UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

LEIGH BROWN ) Civil Case No. 1:19-CV-01021-TJK

4711 Myers Lane )

Harrisburg, NC 28075, )

)

MALLARD CREEK PROPERTIES, INC. )

D/B/A/ LEIGH BROWN & ASSOCIATES )

24 Cabarrus Avenue East )

Concord, NC 28025 )

)

)

Plaintiffs, )

)

v. )

)

FEDERAL ELECTION COMMISSION )

1050 First Street, NE )

Washington, DC 20463, )

Defendant. )

_________________________________________ )

AMENDED VERIFIED COMPLAINT

Plaintiffs, Leigh Brown and Mallard Creek Properties, Inc. d/b/a/ Leigh Brown & 

Associates (“Plaintiffs”), pursuant to Fed. R. Civ. P. 15(a)(1)(A), bring this amended complaint

for injunctive relief, stating as follows:

INTRODUCTION

1. This is a pre-enforcement, as-applied challenge to a Federal Election Campaign Act 

(“FECA”) definitional Statute at 52 U.S.C. 30104(f)(3)(A)(i) and the Federal Election 

Commission’s (“FEC”) parallel implementing regulations at 11 C.F.R. §§ 100.29 (“electioneering 

communications”), 104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4) (electioneering communications 

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 1 of 27
disclaimer and reporting requirements), which impact Plaintiffs’ ability to engage in 

constitutionally protected speech.

2. In the “normal” campaign finance case, the usual mantra from the Federal Election 

Commission and the courts has been that disclosure and disclaimer requirements “do not prevent

anyone from speaking.” Citizens United v. Federal Election Commission, 558 U.S. 310, 367

(2010) (citing McConnell v. Federal Election Commission, 540 U.S. 93, 201 (2003). This asapplied challenge presents the unique case where on these facts this mantra simply does not hold 

true.

3. This case challenges a law that, as interpreted and applied by the FEC, abridges the freedom 

of speech and association guaranteed under the First Amendment to the United States Constitution. 

These challenges are brought as applied against 52 U.S.C. 30104(f) and its implementing 

regulations.

4. The First Amendment to the United States Constitution protects Plaintiffs’ right to continue 

to advertise their longstanding business while Ms. Brown runs for federal office. As it stands, 

Plaintiffs are unable to exercise that right because FECA’s web of regulations place Plaintiffs in a 

catch-22 which ultimately makes it impossible for them to engage in commercial speech. This 

quandary is made even more severe given Plaintiffs’ professional legal obligations under North 

Carolina law.

LEGAL AND REGULATORY BACKGROUND

5. The First Amendment provides that “Congress shall make no law. . . abridging the freedom 

of speech . . . .” U.S. Const. amend. I. [S]peech that is considered “commercial” may be regulated 

by the government provided that the regulations are narrowly tailored to advance a legitimate 

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governmental interest.” Taucher v. Born, 53 F. Supp. 2d 464, 479-80 (D.D.C. 1998) (citing Lowe 

v. Securities and Exchange Commission, 472 U.S. 181, 234 (1985).

6. A prior restraint “arises in those situations where the government limitation, expressed in 

statute, regulation, or otherwise, undertakes to prevent future publication or other communication 

without advance approval of an executive official.” Times Film Corp. v. Chicago, 365 U.S. 43, 

56, (Warren, C.J., dissenting) (quoting Thomas I. Emerson, The Doctrine of Prior Restraint, 20 

Law & Contemp. Prob. 648, 655). While not all restrictions on speech are impermissible, a 

restriction that imposes a prior restraint on speech “comes to the Court bearing a heavy 

presumption against its constitutional validity.” New York Times Co. v. United States, 403 U.S. 

713, 714 (1971). 

7. Indeed, courts allow this “‘most extraordinary remedy’ only where the evil that would 

result from the [speech] is both great and certain and cannot be militated by less intrusive 

measures.” CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (quoting Nebraska Press Association 

v. Stuart, 427 U.S. 539, 562 (1976)). See also Taucher, 53 F. Supp. 2d at 481-82. “Regulatory 

schemes “conditioning expression on a licensing body’s prior approval of content ‘present[] 

peculiar dangers to constitutionally protected speech’” and demand “extraordinary procedural 

safeguards” in order to survive constitutional scrutiny. Thomas, 534 U.S. at 321, 

323 (quoting Freedman v. Maryland, 380 U.S. 51, 57 (1965)).

8. In the alternative, if this Court determines that FECA and the FEC’s parallel implementing 

regulations do not operate a prior restraint on speech, which they do, Plaintiffs still challenge the 

disclosure and disclaimer requirements as overbroad under “exacting scrutiny.” See, e.g., Citizens 

United v. FEC, 558 U.S. 310, 366-67 (2010) (“The Court has subjected [disclosure] requirements 

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to ‘exacting scrutiny’”); Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam); accord Doe v. Reed, 

561 U.S. 186, 187-88 (2010). 

9. Additionally, Plaintiffs maintain that in an effort to avoid First, Fifth and Fourteenth 

Amendment vagueness concerns, this Court can conclude that none of the advertisements 

reference a clearly identified candidate, but rather all refer only to a local business person 

continuing the profession she has engaged in for more than 15 years.

10. There must be a “‘substantial relation’ between the disclosure requirement and a 

‘sufficiently important’ governmental interest.” Citizens United, 558 U.S. at 366-67 (quoting 

Buckley, 424 U.S. at 64, 66). To survive exacting scrutiny, “the strength of the governmental 

interest must reflect the seriousness of the actual burden on First Amendment rights.” Davis v. 

