292, 296 (D.C. Cir.
2013). In this case, BCRA is ambiguous, and the FEC’s
construction of it is reasonable. We defer accordingly.

     The starting place for any Chevron Step Two inquiry is
the text of the statute. BCRA states, in relevant part:

       “Every person who makes a disbursement for
       the direct costs of producing and airing
       electioneering communications in an aggregate
       amount in excess of $10,000 during any
                              10
       calendar year shall . . . file with the Commission
       a statement containing . . . the names and
       addresses of all contributors who contributed an
       aggregate amount of $1,000 or more to the
       person making the disbursement.”

52 U.S.C. § 30104(f) (emphasis added). This provision directs
the disclosure of “all contributors” and omits any explicit
mention of a purpose requirement. By contrast, the
neighboring section governing express advocacy directs
disclosure of “each person who made a contribution . . . for
the purpose of furthering an independent expenditure.” Id. §
30104(c)(2)(C). The nonparallel nature of these two related
provisions, Van Hollen contends, renders impermissible the
FEC’s purpose requirement. At the same time, FECA
elsewhere defines “contribution,” a term derived from the
same root as the words in the challenged section, as a
donation “by any person for the purpose of influencing any
election for Federal office.” 52 U.S.C. § 30101(8)(A)(i)
(emphasis added). And the FEC intentionally drew upon the
express advocacy purpose requirement as precedent for
resolving the ambiguity in the electioneering communications
provision. See 72 Fed. Reg. at 72911 n.22. Our question, then,
is this: Does BCRA’s text permit the FEC’s purpose
requirement?

     To answer this, we must first remember what we’ve
already settled. In our previous ruling, we concluded
Congress did not have “an intention on the precise question”
whether a purpose requirement is permissible as “it is
doubtful that . . . Congress even anticipated the circumstances
that the FEC faced when it promulgated [this regulation].”
Ctr. for Individual Freedom, 694 F.3d at 111. We noted “it
was due to the complicated situation that confronted the
agency in 2007 and the absence of plain meaning in the
                                 11
statute that the FEC acted . . . to fill ‘a gap’ in the statute.” Id.
But while we might have stopped there, our analysis went
beyond merely highlighting BCRA’s ambiguity. We also
weighed in on the precise interpretive question relevant to
Step Two. We disagreed with the district court “that the
words ‘contributors’ and ‘contributed’ . . . cannot be
construed to include a ‘purpose’ requirement” and cited
multiple dictionaries that “define ‘contribute’ in a way that is
consistent with the regulation.” Id. at 110–11. In other words,
we held that whether corporations and unions should be
required to disclose every person who gave $1,000 or more or
only those who gave for the purpose of influencing
electioneering communications was an open policy question,
one Congress left for the FEC to decide.

     That decision largely foreordains our Chevron Step Two
answer. In deciding the Step One question, we did not limit
our analysis to whether BCRA is ambiguous; we specifically
concluded the FEC’s interpretation of “contributors” was
within the range of linguistically permissible constructions.
Having thus already concluded section 30104(f) could be
construed to include a purpose requirement, it would be odd
for us to reverse course now and declare it could not.

     But even setting aside that we all but answered the Step
Two question last time around, the FEC’s purpose
requirement is more than just a permissible construction of
BCRA; it’s a persuasive one. For one, as suggested above, the
FEC’s purpose requirement is consistent with the purpose-
laden definition of “contribution” set forth in FECA’s very
own definitional section. See 52 U.S.C. § 30101(8)(A)(i)
(defining “contribution” as “anything of value made . . . for
the purpose of influencing [a federal] election”). ”
                               12
     Moreover, the FEC’s purpose requirement regulates
electioneering communication disclosures in precisely the
same way BCRA itself regulates express advocacy
disclosures. In a neighboring provision, BCRA requires a
person making an express advocacy expenditure to disclose
only those “person[s] who made a contribution . . . for the
purpose of furthering an independent expenditure.” Id. §
30104(c)(2)(C). Thus, to resolve the ambiguity it faced in
Wisconsin Right to Life’s wake, the FEC simply opted for an
approach already endorsed by Congress in a related context.
That “Congress codified the very approach” the FEC now
adopts in a similar context is “highly persuasive in
demonstrating” the FEC’s construction of BCRA “does not
reflect an unreasonable interpretation of the statute.” Public
Citizen v. Carlin, 184 F.3d 900, 906 (D.C. Cir. 1999).

