No. 13-8033 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_______________________________________________ 

FREE SPEECH,

Appellant, 

v. 

FEDERAL ELECTION COMMISSION,

Appellee. 

_______________________________________________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

(JUDGE SCOTT W. SKAVDAHL) 

_______________________________________________ 

APPELLEE’S RESPONSE TO PETITION FOR REHEARING EN BANC 

_______________________________________________ 

 LISA J. STEVENSON 

 Deputy General Counsel – Law 

 KEVIN DEELEY 

 ADAV NOTI 

 Acting Associate General Counsels 

 ERIN CHLOPAK 

 Acting Assistant General Counsel 

 CHARLES KITCHER 

 Attorney 

 Federal Election Commission 

 Washington, D.C. 20463 

September 3, 2013 (202) 694-1650

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TABLE OF CONTENTS 

 

BACKGROUND .................................................................................................. 1 

A. Political-Committee Status ............................................................. 1 

B. Free Speech’s Advisory Opinion Request ..................................... 4 

C. Procedural History .......................................................................... 4 

ARGUMENT ........................................................................................................ 7 

I. THE PANEL CORRECTLY FOLLOWED CONTROLLING 

PRECEDENT BY APPLYING EXACTING SCRUTINY ...................... 8 

II. THE PANEL’S DECISION DOES NOT CONFLICT WITH 

BUCKLEY, MCFL, CITIZENS UNITED, OR ANY DECISION 

OF THIS COURT .................................................................................... 11 

CONCLUSION .................................................................................................. 15 

 

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TABLE OF AUTHORITIES 

Cases Page

AG Servs. of Am., Inc. v. Nielsen, 235 F.3d 559 (10th Cir. 2000) ........................ 7 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) .......................................... 2, 10 

Citizens United v. FEC, 558 U.S. 310 (2010) ................................................ 8, 13 

Colo. Right To Life Comm., Inc. v. Coffman, 

498 F.3d 1137 (10th Cir. 2007) ............................................................... 14 

Ctr. for Individ. Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) .............. 8, 9 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ................................. 13 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) .................................. passim

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

 cert. denied, 131 S. Ct. 1477 (2011) ..................................................... 8, 9 

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011), 

 cert. denied, 132 S. Ct. 1635 (2012) ............................................... 8, 9, 13 

N.M. Youth Organized v. Herrera, 

 611 F.3d 669 (10th Cir. 2010) ......................................................... 8, 9, 14 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544 (4th Cir. 2012) 

 cert. denied, 133 S. Ct. 841 (2013) .................................................. passim

 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) .......................................... 3, 11 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), 

 cert. denied, 131 S. Ct. 553 (2010) ............................................ 2, 8, 10, 13 

Worley v. Florida Secretary of State, 717 F.3d 1238 (11th Cir. 2013) ................ 9 

Statutes and Regulations 

2 U.S.C. § 431(4)(A) ............................................................................................ 1 

2 U.S.C. § 433 ...................................................................................................... 2 

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2 U.S.C. § 434 ...................................................................................................... 2 

2 U.S.C. § 437c(c) ................................................................................................ 4 

2 U.S.C. § 437d(a)(7) ........................................................................................... 4 

2 U.S.C. § 441a(a)(1)(C) ...................................................................................... 2 

2 U.S.C. § 441d(a) ................................................................................................ 4 

11 C.F.R. § 100.22(b) ........................................................................................... 4 

Miscellaneous 

10th Cir. R. 35.1 ................................................................................................... 7  

FEC, Political Committee Status, 69 Fed. Reg. 11,736 (Mar. 11, 2004) ............. 2 

FEC, Supplemental Explanation & Justification for the Regulations on 

Political Committee Status, 72 Fed Reg. 5595 (Feb. 7, 2007) ...... 3, 11, 12 

Fed. R. App. P. 35(a)-(b) ...................................................................................... 7  

