ORAL ARGUMENT SCHEDULED: May 7, 2013 

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) 

_______________________________________________ 

SUPPLEMENTAL BRIEF FOR 

APPELLEE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

ANTHONY HERMAN 

General Counsel 

 

LISA J. STEVENSON 

Deputy General Counsel – Law 

KEVIN DEELEY 

Acting Associate General Counsel 

 ERIN CHLOPAK 

Acting Assistant General Counsel 

Federal Election Commission 

999 E Street, N.W. 

 Washington, D.C. 20463 

April 11, 2013 (202) 694-1650 

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The district court correctly dismissed Free Speech’s constitutional challenge to the 

Federal Election Commission’s regulation of federal election campaign activity and 

campaign-related public disclosures by groups like Free Speech. Although Free Speech 

has endlessly repeated that the challenged regulation and two policies “ban” or 

“suppress” its speech, the district court properly rejected these inaccurate and hyperbolic 

characterizations. As the district court held, the question presented by Free Speech’s 

lawsuit “is not whether Plaintiff can make expenditures for the speech it proposes or raise 

money without limitation, but simply whether it must provide disclosure of its electoral 

advocacy.” (App. 562-63.) And applying exacting scrutiny — as defined by the 

Supreme Court and this Court rather than as redefined by Free Speech — the district 

court concluded correctly that each of Free Speech’s constitutional challenges fails to 

state a claim for relief. The district court’s judgment in favor of the Commission should 

be affirmed. 

Supplemental Factual and Procedural Background 

Free Speech filed its original complaint and preliminary-injunction motion on June 

14, 2012, and its amended complaint on July 26. (App. 3, 4, 63.) The lawsuit challenged 

the constitutionality of (1) the Commission’s regulatory definition of the statutory term 

“expressly advocating”; (2) the Commission’s method for determining whether an entity 

is a “political committee”; and (3) the Commission’s policy for determining whether a 

request for donations solicits regulable “contributions.” (App. 85-96.) Free Speech 

alleged that the challenged regulation and policies prevented it from distributing certain 

political advertisements anonymously, without registering as a political committee or 

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complying with federal campaign-finance disclosure requirements, and from soliciting 

donations to finance additional advertisements. (App. 67-68, 70-71, 78-79.) 

All of Free Speech’s proposed advertisements and donation requests concerned the 

November 2012 federal election; all but two of the proposed communications discussed 

the presidential election. (App. 103-05, 118-21, 359.) Free Speech has thus asserted that 

its communications “mattered most” in the period before that election, when it could still 

“persuade . . . voters,” (Appellant’s Reply Br. 6-7 (internal quotation marks omitted)), 

and that its proposed communications are no longer “‘meaningful’” now, five months 

after that election (see Appellee’s Br. 59 n.19 (quoting Appellant’s Motion for 

Emergency Injunction on Appeal (Oct. 24, 2012)).1

 Free Speech also has alleged “plans 

to speak about related issues as they arise beyond November as well” and “inten[tions] to 

raise funds to run these additional advertisements in the future well beyond the 2012 

election cycle.” (App. 67-68.) Free Speech has not revealed any further details about 

any intended future communications. 

On September 24, 2012, the Commission moved to dismiss the case under Federal 

Rule of Civil Procedure 12(b)(6), because none of Free Speech’s constitutional 

challenges states a plausible claim for relief. On October 3, while the Commission’s 

motion to dismiss was pending, the district court denied Free Speech’s preliminary-

                                                           

1

 In its advisory opinion issued to Free Speech on May 8, 2012, the Commission 

unanimously concluded that four of Free Speech’s 11 proposed advertisements were not

express advocacy and that two of its four proposed donation requests were not

solicitations. (App. 282, 286-88, 290-91.) When Free Speech filed its complaint more 

than two months later, it did not include in the record whether it had ever distributed any 

of those six communications. 

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injunction motion, and Free Speech filed an interlocutory appeal of that decision. Before 

the argument on Free Speech’s interlocutory appeal to this Court, however, the district 

court on March 19, 2013, granted the Commission’s motion to dismiss Free Speech’s 

complaint and, on March 21, rendered judgment in favor of the Commission. On March 

25, Free Speech appealed that final judgment. 