     Van Hollen counters this point, arguing Congress’s
failure to include a purpose requirement in the electioneering
communication context—which it included for express
advocacy— textually precludes the FEC from later doing so.
This is a classic invocation of the expressio unius canon of
construction, and if we were interpreting this statute directly
rather than filtered through an agency’s construction, Van
Hollen’s argument would have serious bite. However, as is
usually the case, the procedural posture matters. The
expressio unius canon operates differently in our review of
agency action than it does when we are directly interpreting a
statute. See Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp.,
940 F.2d 685, 694 (D.C. Cir. 1991) (“[T]his canon has little
force in the administrative setting.”); Cheney R.R. Co. v. ICC,
902 F.2d 66, 69 (D.C. Cir. 1990) (“Whatever [expressio
unius’s] general force, we think it an especially feeble helper
in an administrative setting, where Congress is presumed to
have left to reasonable agency discretion questions that it has
not directly resolved.”). In scenarios of precisely this ilk, “we
                              13
have consistently recognized that a congressional mandate in
one section and silence in another often suggests not a
prohibition but simply a decision not to mandate any solution
in the second context, i.e., to leave the question to agency
discretion.” Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 36
(D.C. Cir. 2009). This approach dovetails appropriately with
the wide latitude we afford agencies when interpreting
statutes: we do not demand the best interpretation, only a
reasonable one.

     Nor do Van Hollen’s other arguments persuade us that
the FEC’s purpose requirement was an impermissible
construction of BCRA. Van Hollen contends the requirement
“frustrate[s] the policy that Congress sought to implement”
and therefore must be rejected. See Shays v. FEC, 528 F.3d
914, 919 (D.C. Cir. 2008). Specifically, he asserts the FEC’s
rule violates BCRA’s primary purpose of “improv[ing]
disclosure” and “curtail[ing] circumvention of campaign
finance rules,” allowing contributors to “avoid reporting
altogether” by simply “transmitting funds but remaining silent
about their intended use.” Van Hollen Br. at 27–28. And here,
his invocation of our Shays decision does lend a measure of
credibility. A panel of this court invalidated a regulation
allowing “candidates to evade—almost completely—BCRA’s
restrictions on the use of soft money” because it “frustrate[d]
Congress’s goal of prohibiting soft money” in federal
elections. 528 F.3d at 925. According to Van Hollen (and the
district court), since “the legislative history of the BCRA
makes it clear that the purpose behind the disclosure
requirements was to enable voters to be informed about who
was trying to influence their decisions,” the purpose
requirement’s “limiting language” similarly frustrates BCRA.
Van Hollen, 74 F.Supp.3d at 433–34.

    But the art of statutory construction has moved beyond
                                14
this particularly results-oriented brand of purposivism. Just
because one of BCRA’s purposes (even chief purposes) was
broader disclosure does not mean that anything less than
maximal disclosure is subversive. 4 Statutes are hardly, if ever,
singular in purpose. Rather, most laws seek to achieve a
variety of ends in a way that reflects the give-and-take of the
legislative process. See Patel v. USCIS, 732 F.3d 633, 636
(6th Cir. 2013) (“[I]t is folly to talk about ‘the purpose’ of the
statute when the statute reflects a compromise between
multiple purposes.”). That BCRA seeks more robust
disclosure does not mean Congress wasn’t also concerned
with, say, the conflicting privacy interests that hang in the
balance. In fact, Congress “took great care in crafting . . .
language to avoid violating the important p[]rinciples in the
First Amendment.” 147 CONG. REC. S3033 (daily ed. Mar. 28,
2001) (statement of Sen. Jeffords). Chevron demands our
deference when an agency’s interpretation is “a reasonable
accommodation of conflicting policies that were committed to
the agency’s care by the statute.” 467 U.S. at 845.