FEC, 554 U.S. 724, 744 (2008) (citing Buckley, 424 U.S. at 68) (emphasis added).

11. Exacting scrutiny is not simply a way to force judicial approval of government regulations 

regarding the First Amendment. See Buckley, 424 U.S. at 64, 66 (describing exacting scrutiny as 

a “strict test” requiring more than “a mere showing of some legitimate governmental interest”); 

Elrod v. Burns, 427 U.S. 347, 363 (1976) (noting the “[s]tate may not choose means that 

unnecessarily restrict constitutionally protected liberty” nor choose a regulatory scheme broadly 

stifling speech if the state has available a “less drastic way of satisfying its legitimate interests”) 

(quoting Kusper v. Pontikes, 414 U.S. 51, 59 (1973) (internal quotation marks omitted)). Laws that 

are “no more than tenuously related to the substantial interests disclosure serves . . . fail exacting 

scrutiny.” Buckley v. Am. Const. Law Found., 525 U.S. 182, 204 (1999) (internal marks omitted).

12. One governmental interest cited in Citizens United is “‘[P]rovid[ing] the electorate with 

information’ about the sources of election-related spending.” Citizens United, 558 U.S. at 315

(quoting Buckley, 424 U.S. at 66) (emphasis added). Given that Plaintiffs have been airing 

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advertisements substantially similar to the advertisements in question for 13 years, it is plainly true 

that the advertisements in questions are in no way related to any election. 

13. “To decide whether a law is a disclosure requirement or a ban on speech, [courts] ask a 

simple question: does the law require the speaker to provide more information to the audience than 

he otherwise would?” Pursuing America’s Greatness v. FEC, 831 F.3d 500, 507 (D.C. Cir. 2016). 

Just as in Pursuing America’s Greatness, the requirements in this case function to prevent 

Plaintiffs from conveying information to the public or by requiring additional, unnecessary speech, 

and therefore operate as a ban on speech rather than merely requiring simple disclaimers. Id. at 

507-508. 

14. In this case, Plaintiffs’ proposed business advertisements are not election-related because 

they do not constitute “electioneering communications” involving “clearly identified candidates.” 

Instead, they are purely commercial in nature involving transactions wholly unrelated to politics 

or qualifications for office, constituting pleas for business as done by any other realty firm and by 

Plaintiffs for over a decade before Ms. Brown became a candidate for federal office.

A. The Federal Election Campaign Act and the Bipartisan Campaign Reform Act 

15. In 1976, the U.S. Supreme Court explained in Buckley v. Valeo that a “clearly identified 

candidate” under the FECA has a very specific meaning:

Section 608 (e)(2) defines “clearly identified” to require that the candidate’s name, 

photograph or drawing, or other unambiguous reference to his identity appear as 

part of the communication. Such other unambiguous reference would include use 

of the candidate's initials (e.g., FDR), the candidate’s nickname (e.g., Ike), his 

office (e.g., the President or the Governor of Iowa), or his status as a candidate (e.g., 

the Democratic Presidential nominee, the senatorial candidate of the Republican 

Party of Georgia).

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Buckley, 424 U.S. at 43 n. 51; see also FEC v. Nat’l Org. for Women, 713 F. Supp. 428, 433 

(D.D.C. 1989) (“An explicit and unambiguous reference to the candidate must be mentioned in 

the communication . . .”).

16. This language has since been incorporated into federal regulations 11 C.F.R. §§ 100.29, 

104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4), and federal statute, 52 U.S.C. 30104(f)(3)(A)(i). 

17. In 2002, Congress enacted The Bipartisan Campaign Reform Act of 2002 (“BCRA”), 

defining the term “electioneering communication” as:

any broadcast, cable, or satellite communication which – (I) refers to a 

clearly identified candidate for Federal office; (II) is made within – (aa) 60 

days before a general, special, or runoff election for the office sought by the 

candidate; or (bb) 30 days before a primary or preference election, or a 

convention or caucus of a political party that has authority to nominate a 

candidate, for the office sought by the candidate; and (III) in the case of a 

communication which refers to a candidate for an office other than President 

or Vice President, is targeted to the relevant electorate.

52 U.S.C. 30104(f)(3)(A)(i) (emphasis added).

18. Under FECA, any person who makes an electioneering communication is subject to a 

number of disclosure, disclaimer, and reporting obligations with the FEC.

19. The Supreme Court in McConnell v. FEC, 540 U.S. 93 (2003), upheld these disclosure and 

disclaimer rules against a facial challenge because, as the Court explained, they were “both easily 

understood and objectively determinable”:

[W]e observe that new FECA § 304(f)(3)’s definition of “electioneering 

communication” raises none of the vagueness concerns that drove our 

analysis in Buckley. The term “electioneering communication” applies only 

(1) to a broadcast (2) clearly identifying a candidate for federal office, (3) 

aired within a specific time period, and (4) targeted to an identified audience 

of at least 50,000 viewers or listeners. These components are both easily 

understood and objectively determinable. 

McConnell, 540 U.S. at 194.

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20. However, the Supreme Court has not foreclosed future as applied challenges to disclosure 

and disclaimer requirements. In Wisconsin Right To Life v. FEC, 546 U.S. 410 (2006), the Supreme 

Court confirmed that a statute upheld as facially constitutional still can be successfully challenged 

later on an as-applied basis. The plaintiff in Wisconsin Right To Life, a non-profit corporation,

argued that its proposed advertisements were “genuine issue ads” free from restraint under the 

First Amendment. See generally 551 U.S. 449. The Supreme Court agreed, finding that the First 

Amendment does not permit the restriction of corporate speech unless it is express advocacy or 

the “functional equivalent of express advocacy.” Id. at 2667, 2671.

