1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

BROWN, et al., )

)

Plaintiffs, ) Civ. No. 19-1021 (TJK)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) OPPOSITION TO MOTION FOR

) TEMP. RESTRAINING ORDER

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER 

Plaintiffs Leigh Brown (“Brown”), Leigh Brown for Congress, and Leigh Brown &

Associates ask this Court for extraordinary preliminary injunctive relief that would alter the 

status quo and bar enforcement of a key provision of the Federal Election Campaign Act 

(“FECA”) that ensures the voting public has access to information about who is financing 

campaign-related advertisements just one month before a federal election. The Court should 

deny this relief because plaintiffs meet none of the requirements for a preliminary injunction. 

Plaintiffs are unlikely to succeed on the merits. Plaintiff Brown is a candidate for federal 

office in the upcoming May 14, 2019 special primary election being held in North Carolina’s 

Ninth Congressional District. At issue here are whether four advertisements that her company, 

Leigh Brown & Associates, wishes to air in the time period immediately preceding this election 

are within the scope of FECA’s provision governing “electioneering communications.” For the 

first two of those ads (the “existing” ads), plaintiffs concede that the ads are in fact 

electioneering communications, but claim they are entitled to an exemption. For the second two 

of those ads (the “alternative” ads), plaintiffs claim they are not electioneering communications 

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because they do not “refer[] to a clearly identified candidate for Federal office,” despite featuring 

both the actual voice and a reference to the business that includes the actual name of the federal 

candidate, Leigh Brown. If the electioneering communications provision applies, then plaintiffs 

may have to disclose certain information relating to the financing of those ads and include in 

their text a disclaimer stating that Leigh Brown & Associates is responsible for their content. 

On Thursday, April 11, 2019, the Commission did not garner the four votes necessary to 

issue plaintiffs an advisory opinion stating that the four ads at issue would not qualify as 

electioneering communications. Plaintiffs fail to establish that the Commission’s handling of 

their advisory opinion request was not in accordance with law under the Administrative 

Procedure Act, 5 U.S.C. §§702-706. There is no law compelling the agency to conclude that the 

ads at issue qualify as electioneering communications and that no exception is applicable. The 

agency reasonably could conclude that plaintiffs’ proposed ads meet the statutory criteria for 

electioneering communications since they would be broadcast, cable, or satellite communications 

that are (1) publicly distributed within 30 days before a primary election; (2) targeted to the 

relevant electorate; and (3) refer to a clearly identified candidate. It was also reasonable to not 

grant plaintiffs’ claim that their existing ads should receive an exemption for electioneering 

communications that are “wholly unrelated” to an election. The existing ads explicitly identify a 

federal candidate — Leigh Brown—by name. The nearly 200 words of each ad are spoken by 

the candidate herself. The ads promote a business, Leigh Brown & Associates, that is closely 

identified with Brown — the business, which shares a name with the candidate, has aired 

substantially similar ads featuring Brown’s voice in the relevant market for the last 13 years. 

Further, the ads reference that Brown is “interviewing for a job” and they generally burnish 

Brown’s reputation. 

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Plaintiffs claim that their alternative ads are not electioneering communications because 

they fail to refer to a clearly identified candidate. But the position of the Commissioner who 

opposed granting an advisory opinion — that the ads do in fact clearly identify Leigh Brown —

is reasonable. The ads feature Leigh Brown’s actual voice. They also still contain her name in 

the context of referring to “Leigh Brown & Associates.” And given that plaintiffs have aired 

substantially similar ads for 13 years, it is highly likely that listeners in the relevant market 

closely associate Leigh Brown with Leigh Brown & Associates and would recognize that the 

alternative ads clearly identify her. 

Additionally, plaintiffs cannot show that they will suffer irreparable harm in the absence 

of a temporary restraining order. Plaintiffs’ motion states that it seeks only to avoid disclosure, 

and that the legal regime it challenges does not prevent it from speaking, i.e., from running the 

advertisements at issue. Plaintiffs have not even attempted to show that they would suffer the 

kind of serious threats or reprisals necessary to demonstrate irreparable injury from such 

disclosure. 

In contrast, a preliminary injunction barring disclosure of information about the funding 

of electioneering communications would significantly harm the public because it would erode 

the public’s confidence in the federal campaign finance system and deprive voters of knowledge 

about who is speaking about candidates shortly before an election. As the Supreme Court has 

noted, “the public has an interest in knowing who is speaking about a candidate shortly before an 

election.” Citizens United v. FEC, 130 S. Ct. 876, 915 (2010). Enjoining a campaign finance 

statute providing for disclosure just months before an election would harm that interest by 

depriving the public of important information. 

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BACKGROUND

I. LEGAL BACKGROUND

A. Electioneering Communications

The text of FECA, 52 U.S.C. §§ 30101-46), as amended, prohibits corporations and labor 

unions from making any “expenditure” in connection with a campaign for federal office. 52 

U.S.C. § 30118(a). Included within this statutory prohibition are “independent expenditures,” 

which FECA defines as communications “expressly advocating the election or defeat of a clearly 

identified candidate” and not made in coordination with a candidate or political party. 52 U.S.C. 

§ 30101(17). FECA also requires that any entity financing an independent expenditure file with 

the Commission for public disclosure certain information regarding the entity’s disbursements in 

support of the expenditure, and contributions the entity received “for the purpose of furthering an 

independent expenditure.” 52 U.S.C. § 30104(c)(2).