     Moreover, the district court’s invocation of such a
sweeping disclosure purpose contradicts the very statute
whose purposes it purports to protect. BCRA does not require
disclosure at all costs; it limits disclosure in a number of

4
  At oral argument, Van Hollen’s counsel conceded that BCRA did
not call for unbounded disclosure. The district court, however, was
less sanguine, suggesting unbounded disclosure was BCRA’s aim:
   [I]t was contrary to the policy goal that Congress intended
   to implement for the Commission to add limiting language
   to its regulations when the aim of that language was—as the
   FEC put it—‘to ensure that disclosure of the newly-
   permitted electioneering communications would be
   narrowly tailored.’ Congress did not call for narrow
   tailoring; it called for just the opposite.
Van Hollen, 74 F.Supp.3d at 434.
                               15
ways. For example, for electioneering communications under
$10,000, no disclosures are necessary, see 52 U.S.C. §
30104(f)(1), and for those over $10,000, BCRA does not
require disclosure of those who contribute $999 or less, see id.
§ 30104(f)(2)(E). These disclosure limitations suggest
Congress’s purposes were far more nuanced than the district
court’s characterization concedes.

      To be sure, a statute’s purpose is relevant to Chevron’s
Step Two inquiry. See UC Health v. NLRB, 803 F.3d 669,
675 (D.C. Cir. 2015) (requiring deference so long as an
agency construction is “reasonable and consistent with the
statute’s purpose”). But we are judges, not legislators, and it
behooves us to maintain a healthy sense of modesty regarding
our ability to discern the scope and priority of purposes the
BCRA Congress pursued. “What judges believe Congress
‘meant’ (apart from the text) has a disturbing but entirely
unsurprising tendency to be whatever judges think Congress
must have meant, i.e., should have meant.” Zuni Pub. Sch.
Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 117 (2007)
(Scalia, J., dissenting). What matters here is that Congress left
the meaning of “contributor” ambiguous. Congressional
silence of this sort is, in Chevron terms, “an implicit
delegation from Congress to the agency to fill in the statutory
gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 159 (2000) (emphasis added). It is a transfer of authority
to the FEC, whose task it then became “not to find the best
meaning of the text, but to formulate legally binding rules to
fill in gaps based on policy judgments made by the agency
rather than Congress.” Michigan v. EPA, 135 S. Ct. 2699,
2713 (2015) (Thomas, J., concurring) (emphasis added). The
FEC did precisely that, deciding to fill the gap left in BCRA
with the same purpose-requirement Congress adopted in
related contexts. We are loathe to upset such a policy
                              16
judgment based on nothing more than highly generalized
overtures to BCRA’s “primary purpose.”

    Because the FEC’s purpose requirement is consistent
with BCRA’s text, history, and purposes, it easily clears the
Chevron Step Two hurdle.

                               B

     We are next asked to decide whether the FEC’s purpose
requirement is “arbitrary and capricious.” The Administrative
Procedure Act deems unlawful any agency action found to be
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” 5 U.S.C. § 706(2), but to invalidate a
regulation under State Farm review, see Motor Vehicle Mfrs.
Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29
(1983), a challenger must show the agency action is not a
product of reasoned decisionmaking, see Fox, 684 F.3d at 74–
75. This is “a heavy burden,” since State Farm entails a “very
deferential scope of review” that forbids a court from
“substitut[ing] its judgment for that of the agency.”
Transmission Access Policy Study Grp. v. FERC, 225 F.3d
667, 714 (D.C. Cir. 2000). The APA’s arbitrary and
capricious standard requires, inter alia, that an agency
adequately explain its action so that a reviewing court can
“evaluate the agency’s rationale at the time of decision.”
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654
(1990).

     This appeal presents two State Farm challenges. First, the
district court held the FEC acted unreasonably in revisiting its
original 2003 rule, concluding the FEC’s subsequent action
was unnecessary because the Supreme Court’s Wisconsin
Right to Life decision left existing disclosure provisions
“untouched.” Van Hollen, 74 F.Supp.3d at 419. Second, Van
                                17
Hollen contends the FEC failed to adequately explain its
decision to adopt the purpose requirement.

                                1

    The district court held “it was unreasonable for the FEC
to alter the statutory reporting requirements on the stated
grounds that it was implementing the Supreme Court’s
decision in [Wisconsin Right to Life]” as “nothing” in that
decision “required narrowing the disclosure requirements.”
Van Hollen, 74 F. Supp. 3d at 419. 5

     But in focusing on the opinion’s silence regarding
disclosure, id. at 418–19, the district court downplays
Wisconsin Right to Life’s disruptive import. Before 2007, the
modus operandi of campaign finance law had always been
that Congress could restrict corporate and union speech in the
interest of deterring “corruption” or “the appearance of
corruption.” See Buckley, 424 U.S. at 26. But Wisconsin Right
to Life marked the first chink in that conventional wisdom’s
armor, an onslaught that would ultimately culminate in the
most expansive, speech-protective campaign finance decision
in American history, Citizens United. After Wisconsin Right
to Life, corporations and unions suddenly could expend
general treasury funds for issue ads, a result Congress had
explicitly prohibited under BCRA. An entirely new class of

