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# Real Truth About Abortion, Inc. v. FEC (formerly Real Truth About Obama v. FEC)

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## Summary

On June 12, 2012, the United States Court of Appeals for the Fourth Circuit upheld the Federal Election Commission's legal definitions and policies regarding the disclosure of certain information by the nonprofit The Real Truth About Abortion (RTAA) – formerly known as The Real Truth About Obama, Inc.

RTAA asserted the Commission’s definition of “express advocacy” and approach to determining whether a group is a “political committee” under the Federal Election Campaign Act (Act) were vague, overbroad, and violated the First and Fifth Amendments to the Constitution. However, the court’s three-judge panel stated the Commission’s definition of express advocacy is consistent with relevant Supreme Court decisions, and the Commission’s political committee determinations represent “a sensible approach” that “does not unlawfully deter protected speech.”

On January 7, 2013, the U.S. Supreme Court denied RTAA’s Petition for Writ of Certiorari, letting stand the appeals court's decision.

### Background

RTAA is a nonstock, nonprofit corporation in Richmond, Virginia, registered with the IRS under 26 U.S.C. §527. RTAA is not a federally registered political committee and claims that it does not engage in express advocacy or make contributions to political candidates. According to RTAA, the organization’s primary purpose is to educate voters and engage in get-out-the-vote drives, along with other activities that are consistent with Section 527 of the Internal Revenue Code.

RTAA intended to engage in certain activities in the current election cycle that it claims will educate the public about then-Senator Barack Obama’s policy positions, including the creation of a web site, digital postcards and audio ads for radio broadcast and web site posting. The organization intended to fund its efforts by sending written communications to potential donors that described the organization and upcoming projects. RTAA intended to raise more than $1,000 and to disburse more than $1,000 to broadcast audio ads and place them on the web site.

RTAA claims that it is chilled from proceeding with its intended activities because it believes that it will be deemed a political committee by the FEC and subject to FEC and DOJ investigations and possible enforcement actions that may result in civil and criminal penalties.

### Complaint

On July 30, 2008, RTAA filed a complaint in the U.S. District Court for the Eastern District of Virginia challenging the constitutionality of three provisions of FEC regulations and an FEC "enforcement policy."

The complaint alleged that certain provisions of Commission regulations are unconstitutionally overbroad, void for vagueness, contrary to law and in violation of the First and Fifth Amendments. The plaintiff further alleged that the provisions in question exceed the FEC’s statutory authority and have a chilling effect on their speech. Regulations in question include those related to express advocacy, funds received in response to solicitations and the Commission’s implementation of the Supreme Court’s decision in *Wisconsin Right to Life v. FEC*, along with the Commission’s "enforcement policy" on political committee status. The suit was filed against the FEC and the United States Department of Justice, the entity charged with criminal enforcement of the federal laws at issue.

The Federal Election Campaign Act (the Act) and Commission regulations define a "political committee" as any group or association that receives more than $1,000 in "contributions" or makes more than $1,000 in "expenditures" during a calendar year. Groups or associations that meet this definition must follow the Act’s limitations, prohibitions and reporting requirements. 11 CFR 100.5.

**Expressly advocating.** An "expenditure" includes, among other things, funds spent for a communication that "expressly advocates" the election or defeat of a clearly identified federal candidate. 11 CFR 100.22. A communication can be considered express advocacy either by use of certain explicit words of advocacy of election or defeat or by the only "reasonable interpretation test." 11 CFR 100.22. Under the reasonable interpretation test, a communication is considered to expressly advocate when, taken as a whole and with limited reference to external events, such as the proximity of the election, the communication can only be interpreted by a reasonable person as advocating the election or defeat of a candidate. 11 CFR 100.22(b). RTAA asked the court to find the "reasonable purpose test" for the definition of "express advocacy" unconstitutionally vague and overbroad and in excess of the FEC’s statutory authority.

Donations to "support" or "oppose" "contributions" include, among other things, funds received in response to a solicitation that indicates that any portion of the funds received will be used to support or oppose the election of a clearly identified federal candidate. 11 CFR 100.57(a). RTAA also asked the court to find this provision unconstitutionally vague and overbroad under the First and Fifth Amendments because the organization claims that "'support' and 'oppose' are undefined, go beyond express advocacy and are unconstitutionally vague."

**"Major Purpose Test."** A group or association that crosses the $1,000 contribution or expenditure threshold will only be deemed a political committee if its "major purpose" is to engage in federal campaign activity. RTAA claimed that the FEC set forth an enforcement policy regarding PAC status in a policy statement[1] and that this enforcement policy is "based on an ad hoc, case-by-case, analysis of vague and impermissible factors applied to undefined facts derived through broad-ranging, intrusive, and burdensome investigations . . . that, in themselves, can often shut down an organization, without adequate bright lines to protect issue advocacy in this core First Amendment area." RTAA asked the court to find this "enforcement policy" unconstitutionally vague and overbroad and in excess of the FEC’s statutory authority.