21. Further, the portion of the Citizens United upholding disclaimers for election-related 

speech is not applicable to this case because the factual circumstances underlying each case are 

inapposite to one another in the disclaimer context. Citizens United concerned a documentary 

critical of Hillary Clinton’s qualifications for public office. Citizens United v. FEC, 530 F. Supp. 

2d 274, 275 (D.D.C. 2008) overruled on other grounds 558 U.S. 310. That documentary focused

on then Senator and Presidential Clinton’s “Senate record, her White House record during 

President Bill Clinton's presidency, her presidential bid, and include[d] express opinions on 

whether she would make a good president”, and was timed particularly to affect the upcoming 

election in which Hillary Clinton would be a candidate. Id. (internal citations, quotation marks, 

and alterations omitted). 

22. Unlike the speech at issue in Citizens United, the truthful purely commercial 

communications at issue in this case similar to and consistent with the advertising run by the 

Plaintiffs for the past 15 years clearly do not implicate the same type of government interests.

23. Regulations purported to require only disclosure and disclaimers “often do incidentally 

prohibit speech . . .” Pursuing America’s Greatness, 831 F.3d at 508. Cf. Citizens United, 558 

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U.S. at 366 (“[D]isclosure requirements . . . ‘do not prevent anyone from speaking.’” (quoting 

McConnell v. FEC, 540 U.S. 93, 201, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003))). See also 

generally Pursuing America’s Greatness, 831 F.3d 500 (discussing the interaction of Reed v. Town 

of Gilbert, 135 S. Ct. 2218 (2015) and Citizens United, 558 U.S. 310). In this case, the operation 

of law here in fact prohibit Plaintiffs from speaking.

24. FECA exempts four categories of communication from the statutory definition of 

“electioneering communications,” including “any other communication exempted under such 

regulations as the Commission may promulgate . . . to ensure 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 section 30101(20)(A)(iii) of this title.” 52 U.S.C. 

§ 30104(f)(3)(B)(iv). That provision refers to “a public communication that refers to a clearly 

identified candidate for Federal office . . . and that promotes or supports a candidate for that office, 

or attacks or opposes 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).

25. It is well established that Congress’ motivation in enacting the “electioneering 

communications” provisions was to regulate so-called “sham issue ads”, issue advocacy that is 

actually paid for with non-federal funds. There is no suggestion anywhere in the legislative record 

that Congress intended to include bona fide commercial advertisements for commercial products 

and services.

B. The Federal Election Commission

26. In the first electioneering communications rulemaking, the FEC noted that “the principal 

Congressional sponsors of BCRA explained the exemption authority would ‘allow the 

Commission to exempt communications that ‘plainly and unquestionably’ are ‘wholly unrelated’ 

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to an election and do not ‘in any way’ support or oppose a candidate.” Final Rule on Electioneering 

Communications, 67 Fed. Reg. 65,190, 65,198 (October 23, 2002). In 2002, the Commission 

considered adopting a regulatory exemption for business advertisements, specifically, “an 

exemption for communications that refer to a clearly identified candidate in the context of 

promoting a candidate's business, including a professional practice, for example.” Id. at 65,202. 

The Commission, however, declined to adopt a business advertisement exemption, explaining:

The Commission has determined that a narrow exemption for such ads is not 

appropriate and cannot be promulgated consistent with the Commission’s authority 

under 2 U.S.C. 434(f)(3)(B)(iv). Based on past experience, the Commission 

believes that it is likely that, if run during the period before an election, such 

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.

Id.

27. In 2004, the Commission determined that it could consider through the advisory opinion

process, on a case-by-case basis, whether particular advertisements referred to a clearly identified 

candidate or not. See Advisory Opinion 2004-31 (Russ Darrow Group, Inc.) at 4 (“The decision 

not to adopt a blanket exemption for such communications, however, does not preclude the 

Commission from making a determination that the specific facts and circumstances of a particular 

case indicate that certain advertisements do not refer to a clearly identified Federal candidate and, 

hence, do not constitute electioneering communications.”). In the Russ Darrow matter, the 

Commission concluded that commercial advertisements for Russ Darrow-branded car dealerships 

did not refer to a clearly identified candidate for federal office, and thus, were simply not 

“electioneering communications.” Rather, under “the factual circumstances presented,” “the use 

of the name ‘Russ Darrow’ refers to a business or to another individual who is not a candidate.”

Advisory Opinion 2004-31 at 3. The Commission explained that “your proposed advertisements 

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refer to RDG’s [Russ Darrow Group, Inc.] car dealerships or Russ Darrow III, and not to the 

Candidate.” The Commission concluded that the advertisements simply did not refer to a clearly 

identified candidate. 

28. In 2012, the Commission considered a request to grant an exemption for a commercial 

advertisement that was commonly agreed to include references to a clearly identified candidate. In 

Advisory Opinion Request 2012-20, Markwayne Mullin sought an electioneering communication 

exemption for televised business advertisements for his company, Mullin Plumbing, Inc. The 

Commission was unable to approve a response, but the applicable legal standard appears to be 

clear.

29. First, a majority of Commissioners in the Mullin matter agreed that the Commission had 

the authority to grant an exemption through the advisory opinion process, although the issue was 

not settled definitively. Two Commissioners voted to approve a draft that would have granted the 

exemption sought, while two other Commissioners wrote, “[w]e agree that the Commission may 

grant such exemptions,” while noting that there was legislative history in support of that position. 

Statement on Advisory Opinion Request 2012-20 (Mullin) of Vice Chair Ellen L. Weintraub and 

Commissioner Cynthia L. Bauerly. Vice Chair Weintraub and Commissioner Bauerly wrote: “We 

are prepared to revisit this issue where the facts presented warrant an exemption.” Id.