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Free Speech’s petition for rehearing en banc fails to identify any conflict between 

the panel’s decision and a decision of the Supreme Court, of this Court, or even of 

another court of appeals. The petition instead relies on Free Speech’s incorrect 

contention that the campaign-finance regulation and policies it challenges prevent it from 

speaking. But as the panel correctly concluded after examining the substance of Free 

Speech’s claims, this case implicates only disclosure requirements, not speech 

restrictions. Applying the well-established “exacting scrutiny” standard under which 

courts assess disclosure provisions, the panel properly determined that the Federal 

Election Commission’s longstanding policy of evaluating political-committee status on a 

case-by-case basis is constitutional and consistent with all of the Supreme Court and 

appellate precedents that Free Speech now invokes as conflicting. Consequently, Free 

Speech has failed to justify its request for the extraordinary procedure of en banc 

rehearing. The Court should deny the petition. 

BACKGROUND 

A. Political-Committee Status 

The Federal Election Campaign Act (“FECA”) defines a “political committee” — 

commonly known as a “PAC” — as any “association[] or other group of persons which 

receives contributions aggregating in excess of $1,000 during a calendar year or which 

makes expenditures aggregating in excess of $1,000 during a calendar year.” 2 U.S.C. 

§ 431(4)(A). PACs are required to comply with certain organizational and reporting 

requirements: Most relevant for purposes of the instant petition, PACs must register with 

the Commission and file periodic reports publicly disclosing their receipts and 

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disbursements (with limited exceptions for most transactions below $200). See 2 U.S.C. 

§§ 433, 434. 

As enacted, FECA also limited the annual amount that an individual could 

contribute to a PAC. See 2 U.S.C. § 441a(a)(1)(C). That limit, however, is no longer in 

effect for groups that engage only in independent electoral spending and make no 

contributions to candidates. See SpeechNow.org v. FEC, 599 F.3d 686, 692-97 (D.C. Cir. 

2010) (en banc), cert. denied, 131 S. Ct. 553 (2010). 

In Buckley v. Valeo, the Supreme Court noted that defining PAC status “only in 

terms of amount of annual ‘contributions’ and ‘expenditures’” might result in overbroad 

application by reaching “groups engaged purely in issue discussion.” 424 U.S. 1, 79 

(1976) (per curiam) (footnotes omitted). The Court therefore concluded that FECA’s 

political-committee definition should be narrowed to “only encompass organizations that 

are under the control of a candidate or the major purpose of which is the nomination or 

election of a candidate.” Id. (emphasis added). Accordingly, a group that is not 

controlled by a candidate must register as a PAC only if the group (1) crosses the $1,000 

threshold of contributions or expenditures and (2) has as its “major purpose” the 

nomination or election of federal candidates. 

In 2004, the Commission issued a notice of proposed rulemaking that asked 

whether it should promulgate a regulatory definition of “political committee” to establish 

categorical rules regarding the application of Buckley’s “major purpose” requirement to 

certain tax-exempt organizations. See FEC, Political Committee Status, 69 Fed. Reg. 

11,736, 11,743-49 (Mar. 11, 2004). In 2007, after receiving public comments, the 

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Commission decided not to promulgate such a regulation, which would have classified 

groups like Free Speech as political committees per se based on their registration as 

“political organizations” under section 527 of the Internal Revenue Code. FEC, 

Supplemental Explanation & Justification for the Regulations on Political Committee 

Status, 72 Fed Reg. 5595 (Feb. 7, 2007). The notice explaining this decision stated that 

instead of creating categorical regulations that might lead to overbroad or underinclusive 

PAC-status determinations, 72 Fed. Reg. at 5597-5601, the Commission would continue 

its longstanding practice of determining an organization’s major purpose on a case-bycase basis, see id. at 5596-97. The notice also explained that although the major-purpose 

requirement can be satisfied “through sufficiently extensive spending on Federal 

campaign activity,” id. at 5601 (citing FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 

262 (1986) (“MCFL”)), a fact-specific analysis of an organization’s conduct — including 

its public statements, fundraising appeals, and spending on other activity — can be 

necessary to evaluate whether the organization’s major purpose is the nomination or 

election of candidates. Id. Finally, the notice discussed several prior matters in which 

the Commission had examined a group’s major purpose, explaining that these matters 

cumulatively “provid[ed] considerable guidance to all organizations” regarding the 

Commission’s application of the major-purpose test. See id. at 5595, 5603-06. 