**Electioneering communications.** Under FEC regulations, a corporation or labor organization can make certain electioneering communications so long as the communication can be reasonably interpreted as something other than an appeal to vote for or against a clearly identified candidate. 11 CFR 114.15. This provision is part of the revised electioneering communications regulations that were promulgated to implement the Supreme Court’s decision in *Wisconsin Right to Life, Inc*. The Court found that WRTL’s ads in question could reasonably be interpreted as something other than an appeal to vote for or against a specific federal candidate and, as such, did not constitute the functional equivalent of express advocacy. The Court noted that the ads’ content lacked "indicia of express advocacy" because they made no mention of "an election, candidacy, political party, or challenger . . . and [took no] position on a candidate’s character, qualifications, or fitness for office." The Commission subsequently promulgated regulations that include a test to determine whether an ad can reasonably be interpreted as something other than an appeal to vote for or against a clearly identified candidate. 11 CFR 114.15. RTAA claimed that this regulation exceeded any permissible construction of the Court’s decision and is unconstitutionally vague and overbroad and in excess of the FEC’s statutory authority.

### Court decisions on Motion for Preliminary Injunction

RTAA sought a preliminary and permanent injunction from the U.S. District Court for the Eastern District of Virginia enjoining the FEC and DOJ from enforcing these rules and "enforcement policy." In addition, the plaintiff sought a declaration that the challenged regulations and "enforcement policy" are void and set aside. On September 11, 2008, the U.S. District Court for the Eastern District of Virginia denied RTAA’s motion for a preliminary injunction. In August 2009, the Fourth Circuit Court of Appeals affirmed the District Court's order denying RTAA's motion for a preliminary injunction.

In December 2009, RTAA filed a Petition for a Writ of Certiorari with the U.S. Supreme Court stating, among other things, that the appellate court applied an incorrect legal standard in denying its request for a preliminary injunction. The FEC argued that the Court of Appeals applied the correct standard in denying RTAA’s motion and that certain issues are moot as a result of subsequent litigation. The FEC requested that the Court grant the Petition for Writ of Certiorari and vacate the appellate court’s judgment with respect to some of the challenged regulations, and requested that the Court remand the case with instructions to declare those claims moot.

On April 26, 2010, the U.S. Supreme Court granted RTAA’s Petition for Writ of Certiorari, vacated the appellate court’s judgment and remanded the case to the Court of Appeals for further consideration in light of the Supreme Court’s holding in *Citizens United v. FEC* and the Solicitor General’s suggestion of mootness.

In its *per curium* Order on Remand, the Court of Appeals reissued its opinion on the facts and legal standard for issuing a preliminary injunction. The Court of Appeals remanded the remaining issues to the district court for further consideration.

### Summary judgment

On June 16, 2011, the U.S. District Court for the Eastern District of Virginia granted summary judgment in favor of the Commission and denied RTAA’s motions for preliminary injunction and summary judgment in this case.

**Express advocacy.** The court held that the Commission’s regulation at 11 CFR 100.22(b) defining express advocacy is consistent with the Supreme Court’s opinion in *FEC v. Wisconsin Right to Life, Inc.,* 551 U.S. 449 (2007). In that opinion, the Supreme Court had upheld the constitutionality of the Act’s financing restrictions on electioneering communications as applied to communications that are the ”functional equivalent of express advocacy,” which the Court defined as communications that are subject to “no reasonable interpretation” other than as an appeal to vote for or against a candidate. The District Court determined that the regulation at 11 CFR 100.22(b), which requires that “reasonable minds [cannot] differ” about an advertisement’s message, was similar to the standard from *Wisconsin Right to Life*. The District Court further determined that the interpretation of 100.22(b) was not altered by the decision in *Citizens United*, and that had the Commission deemed both RTAA ads to be express advocacy under 100.22(b), that application would not have been unconstitutional.

**Political committee status.** The court denied RTAA’s challenge to the Commission’s approach to determining political committee status. The court stated that the Commission undertakes a “fact-intensive, case-by-case adjudication to determine whether a group’s major purpose” is the election or defeat of federal candidates, including examining whether the group spends money extensively on campaign activities such as canvassing or phone banks. The court noted that the Commission also examines the organization’s public statements, fundraising appeals and personal meetings.

The court agreed with the Commission that determining an organization’s “major purpose” is an “inherently comparative task and requires consideration of the full range of an organization’s activities.” Furthermore, the court held that RTAA had not shown that the Commission’s approach had harmed RTAA’s ability to speak, nor had *Citizens United* altered the constitutionality of the Commission’s approach to political committee status.