This statutory regime, which Congress enacted in the 1970s, was being widely 

circumvented by the end of the 1990s. Independent groups had begun to spend millions of 

dollars on so-called “sham issue ads” — ads that avoided “expressly advocating” for or against 

candidates but nonetheless included candidate advocacy under the guise of educating the public 

about legislative issues. See McConnell v. FEC, 540 U.S. 93, 126-128 (2003). After conducting 

an exhaustive investigation, Congress determined that entities were funding sham issue ads to 

influence federal elections “while concealing their identities from the public” by avoiding 

FECA’s disclosure requirements. Id. at 196-97 (discussing Congressional report of 

investigation); see also id. at 131-32.

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Congress addressed this problem by enacting the Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”). BCRA expanded FECA’s corporate 

financing prohibition to encompass any “electioneering communication,” 52 U.S.C. §§ 30104(f), 

30118(b)(2), which BCRA defines as a “broadcast, cable, or satellite communication” that (a) 

“refers to a clearly identified candidate for Federal office,” and (b) is aired within sixty days 

before the general election or thirty days before a primary election or convention. 52 U.S.C. 

§ 301044(f)(3)(A)(i). Regarding campaigns for the United States Senate and House of 

Representatives, the communication must also be broadcast within the geographic area of the 

relevant jurisdiction to constitute an electioneering communication. See 52 U.S.C. 

§ 30104(f)(3)(A)(i)(III), (C).

BCRA also contains disclosure provisions requiring each entity spending more than 

$10,000 in a calendar year on electioneering communications to file with the Commission a 

statement that identifies the maker, amount, and recipient of each of the entity’s disbursements 

over $200, as well as information about donors who contributed to the entity making the 

communications. 52 U.S.C. § 30104(f)(1)-(2). Additionally, BCRA requires an electioneering 

communication that is not authorized by a candidate to contain a disclaimer stating the name and 

the address, phone number, or website of the entity that paid for the advertisement, and stating 

that the communication is not authorized by any candidate. 52 U.S.C. § 30120(a)(3), (d)(2); 

11 C.F.R. § 110.11.

The Supreme Court initially upheld the constitutionality of BCRA’s prohibition on 

corporate financing of electioneering communications “to the extent that the [communications] . 

. . are the functional equivalent of express advocacy.” McConnell, 540 U.S. at 189-94, 203-08 

(quotation at 206). The Court later defined “the functional equivalent of express advocacy” as a 

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communication that is “susceptible of no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469-70 (2007) 

(Roberts, C.J., controlling op.). In Citizens United v. FEC, 130 S. Ct. 876, 913 (2010), the Court 

subsequently struck down both corporate financing prohibition, BCRA’s restrictions on 

corporate electioneering communications and FECA’s ban on corporate expenditures, as applied 

to communications aired independently and not in coordination with candidates.

But in Citizens United, eight Justices upheld BCRA’s disclosure and disclaimer 

requirements for all electioneering communications, even those that are not the functional 

equivalent of express advocacy. 130 S. Ct. at 913-15. The Court held that “[d]isclaimer and 

disclosure requirements may burden the ability to speak, but they ‘impose no ceiling on 

campaign-related activities.’” Id. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976)). The 

Court thus declined to review such requirements through the lens of strict scrutiny and instead 

“subjected these requirements to ‘exacting scrutiny,’ which requires ‘a substantial relation’ 

between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id. 

(quoting Buckley, 424 U.S. at 64, 66). Applying that standard, the Court held that the 

government can constitutionally require disclaimers and financial disclosure relating to all 

electioneering communications to further the government’s important interest in ensuring that 

the public can know “who is speaking about a candidate shortly before an election,” even if the 

ads contain no candidate advocacy. See id. at 915-16.

B. “Clearly Identified”

As noted above, a broadcast communication is not regulated as an “electioneering 

communication” unless it “refers to a clearly identified candidate for Federal office.” 2 U.S.C. 

§30104(f)(3)(A)(i)(I). The Act exempts four categories of communications from the statutory 

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definition, including “any other communication exempted under such regulations as the 

Commission may promulgate . . . to ensure the appropriate implementation of this paragraph, 

except that under such regulation a communication may not be exempted if it meets the 

requirements of this paragraph and is described in section30101(20)(A)(iii) of this title.” 

52 U.S.C. § 30104(f)(3)(B)(iv).

Section 30101defines “Federal Election Activity” to include “a public communication 

that refers to a clearly identified candidate for Federal office (regardless of whether a candidate 

for State or local office is mentioned or identified) and that promotes or supports a candidate for 

that office, or attacks or opposed a candidate for that office (regardless of whether the 

communication expressly advocates a vote for or against a candidate).” 52 U.S.C. 

§ 30101(20(A)(iii).

FECA defines the term “clearly identified” to mean “that

(A) the name of the candidate involved appears;

(B) a photograph or drawing of the candidate appears; or

(C) the identity of the candidate is apparent by unambiguous reference.”

52 U.S.C. § 30101(18) (emphasis added). The Commission’s regulations similarly explain the 

term:

Refers to a clearly identified candidate means that the candidate’s 

name, nickname, photograph, or drawing appears, or the identity of 

the candidate is otherwise apparent through an unambiguous 

reference such as “the President,” “your Congressman,” or “the 

incumbent,” or through an unambiguous reference to his or her 

status as a candidate such as “the Democratic presidential 

nominee” or “the Republican candidate for Senate in the State of 

Georgia.” 

