No. 12-8078 

 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

FREE SPEECH, 

Plaintiff-Appellant,

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

 

On Appeal from the United States District Court for the 

District of Wyoming (Judge Scott W. Skavdahl) 

 

BRIEF AMICI CURIAE FOR CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 IN SUPPORT OF DEFENDANT-APPELLEE 

AND URGING AFFIRMANCE 

 

Fred Wertheimer 

DEMOCRACY 21 

2000 Massachusetts Avenue, N.W. 

Washington, D.C. 20036 

(202) 429-2008 

Donald J. Simon 

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP 

1425 K Street, N.W., Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Counsel for Amici Curiae

 

J. Gerald Hebert* 

Tara Malloy 

Paul S. Ryan 

THE CAMPAIGN LEGAL CENTER

215 E Street, N.E. 

Washington, D.C. 20002 

(202) 736-2200 

Larry B. Jones 

SIMPSON, KEPLER & EDWARDS, LLC 

The Cody, Wyoming Division of

BURG SIMPSON ELDREDGE HERSH &

JARDINE, P.C. 

1135 14th Street, P.O. Box 490 

Cody, WY 82414 

(307) 527-7891 

Counsel for Amici Curiae 

*Counsel of Record 

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CORPORATE DISCLOSURE STATEMENT 

The Campaign Legal Center is a non-profit organization organized under 

Section 501(c)(3) of the Internal Revenue Code. The Campaign Legal Center 

neither has a parent corporation nor issues stock. There are no publicly held 

corporations that own ten percent or more of the stock of The Campaign Legal 

Center. 

Democracy 21 is a non-profit organization organized under Section 

501(c)(3) of the Internal Revenue Code. Democracy 21 neither has a parent 

corporation nor issues stock. There are no publicly held corporations that own ten 

percent or more of the stock of Democracy 21. 

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TABLE OF CONTENTS 

CORPORATE DISCLOSURE STATEMENT ..................................................... i 

TABLE OF AUTHORITIES ................................................................................ iv 

STATEMENT OF RELATED CASES ............................................................... vii 

GLOSSARY ........................................................................................................... vii 

STATEMENT OF INTEREST .............................................................................. 1 

INTRODUCTION AND SUMMARY OF ARGUMENT ................................... 1 

ARGUMENT ........................................................................................................... 5 

I. The Challenged Rules All Pertain to Disclosure, and Thus Are 

Reviewed Under “Exacting Scrutiny.” ...................................................... 5 

A. The Challenged Rules Implement Only Disclosure 

Requirements. .................................................................................. 5 

B. Plaintiff’s Attempts to Distinguish Between “Political 

Committee” Disclosure and Other Forms of Disclosure Are 

Unavailing. ...................................................................................... 6 

II. The Definition of “Expressly Advocating” at Section 100.22(b) Is 

Indistinguishable From the WRTL “Functional Equivalent” Test and 

Is Constitutional. ..................................................................................... .11 

A. The Constitutionality of the Subpart (b) Definition of 

“Expressly Advocating” Is Supported by McConnell, WRTL

and Citizens United. ...................................................................... 12 

B. Lower Court Decisions Following Citizens United Have 

Recognized the Validity of WRTL’s Test for the Functional 

Equivalent of Express Advocacy. ................................................. 20 

III. The FEC’s Methodology for Determining a Group’s “Major Purpose” 

Is Constitutional. ...................................................................................... 23 

CONCLUSION ...................................................................................................... 30 

CERTIFICATE OF DIGITAL SUBMISSION ..................................................... i 

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CERTIFICATE OF COMPLIANCE .................................................................... ii 

CERTIFICATE OF SERVICE ............................................................................. iii

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TABLE OF AUTHORITIES 

Cases: 

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004) ................................................... 14 

Buckley v. Valeo, 424 U.S. 1 (1976) ..................................................... 4, 7, 9, 12, 23 

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006) ....... 14 

Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876 (2010) ......................... passim 

Colorado Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 

2007) .................................................................................................................. 25, 28

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ..................................................... 13

FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996) ................................................. 29

FEC v. Malenick, 310 F. Supp. 2d. 230 (D.D.C. 2004) .......................................... 29 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ................ 9, 24-26, 28

FEC v. Wisconsin Right to Life (WRTL), 551 U.S. 449 (2007) .... 3, 6, 11, 14, 15, 16

Human Life of Washington v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) .......... 8, 16 

Maine Right to Life Cmte. v. FEC, 914 F. Supp. 8 (D. Maine 1996), aff’d per 

curiam, 98 F.3d 1 (1st Cir. 1996), cert. denied, 522 U.S. 810 (1997) .................... 14 

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................... passim 

Nat’l Org. For Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) ............................. 8 

National Organization for Marriage Inc. v. Sec. State of Fla., 753 F. Supp. 