5
  The court apparently proceeds under Chevron Step Two, but
curiously concludes “[t]he starting point of the second step of the
Chevron analysis must be the stated reason behind the regulation,”
and attempts to assess the adequacy of that explanation. See Van
Hollen, 74 F. Supp. 3d at 415. This seems more like State Farm
than Chevron. So, while the district court speaks of the FEC’s
“unreasonable” action, we think it more appropriate to consider
whether its decision to revisit its previous regulation was
“arbitrary.”
                              18
previously silenced speakers was now subject to BCRA’s
disclosure requirements. And just as the FEC was authorized
to decide how to implement BCRA’s disclosure provisions for
qualified speakers in 2003, it was authorized to decide how to
implement BCRA’s disclosure provisions for these newly
qualified speakers in 2007, too.

     It is true Wisconsin Right to Life “said absolutely
nothing” about the challenged disclosure provisions, but that
does not mean the FEC was barred from promulgating a new
regulation. An agency “must consider varying interpretations
and the wisdom of its policy on a continuing basis . . . in
response to changed factual circumstances.” See Nat’l Cable
& Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
981 (2005). The Supreme Court’s decision brought an entirely
new class of speakers within reach of BCRA’s disclosure
requirements, a class altogether different from those already
subjected to them. Constitutional decisions of this magnitude
unquestionably justify an agency in updating its existing
regulations to appropriately compensate for changed
circumstances.

                               2

     Van Hollen also argues, and the district court agreed, that
the FEC failed to adequately explain its decision to adopt the
purpose requirement. While an agency is required to
adequately explain its decision, this does not mean that its
explanation “must be a model of analytical precision.”
Dickson v. Sec. of Defense, 68 F.3d 1396, 1404 (D.C. Cir.
1995). It is enough that a reviewing court can reasonably
discern the agency’s analytical path. Bowman Transp. Inc. v.
Ark.-Best Freight Sys. Inc., 419 U.S. 281, 286 (1974). That
low hurdle is cleared where the agency “examine[d] the
relevant data and articulate[d] a satisfactory explanation for
                             19
its action including a rational connection between the facts
found and the choice made.” State Farm, 463 U.S. at 43.

    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
purpose requirement, which we refer to as the “support,”
“burden,” and “privacy” rationales. 72 Fed. Reg. at 72901,
72911. Because we can reasonably discern the FEC’s
analytical path from these three rationales, we uphold its
purpose requirement against Van Hollen’s challenge.

1. The Support Rationale

      The FEC was concerned that some individuals who
contribute to a union or corporation’s general treasury may
not support that entity’s electioneering communications, and a
robust disclosure rule would thus mislead voters as to who
really supports the communications. The agency explained,

       A corporation’s general treasury funds are often
       largely comprised of funds received from
       investors such as shareholders who have
       acquired stock in the corporation and customers
       who have purchased the corporation’s products
       or services, or in the case of a non-profit
       corporation, donations from persons who
       support the corporation’s mission. These
       investors, customers, and donors do not
       necessarily     support     the     corporation’s
       electioneering communications. Likewise, the
       general treasury funds of labor organizations and
       incorporated membership organizations are
       composed of member dues obtained from
       individuals and other members who may not
                              20
       necessarily     support   the       organization's
       electioneering communications.

72 Fed. Reg. at 72911 (emphases added). It’s hard to escape
the intuitive logic behind this rationale. Imagine the following
not unlikely scenario. A Republican donates $5,000 to the
American Cancer Society (ACS), eager to fund the ongoing
search for a cure. Meanwhile, Republicans in Congress, aware
of a growth in private donations to ACS, push for fewer
federal grants to scientists studying cancer in order to reduce
the deficit. In response to their push, the ACS runs targeted
advertisements against those Republicans, leading to the
defeat of several candidates in the upcoming election.
Wouldn’t a rule requiring disclosure of ACS’s Republican
donor, who did not support issue ads against her own party,
convey some misinformation to the public about who
supported the advertisements?