30. Second, the path to concluding that an exemption is warranted requires showing that the 

communications at issue are “plainly and unquestionably not related to the election.” Id.; see also

Advisory Opinion 2012-20, Response Draft B. In 2012, two Commissioners concluded that “[t]he 

Mullin Companies have become intertwined with the Mullin campaign to the point where it can 

no longer be said that the companies’ ads are plainly and unquestionably not related to the 

election.” Id. These Commissioners also noted that commenters claimed to have “difficulty 

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 10 of 27
distinguishing between the Mullin campaign literature and the Mullin Companies’ ads” and that 

“it seemed that the Mullin Companies’ ads had become more frequent since Mr. Mullin began 

running for Congress.” Id. While the former comment may have been traceable to an opposing 

candidate, and the latter comment was not substantiated in any way, we do not believe either issue 

is present in this matter.

31. Here, the Plaintiffs’ case presents just the opposite circumstance of the Mullin matter.

Plaintiffs’ commercial advertisements are in no way intertwined with any of Ms. Brown’s 

campaign communications. There are completely separate vendors, distinct media plans, and 

entirely disparate messages. 

32. On April 11, 2019 the FEC considered but failed to grant affirmative responses to any of 

the advertisements presented in an advisory opinion request by Plaintiffs. The request sought a 

declaration that the proposed communications would not be deemed to refer to “clearly identified 

candidates,” and therefore not be electioneering communications.

FACTUAL BACKGROUND

33. Plaintiffs’ planned advertisements, attached in the Request for Advisory Opinion (Exhibit 

A), filed on March 21, 2019 (just eight days after becoming a candidate) consist of original and 

amended versions of two advertisements promoting Plaintiffs’ real estate business. (hereinafter 

“Original Advertisements” and “Amended Advertisements” respectively, collectively the 

“Advertisements”).

34. Ms. Brown also happens to be a congressional candidate, running for the current special 

election being held in North Carolina’s Ninth Congressional District, with a special primary 

election on May 14.

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35. The Original Advertisements mention Ms. Brown in her capacity as a realtor and solicits 

persons to contact her for real estate services.

36. The Amended Advertisements mention the firm Leigh Brown & Associates and solicits 

persons to contact the business for real estate services.

37. Either the Original or the Amended Advertisements will be aired during the electioneering 

communication window for the upcoming special primary election held on May 14, 2019 which 

began Sunday, April 14, 2019, depending on the outcome of this action. Accordingly, Ms. Brown

sought the FEC’s guidance on the application of the statute and regulations to the advertisements 

and proposed alternative advertisements.

38. FECA’s electioneering communications provisions, as applied to the Original and 

Amended Advertisements at issue here, are unconstitutional as applied because they act as prior 

restraints on speech by foreclosing any opportunity for Plaintiffs to engage in commercial speech. 

See Declaration of Leigh Brown §§28-33 (attached hereto as Exhibit D).

39. Plaintiffs will need to refrain from speech in which they had previously engaged, thereby

altering their means and methods of communications to comply with FECA content, disclaimer 

and reporting requirements, all of which are because of a legitimate fear of civil and criminal 

enforcement by the government or private parties.

40. Plaintiffs are presently stymied in their ability to advertise commercially and thus are cut 

off from their lifeblood income.

41. Plaintiffs seek injunctive relief from this court finding that 52 U.S.C. 30104(f)(3)(A)(i) 

and the FEC’s parallel implementing regulations at 11 C.F.R. §§ 100.29 (“electioneering 

communications”), 104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4) (electioneering communications 

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 12 of 27
disclaimer and reporting requirements) as applied to Plaintiffs’ current communications are 

unconstitutional infringements on Plaintiffs’ First Amendment rights as applied.

JURISDICTION AND VENUE

42. This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 2201 as a 

challenge arising under the First Amendment to the Constitution of the United States.

43. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1)(c) because Defendant is an 

entity of the United States Government.

PARTIES

44. The FEC is the federal agency charged with enforcement of the Federal Election Campaign 

Act and is located in Washington, D.C.

45. Ms. Brown is a North Carolina real estate broker and agent and the President and Chief 

Executive Officer of Mallard Creek Properties, Inc, D/B/A Leigh Brown & Associates. She is also 

a first-time federal candidate for Congress in North Carolina’s Ninth Congressional District.

46. Leigh Brown & Associates is a for-profit business entity that was incorporated in North 

Carolina under the name Mallard Creek Properties, Inc. on July 25, 2003. Leigh Brown & 

Associates provides real estate agent services in and around the Charlotte area in North and South 

Carolina. A total of eight other individuals work with Leigh Brown & Associates - four real estate 

agents and four administrative staff members - either as employees or independent contractors.

STATEMENT OF FACTS

47. For the past 13 years, Plaintiffs have aired radio advertisements publicizing Leigh Brown 

& Associates. Currently, these radio advertisements are aired exclusively on WBT 1110, a 

commercial AM radio station serving the Charlotte metropolitan area, which includes parts of 

North Carolina and South Carolina. Leigh Brown & Associates has an annual contract with WBT 

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to air her advertisements (Ms. Brown's current contract was entered into with Entercom Charlotte 

WBT AM/FM in December 2018 and covers calendar year 2019. The contract specifies 706 

broadcast spots for $48,204, or approximately 13.5 airings per week, further divided into a series 

of daily time ranges.).

48. Ms. Brown develops the content of the advertisements herself without the use of a media 

production vendor, and she typically records two radio advertisements at a time at WBT's facilities. 