11 C.F.R. § 100.29(b)(2); see also 11 C.F.R. § 100.17.

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II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Commission is the independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce FECA. Congress empowered 

the Commission to “formulate policy” with respect to the Act, 52 U.S.C. § 30106(b)(1); “to 

make, amend, and repeal such rules . . . as are necessary to carry out the provisions of [the] Act,” 

52 U.S.C. § 30107(a)(8); to issue advisory opinions construing the Act, 52 U.S.C. 

§§ 30107(a)(7), 30108; and to civilly enforce against violations of the Act. 52 U.S.C. § 30109. 

The Commission has six voting members. 52 U.S.C. § 30106(a)(1). Decisions of the 

Commission with respect to the exercise of its duties and powers under the Act are made by a 

majority vote of the members.1 The Commission currently has only four Commissioners, two 

Commissioner seats are vacant.

On March 22, 2019, counsel for plaintiff Leigh Brown submitted an advisory request to 

the Commission pursuant to 52 U.S.C. § 30108 and 11 C.F.R. § 112.1 regarding the application 

of the Federal Election Campaign Act, 52 U.S.C. §§ 30101-45 and Commission regulations to 

activity she proposes to undertake. (Letter to Lisa J. Stevenson, Acting General Counsel from 

Jessica F. Johnson and Jason Torchinsky, Holtzman, Vogel Josfiak Torchinsky,PLLC (Mar. 21,

2019).) 

According to Brown’s request, she is a candidate for election in the May 14, 2019 special 

primary election for the United States House of Representatives in North Carolina’s Ninth 

Congressional District, and plans to air radio advertisements within 30 days of that election (Id.

at 1.) Brown’s advisory opinion request acknowledged that during the 30-day period before the 

 1 The affirmative vote of four members is required to take actions in accordance with 

52 U.S.C. § 30107(a) (6), (7), (8) and (9), including the rendering of advisory opinions. 

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primary election, “these advertisements will satisfy the basic statutory definition of 

‘electioneering communication.’” Brown sought an advisory opinion that the proposed ads 

would be exempt from the electioneering communication disclosure requirements. Descriptions 

of the proposed ads and the context of those ads can be found in the Commission’s draft advisory 

opinions. (See Docket Nos. 1-6, 1-7.) 

On April 11, 2019, the Commission considered those two alternative draft advisory 

opinions. (See Docket Nos. 1-6, 1-7.) Neither draft garnered the necessary four affirmative 

votes necessary for the Commission to issue an advisory opinion. 

ARGUMENT

I. A TEMPORARY RESTRAINING ORDER IS AN EXTRAORDINARY REMEDY 

THAT REQUIRES PLAINTIFFS TO MEET A HEAVY BURDEN

“A temporary restraining order is an extraordinary remedy, one that should be granted 

only when the moving party, by a clear showing, carries the burden of persuasion.” Sibley v. 

Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011). The moving party must demonstrate: “(1) a 

substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the 

injunction were not granted, (3) that an injunction would not substantially injure other interested 

parties, and (4) that the public interest would be furthered by the injunction.” Coal. for Parity, 

Inc. v. Sebelius, 709 F. Supp. 2d 6, 8 (D.D.C. 2010). 

A “foundational requirement” for obtaining a temporary restraining order is that “the 

plaintiffs demonstrate a likelihood of success on the merits.” Guedes v. Bureau of Alcohol, 

Tobacco, Firearms & Explosives, No. 19-5042, --- F.3d ---, 2019 WL 1430505, at *4 (D.C. Cir. 

Apr. 1, 2019). But even if a plaintiff can show a likelihood of success on the merits, a temporary 

restraining order “does not follow as a matter of course.” Benisek v. Lamone, 138 S. Ct. 1942, 

1943-44 (2018); Winter, 555 U.S. at 24 (holding that preliminary relief is “never awarded as of 

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right”). Failure to show a substantial likelihood of success, requires “a very strong showing on 

the other factors” before an order will issue. RCM Techs., Inc. v. Beacon Hill Staffing Grp., 502 

F. Supp. 2d 70, 73 (D.D.C. 2007). And notably, “[t]he D.C. Circuit ‘has set a high standard for 

irreparable injury’—it ‘must be both certain and great; [and] it must be actual and not 

theoretical.’” Baker DC v. Nat’l Labor Relations Bd., 102 F. Supp. 3d 194, 198 (D.D.C. 2015) 

(quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) 

(alteration in original)). 

Plaintiffs here shoulder a particularly heavy burden because their request is at odds with 

the purpose of a temporary restraining order, which is to preserve the status quo pending briefing 

and a hearing for preliminary injunctive relief. Judicial Watch, Inc. v. Dep’ t of Commerce, 501 

F. Supp. 2d 83, 91 (D.D.C. 2007); Bradshaw v. Veneman, 338 F. Supp. 2d 139, 141 (D.D.C. 

2004). Rather than seeking to preserve the status quo, plaintiffs seek to upend it by asking the 

Court to prevent the Commission from enforcing an important provision of FECA in the final 

months of an election.

II. PLAINTIFFS CANNOT MEET THEIR HEAVY BURDEN OF 

DEMOSNTRATING THAT THEY ARE SUBSTANTIALLY LIKELY TO 

SUCCEED ON THE MERITS

A. Plaintiffs’ Existing Ads Are Electioneering Communications

The Act and Commission regulations define “electioneering communication” as any

broadcast, cable, or satellite communication that (1) refers to a clearly identified federal

candidate; (2) is publicly distributed within 30 days before a primary election or a convention or

caucus of a political party or 60 days before a general election; and (3) is targeted to the relevant

electorate. 52 U.S.C. § 30104(f)(3)(A)(i); 11 C.F.R. § 100.29(a). In the case of a candidate for

the House of Representatives, “targeted to the relevant electorate” means that the communication

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can be received by 50,000 or more persons in the district the candidate seeks to represent. 