The District Court accordingly granted summary judgment in favor of the Commission and the Department of Justice and rejected RTAA’s challenges to both 11 CFR 100.22(b) and the Commission’s approach to determining political committee status. RTAA filed a Notice of Appeal on July 15, 2011.

### Appeals court decision

On June 12, 2012, the United States Court of Appeals for the 4th Circuit affirmed the district court's findings:

**Express advocacy.** The court held that the Commission’s definition of “express advocacy” is consistent with the Supreme Court’s opinion in FEC v. Wisconsin Right to Life, Inc. In that opinion, the Justices held that a communication susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate is the "functional equivalent of express advocacy."

The appeals court determined that the Commission’s regulation, which requires that “reasonable minds [cannot] differ” about an advertisement’s message, was similar to the standard from Wisconsin Right to Life.

The court determined that the constitutionality of 11 CFR 100.22(b) was not called into question by the decision in Citizens United v. FEC. It further noted that the Commission’s regulation “does not restrain speech; it only implicates the requirement for disclosing specified information.”

**Political committee status.** The court ruled that the Commission’s case-by-case methodology for determining a group's "major purpose" was “a sensible approach to determining whether an organization qualifies for PAC status.” The decision also states that the Commission’s approach is constitutional because its “multi-factor, major-purpose test is consistent with Supreme Court precedent and does not unlawfully deter protected speech.”

“We conclude that the Commission had good and legal reasons for taking the approach it did,” the court’s opinion states. “The determination of whether the election or defeat of federal candidates for office is the major purpose of an organization, and not simply a major purpose, is inherently a comparative task, and in most instances it will require weighing the importance of some of a group’s activities against others.”

### U.S. Supreme Court decision

On January 7, 2013, the U.S. Supreme Court denied RTAA’s Petition for Writ of Certiorari, letting stand the appeals court's decision.

***FOOTNOTES:***

*[**1**] The complaint references the**FEC’s Supplemental Explanation and Justification of its Political Committee Status rules**.*

**Source**: FEC *Record* — January 2013; June 2012; July 2011; July 2010; November 2008; October 2008; September 2008

## Documents

### Supreme Court (09-724) & (12-311)

#### Court decisions:

                    - Summary Disposition Denying Certiorari  (01/07/2013)
                    - Order  (04/26/2010)

#### Related documents:

                    - Reply to Brief in Opposition  (11/26/2012)
                    - Brief for the Respondents in Opposition  (11/13/2012)
                    - Petition for a Writ of Certiorari  (09/10/2012)
                    - Reply to Brief in Opposition  (04/02/2010)
                    - Brief for the Respondents  (March 2010)
                    - Petition for a Writ of Certiorari  (December 2009)

### Appeals Court (4th Circuit) (08-1977) & (11-1760)

#### Court decisions:

                    - Mandate  (08/06/2012)
                    - Opinion  (06/12/2012)
                    - Order Denying Rehearing *en banc*  (08/06/2010)
                    - Stay of Mandate  (06/23/2010)
                    - *Per Curiam* Order  (06/08/2010)
                    - Judgment  (06/08/2010)
                    - Order  (10/06/2009)
                    - Opinion Affirming District Court's Order Denying Preliminary Injunction  (08/05/2009)
                    - Order Denying Motions for Injunction Pending Appeal and to Expedite Appeal  (10/01/2008)

#### Related documents:

                    - Reply Brief  (11/03/2011)
                    - Brief Amici Curiae for Campaign Legal Center and Democracy 21 in Support of Defendants-Appellees and Urging Affirmance  (10/27/2011)
                    - Brief of Appellees FEC and DOJ  (10/20/2011)
                    - Appellant's Brief  (09/19/2011)
                    - Petition for Rehearing or Rehearing *En Banc*  (06/22/2010)
                    - Petition for Rehearing *En Banc*  (08/17/2009)
                    - Reply Brief  (11/12/2008)
                    - Brief of Defendants-Appellees Federal Election Commission and United States Department of Justice  (10/28/2008)
                    - Unopposed Motion of Campaign Legal Center and Democracy 21 for Leave to File Brief *Amici Curiae* Supporting Defendants-Appellees and Urging Affirmance  (10/28/2008)
                    - Brief *Amici Curiae* for Campaign Legal Center and Democracy 21 In Support of Defendants-Appellees and Urging Affirmance  (10/28/2008)
                    - FEC's Opposition to Appellant's Motion to Expedite Appeal  (09/26/2008)
                    - Appellant's Reply on Its  Motion for Injunction Pending Appeal  (09/25/2008)
                    - Appellant's Brief  (09/25/2008)
                    - FEC's Opposition to Appellant's Motion for Injunction Pending Appeal  (09/24/2008)
                    - United States Department of Justice's Opposition to Appellant's Motion for Injunction Pending Appeal  (09/25/2008)
                    - Appellant's Motion for Injunction Pending Appeal  (09/17/2008)