The two advertisements are then broadcast on a rotating basis. The length of time a particular 

advertisement remains on the air varies, but Ms. Brown typically creates and records new 

advertisements every 60 to 90 days. 

49. This radio advertising is a core component of Ms. Brown's efforts to generate business for 

herself and the other members of her real estate team working with Leigh Brown and Associates. 

The inability to advertise is detrimental to the Plaintiffs’ business and the livelihood of those 

working with the Plaintiffs. See Brown Decl. at §§29-31.

50. Accordingly, because of their importance to the Plaintiffs’ business, Ms. Brown typically 

records 10 business advertisements each year. See Brown Decl. at §§21-24.

51. The specific content of the radio advertisements that Ms. Brown runs has varied over the

years, but ads have followed a similar template. Advertisements generally are 60 seconds in length, 

and typically feature discussion of a real estate issue specific to the Charlotte real estate market 

(e.g., local property values and trends in housing prices). For the past several years, the 

advertisements typically note how many houses her team sells and consistently include two closing 

slogans: “I’m interviewing for a job I want to be your realtor” and “There is a difference when you 

call Leigh Brown.”

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52. If Plaintiffs are unable to advertise for their business during the electioneering 

communications window, it will have a detrimental impact on the real estate firm and the 

employees/contractors who rely on it for their livelihood. See Brown Decl. at §§28-33. Therefore, 

Ms. Brown wishes to continue airing the Original Advertisements during the electioneering 

communication window for the upcoming special primary election on May 14. Ms. Brown began 

airing these specific commercial advertisements in the Charlotte area on or about March 5, 2019, 

prior to her becoming a federal candidate. She is prepared to air those advertisements but will not 

do so out of fear of enforcement of 52 U.S.C. 30104(f)(3)(A)(i); 11 C.F.R. §§ 100.29; 104.5(j);

104.20; 114.10(b)(2); 110.11(a)(4).

53. Alternatively, Plaintiffs wish to air the Amended Advertisements during the special 

primary electioneering communication window. Plaintiffs are prepared to air those advertisements, 

and have recorded them for distribution, but will not do so out of fear of enforcement of 52 U.S.C. 

30104(f)(3)(A)(i); 11 C.F.R. §§ 100.29; 104.5(j); 104.20; 114.10(b)(2); 110.11(a)(4).

54. This Court also has authority to issue a declaration under the Declaratory Judgment Act 

that these advertisements are not “electioneering communications” because of a lack of reference 

to a clearly identified candidate, thereby avoiding the First and Fifth Amendment vagueness 

concerns that otherwise exist.

55. Now that the electioneering window has opened, the FEC contents the advertisements will 

satisfy the basic statutory definition of “electioneering communication” under the FEC’s 

interpretation of the statute. Ms. Brown does not intend to change the content or advertising 

volume of either the Original or Amended Advertisements during the electioneering 

communications window.

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56. Plaintiffs also plan to air similar advertisements, just as they have done for years, during 

the electioneering windows preceding the run-off special primary election, if applicable, and the 

special general election, regardless of whether Ms. Brown is a candidate in either election.

57. The content of these Advertisements is consistent with the format of past advertisements. 

Ms. Brown’s political campaign has engaged an entirely separate, political media vendor for 

campaign advertising and strategy purposes and that vendor played no role in the creation or airing 

of the commercial advertisements for Ms. Brown's real estate business.

58. Ms. Brown requested an advisory opinion from the FEC as to whether the Original and 

Amended Advertisements would constitute “electioneering communication” when aired during 

the upcoming pre-primary period.

59. The FEC considered but did not approve any of the draft advisory opinions. The FEC voted 

2-2 on Agenda Document No. 19-14-B (attached hereto as Exhibit B), 3-1 against on Agenda 

Document No. 19-14-A (attached hereto as Exhibit C), and 3-1 in favor of a motion to approve the 

responses to Questions 2 and 3 in Agenda Document 19-14-A (Ex. 3). The affirmative vote of four 

members of the FEC is required to render and advisory opinion under FECA. See 52 U.S.C. 

§§30106(c), 30107(a)(7); see also 11 C.F.R. §112.4(a). Thus, the FEC was unable to render an 

opinion in this matter.

60. Plaintiffs are wholly unable to run any advertisements whatsoever during the electioneering 

communications windows due to the application of FECA, FEC’s attendant regulations, and the 

FEC’s failure to exempt the Advertisements from the definition of electioneering communications.

61. If Plaintiffs run either the Original or Amended Advertisements, it is the FEC’s position 

that they must be accompanied by certain required disclaimers, which must be read aloud by the 

speaker. 11 CFR 110.11.

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62. The FEC explains that the following are the required disclaimers for an electioneering 

communication:

Wording of disclaimer notice

A disclaimer notice must contain the full name of the individual, group, corporation, or 

labor organization that paid for the communication, along with any abbreviated name it 

uses to identify itself. The disclaimer notice must also provide the payor’s permanent 

street address, telephone number, or website address and must further state that the 

communication was not authorized by any candidate or candidate’s committee.

EXAMPLES:

Paid for by the Fishermen’s Union (www.fishunion.org) and not authorized by 

any candidate or candidate’s committee.”

“Paid for by John Doe (jdoe@ecexample.com) and not authorized by any 

candidate or candidate’s committee.”

See https://www.fec.gov/help-candidates-and-committees/other-filers/making-electioneeringcommunications/ (Visited April 16, 2019). 