11 C.F.R. § 100.29(b)(5)(i). For purposes of the electioneering communication definition,

“‘[r]efers to a clearly identified candidate’ means that the candidate’s name, nickname,

photograph, or drawing appears, or the identity of the candidate is otherwise apparent through an

unambiguous reference such as ‘the President,’ ‘your Congressman,’ or ‘the incumbent,’ or

through an unambiguous reference to his or her status as a candidate such as ‘the Democratic

presidential nominee’ or ‘the Republican candidate for Senate in the State of Georgia.’” 

11 C.F.R. § 100.29(b)(2). See also 52 U.S.C. § 30101(18); 11 C.F.R. § 100.17. 

It is undisputed that plaintiffs’ existing radio advertisements both qualify as

electioneering communications under the Act. (Pls.’ Br. at 16.) Plaintiffs contend, however, that

they should be granted an exemption from the Act in order to run those two advertisements. (Id.) 

Additionally, plaintiffs argue that their proposed alternative radio advertisements do not

constitute electioneering communications (Pls.’ Br. at 7, 16) and thus should not be subject to the

corresponding disclosure obligations under the Act. For plaintiffs to show that they are likely to

succeed on the merits, however, plaintiffs must demonstrate that the Commission acted

unreasonably when it did not find that plaintiffs’ current and proposed advertisements constitute

electioneering communications and are not exempt from the required disclosure obligations. 

This plaintiffs cannot do. 

B. It Was Reasonable to Conclude That the Existing Ads Are Not Wholly 

Unrelated to an Election and Thus Are Not Exempt from the Definition of 

Electioneering Communications

Plaintiffs concede that their existing radio advertisements constitute electioneering

communications under the Act. (Pls.’ Br. at 4.) The dispute here centers on whether the

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Commission acted unreasonably in not finding that these advertisements fall within an

exemption from the definition of “electioneering communications.” 

It was, however, entirely reasonable for the Commission not to find that plaintiffs’

current advertisements fall within an exemption. Congress authorized the Commission to

exempt, through regulation, certain communications from the definition of “electioneering

communications,” but limited that authority, providing that “a communication may not be

exempted if it meets the requirements of this section and is described in section

30101(20)(A)(iii) of this title.” 52 U.S.C. § 30104(f)(3)(B). The referenced section includes any

communication that “refers to a clearly identified candidate for [f]ederal office . . . and that

promotes or supports a candidate for that office, or attacks or opposes a candidate for that

office.” 52 U.S.C. § 30101(20)(A)(iii). See also Electioneering Communications, 67 Fed. Reg.

65,190, 65,196 (Oct. 23, 2002). Representative Shays, a sponsor of the legislation that

introduced the definition of “electioneering communications,” explained that the Commission’s

“limited discretion” to exempt some communications was based on the fact that “it is possible

that there could be some communications that will fall within this [electioneering

communication] definition even though they are plainly and unquestionably not related to the

election,” and that the Commission could “issue regulations to exempt such communications

from the definition of ‘electioneering communications’ because they are wholly unrelated to an

election.” 148 Cong. Rec. H410-411 (Feb. 13, 2002) (statement of Rep. Shays). 

When the Commission adopted its regulations on electioneering communications, it

considered but declined to create a blanket exemption for situations where a federal candidate

shares a name with a business entity or where the candidate is referred to in the context of

promoting a business, because “it is likely that, if run during the period before an election, such

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communications could well be considered to promote or support the clearly identified candidate,

even if they also serve a business purpose unrelated to the election.” Electioneering

Communications, 67 Fed. Reg. at 65,202. Plaintiffs thus seek an exemption that is available

through regulation but no such regulations have been promulgated. 

Rep. Shays did also stated that Congress “expect[ed] the Commission to use its Advisory

Opinion process to address these situations both before and after the issuance of regulations.” Id.

at 411; see also 148 Cong. Rec. El78-03 (Feb. 13, 2002) (statement of Rep. Meehan). Though

that is a mere floor statement, Commissioners have exercised their authority to issue advisory

opinion in a manner consistent with that intent, and have entertained the possibility of issuing

exemptions through the advisory opinion process. The standard for the Commission to grant

such an exemption is, however, high: Exemptions were intended to be available for

communications that “are plainly and unquestionably not related to the election” or “wholly

unrelated to an election.” 148 Cong. Rec. H410-411 (Feb. 13, 2002) (statement of Rep. Shays). 

Here, plaintiffs suggest that the current radio advertisements should be exempt from the

electioneering communication definition because they are purportedly “plainly and

unquestionably not related to the election.” (Pls.’ Br. at 15.) But while plaintiffs attempt to

show the reasonableness of their position, what is required here is a showing that the agency’s

position was not reasonable. 