The district court’s judgment in favor of the Commission rendered moot Free 

Speech’s interlocutory appeal of the preliminary-injunction decision, which this Court 

accordingly terminated on April 1, 2013. Because the appeals of the district court’s 

interlocutory and final decisions arise out of common facts and present the same 

constitutional questions, however, the parties jointly asked the Court to transfer to this 

appeal of the district court’s dismissal order (Docket No. 13-8033) the parties’ briefing 

filed in the now-terminated preliminary-injunction appeal (Docket No. 12-8078). On 

April 1, this Court granted that request and ordered the parties to submit simultaneous 

briefs addressing, inter alia, what issues remain for the Court’s consideration. The 

Commission thus notes that its analyses in its appellate brief (Appellee’s Br. Parts III-IV) 

of irreparable harm, the balance of harms resulting from an injunction, and whether a 

preliminary injunction would be adverse to the public interest are generally not relevant 

to the question on this appeal of the district court’s order dismissing the case. The 

Commission’s discussion of Free Speech’s failure to allege that the challenged 

requirements are unduly burdensome (Appellee’s Br. 57-58) is relevant, however, to the 

constitutional analysis of those requirements, see infra p. 9. 

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Questions Presented 

This appeal asks whether the district court properly dismissed Free Speech’s 

constitutional challenges to (1) a Commission regulation, 11 C.F.R. § 100.22(b), that 

defines the statutory term “expressly advocating,” 2 U.S.C. § 431(17)(A); (2) the 

Commission’s method for determining whether an entity is a “political committee,” 

including the Commission’s method of determining an entity’s “major purpose”; and 

(3) the Commission’s policy for determining whether a request for donations is a 

regulable “solicitation” for “contributions” under 2 U.S.C. § 441d(a). 

The Commission extensively briefed Free Speech’s likelihood of success 

regarding these constitutional questions in connection with the preliminary-injunction 

appeal. (Docket No. 12-8078.) As the Commission’s prior briefing shows, and this brief 

underscores, the district court properly dismissed the underlying case under Federal Rule 

of Civil Procedure 12(b)(6). 

Standard of Review 

A complaint should be dismissed under Rule 12(b)(6) if it fails to “state a claim to 

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 

quotation marks omitted). In considering whether a plaintiff’s factual allegations 

“plausibly suggest entitlement to relief,” this Court has recognized that “‘mere 

conclusory statements[] do not suffice . . . [and] are not entitled to the assumption of 

truth.’” Hall v. Witteman, 584 F.3d 859, 863 (10th Cir. 2009) (quoting Iqbal, 556 U.S. at 

679). This Court reviews the dismissal of a complaint under Rule 12(b)(6) de novo. 

Hall, 584 F.3d at 863. 

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Supplemental Arguments 

The Commission’s appellate brief explains why the district court correctly 

resolved each legal question in this case in favor of the Commission. The court properly 

defined and applied exacting scrutiny to each of Free Speech’s constitutional challenges, 

while rejecting Free Speech’s conclusory characterizations of law and fact. In addition to 

the arguments set forth in the Commission’s appellate brief, the following points are 

relevant to this Court’s review of the district court’s dismissal of the case. 

1. The district court correctly defined and applied exacting scrutiny “to 

determine whether the regulations and policies at issue are constitutional.” (App. 

563; see Appellant’s Br. 8 (acknowledging that exacting scrutiny applies to “each area of 

substantive election law” that Free Speech challenges).) As the Supreme Court and this 

Court and many other federal courts of appeals have recognized, a law mandating 

campaign-finance disclosure survives exacting scrutiny if there is “a ‘substantial relation’ 

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

Citizens United v. FEC, 130 S. Ct. 876, 914 (2010); see also New Mexico Youth 

Organized v. Herrera, 611 F.3d 669, 676 (10th Cir. 2010) (same); Appellee’s Br. 22 

(collecting cases from other circuits). This “exacting scrutiny” scrutiny standard applies 

to various campaign-finance disclosure requirements, including registration and reporting 

requirements for political committees. Herrera, 611 F.3d at 676; see also, e.g., Ctr. for 

Individual Freedom v. Madigan, 697 F.3d 464, 484 (7th Cir. 2012); Real Truth About 

Abortion, Inc. v. FEC, 681 F.3d 544, 555, 558 (4th Cir. 2012), cert. denied, 133 S. Ct. 

841 (2013) (“RTAA”); Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 56-70 (1st Cir. 

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2011) , cert. denied, 132 S. Ct. 1635 (2012); Human Life of Wash. Inc. v. Brumsickle, 624 

F.3d 990, 1003-19 (9th Cir. 2010), cert. denied, 131 S. Ct. 1477 (2011); SpeechNow.org 

v. FEC, 599 F.3d 686, 696-98 (D.C. Cir. (en banc)), cert. denied, 131 S. Ct. 553 (2010). 