63. In this situation, according to the FEC’s stated position, any “electioneering 

communication” aired by Plaintiffs would need to include a disclaimer that says “Paid for by Leigh 

Brown and Associates. Leigh Brown and Associates is responsible for the content of this 

advertising. Not authorized by any candidate or candidate’s committee. www.leighsells.com” 

64. Plaintiffs cannot use this disclaimer method because Ms. Brown authorized the 

Advertisements. After all, she was the one who produced and voiced them.

65. In addition, the disclosure forms filed with the FEC require that the “person responsible” 

for the advertisements be disclosed on FEC Form 9. In this case, that would be Leigh Brown. So, 

utilizing the FEC required disclaimer would result in a form submitted to the federal government 

that would not be consistent with the text of the broadcast advertisement. FEC Form 9 and its 

instructions are available at https://www.fec.gov/resources/cms-content/documents/fecfrm9.pdf

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 17 of 27
and https://www.fec.gov/resources/cms-content/documents/fecform9i.pdf (visited April 16, 

2019).

66. The only other possible alternative disclaimer language for the authorized / not authorized 

statement is located at 11 CFR 110.11. However, if the Advertisements are electioneering 

communications under FECA and FEC regulations and considered to be authorized by a candidate, 

they would be considered to be “coordinated communications” since they are authorized, planned, 

and voiced by the candidate. 11 CFR 109.20; 11 CFR 109.21(a). Thus, application of this 

disclaimer would result in an apparent admission to an impermissible coordinated communication, 

which is clearly not the case. 

67. Coordinated communications are treated as in-kind contributions to the candidate’s 

campaign committee and subject to contribution restrictions. 11 CFR 109.21(b). Leigh Brown & 

Associates is a taxable business entity and either cannot legally make any contributions to Ms. 

Brown’s congressional campaign. 11 CFR 110.1. While the coordination rules do technically have 

an exemption for commercial transactions, 11 CFR 109.21(i), the FEC’s analysis of all the 

proposed communications here seem to indicate that because these advertisements promote Leigh 

Brown’s services as a realtor, they are really about the campaign. (See Opposition to TRO at pp. 

14 and 16). 

68. Even if the Advertisements were aired by someone exempted from the contribution 

restrictions and limits imposed by FECA, which they are not, adding a disclaimer to the end of the 

Advertisements would confuse the public and destroy any commercial value. If the Advertisements 

could even be “authorized” by Ms. Brown while simultaneously being considered electioneering 

communications, 11 CFR 110.1 requires a disclaimer that states either: (A) “I am Leigh Brown, a 

candidate for Congress, and I approved this advertisement”; or (B) “My name is Leigh Brown. I 

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 18 of 27
am running for Congress, and I approved this message.” 11 CFR 110.1. To add either of those 

disclosures to an ad for a real estate brokerage wholly unrelated to any election activity highlights 

the absurdity of the application of these regulations in this case and would surely confuse the 

public.

69. Further, a real estate broker and brokerage, respectively, in North Carolina, Plaintiffs are 

subject to certain rules and laws promulgated by the North Carolina Real Estate Commission. 

Among those rules is NCAC 58A et seq. which includes the following rules governing 

advertisements: “An individual broker shall not advertise or operate in any manner that would 

mislead a consumer as to the broker’s actual identity or as to the identity of the firm which . . . she 

is affiliated.” 21 NCAC 58A.0103. Any advertisement for the “sale or purchase . . . of real estate 

for others . . . shall indicate that it is the advertisement of a broker or firm . . .” NCAC 58A.0105(b). 

So, it is impermissible under North Carolina Real Estate Commission rules to produce and 

distribute an advertisement for real estate without mentioning the name of the broker or brokerage. 

See also NCREC License Law and Rules Comments at 14, 

https://www.ncrec.gov/pdfs/studyguide.pdf. Plaintiffs are therefore required by North Carolina 

law to include their names in the Advertisements. In this instance, Ms. Brown, is the broker, and 

Leigh Brown & Associates is the brokerage. Both contain Ms. Brown’s name. Ms. Brown is both 

a candidate for federal office and a Realtor in North Carolina, a dual status which, as considered 

by the FEC, would require Ms. Brown to choose which legal regime she would like to violate.

70. Accordingly, classifying Plaintiffs’ Advertisements, clearly commercial speech, as 

electioneering communications operates to completely prohibit them from undertaking that speech 

at all. Cf. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 19 of 27
771 n. 24 (1976). Plaintiffs are stuck in a catch-22 with no way out. Plaintiffs are wholly unable 

to advertise their business without using Ms. Brown’s name.

COUNT 1

FECA’s Electioneering Communication Provisions are Unconstitutional 

as Applied to Leigh Brown’s Original Advertisements

71. Plaintiffs reallege and incorporate by reference all of the allegations contained in all of the 

preceding paragraphs.

72. The application of the statutory definition of “electioneering communication” candidate at 

52 U.S.C. 30104(f)(3)(A)(i) and the Federal Election Commission’s parallel implementing 

regulations at 11 C.F.R. §§ 100.29, 104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4), to the Original 

Advertisements acts as an unconstitutional prior restraint on Plaintiffs’ speech in violation of the 

First Amendment to the United States Constitution.

73. As applied by the FEC positions before this Court in its Opposition to Motion for 

Temporary Restraining Order, ECF No. XX, 52 U.S.C. 30104(f)(3)(A)(i) combined with 11 C.F.R. 

§§ 100.29, 104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4), are the functional equivalent of a speech 

ban imposed by federal statute against Plaintiffs during electioneering communication windows.

74. This prohibition applies to all individuals who happen to own a business sharing their name 

(a not uncommon occurrence) and simultaneously seek federal office.

75. But for operation of the law, Plaintiffs are prepared to run these advertisements, and other 

similar communications, consistently through the year.