The Commission’s case-by-case approach was challenged and upheld in Shays v. 

FEC, 511 F. Supp. 2d 19, 29-31 (D.D.C. 2007). It was upheld again by the Fourth 

Circuit in Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544, 556 (4th Cir. 2012) 

(“RTAA”), cert. denied, 133 S. Ct. 841 (2013), and by the panel in this case. 

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B. Free Speech’s Advisory Opinion Request 

Free Speech is an unincorporated nonprofit association that was formed in 2012. 

(App. 66-67.) It does not intend to contribute money directly to candidates but would 

like to disseminate certain political advertisements without complying with many of 

FECA’s disclosure requirements, including the registration and reporting requirements 

applicable to PACs. (See App. 70-71, 78-79.) Free Speech also wishes to solicit 

donations to finance additional advertisements. (App. 67-68.) 

In February 2012, Free Speech requested from the Commission an advisory 

opinion as to whether, inter alia, certain proposed activities would require Free Speech to 

register with the Commission as a PAC. (App. 102-07.) In its response to the request, 

the Commission explained that it was unable to approve an answer regarding Free 

Speech’s PAC status by the required four affirmative votes of the FEC’s six 

Commissioners, 2 U.S.C. §§ 437c(c), 437d(a)(7). (App. 282.) 

C. Procedural History 

Free Speech filed this lawsuit on June 14, 2012. The suit challenged a 

Commission regulation and two Commission policies,1

 including the Commission’s 

                                                           

1

 The remainder of Free Speech’s advisory opinion request had asked (a) whether 

any of eleven proposed advertisements would be deemed “express advocacy,” 11 C.F.R. 

§ 100.22(b); and (b) whether any of four proposed donation requests would be deemed 

“solicitations,” 2 U.S.C. § 441d(a). The Commission unanimously concluded that two of 

the eleven proposed ads were express advocacy, four of the ads were not express 

advocacy, and that two of the four proposed donation requests were not solicitations 

under FECA. (App. 282.) The Commission reached no decision concerning the 

remaining five proposed ads and two proposed donation requests. (Id.) When Free 

Speech then filed its lawsuit, its “main focus” was a challenge to the Commission’s 

express-advocacy regulation. (App. 65 (Compl. ¶ 3).) Free Speech also challenged the 

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method of determining whether a group satisfies the major-purpose test for PAC status. 

(Id. at 94-97.) Free Speech sought a preliminary injunction against the Commission’s 

application of the challenged regulation and policies, and the Commission cross-moved 

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 

On October 3, 2012, the district court denied Free Speech’s preliminary-injunction 

motion. Free Speech interlocutorily appealed to this Court (No. 12-8078). After the 

briefing of that appeal was completed, but before the panel heard oral argument, the 

district court granted the Commission’s motion to dismiss for failure to state a claim. 

Free Speech separately appealed that decision (No. 13-8033). The panel then dismissed 

the preliminary-injunction appeal as moot, substituted the briefs from that appeal into the 

instant matter, and ordered supplemental briefing. The panel heard oral argument on 

May 7, 2013. 

On June 25, 2013, the panel unanimously affirmed and adopted in full the district 

court’s “comprehensive[]” and “correct[]” opinion granting the FEC’s motion to dismiss. 