     Granted, as Van Hollen is quick to point out, the FEC’s
assertions here were not corroborated with any hard evidence
showing contributors who disagree with their chosen
corporation’s electioneering communications. But these
assertions “are, at the very least, speculation based firmly in
common sense and economic reality.” Verizon v. FCC., 740
F.3d 623, 646 (D.C. Cir. 2014); see also San Luis Obispo
Mothers for Peace v. NRC, 789 F.2d 26, 44 (D.C. Cir. 1986)
(“[T]he Commission is not required to hold a hearing to prove
what common sense shows.”). Here, the FEC’s assertion that
some number of a corporation’s investors, a nonprofit’s
donors, or a union’s members may generally support the
entity but not its electioneering communications seems fairly
intuitive, at least enough to pass State Farm’s “very
deferential scope of review.” Transmission Access, 225 F.3d
at 714.
                              21
2. The Burden Rationale

     This second rationale displayed the FEC’s concern not
for the interests of contributors or the public, but with the
onus placed on the disclosing entity to curate an exhaustive
list of every individual who provided more than $1,000. The
FEC explained,

       Furthermore, witnesses at the Commission’s
       hearing testified that the effort necessary to
       identify those persons who provided funds
       totaling $1,000 or more to a corporation or labor
       organization would be very costly and require an
       inordinate amount of effort. Indeed, one witness
       noted that labor organizations would have to
       disclose more persons to the Commission under
       the ECs rules than they would disclose to the
       Department of Labor under the Labor
       Management Report and Disclosure Act.

72 Fed. Reg. at 72911. As further support for its explanation,
the FEC noted that “all commenters who addressed disclosure
of electioneering communications stated that corporations and
labor organizations should not be required to report the
sources of funds that made up their general treasury funds.”
Id. And one commenter urged an exemption for nonprofits,
stating that “nonprofit corporations have a wide variety of
sources of income, and unlimited disclosure would create a
heavy burden for them.” Id.

    Van Hollen suggests this explanation is inadequate for a
couple of reasons. First, he argues the FEC did not support its
assertion that identifying contributors would be “very costly
and require an inordinate amount of effort” with anything
more than “conclusory assertions.” Van Hollen Br. at 39. But
                              22
this isn’t entirely accurate. The Commission cited to one
commenter who testified “that labor organizations would have
to disclose more persons to the Commission under the
[electioneering communications] rules than they would
disclose to the Department of Labor,” and another commenter
who testified that the “reporting requirements would far
exceed all other reporting requirements that currently apply to
nonprofit organizations, such as reporting to the Internal
Revenue Service.” 72 Fed. Reg. at 72911. These assertions,
relied upon by the FEC, are uncontradicted in the record, and
“[w]ithout any contrary evidence to disprove these findings,”
Van Hollen has “not shown any arbitrary and capricious
action.” Agape Church v. FCC, 738 F.3d 397, 410 (D.C. Cir.
2013).

     Second, Van Hollen suggests the FEC could have
mitigated the cost of compliance by clarifying that business
income (such as from customers or shareholders) and union
dues do not entail “truly donative acts” and are therefore
exempt from disclosure. Van Hollen Br. at 43. He points out
that the FEC took a similar approach in promulgating the
2003 version of the disclosure rules, clarifying that
“individuals are required to disclose donations received,
which does not include salary, wages, or other compensation
for employment.” 68 Fed. Reg. at 414. By exempting these
sources of revenue, which are less relevant to voters anyway,
the overall compliance costs of the regulation would drop.
But this alternative would only reduce the disclosure burdens
borne by for-profit corporations and unions. Nonprofit
corporations, which, as we’ve already noted, faced reporting
requirements that “would far exceed all other reporting
requirements that currently apply to nonprofit[s],” obtain no
benefit from this alternative, and the FEC was justifiably
concerned about their compliance costs, too. Accordingly, this
was not a viable alternative. Since agencies are only required
                               23
to consider “significant and viable” alternatives, Nat’l
Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 215
(D.C. Cir. 2013) (emphasis added), we find no error in the
FEC’s decision not to adopt this only partially mitigating
alternative.