76. The Original Advertisements are “plainly and unquestionably not related to any election.” 

Ms. Brown has aired similar advertisements for more than a decade, exclusively for the purpose 

of promoting her real estate business. The Original Advertisements do not promote or support Ms. 

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 20 of 27
Brown’s candidacy, or attack or oppose any other federal candidate. The Original Advertisements 

do not mention or contain references to any clearly identified candidate for federal office.

77. The outright prohibition on Plaintiffs’ advertising speech during the electioneering 

communications window is not narrowly tailored to the government’s anti-corruption interest. 

“[Such drastic prohibitions on speech may be justified by a mere possibility that the prohibited 

speech will be fraudulent.” Lowe, 472 U.S. at 234-35 (Jackson, J., concurring). Further, there is no 

mystery as to who is paying for the Advertisements. Ms. Brown is speaking about Leigh Brown 

& Associates, and about her real estate services. There is no question who made the 

Advertisements, and in what capacity the Advertisements are being broadcast.

78. This statutory scheme is unconstitutional as applied to these advertisements, in violation 

of the First Amendment.

79. Wherefore, Plaintiffs pray for the following relief:

a. Declare the application of 52 U.S.C. 30104(f)(3)(A)(i); 11 C.F.R. §§ 100.29, 

104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4) to Plaintiffs’ Original Advertisements 

unconstitutional as a prior restraint on speech and void as applied;

b. A preliminary and permanent injunction enjoining Defendant FEC from enforcing 

2 U.S.C. §§ 431(18) and 434(f), as well as any applicable rules and regulations 

regarding those provisions, against Plaintiffs when they air the Original 

Advertisements;

c. An award of nominal damages of $1 for the violation of Plaintiffs’ constitutional 

rights;

d. Costs and attorney’s fees pursuant to any applicable statute or authority;

e. Any other relief that the Court deems just and appropriate. 

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 21 of 27
COUNT 2

FECA’s Electioneering Communication Provisions are Unconstitutional 

as Applied to Plaintiffs’ Amended Advertisements

80. Plaintiffs reallege and incorporate by reference all of the allegations contained in all of the 

preceding paragraphs.

81. The application of the statutory definition of “electioneering communication” candidate at 

52 U.S.C. 30104(f)(3)(A)(i) and the Federal Election Commission’s parallel implementing 

regulations at 11 C.F.R. §§ 100.29, 104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4), to the Amended 

Advertisements acts as an unconstitutional prior restraint on Plaintiffs’ speech in violation of the 

First Amendment to the United States Constitution.

82. As applied by the FEC positions before this Court in its Opposition to Motion for 

Temporary Restraining Order, ECF No. XX, 52 U.S.C. 30104(f)(3)(A)(i) combined with 11 C.F.R. 

§§ 100.29, 104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4), are the functional equivalent of a speech 

ban imposed by federal statute against Plaintiffs during electioneering communication windows.

83. This prohibition applies to all individuals who happen to own a business sharing their name 

(a not uncommon occurrence) and simultaneously seek federal office.

84. But for operation of the law, Plaintiffs are prepared to run these advertisements and other 

similar communications consistently through the year.

85. The Amended Advertisements are “plainly and unquestionably not related to any election.” 

Plaintiffs have aired similar advertisements for more than a decade, exclusively for the purpose of 

promoting her real estate business. The Amended Advertisements do not promote or support Ms. 

Brown’s candidacy, or attack or oppose any other federal candidate. The Amended Advertisements 

do not mention or contain references to any clearly identified candidate for federal office, but 

rather clearly and plainly refer to the business known as Leigh Brown and Associates.

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 22 of 27
86. The outright prohibition on Plaintiffs’ advertising speech during the electioneering 

communications window is not narrowly tailored to the government’s anti-corruption interest. 

“[Such drastic prohibitions on speech may be justified by a mere possibility that the prohibited 

speech will be fraudulent.” Lowe, 472 U.S. at 234-35 (Jackson, J., concurring). Further, there is no 

mystery as to who is paying for the Advertisements. Ms. Brown is speaking about Leigh Brown 

& Associates, and about realty. There is no question who made the Advertisements, and in what 

capacity the Advertisements are being broadcast.

87. This statutory scheme is unconstitutional as applied, in violation of the First Amendment.

88. Wherefore, Plaintiffs pray for the following relief:

a. Declare the application of 52 U.S.C. 30104(f)(3)(A)(i); 11 C.F.R. §§ 100.29, 

104.5(j), 104.20, 114.10(b)(2), 110.11(a)(4) to Plaintiffs’ Amended

Advertisements unconstitutional as a prior restraint on speech and void as applied;

b. A preliminary and permanent injunction enjoining Defendant FEC from enforcing 

2 U.S.C. §§ 431(18) and 434(f), as well as any applicable rules and regulations 

regarding those provisions, against Plaintiffs when they air the Amended 

Advertisements;

c. An award of nominal damages of $1 for the violation of Plaintiffs’ constitutional 

rights;

d. Costs and attorney’s fees pursuant to any applicable statute or authority;

e. Any other relief that the Court deems just and appropriate. 

COUNT 3

To Avoid First and Fourteenth Amendment Problems, this Court Should Find that the 

Advertisements are not Electioneering Communications and issue an Injunction

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 23 of 27
89. Plaintiffs reallege and incorporate by reference all of the allegations contained in all of the 

preceding paragraphs.

90. The application of the definition of Electioneering Communication to the Advertisements 

is unconstitutional under the First and Fifth Amendments to the United States Constitution.

91. The Original Advertisements refer only to a clearly identified realtor.

92. Amended Advertisements refer only to Leigh Brown & Associates, a clearly identified 

business name, and not any candidate or committee.