Free Speech v. FEC, 720 F.3d 788, 790-91 (10th Cir. 2013).2

 The panel rejected Free 

Speech’s argument that its challenges should be analyzed under the strict-scrutiny 

                                                                                                                                                                                               

Commission’s method of analyzing solicitations. (Id. at 91-95.) The district court 

rejected these claims, and the panel of this Court affirmed. Free Speech v. FEC, 720 

F.3d 788, 790-91, 793-98 (10th Cir. 2013). Free Speech’s petition does not even attempt 

to identify any conflict between these portions of the panel’s decision and any precedent 

of the Supreme Court or this Court, nor does the petition present any independent 

argument as to why rehearing en banc would be appropriate for either of these issues. 

(See Pet. at 9 n.3.) 

2

 The panel’s decision adopting the district court’s opinion, along with the adopted 

opinion itself, are collectively referred to herein as the panel opinion. 

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standard that applies to limitations on political speech. Id. at 792-93. The panel 

explained that the question in this case “is not whether [Free Speech] can make 

expenditures for the speech it proposes or raise money without limitation, but simply 

whether it must provide disclosure of its electoral advocacy.” Id. at 792. Relying on 

Citizens United v. FEC, 558 U.S. 310, 366-67 (2010), and New Mexico Youth Organized 

v. Herrera, 611 F.3d 669, 676 (10th Cir. 2010) — both of which applied the lower 

“exacting scrutiny” standard to disclosure provisions — the panel stated that “exacting 

scrutiny” was the proper standard “to determine whether the regulations and policies at 

issue are constitutional.” Free Speech, 720 F.3d at 793. 

Applying that standard, the panel rejected Free Speech’s constitutional challenges 

and upheld the regulation and policies at issue, explaining that each served the need “to 

provide the electorate with information and to insure that the voters are fully informed 

about the person or group who is speaking.” Id. at 798 (citing Citizens United, 130 S. Ct. 

at 915). The panel concluded that the challenged regulation and policies are “essential 

components to narrowly, but effectively identifying those entities, ads and solicitations 

that fall within the FEC’s . . . disclosure requirements” — requirements that the decision 

noted are “essential and necessary to enable informed choice in the political 

marketplace.” Id.

Regarding PAC status specifically, the panel noted that although “‘Buckley did 

create the major purpose test, it did not mandate a particular methodology for 

determining an organization’s major purpose.’” Id. at 797 (quoting RTAA, 681 F.3d at 

556). Indeed, the panel observed, “‘[t]he determination of whether the election or defeat 

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of federal candidates for office is the major purpose of an organization, and not simply a

major purpose, is inherently a comparative task.’” Id. (quoting RTAA, 681 F.3d at 556). 

The panel therefore agreed with the Fourth Circuit and the Commission that the majorpurpose determination requires a “‘fact-intensive analysis,’” and is “‘incompatible with a 

one-size-fits-all rule.’” Id. at 797 (quoting RTAA, 681 F.3d at 556; 72 Fed. Reg. at 5601). 

Accordingly, the panel upheld the Commission’s “‘sensible’” and “‘flexibl[e] . . . caseby-case’” method of determining an organization’s major purpose. Id. at 797-98 (quoting 

RTAA, 681 F.3d at 558; 72 Fed. Reg. at 5601). 

ARGUMENT 

Free Speech has failed to demonstrate that this case warrants the “extraordinary 

procedure” of en banc rehearing. See Fed. R. App. P. 35(a)-(b); 10th Cir. R. 35.1. Free 

Speech’s petition strives to manufacture conflict between the panel’s unanimous decision 

and other precedent by relying on an assemblage of generalities about the importance of 

speech. Amid these abstractions, however, Free Speech fails to concretely identify any 

actual conflict. To the contrary, because the panel’s decision faithfully adheres to all of 

the precedents cited in Free Speech’s petition, “the asserted conflict . . . is not present.” 