The Commission acted reasonably in not finding that the two existing radio 

advertisements qualified for an exemption. Information presented by plaintiffs supported the 

conclusion that the existing ads are not in fact “plainly and unquestionably not related to the 

election,” and that these advertisements therefore could not meet the high standard articulated by 

Representative Shays. The existing advertisements clearly identify Brown personally by name, 

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consist entirely of Brown’s voice, and contain Brown’s statement in her own voice that “I’m 

Leigh Brown.” These are unambiguous references to a clearly identified federal candidate. The 

existing advertisements are voiced by the candidate herself and promote a business that is closely 

identified with the candidate as an individual, through its name, its advertising history, and the 

nature of the real estate business. Brown, in fact, states in her own voice, that she is 

“interviewing for a job.” Because the advertisements centrally involve Brown’s reputation, her 

identity within the community, and her business, it is entirely reasonable to view these 

advertisements as having some relation to an election in which all of these factors affect voter 

perceptions of candidate competence.

Plaintiffs fail to point to a single comparable instance where the Commission granted an 

exemption from the electioneering communication rules. Plaintiffs’ reliance on Advisory 

Opinion 2004-31 (Darrow) (see Pls.’ Br. at 14), is misplaced: That advisory opinion concerned 

whether advertisements clearly identified a federal candidate, not whether the advertisements fell 

within an exemption to the electioneering communications definition. In the circumstances 

presented there, a U.S. Senate candidate, Russ Darrow, Jr., had founded a group of car 

dealerships, each of which bore his name as part of the name of the dealership (e.g., Russ 

Darrow West Bend, Russ Darrow Appleton Chrysler). Advisory Opinion 2001-31 (Darrow) at 1. 

The company had worked to develop “Russ Darrow” as a brand name for its dealerships for a 

decade. Id. At the time of the advisory opinion, the candidate’s son, Russ Darrow III, was 

primarily responsible for all day-to-day operations, plans, and advertising decisions of the 

business, and had been the public face of the company in all advertising for over 10 years. Id. at 

1-2. The Commission concluded that in those circumstances, references to “Russ Darrow” in the 

company’s advertising would not be a reference to a clearly identified candidate, because they 

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referred to the car dealerships or Russ Darrow III, and not to the candidate Russ Darrow, Jr. The 

Commission’s conclusion was based on the ambiguity inherent in the facts of that particular 

case, where both the candidate and his son shared the same name but only the candidate’s son 

appeared in the ads, and most of the references to “Russ Darrow” also included the full name of 

a particular dealership, such as “Russ Darrow Toyota” or “Russ Darrow Kia.” See id. at 3. 

Plaintiffs also cite to Advisory Opinion Request 2012-20 (Mullin) but acknowledge that the 

Commission was unable to approve an exemption in those circumstances. (Pls.’ Br. at 15.) In 

short, it is undisputed that the Commission is able to grant exemptions, but plaintiffs fail to show 

that it was unreasonable for the Commission to not grant one here. 

In sum, plaintiffs cannot show that the Commission failed to act reasonably in refusing to 

grant an exemption to plaintiffs’ current radio advertisements on the basis that these 

advertisements were not wholly unrelated to the election. While plaintiffs’ interpretation may in 

some cases be reasonable as well, the central question remains whether the Commission acted 

reasonably. Here, it did, and plaintiffs thus fail to show that they are likely to succeed on the 

merits. 

C. It Was Also Reasonable to Conclude That Plaintiffs Proposed Alternative 

Ads Are Electioneering Communications Since They Reference a Clearly 

Identified Candidate

Next, plaintiffs contend that their proposed alternative radio advertisements do not 

constitute electioneering communications (Pls.’ Br. at 7, 16) and thus should not be subject to the 

corresponding disclosure obligations under the Act. Plaintiffs ultimately contend that the 

“applicable bright-line standard cannot turn on whether listeners do or do not recognize the voice 

speaking.” (Pls.’ Br. at 18.) The Commission agrees that the Court’s inquiry would preferably 

not do so. 

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The Commission acted reasonably in not finding that plaintiffs’ two proposed 

advertisements were not electioneering communications. For purposes of the electioneering 

communication definition, “‘[r]efers to a clearly identified candidate’ means that the candidate’s 

name, nickname, photograph, or drawing appears, or the identity of the candidate is otherwise 

apparent through an unambiguous reference such as ‘the President,’ ‘your Congressman,’ or ‘the 

incumbent,’ or through an unambiguous reference to his or her status as a candidate such as ‘the 

Democratic presidential nominee’ or ‘the Republican candidate for Senate in the State of 

Georgia.’” 11 C.F.R. § 100.29(b)(2). See also 52 U.S.C. § 30101(18); 11 C.F.R. § 100.17. 

Nothing in FECA or its implementing regulations prevents the Commission from looking to the 

entire context of a communication to determine whether it unambiguously references a federal 

candidate. Plaintiffs point to nothing in the statutory or regulatory language to the contrary. 

Here, the proposed advertisements would include the name of the firm, which

incorporates the candidate’s name, and is closely associated with her. The advertisements would 

also feature the candidate’s actual voice. By doing so, the ad can reasonably be interpreted to 

clearly identify her, similar to how the Commission’s regulations specify that a candidate’s 

actual name or use of the candidate’s actual picture clearly identifies that candidate (without any 

reference to who might recognize the name, picture, or indeed, voice). Furthermore, the use of 

Brown’s actual voice in the context of this particular ad further confirms that the ad clearly 

identifies her. Brown has been advertising to radio audiences in the Charlotte area for 13 years. 

Because these ads have all included Brown’s voice and have clearly identified her as the speaker, 

her voice may well be familiar to listeners. It is reasonable to conclude that the public would 

associate Brown’s voice with Brown when they hear the name of Brown’s firm. When seen in 

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context, the advertisements made apparent that they unambiguously refer to Leigh Brown, a 

candidate for federal office. 