      To be sure, the FEC’s explanation was far from ideal, and
it is more difficult to discern its analytical path on this point.
For instance, what are the Department of Labor’s disclosure
requirements, and how much more burdensome was the
existing rule? The IRS’s? Would different rules for nonprofits
solve most concerns? What is actually more burdensome
about disclosing all donations as opposed to only a subset of
donations? And does that justify a change in policy that will
have a markedly decreased effect on the amount of
disclosures? The answers to these questions may exist and
may likely support the rule, but the FEC’s explanation did not
provide them. Ultimately, however, State Farm’s standard is
“[n]ot particularly demanding,” and the FEC’s burden
rationale leaves just enough detail for us to see “what major
issues of policy were ventilated and why the agency reacted to
them as it did.” Republican Nat’l Cmte v. FEC, 76 F.3d 400,
407 (D.C. Cir. 1996).

3. The Privacy Rationale

     The FEC’s final explanation centered on its effort to
tailor the regulations such that they both effectuate BCRA’s
purpose in disclosure while also minding carefully the
constitutional interests in privacy also at stake. The FEC
reasoned that the revised purpose requirement is “narrowly
tailored to address many of the commenters’ concerns
regarding individual donor privacy.” 72 Fed. Reg. at 72901.
                              24
     This explanation is significant. The FEC is “[u]nique
among federal administrative agencies,” having “as its sole
purpose the regulation of core constitutionally protected
activity—the behavior of individuals and groups only insofar
as they act, speak and associate for political purposes.” AFL-
CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003). Thus, more
than other agencies whose primary task may be limited to
administering a particular statute, every action the FEC takes
implicates fundamental rights. By tailoring the disclosure
requirements to satisfy constitutional interests in privacy, the
FEC fulfilled its unique mandate.

     And the FEC’s concerns about the competing interests in
privacy and disclosure were legitimate. We began this opinion
by acknowledging the unmistakable tension that exists in
campaign finance law between speech rights and disclosure
rules. The Supreme Court has vigorously protected the
public’s right to speak anonymously, even recognizing that
anonymous speech has “played an important role in the
progress of mankind.” Talley v. California, 362 U.S. 60, 64
(1960). “Anonymity,” the Court elsewhere observed, “is a
shield from the tyranny of the majority” and “exemplifies the
purpose behind the Bill of Rights and of the First Amendment
in particular: to protect unpopular individuals from
retaliation—and their ideas from suppression—at the hand of
an intolerant society.” McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 357 (1995). This is not to say the Court is naïve
to the potential downsides that may accompany this right to
anonymity. Much to the contrary, the McIntyre Court
acknowledged “political speech by its nature will sometimes
have unpalatable consequences,” but, vindicating the right to
speak anonymously, declared “our society accords greater
weight to the value of free speech than to the dangers of its
misuse.” Id.
                               25
     And yet, the Court has sanctioned startling intrusions on
this right to anonymity by upholding mandatory disclosure
requirements. The Court held in Buckley that such
requirements “appear to be the least restrictive means of
curbing the evils of campaign ignorance and corruption that
Congress found to exist,” all the while recognizing “public
disclosure of contributions to candidates and political parties
will deter some individuals who otherwise might contribute”
and “expose contributors to harassment or retaliation.” 424
U.S. at 68. Ironically, these two values the Buckley Court
acknowledged would be harmed by the disclosure
requirements were the very same values the McIntyre Court
later believed “exemplifie[d] the purpose behind the Bill of
Rights and of the First Amendment in particular”—namely,
“protect[ing] unpopular . . . ideas from suppression” and
“individuals from retaliation.” McIntyre, 514 U.S. at 357. But
even after McIntyre, the Court upheld the disclosure
requirements in McConnell, and again in Citizens United,
without much more than a passing citation to McIntyre or any
of the Court’s other precedents establishing the right to speak
anonymously. 6 As one dissenting justice observed in
McConnell, “The Court now backs away from [McIntyre],
allowing the established right to anonymous speech to be
stripped away based on the flimsiest of justifications.” 540
U.S. at 276 (Thomas, J. dissenting).