AG Servs. of Am., Inc. v. Nielsen, 235 F.3d 559, 560 (10th Cir. 2000) (denying petition 

for rehearing en banc). Free Speech has failed to present any reason for the Court to 

rehear this case en banc. 

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I. THE PANEL CORRECTLY FOLLOWED CONTROLLING PRECEDENT 

BY APPLYING EXACTING SCRUTINY 

There is no speech restriction at issue here: Nothing in FECA or the 

Commission’s regulations prevents Free Speech from engaging in unlimited political 

activity. Rather, “[the] challenged rules and policies implement only disclosure 

requirements,” Free Speech, 720 F.3d at 792, by determining whether some of Free 

Speech’s activities trigger mandatory disclosure. As the Supreme Court has held, such 

requirements “‘impose no ceiling on campaign-related activities,’” and, contrary to Free 

Speech’s rhetoric, “‘do not prevent anyone from speaking.’” Citizens United, 558 U.S. at 

366 (quoting Buckley, 424 U.S. at 64; McConnell v. FEC, 540 U.S. 93, 201 (2003)) 

(emphasis added); see also Free Speech, 720 F.3d at 792 (quoting Citizens United). 

Indeed, this Court and numerous others have specifically recognized that the obligations 

attendant upon PAC status do not “limit the amount of speech a group may undertake.” 

Herrera, 611 F.3d at 676 (citing Buckley, 424 U.S. at 64); see also RTAA, 681 F.3d at 

548-49; Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 486-91 (7th Cir. 2012); 

Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 55-57 (1st Cir. 2011), cert. denied, 132 

S. Ct. 1635 (2012); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1003-05 (9th 

Cir. 2010), cert. denied, 131 S. Ct. 1477 (2011); SpeechNow, 599 F.3d at 698. 

The Supreme Court has consistently held that the standard for assessing 

“[d]isclaimer and disclosure requirements” under the First Amendment is “‘exacting 

scrutiny,’ which requires a ‘substantial relation’ between the disclosure requirement and a 

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

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(citing Buckley, 424 U.S. at 64, 66; McConnell, 540 U.S. at 231-232). This Court has 

reached the same conclusion, Herrera, 611 F.3d at 672-73, 676 (holding that state 

regulations defining and governing political committees “require disclosure” and 

accordingly “must pass ‘exacting scrutiny’”), and so have the other courts of appeals that 

have addressed the issue since Citizens United, see, e.g., RTAA, 681 F.3d at 555, 558 

(applying exacting scrutiny to uphold Commission’s method of determining PAC status); 

McKee, 649 F.3d at 56-70; Brumsickle, 624 F.3d at 1003-19; SpeechNow, 599 F.3d at 

698; Madigan, 697 F.3d at 477; Worley v. Florida Secretary of State, 717 F.3d 1238, 

1245 (11th Cir. 2013). 

The panel and the district court explicitly “applie[d] exacting scrutin[y] to 

determine whether the regulations and policies at issue are constitutional.” Free Speech, 

720 F.3d at 793. Free Speech faults the panel for supposedly failing to apply the “correct 

precedential standards” (Pet. at 13), but Free Speech cites no case in which the Supreme 

Court or this Court has applied a standard other than exacting scrutiny to political 

disclosure provisions. Instead, Free Speech relies on generalized assertions that “First 

Amendment freedoms” are “cherished” and “‘delicate and vulnerable,’” and therefore 

that “heightened standards” are warranted. (Id. at 7, 12.) Such bland abstractions do not 

demonstrate that the panel erred by applying the standard mandated by Supreme Court 

and Tenth Circuit precedent. 

Free Speech also argues that even if exacting scrutiny is the appropriate standard, 

the panel “appl[ied] a relaxed level of exacting scrutiny.” (Pet. at 4 (emphasis added).) 

The panel did no such thing. It correctly held that exacting scrutiny requires that the 

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disclosure requirement bear a “‘substantial relation’” to an “‘important governmental 

interest.’” Free Speech, 720 F.3d at 792-93 (quoting Citizens United, 130 S. Ct. at 914). 