Hispanic Leadership Fund (HLF) is not binding on this court and, in any event, 

distinguishable from this case. In HLF, the advertisement at issue included only eight words in 

the candidate’s voice. Here, Brown voices the entire length of the advertisements, which run 

between approximately 186 and 203 words. And in HLF, the ad was run by an independent 

entity, not advertising a business named after and closely identified with a candidate, and had not 

run advertisements about that candidate the way that Brown has done for thirteen years. 

In sum, the Commission did not act unreasonably in examining the context of the 

advertisement to determine whether it refers to a clearly identified candidate for federal office. 

Because plaintiffs cannot show that the Commission acted unreasonably, they cannot 

demonstrate a likelihood of success on the merits. 

D. Disagreements About Whether a Particular Ad References a Clearly 

Identified Candidate Do Not Make the Ads Inherently Ambiguous

Although the Commissioners were not unanimous in their conclusions about the meaning 

of references like Leigh Brown’s voice and the use of Leigh Brown’s name in the proposed 

advertisements, such disagreement does not, as plaintiff suggests (Pls.’ Br. at 17), demonstrate 

that such references are ambiguous for purposes of the “clearly identified” standard. 

While the parties here agree that the “clearly identified” standard is a bright-line test, as 

courts have long recognized, bright-line tests often present hard cases. “This kind of difficulty is 

simply inherent in any kind of standards-based test.” RTAA, 681 F.3d at 554; see also FEC v.

Nat’l Right to Work Comm., 459 U.S. 197, 211 (1982) (holding FEC’s construction of statute not 

unconstitutionally vague even if it might “leave room for uncertainty at the periphery”); United

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States v. Williams, 553 U.S. 285, 306 (2008) (“Close cases can be imagined under virtually any 

statute. The problem that poses is [not] addressed . . . by the doctrine of vagueness.”); United

States v. Wurzbach, 280 U.S. 396, 399 (1930) (holding that Federal Corrupt Practices Act was 

not invalid because “[w]herever the law draws a line there will be cases very near each other on 

opposite sides”). “[R]egulations ‘are not automatically invalidated as vague simply because 

difficulty is found in determining whether certain marginal [cases] fall within their language.’” 

Great Am. Houseboat Co. v. United States, 780 F.2d 741, 747 (9th Cir. 1986) (quoting United

States v. Nat’l Dairy Products Corp., 372 U.S. 29, 32 (1963)). Even in reviewing statutes 

regulating political activity, the Supreme Court has stated that “there are limitations in the

English language with respect to being both specific and manageably brief, and . . . although the 

prohibitions may not satisfy those intent on finding fault at any cost, [it is enough that] they are 

set out in terms that the ordinary person exercising ordinary common sense can sufficiently 

understand and comply with.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 

U.S. 548, 578-79 (1973).

Although the parties also agree that the definition of “clearly identified” requires an 

“unambiguous reference” to a candidate, the Supreme Court did not, as plaintiffs suggest (Pl.’s 

Br. at 17), impose a “limiting construction” on that definition in Buckley. Rather, when the 

Court explained the definition’s meaning, it gave examples of unambiguous references and 

stated non-exhaustively that they “would include” references such as a candidate’s initials or 

nickname. Buckley, 424 U.S. at 43 n.51 (emphasis added). Nothing in the Court’s opinion 

suggests that “unambiguous reference” is to be equated with wooden literalism; there are 

numerous ways to make an “unambiguous reference to [someone’s] identity,” that “would 

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include” but not be limited to a “drawing,” “nickname,” or “status as a candidate.” Id. As the 

Ninth Circuit has warned:

Although we may not place burdens on the freedom of speech beyond what 

is strictly necessary to further the purposes of the Act, we must be just as 

careful to ensure that those purposes are fully carried out, that they are not 

cleverly circumvented, or thwarted by a rigid construction of the terms of 

the Act. We must read section 434(c) so as to prevent speech that is clearly 

intended to affect the outcome of a federal election from escaping, either 

fortuitously or by design, the coverage of the Act.

FEC v. Furgatch, 807 F.2d 857, 862 (9th Cir. 1987). In a variety of contexts involving 

regulation of speech, courts have recognized that — understood in context — creative or 

symbolic expressions can convey the same message as literal appellations or descriptions. Thus, 

“clearly identified” should not construed extremely narrowly. Such a crabbed reading is 

especially at odds with the Supreme Court’s reaffirmation in Citizens United of the important 

informational interests served by the disclosure plaintiffs seek to avoid — including disclosure 

for all ads that meet the definition of electioneering communication, “[e]ven if the ads only 

pertain to a commercial transaction.” 130 S. Ct. at 915; see also Doe v. Reed, 130 S. Ct. 2811, 

2819-22 (2010) (upholding disclosure of names and addresses of signatories on petitions to place 

referenda on ballot); id. at 2837 (Scalia, J., concurring) (“Requiring people to stand up in public 

for their political acts fosters civic courage, without which democracy is doomed.”). 

Just as plaintiffs cannot establish that FECA should not apply to their conduct, they 

cannot establish that it would be unconstitutional for the Act to apply to their conduct. Hispanic 

Leadership Fund, 897 F. Supp. 407, 431-32 (E.D. Va. 2012). 