Despite the weight of recent authority, including from the Supreme Court and this 

Court, Free Speech erroneously asks this Court not to “differentiat[e]” between strict and 

exacting scrutiny because decades ago, courts “considered strict and exacting scrutiny as 

synonymous.” (Appellant’s Reply Br. 9 (asserting incorrectly that exacting scrutiny of 

disclosure requirements demands consideration of whether a “compelling” government 

interest may be satisfied by “less restrictive means”); see Appellee’s Br. 22-23 

(distinguishing between strict and exacting scrutiny).) 

 This argument is plainly unavailing – and contrary to the law of this Circuit. In 

Herrera, this Court recognized that regulations imposing political committee status on 

certain groups “require disclosure, thus distinguishing them from regulations that limit 

the amount of speech a group may undertake.” 611 F.3d at 676. And the Court 

explained that such regulations “must pass ‘exacting scrutiny,’” id. (emphasis added; 

citing Buckley, 424 U.S. 1, 64 (1976)), which “‘requires a substantial relation between the 

disclosure requirement and a sufficiently important governmental interest.’” Id. (internal 

quotation marks omitted; quoting Doe v. Reed, 130 S. Ct. 2811, 2818 (2010)). 

Free Speech’s argument likewise defies Citizens United, in which the Supreme 

Court explicitly refused to import its strict-scrutiny analysis of a prohibition on 

independent expenditures into its exacting scrutiny of laws that require campaign-finance 

disclosures. 130 S.Ct. at 915. 

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2. Free Speech’s conclusory characterizations of law and fact should not 

be credited in reviewing the district court’s dismissal of Free Speech’s complaint. 

Such “‘conclusory statements[] do not suffice . . . [and] are not entitled to the assumption 

of truth.’” Hall, 584 F.3d at 863 (quoting Iqbal, 556 U.S. at 679). Free Speech’s 

complaint, like its legal briefs, is larded with sweeping, inaccurate characterizations of 

both law and fact. These characterizations have included erroneous portrayals of various 

court decisions including the Supreme Court’s decision in Citizens United and the Fourth 

Circuit’s decision in RTAA (see App. 425-26 & n.11, 430 n.15, 431-32, 433 n.17; 

Appellee’s Br. 48 n.18); repeated mischaracterizations of the draft advisory opinion with 

which Free Speech disagrees (see App. 434-36, 451-52; Appellee’s Br. 30); the emphatic 

— but inaccurate — claim that Commissioners reached “‘diametrically opposed 

conclusions regarding most of Free Speech’s ads’” (see Appellee’s Br. 29 n.8 (emphasis 

added; quoting Appellant’s Br. 11)); misleading descriptions of the Commission’s 

advisory-opinion process (see App. 423 n.7, 424 n.10); and inaccurate descriptions of the 

Commission’s enforcement process and various administrative enforcement matters (see 

App. 441-43, 446 n.28; Appellee’s Br. 37-38, 46 n.16).2

 

                                                           

2

 More recently, Free Speech inaccurately described the Commission’s vote on a 

request for an advisory opinion in another matter as “splintered . . . about whether the 

term ‘Obamacare’ constituted a reference to a candidate.” (Appellant’s Reply Br. 19 

(purporting to describe FEC Advisory Opinion 2012-19).) In fact, a majority of the 

Commission agreed that under the Commission’s regulations, it did. See FEC Advisory 

Opinion 2012-19 at 3-4 (American Future Fund) (concluding that advertisement 

repeatedly discussing “Obamacare” “includes multiple references to a clearly identified 

Federal candidate and, therefore, is an electioneering communication”), available at 

http://saos.nictusa.com/aodocs/AO%202012-19.pdf. Free Speech’s Reply Brief also 

misleadingly cites Shays v. FEC, in which the district court upheld the Commission’s 

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Most fundamentally, Free Speech hyperbolically and wrongly insists that the 

regulation and policies it challenges prohibit, penalize, proscribe, censor, muzzle, or 

otherwise suppress its speech. (Compare, e.g., Appellant’s Br. 14, 33; Appellant’s Reply 

Br. 2, 3, 13, 19; App. 15, 20, 23, 25, 26, 34, 35, 54, with Appellee’s Br. 55-56.) Free 

Speech’s charges that the challenged rules are a “comprehensive system of speech 

censorship, intimidation, and vagary” (App. 20) that “completely muzzle[] a wide array 

of protected First Amendment activity as effectively as any speech ban” (App. 25), and 

that the Commission “act[s] as a national censor of political speech” (App. 15) and its 

“mission [is] to capture more speech” (Appellant’s Reply Br. 19), are simply fatuous. 