The panel held that the disclosure requirements at issue — including the Commission’s 

method of applying the major-purpose test — are not only substantially related, but 

actually “essential,” to “narrowly[] but effectively identifying those entities” falling 

within FECA’s disclosure requirements. Id. at 798. Those requirements, in turn, 

“provide the transparency” that is “essential and necessary to enable informed choice in 

the political marketplace.” Id. (citing Citizens United, 130 S. Ct. at 917); see also 

Buckley, 424 U.S. at 68 (holding that FECA’s disclosure requirements for PACs “directly 

serve substantial governmental interests”); SpeechNow, 599 F.3d at 698 (holding that 

PAC disclosure furthers public’s “interest in knowing who is speaking about a candidate 

and who is funding that speech,” and “deters and helps expose violations of other 

campaign finance restrictions, such as those barring contributions from foreign 

corporations or individuals”). The panel therefore held that the Commission’s 

application of the major-purpose test satisfied the Supreme Court’s exacting-scrutiny 

standard by being substantially related to these important governmental interests.3

 

Nothing about the panel’s faithful application of the proper level of scrutiny remotely 

warrants en banc review. 

                                                           

3

 The same is true with respect to the resolution of Free Speech’s challenges to other 

disclosure triggers: The panel applied exacting scrutiny and found that they are 

“necessary to provide the electorate with information and to insure that the voters are 

fully informed about the person or group who is speaking.” Free Speech, 720 F.3d at 

798; see also id. at 796 (explaining that disclosure requirements for solicitations serve 

important First Amendment values by clarifying who is speaking). 

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II. THE PANEL’S DECISION DOES NOT CONFLICT WITH BUCKLEY, 

MCFL, CITIZENS UNITED, OR ANY DECISION OF THIS COURT 

Free Speech asserts that the panel’s decision calls into question whether “citizens 

may still rely on the doctrinal protection of political speech found in Buckley, MCFL, and 

Citizens United.” (Pet. at 7.) Yet Free Speech fails to identify any way in which the 

panel ignored or contravened the “protection of political speech” mandated by these cases 

or by any decision of this Court. That is because the panel did nothing of the sort. 

First, the panel properly concluded that the Commission’s application of the 

major-purpose test is consistent with Buckley. “‘Although Buckley did create the major 

purpose test, it did not mandate a particular methodology for determining an 

organization’s major purpose.’” Free Speech, 720 F.3d at 797 (quoting RTAA, 681 F.3d 

at 556). Because assessing which of a group’s purposes is its major purpose “‘is 

inherently a comparative task,’” the Commission has the discretion to determine PAC 

status “‘either through categorical rules or through individualized adjudications.’” Id.

(quoting RTAA, 681 F.3d at 556) (emphasis added). To make that assessment, the 

Commission consults sources such as the group’s public statements, government filings, 

charters, and bylaws. See 72 Fed. Reg. at 5601, 5605 (describing sources). All three 

courts to have considered this methodology (including the panel of this Court) have 

upheld it as a lawful implementation of Buckley. Shays, 511 F. Supp. 2d at 29-31; RTAA, 

681 F.3d at 558; Free Speech, 720 F.3d at 797-98. 

Free Speech does not articulate any error in these holdings, much less identify a 

specific conflict between the panel’s holding and Buckley. Instead, Free Speech relies on 

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generalized abstractions, see supra p. 9, and attempts to caricature the Commission’s 

approach as permitting roving application of PAC requirements to “every coffee klatch.” 