     Both an individual’s right to speak anonymously and the
public’s interest in contribution disclosures are now firmly
entrenched in the Supreme Court’s First Amendment
jurisprudence. And yet they are also fiercely antagonistic. The
6
 Judge Easterbrook, dubitante in Majors v. Abell, 361 F.3d 349,
356 (7th Cir. 2004), also noted “the Justices’ failure to discuss
McIntyre” and concluded it was therefore “impossible for courts at
our level to make an informed decision—for the Supreme Court has
not told us what principle to apply.”
                               26
deleterious effects of disclosure on speech have been ably
catalogued. “Disclaimer and disclosure requirements enable
private citizens and elected officials to implement political
strategies specifically calculated to curtail campaign-related
activity and prevent the lawful, peaceful exercise of First
Amendment rights.” Citizens United, 558 U.S. at 483
(Thomas, J., dissenting) (highlighting how mandatory
disclosure of contributors to California’s controversial “Yes
on Proposition 8” campaign led to their being singled out for
ruthless retaliation and intimidation). “[T]he advent of the
Internet enables prompt disclosure of expenditures, which
provides political opponents with the information needed to
intimidate and retaliate against their foes.” Id. at 484 (internal
quotation marks omitted). “Disclosure also makes it easier to
see who has not done his bit for the incumbents, so that arms
may be twisted and pockets tapped.” Majors v. Abell, 361
F.3d 349, 356 (7th Cir. 2004) (Easterbrook, J., dubitante).

      In addition to these general burdens, the specific
disclosure requirement Van Hollen advocates here would
present its own unique harms. For instance, an American
Cancer Society donor who supports cancer research but not
ACS’s political communications must decide whether a
cancer cure or her associational rights are more important to
her. This is categorically distinct from deciding whether a
political issue, such as tax reform, is as important as one’s
associational right. Cancer research isn’t a political issue, but
disclosure rules of this sort would undeniably transform it into
one. These disclosure rules also burden privacy rights in
another crucial way: modest individuals who’d prefer the
amount of their charitable donations remain private lose that
privilege the minute their nonprofit of choice decides to run
an issue ad. The Supreme Court routinely invalidates laws
that chill speech far less than a disclosure rule that might
scare away charitable donors. See Watchtower Bible and
                              27
Tract Soc’y of New York, Inc. v. Stratton, 536 U.S. 150 (2002)
(striking a law requiring religious canvassers to obtain a
permit before advocating door-to-door on private property).

     The ones who would truly bear the burden of Van
Hollen’s preferred rule would not be the wealthy corporations
or the extraordinarily rich private donors that likely motivated
Congress to compel disclosure in the first place. Such
individuals would have “little difficulty complying” with
these laws, as they can readily hire “legal counsel who
specialize in election matters,” who “not only will assure
compliance but also will exploit the inevitable loopholes.”
Majors, 361 F.3d at 357–58 (Easterbrook, J., dubitante).
Instead, such requirements “have their real bite when flushing
small groups, political clubs, or solitary speakers into the
limelight, or reducing them to silence.” Id. at 358.

     By affixing a purpose requirement to BCRA’s disclosure
provision, the FEC exercised its unique prerogative to
safeguard the First Amendment when implementing its
congressional directives. See AFL-CIO, 333 F.3d at 170. Its
tailoring was an able attempt to balance the competing values
that lie at the heart of campaign finance law. We therefore do
not find this rationale inadequate.


                               ***

    At the close of its explanation, the FEC succinctly
defended its decision to adopt a purpose requirement for
corporate and union electioneering communications:

       In the Commission’s judgment, requiring
       disclosure of funds received only from those
       persons who donated specifically for the purpose
                              28
       of furthering [electioneering communications]
       appropriately provides the public with
       information about those persons who actually
       support the message conveyed by the
       [electioneering     communications]        without
       imposing on corporations and labor organizations
       the significant burden of disclosing the identities
       of the vast numbers of customers, investors, or
       members, who have provided funds for purposes
       entirely unrelated to the making of
       [electioneering communications].

72 Fed. Reg. at 72911. In light of its three rationales—the
support, burden, and privacy rationales—we conclude the
FEC’s purpose requirement is neither arbitrary nor capricious.

                              III

     Holding, as we do here, that the FEC’s purpose
requirement satisfies both Chevron Step Two and State Farm
review has the benefit both of being a correct application of
black letter administrative law and of forestalling to some
other time an answer to the important constitutional questions
bubbling beneath the surface of this case. As our discussion of
the FEC’s rule has shown, the Supreme Court's campaign
finance jurisprudence subsists, for now, on a fragile
arrangement that treats speech, a constitutional right, and
transparency, an extra-constitutional value, as equivalents.
But “the centre cannot hold.” William Butler Yeats, The
Second Coming (1919). Until then, however, the FEC’s
purpose requirement survives, and the judgment of the district
court is therefore

                                                     Reversed.