(Appellant’s Reply Br. 19). The district court correctly rejected these inaccurate and 

rhetorically charged labels in concluding that the challenged regulation and policies, as 

implicated in this case, “implement only disclosure requirements.” (App. 562.) For the 

same reasons, Free Speech’s latest effort to spin its censorship argument — through an 

extended discussion of a different agency’s enforcement of rules that actually prohibited 

                                                                                                                                                                                               

case-by-case approach to determining a group’s major purpose. Compare Appellant’s 

Reply Br. 26 (asserting that court in Shays v. FEC “warned of First Amendment 

problems” with case-by-case approach to major purpose test), with Shays v. FEC, 511 F. 

Supp. 2d 19, 29-31 (D.D.C. 2007) (upholding case-by-case approach to major purpose 

test). 

That brief is further misleading when it makes the sweeping assertion that “three 

gentlemen from Wyoming who dare spend more than $2,000 for a newspaper 

advertisement criticizing the government while discussing their views may be jailed if 

they elect not to register with the government beforehand” (Appellant’s Reply Br. 12), 

and when it purports to respond to an argument the Commission has never made that 

“there is no need for the major purpose test and any and all groups that engage in any sort 

of political activity may be required to register and report” (id. at 25). These statements, 

like many of Free Speech’s assertions, are just plain false. 

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certain speech (see Appellant’s Reply Br. 15-18 (discussing Federal Communications

Commission’s enforcement of indecency rules)) — is, of course, completely off point. 

3. Free Speech has failed to allege specific facts demonstrating that 

complying with political-committee registration and reporting requirements would 

be unduly burdensome. (See Appellee’s Br. 57-58 (discussing, in context of irreparable 

harm analysis, Free Speech’s failure to allege burdens of complying with politicalcommittee registration and reporting requirements).) Its conclusory and unsupported 

claims that the burdens of compliance are “heavy” or “complicated” (Appellant’s Reply 

Br. 24), are insufficient. Hall, 584 F.3d at 863. 

Moreover, Free Speech’s willingness to accept foreign contributions to finance its 

communications is entirely irrelevant. (See Appellant’s Reply Br. 23 (arguing incorrectly 

that an interest in accepting foreign contributions “furthers Free Speech’s argument that 

PAC status is burdensome”).) As Free Speech recognizes, the Federal Election 

Campaign Act categorically prohibits foreign nationals from financing independent 

expenditures or electioneering communications (id. (citing 2 U.S.C. § 441e)); thus, Free 

Speech would face the same “risk” if it financed such communications with foreign 

contributions regardless of whether it is a political committee. 

 

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CONCLUSION 

For these reasons and those detailed in the Commission’s appellate brief, the 

district court’s judgment dismissing this case should be affirmed. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

Lisa J. Stevenson 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak 

Acting Assistant General Counsel 

Federal Election Commission 

999 E Street, N.W. 

Washington, D.C. 20463 

April 11, 2013 (202) 694-1650

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CERTIFICATE OF DIGITAL SUBMISSION 

I certify that no privacy redactions were required for this Brief 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, a 

commercial virus scanning program, and according to the program, the digital submission 

is virus-free. 

s/ Erin Chlopak

Erin Chlopak 

 Acting Assistant General Counsel 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Appellate Case: 13-8033 Document: 01019034493 Date Filed: 04/11/2013 Page: 12 
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume requirements set forth in the Court’s 

Order issued in this case on April 1, 2013, because the brief is limited to 10 pages in 

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

s/ Erin Chlopak

Erin Chlopak 

 Acting Assistant General Counsel 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Appellate Case: 13-8033 Document: 01019034493 Date Filed: 04/11/2013 Page: 13 
CERTIFICATE OF SERVICE 

I hereby certify that on this 11th day of April 2013, I caused appellee 

Federal Election Commission’s supplemental brief 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 7 copies to be delivered to the Clerk of the Court by 

UPS Next Day Air Delivery. 

s/ Erin Chlopak

Erin Chlopak 

 Acting Assistant General Counsel 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

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