(Pet. at 9-10.)4

 But “[t]he necessity of a contextual inquiry is supported by judicial 

decisions applying the major purpose test, which have used the same fact-intensive 

analysis that the Commission has adopted.” RTAA, 681 F.3d at 557 (collecting cases).5

 

Even Free Speech has conceded that it is “undoubtedly true that in conducting the major 

purpose analysis, fact-intensive inquiries are often appropriate.” (App. 47, 49.) Thus, 

there is no support for Free Speech’s claim that the panel’s upholding of the 

Commission’s case-by-case approach to the major-purpose test permits overbroad 

application of FECA’s disclosure requirements or otherwise conflicts with Buckley. 

Second, Free Speech’s assertion that the panel’s decision conflicts with the 

discussions of PAC burdens in Citizens United and MCFL is entirely misguided. Those 

cases involved direct speech restrictions, i.e., statutes that banned corporate 

electioneering but permitted corporations to finance political advocacy through PACs. In 

                                                           

4

 Free Speech invokes “the still-ongoing Internal Revenue Service controversy” as 

demonstrating “the evils of unfettered disclosure,” (Pet. at 7 n.2), but IRS actions bear no 

connection to the law or facts of the case at hand. Free Speech once again lacks “factual 

support” for its “conclusory assertions.” Free Speech, 720 F.3d at 790 n.1. 

5

 As the Commission explained when it reaffirmed its case-by-case approach, these 

judicial decisions, along with administrative matters in which the Commission has 

analyzed a group’s major purpose, “provide considerable guidance to all organizations” 

regarding how the Commission applies the major-purpose test. See 72 Fed. Reg. at 5595, 

5605-06. This guidance belies Free Speech’s assertion (Pet. at 5) that the Commission 

has simply left Free Speech’s PAC status “to the best guesses” of its members. Cf.

RTAA, 681 F.3d at 557 (rejecting argument that major-purpose test requires “bright-line” 

rule). In any event, whether or not Free Speech would qualify as a PAC has no bearing 

on its ability to engage in unlimited electoral speech. See supra p. 8. 

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both cases, the Supreme Court described speaking through a corporate PAC as a 

burdensome alternative to speaking directly with corporate treasury funds. See Citizens 

United, 558 U.S. at 337; MCFL, 479 U.S. at 253. That context is “significantly different” 

(RTAA, 681 F.3d at 549) from the one facing political organizations like Free Speech — 

entities that, after Citizens United and SpeechNow, can directly finance advocacy for and 

against candidates and receive unlimited contributions to do so. See RTAA, 681 F.3d at 

549 (explaining that Citizens United addressed PAC status only as to “the burden . . . on 

the corporation’s own speech” and did not call into question “PAC disclosure 

requirements”); McKee, 649 F.3d at 56 (distinguishing Citizens United and MCFL as 

involving statutes that “condition[ed] political speech on the creation of a separate 

organization or fund,” not disclosure requirements). Indeed, Citizens United expressly 

upheld disclosure requirements for independent electoral advertising (like Free Speech’s), 

see 558 U.S. at 366-71, and the disclosure obligations for PACs do not “impose much of 

an additional burden” beyond the requirements Citizens United upheld, SpeechNow, 599 

F.3d at 697-98. The en banc D.C. Circuit in SpeechNow accordingly relied on Citizens 

United in upholding PAC disclosure requirements as applied to independent-expenditureonly groups like Free Speech, observing that the additional reporting requirements that 

are triggered for groups qualifying as PACs are “minimal,” and “the public has an 

interest in knowing who is speaking about a candidate and who is funding that speech.” 

Id. at 696-98; see also RTAA, 681 F.3d at 558. The panel’s decision is therefore of a 

piece with the First, Fourth, and D.C. Circuit’s holdings that mandatory PAC disclosure 

is consistent with Citizens United and MCFL. Free Speech demonstrates no error in any 

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of these holdings — much less in all of them — and en banc review is not warranted to 

further examine this uniform case law. 