### District Court (Eastern District of VA) (08-00483)

#### Court decisions:

                    - Memorandum Opinion  (06/16/2011)
                    - Order Granting Motion for Leave to File Amicus Brief  (11/15/2010)
                    - Order Granting Consent Motion to Stay Proceedings On the Merits  (06/17/2010)
                    - Order Granting Stay pending decision in *Citizens United v. FEC*  (01/07/2009)
                    - Order  (09/30/2008)
                    - Memorandum Opinion  (09/24/2008)
                    - Order to Consolidate  (09/11/2008)

#### Related documents:

                    - Plaintiff's Amended Notice of Appeal  (07/15/2011)
                    - Plaintiff's Notice of Appeal  (07/15/2011)
                    - Defendant FEC's Reply in Support of the Commission's Motion for Summary Judgment  (12/06/2010)
                    - U.S. Department of Justice's Reply Brief in Support of its Motion for Summary Judgment  (12/06/2010)
                    - Memorandum of Campaign Legal Center and Democracy 21 as Amici Curiae in Opposition to Plaintiff's Motion for Summary Judgment and Preliminary Injunction  (11/15/2010)
                    - Plaintiff's Opposition to FEC and DOJ Summary Judgment Motions and Reply Supporting RTAO's Motion for Preliminary Injunction and Summary Judgment  (11/08/2010)
                    - Defendant FEC's Memorandum in Support of Motion for Summary Judgment and Opposition to Plaintiff's Motion for Preliminary Injunction and Summary Judgment  (10/18/2010)
                    - Defendant FEC's Motion for Summary Judgment  (10/18/2010)
                    - US Department of Justice's Motion for Summary Judgment and Brief in Support and Opposition to Plaintiff's Motion for Preliminary Injunction and Summary Judgment  (10/18/2010)
                    - Plaintiff's Preliminary Injunction and Summary Judgment Motion  (09/20/2010)
                    - Plaintiff's Brief in Support of Preliminary Injunction and Summary Judgment  (09/20/2010)
                    - Plaintiff's Motion to Consolidate Hearings on Preliminary Injunction and Merits & Brief in Support  (09/20/2010)
                    - Sixth Joint Status Report  (08/13/2010)
                    - Consent Motion to Stay Proceedings on the Merits  (06/15/2010)
                    - Defendant FEC's Amended Answer to Plaintiff's Amended Verified Complaint for Declaratory and Injunctive Relief  (10/30/2008)
                    - US Department of Justice's Answer to Plaintiff's Amended Verified Complaint for Declaratory and Injunctive Relief  (10/30/2008)
                    - Amended Verified Complaint for Declaratory and Injunctive Relief  (10/16/2008)
                    - Amended Verified Complaint for Declaratory and Injunctive Relief  (10/10/2008)
                    - United States Department of Justice's Answer to Plaintiff's Verified Complaint for Declaratory and Injunctive Relief  (09/29/2008)
                    - Defendant FEC's Answer to Plaintiff's Verified Complaint for Declaratory and Injunctive Relief  (09/29/2008)
                    - Defendant FEC's Memorandum in Opposition to Plaintiff's Motion for Injunction Pending Appeal  (09/19/2008)
                    - United States Department of Justice's Opposition to Plaintiff's Motion for Injunction Pending Appeal  (09/19/2008)
                    - Motion for Injunction Pending Appeal  (09/12/2008)
                    - Notice of Appeal  (09/12/2008)
                    - Reply in Support of Second Preliminary Injunction Motion  (09/08/2008)
                    - Defendant FEC's Memorandum in Opposition to Plaintiff's Second Preliminary Injunction Motion  (09/05/2008)
                    - US Department of Justice's Opposition to Plaintiff's Second Preliminary Injunction Motion  (09/05/2008)
                    - Second Preliminary Injunction Motion  (08/20/2008)
                    - Reply in Support of Preliminary Injunction Motion  (08/19/2008)
                    - Federal Election Commission's Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction  (08/14/2008)
                    - US Department of Justice's Opposition to Plaintiff's Motion for Preliminary Injunction  (08/14/2008)
                    - Memorandum of Campaign Legal Center and Democracy 21 as *Amici Curiae* in Opposition to Plaintiff's Motion for a Preliminary Injunction  (08/14/2008)
                    - Motion for Leave to File *Amicus Curiae* Brief and *Amicus Curiae* Brief of Professors Richard Briffault and Daniel R. Ortiz  (08/14/2008)
                    - Preliminary Injunction Brief  (07/30/2008)
                    - Preliminary Injunction Motion  (07/30/2008)
                    - Verified Complaint for Declaratory and Injunctive Relief  (07/30/2008)

This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public.

The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.