III. PLAINTIFFS CANNOT DEMONSTRATE THAT MERE DISCLOSURE 

REGARDING THEIR PROPOSED ADS WILL CAUSE IRREPARABLE HARM

Plaintiffs fail to meet its burden to show that it will suffer irreparable harm without the 

extraordinary remedy it seeks. Winter, 555 U.S. at 22. “[T]he basis of injunctive relief in the 

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federal courts has always been irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88 (1974) 

(citation and internal quotation marks omitted). The D.C. Circuit “has set a high standard for 

irreparable injury,” underscoring that the injury “must be both certain and great . . . actual and 

not theoretical.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 

2006) (internal quotation marks omitted).

Plaintiffs proffer no evidence of any irreparable harm that they will suffer by abiding by 

the disclosure and disclaimer requirements for electioneering communications. Instead, 

plaintiffs simply assumes that irreparable harm flows from its contentions that its First 

Amendment rights have been infringed. (Pls.’ Br. at 20-21.) But plaintiffs’ “mere allegations, 

without more, do not support a finding of irreparable injury,” even in the First Amendment 

context. Chaplaincy of Full Gospel Churches, 454 F.3d at 297-99; Am. Meat Inst. v. U.S. Dep’t 

of Agric., 968 F. Supp. 2d 38, 76 (D.D.C. 2013) (noting that the D.C. Circuit in Chaplaincy has 

required “movants to do more than merely allege a violation of freedom of expression in order to 

satisfy the irreparable injury prong of the preliminary injunction frame-work.” (citations and 

internal quotation marks omitted)), aff’d, 746 F.3d 1065 (D.C. Cir. 2014). 

As two other courts in this District recently concluded, in rejecting motions to

preliminarily enjoin other parts of FECA, “[p]laintiffs are not likely to suffer irreparable harm;

rather, ‘they will simply be required to adhere to the regulatory regime that has governed

campaign finance for decades.’” Holmes v. FEC, 71 F. Supp. 3d 178, 188 (D.D.C. 2014)

(quoting Rufer, 64 F. Supp. 3d at 206).

Plaintiffs also admit that they may run their current advertisements with additional 

disclaimer language. (See Pls.’ Br. at 3.) Indeed, Citizens United reaffirmed that disclosure 

requirements “do not prevent anyone from speaking.” 130 S. Ct. at 914. Accordingly, plaintiffs 

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do not allege that they are prevented from running radio advertisements or from engaging in any 

other electioneering activity. Thus, plaintiffs cannot claim irreparable harm on the basis of its 

suggestion that its speech is being limited. See Real Truth About Obama, 2008 WL 4416282, at 

*15-*16 (finding Elrod v. Burns inapplicable and no threat of irreparable harm where “Plaintiff 

is free to disseminate their message and make any expenditures they wish” and subject only to 

“constitutionally permitted restrictions”); see also Christian Knights of the Ku Klux Klan 

Invisible Empire, Inc. v. District of Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 1990) (mere 

allegation of First Amendment burden does not support finding of irreparable harm under Elrod).

The only relevant harm plaintiffs could possibly allege here would be one arising from 

FECA’s disclosure and disclaimer requirements for electioneering communications. (See Pl.’s 

Br. at __ (seeking injunction to prevent Commission from applying “disclosure and disclaimer 

requirements”).) But plaintiffs fail to identify any irreparable harm that would result from 

complying with those provisions while this case is pending. In fact, Brown is already a declared 

federal candidate subject to disclosure and disclaimer requirements, and plaintiffs have not 

shown how any additional reporting obligations tied to the advertisements at issue would cause 

irreparable harm to Brown.

As to FECA’s disclaimer requirements, plaintiffs identify no prospective harm 

whatsoever that would result from having to identify themselves as the source of its advertising. 

And as to the disclosure requirements, the Supreme Court has recognized that harm can arise 

from disclosure only when there is a “reasonable probability that the group’s members would 

face threats, harassment, or reprisals if their names were disclosed.” Citizens United, 130 S. Ct. 

at 916. Harm of this kind has been demonstrated only in cases involving organizations, such as 

the NAACP and the Socialist Workers Party, whose members faced actual, documented danger 

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at the relevant time. See Buckley, 424 U.S. at 69 (noting that NAACP members faced “economic 

reprisal, loss of employment, threat of physical coercion, and other manifestations of public 

hostility”); McConnell, 540 U.S. at 198-99 (noting that Brown v. Socialist Workers ’74

Campaign Comm., 459 U.S. 87 (1982), found “reasonable probability” of “threats, harassment, 

and reprisals”). While plaintiffs argue that “deprivation” of First Amendment Rights constitutes 

irreparable injury, Pls.’ Br. at 20, plaintiffs cannot show that they have been deprived of any First 

Amendment rights in the first instance. 

Plaintiffs also allege that they could decide to “not air any of its proposed 

advertisements.” (Pls.’ Br. at 20.) But any purported economic loss as a result of choosing not 

to air advertisements cannot be considered irreparable harm. Classic Cab, Inc. v. D.C., 288 F. 

Supp. 3d 218, 231 (D.D.C. 2018); Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). 

Plaintiffs have failed to allege with any specificity how they or their interests would be harmed 

in the event that they would be required to run their advertisements with the required disclaimers. 

Because “[t]he basis of injunctive relief in the federal courts has always been irreparable 

harm,” Sampson v. Murray, 415 U.S. 61, 88 (1974), plaintiffs’ failure to establish this element 

alone warrants denial of the requested temporary restraining order. 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION AND AN 

INJUNCTION WOULD BE ADVERSE TO THE PUBLIC INTEREST

The balance of harms and the public interest also weigh heavily in favor of preserving the 

status quo and denying plaintiff’s request for extraordinary injunctive relief.