Finally, contrary to Free Speech’s assertions (Pet. at 1, 4, 11), the panel’s 

upholding of the Commission’s approach to determining PAC status is also consistent 

with this Court’s decisions in Colorado Right To Life Comm., Inc. v. Coffman, 498 F.3d 

1137 (10th Cir. 2007), and Herrera. Coffman and Herrera struck down state statutes 

that, unlike the federal policy challenged by Free Speech, defined groups as PACs based 

solely on their meeting an expenditure threshold, without any consideration of their major 

purpose. Coffman, 498 F.3d at 1153; Herrera, 611 F.3d at 673. In describing the majorpurpose requirement missing from these state provisions, Coffman and Herrera noted the 

Supreme Court’s endorsement of “two methods to determine an organization’s ‘major 

purpose’: (1) examination of the organization’s central organizational purpose; or

(2) comparison of the organization’s independent [express advocacy] spending with 

overall spending.” Coffman, 498 F.3d at 1152 (citing MCFL, 479 U.S. at 252 n.6); 

Herrera, 611 F.3d at 677-78 (citing Coffman). Because the Commission determines a 

group’s major purpose by analyzing each “organization’s central organizational purpose,” 

the Commission’s approach conforms not only with these decisions, but also with MCFL 

and every other decision cited by Free Speech. 

Appellate Case: 13-8033 Document: 01019118972 Date Filed: 09/03/2013 Page: 18 
15 

CONCLUSION 

For the foregoing reasons, the Court should deny Free Speech’s petition. 

Respectfully submitted, 

 

Lisa J. Stevenson 

Deputy General Counsel – Law 

 Kevin Deeley 

 Adav Noti 

 Acting Associate General Counsels 

 Erin Chlopak 

Acting Assistant General Counsel 

 s/ Charles Kitcher 

Charles Kitcher 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

 Washington, D.C. 20463 

September 3, 2013 (202) 694-1650 

Appellate Case: 13-8033 Document: 01019118972 Date Filed: 09/03/2013 Page: 19 
CERTIFICATE OF DIGITAL SUBMISSION 

I certify that no privacy redactions were required for this response and that the 

digital ECF version of the foregoing is an exact copy of the written document filed with 

the Clerk of the Court. I further certify that the digital submission has been scanned for 

viruses with the most recent version of McAfee VirusScan Enterprise Version 8.7i 

(updated September 3, 2013), a commercial virus scanning program, and according to the 

program, the digital submission is virus-free. 

s/ Charles Kitcher 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, D.C. 20463 

 

Appellate Case: 13-8033 Document: 01019118972 Date Filed: 09/03/2013 Page: 20 
CERTIFICATE OF COMPLIANCE 

This brief complies with the page limitation of Fed. R. App. P. 35(b)(2) that 

applies to petitions for rehearing en banc, because the response is limited to 15 pages in 

length and uses the typeface Microsoft Word 13-point Times New Roman. 

s/ Charles Kitcher 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, D.C. 20463 

 

Appellate Case: 13-8033 Document: 01019118972 Date Filed: 09/03/2013 Page: 21 
CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of September 2013, I caused Appellee’s 

Response to Petition for Rehearing En Banc in Free Speech v. FEC, No. 13-8033, to be 

filed with the Clerk of the Court by the electronic CM/ECF System, thereby effectuating 

service on the following: 

Benjamin Barr 

10737 Hunting Ln. 

Rockville, MD 20850 

(202) 595-4671 

Benjamin.barr@gmail.com 

Stephen Klein 

Wyoming Liberty Group 

1902 Thomes Ave. 

Suite 201 

Cheyenne, WY 82001 

(307) 632-7020 

Stephen.klein@wyliberty.org 

Jack Speight 

4021 Snyder Ave. 

Cheyenne, WY 82001 

(307) 635-1239 

jbspeight@gmail.com 

 I further certify that I caused 12 copies to be delivered to the Clerk of the Court by 

UPS Next Day Air Delivery. 

s/ Charles Kitcher 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, D.C. 20463 

Appellate Case: 13-8033 Document: 01019118972 Date Filed: 09/03/2013 Page: 22