93. None of the four Advertisements refer to a clearly identified candidate for federal office.

94. If the use of a business name and professional name refers to a clearly identified candidate, 

then all electioneering communications rules apply to any and every advertisements Plaintiffs will 

ever air. 

95. The application of the statutory definition of “clearly identified” at 2 U.S.C. § 431(18) to 

the Amended Advertisements’ use of the business names of Plaintiffs, if interpreted to refer to a 

clearly identified candidate, is inconsistent with Supreme Court precedent, and the precedent of 

other courts See Hispanic Leadership Fund, Inc., v. FEC, 897 F. Supp. 2d 407 (E.D. Va. 2012), 

and severely burdens Plaintiffs’ right to speech, freedom of association, and equal protection.

96. As applied to Plaintiffs and other organizations that are unable to comply with the 

burdensome FEC regulations and disclosure requirements, these provisions act as absolute 

expenditure prohibitions.

97. As applied by the FEC, 2 U.S.C. § 431(18) combined with 2 U.S.C. § 434(f) are the 

functional equivalent of a political speech ban imposed by federal statute against individuals and 

organizations who are federal candidates and who share a name of a federal candidate 

owner/operator, respectively.

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 24 of 27
98. Plaintiffs have prepared advertisements only promoting their business. 

99. But for operation of the law, Plaintiffs are prepared to run these advertisements and other 

communications similar to them consistently through the year.

100. Under 2 U.S.C. §§ 431(18) and 434(f) and the FEC’s regulations, as interpreted and 

applied by the FEC in contradiction to the First Amendment and opinions of the U.S. Supreme 

Court in Buckley v. Valeo, McConnell v. FEC, and Hispanic Leadership Fund, Inc., 897 F. Supp. 

2d 407, FEC v. Christian Action Network, 110 F.3d 1049, 1057 (4th Cir. 1997) (discussing the 

dangers of subjecting communications to the “unpredictability of audience interpretation”), 

Plaintiffs would be subject to the electioneering communications regime even though their 

advertisements do not promote a candidate for office and are not political issue advertisements.

101. The application of the electioneering communications rules to Plaintiffs’ business 

Advertisements severely burdens their right to associate with their potential clients by outright 

prohibiting the Advertisements from airing, thus violating the First and Fifth Amendments. Even 

if the Advertisements could be aired with a disclaimer, imposing such broad and sweeping 

disclaimer and disclosure requirements that may discourage or confuse clients would still burden 

Plaintiffs’ freedom to associate.

102. Further, other businesses that are exactly situated to Leigh Brown & Associates, 

except do not share a name of a federal candidate, and that run the exact same Advertisements,

would not be subject to the same outright prohibitions and restrictions. This deprives Plaintiffs of 

the equal protection component of the due process clause of the Fifth Amendment.

103. Plaintiffs actions pose no threat of corruption, or the appearance of corruption, 

because the Advertisements are purely and expressly commercial and plainly state on their face 

who is airing them. See Citizens United, 130 S. Ct. at 909.

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 25 of 27
104. If these laws are interpreted to apply to the name of a business or a Realtor in her 

professional capacity, which is the position maintained by the FEC, that interpretation goes beyond 

any permissible construction of “clearly identified candidate” as defined by the Supreme Court in 

Buckley v. Valeo, and is void as applied.

105. Wherefore, Plaintiffs pray for the following relief:

a. Find the application of 52 U.S.C. 30104(f)(3)(A)(i); 11 C.F.R. §§ 100.29, 104.5(j), 

104.20, 114.10(b)(2), 110.11(a)(4) to Plaintiffs’ Advertisements as violative of 

Plaintiffs’ rights under the First and Fifth Amendments and void as applied.

b. A preliminary and permanent injunction enjoining Defendant FEC from enforcing 

2 U.S.C. §§ 431(18) and 434(f), as well as any applicable rules and regulations 

regarding those provisions, against Plaintiffs when they air the Advertisements;

c. An award of nominal damages of $1 for the violation of Plaintiffs’ constitutional 

rights;

d. Costs and attorney’s fees pursuant to any applicable statute or authority;

e. Any other relief that the Court deems just and appropriate.

Date: April 17, 2019 Respectfully submitted,

/s/Jason Torchinsky

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjlaw.com

J. Michael Bayes (D.C. Bar No. 501845)

jmbayes@hvjlaw.com

Jessica Johnson (D.C. Bar No. 976688)

jjohnson@rga.org

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY 

PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel: (540) 341-8808

Fax: (540) 341-8809

Counsel for Plaintiffs

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 26 of 27
CERTIFICATE OF SERVICE

I do hereby certify that, on this 17th day of April 2019, the foregoing Amended Verified 

Complaint was filed electronically with the Clerk of Court using the CM/ECF system. The 

following parties were served either electronically on April 17th or by USPS First Class Mail on 

April 18, 2019.

/s/Jason Torchinsky

Jason Torchinsky (D.C. Bar No. 976033)

Federal Election Commission

1050 First Street, NE

Washington, DC 20463

C/o Kevin Deeley, Kevin Paul Hancock, and Tanya D. Senanayake

Email: ecf.notices@fec.gov

Attorney General William Barr

c/o Assistant U.S. Attorney of Administration

Justice Management Division

950 Pennsylvania Ave. NW

Room 1111

Washington, D.C. 20530

Jessie K. Liu

United States Attorney for the District of Columbia

Civil Process Clerk

555 4th St. N.W. 

Washington, D.C. 20530

Case 1:19-cv-01021-TJK Document 11 Filed 04/17/19 Page 27 of 27