“It is in the public interest for courts to carry out the will of Congress and for an agency 

to implement properly the statute it administers.” Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d

30, 45 (D.D.C. 2000). There is a “presumption of constitutionality which attaches to every Act

of Congress,” and that presumption is “an equity to be considered in favor of [the government] in

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balancing hardships.” Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324

(1984); Holmes, 71 F. Supp. 3d at 188 (same); Stop This Insanity, Inc. Emp. Leadership Fund v.

FEC, 902 F. Supp. 2d 23, 50 (D.D.C. 2012) (same), aff’d, 761 F.3d 10 (D.C. Cir. 2014). Indeed,

“any time a State is enjoined by a court from effectuating statutes enacted by representatives of

its people, it suffers . . . injury.” New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S.

1345, 1351 (1977) (Rehnquist, J., in chambers). The government and the public are similarly

harmed when a court proscribes enforcement of a federal statute. Enjoining the FEC from

performing its statutory duty constitutes a substantial public injury. Christian Civic League of

Me., Inc. v. FEC, 433 F. Supp. 2d 81, 90 (D.D.C. 2006) (per curiam).

That presumption is at its apex here, because the Supreme Court has already determined 

in Citizens United that the electioneering communications disclosure provisions are 

constitutional. See Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 81, 90 (D.D.C. 

2006) (three-judge court) (“To the extent that the injunction of the proposed application of those 

provisions interferes with the execution of the statute upheld by the Supreme Court . . . , the 

public interest is already established by the Court’s holding and by Congress’s enactment, and 

the interference therewith is inherent in the injunction.”).

As discussed above, the electioneering communications provisions are a critical part of 

FECA’s public disclosure regime; enjoining their enforcement would therefore substantially 

injure the public interest. See Real Truth About Obama, 575 F.3d at 352 (upholding denial of 

pre-election preliminary injunction regarding a regulation and policy that implicated disclosure 

requirements); see generally Citizens United, 130 S. Ct. at 914-15 (discussing public interest in 

disclosure). Prior to an election, the public also has “a heightened interest in knowing who [is] 

trying to sway [its] views . . . and how much they were willing to spend to achieve that goal.” 

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Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1019 (9th Cir. 2010). The price of a 

restraining order here is undisclosed, untraceable advertising is ultimately paid by the public. 

That price far outweighs any burden arising from plaintiffs’ voluntary decision to withhold its 

advertising rather than take responsibility for its communications and make the required 

disclosures. See Real Truth About Obama, 2008 WL 4416282, at *16 (noting that “enjoining 

application of the challenged provisions could confuse political actors . . . and deprive the public 

of important information”) (internal quotation marks omitted); see also Iowa Right to Life 

Comm., Inc. v. Smithson, 750 F. Supp. 2d 1020, 1048-49 (S.D. Iowa 2010) (finding that balance 

of harms favored government because injunction would impair government’s “valid interest in 

facilitating transparency in . . . elections”).

As the Supreme Court has noted, “the public has an interest in knowing who is speaking 

about a candidate shortly before an election.” Citizens United, 130 S. Ct. at 915. This interest 

would be impaired, not served, by enjoining the FECA provisions at issue in this case. Such an 

injunction also could cause confusion among political actors and undermine the public’s 

confidence in the federal campaign finance system. “Should this Court enter the injunction, the 

next two months of election law and enforcement would likely become a ‘wild west’ of 

electioneering communication[s] . . . .” Real Truth About Obama, 2008 WL 4416282, at *16; 

see Purcell, 549 U.S. at 4-5 (“Court orders affecting elections . . . can themselves result in voter 

confusion,” and “[a]s an election draws closer, that risk will increase.”); Iowa Right to Life, 750 

F. Supp. 2d at 1049 (declining to impose preliminary injunction that would “radically change 

Iowa’s campaign finance rules mid-stream during an election”). Such irreparable harm to the 

public interest counsels heavily against granting plaintiff’s desired relief.

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Furthermore, granting the preliminary injunctive relief plaintiffs seek in this case would 

alter the “federal campaign finance framework only months prior to the next federal election 

based on an as yet untested legal theory. Permitting that to happen would be imprudent, to say 

the least, and certainly not in the public interest.” Rufer, 64 F. Supp. 3d at 206; cf. Holmes, 71 F. 

Supp. 3d at 188 (“Plaintiffs’ attempt to locate a problem of constitutional proportions in the 

[challenged] contribution limit would upset settled expectations immediately before the vote 

itself.”). The Supreme Court has made clear that “[t]he purpose of a preliminary injunction is 

merely to preserve the relative positions of the parties until a trial on the merits can be held.” 

Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Rufer, 64 F. Supp. 3d at 206 (same); cf. 

Stop This Insanity, Inc. Emp. Leadership Fund, 902 F. Supp. 2d at 50 (“[P]laintiffs do not seek a 

preservation of the status quo, but rather they seek fundamental change in how [separate 

segregated funds] are regulated by the FEC . . . .”). Granting preliminary relief in this case 

would do precisely the opposite.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for an emergency temporary restraining 

order should be denied. 

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628)

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel

kdeeley@fec.gov

Kevin P. Hancock

Acting Assistant General Counsel

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khancock@fec.gov

Robert Bonham III

Senior Attorney

rbonham@fec.gov

/s/ Tanya Senanayake 

Tanya Senanayke

tsenanayake@fec.gov

Haven Ward

hward@fec.gov

Attorneys

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First St. NE

Washington, DC 20463

April 11, 2019 (202) 694-1650

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