2d 1217 (N.D. Fla. 2010), aff’d 2012 WL 1758607 (11th Cir. May 17, 2012) .. 8, 21 

New Mexico Youth Organized v. Herrera, 611 F.3d 669 

(10th Cir. 2010) ....................................................................................... 7, 19, 26, 28 

Real Truth About Abortion v. FEC, 681 F.3d 544 (2012) ............................... passim

Right to Life of Duchess Co., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 

1998) ........................................................................................................................ 14 

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Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ............................................. 28-29 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ...................................... 5, 6 

Statutes and Regulations: 

2 U.S.C. § 432 ................................................................................................... 5, 6, 7 

2 U.S.C. § 433 ................................................................................................... 5, 6, 7 

2 U.S.C. § 434(c) ....................................................................................................... 5 

2 U.S.C. § 434(f)(3) ............................................................................................ 7, 15 

2 U.S.C. § 434(a)(4) .......................................................................................... 5, 6, 7 

2 U.S.C. § 441a(a)(1) ................................................................................................ 6 

2 U.S.C. § 441a(a)(2) ................................................................................................ 6 

2 U.S.C. § 441b ................................................................................................ passim 

2 U.S.C. § 441b(b)(2) .......................................................................................... 9, 15 

2 U.S.C. § 441b(b)(4) ................................................................................................ 9 

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

Miscellaneous Resources: 

FEC Notice 2007-3, “Political Committee Status,” 72 Fed. Reg. 5595 (Feb. 

7, 2007) .................................................................................................................... 21 

FEC AO 2010-09 (Club for Growth) ........................................................................ 6 

FEC AO 2010-11 (Commonsense Ten) .................................................................... 6 

Free Speech AOR 2012-11 (February 29, 2012) ...................................................... 1 

FEC AO 2012-11, Draft B (April 11, 2012) ......................................................... 2, 4 

Editorial, The Toothless Watchdog FEC, Wash. Post, Dec, 29, 2012, 

available at http://articles.washingtonpost.com/2012-12-

29/opinions/36071872_1_recess-appointments-fec-campaign-finance .................. 18 

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Jonathan D. Salant, U.S. Federal Election Commission Deadlocks on 

Greater ’12 Donor Disclosure, Bloomberg (June 15, 2011, 4:13 PM), 

http://www.bloomberg.com/news/2011-06-15/u-s-federal-election-panelconsiders-increased-donor-disclosure-for-2012.html ............................................. 18 

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STATEMENT OF RELATED CASES 

There are no prior or related appeals to this case.

GLOSSARY 

AO - Advisory Opinion 

AOR - Advisory Opinion Request 

BCRA - Bipartisan Campaign Reform Act of 2002 

FEC or Commission - Federal Election Commission 

FECA - Federal Election Campaign Act 

PAC - Political Committee 

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STATEMENT OF INTEREST 

Amici curiae Campaign Legal Center and Democracy 21 are non-partisan, 

non-profit organizations that work to strengthen the laws governing campaign 

finance and political disclosure. Amici have participated in several of the Supreme 

Court cases underlying the claims herein, including McConnell v. FEC, 540 U.S. 

93 (2003), and Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876 (2010). Amici

thus have a demonstrated interest in the issues raised here. 

All parties have consented to amici’s participation in this case. 

INTRODUCTION & SUMMARY OF ARGUMENT 

Plaintiff-appellant Free Speech (FS) was organized in February of 2010 for 

the stated purpose of running advertisements that discuss the positions of President 

Obama and other “public servants and candidates for public office” on gun rights, 

land rights, environmental policy, health care and free speech. See Complaint ¶¶ 

13, 15-17; Free Speech Advisory Op. Request (AOR) 2012-11 (Feb. 29, 2012). 

FS is free to spend as much money as it wishes on such independent 

advertisements, and to raise this money without limit from a wide range of sources, 

including wealthy individuals, corporations and unions. But fearing that its 

spending might qualify it as a federal “political committee” subject to disclosure 

requirements under the Federal Election Campaign Act (FECA), FS filed suit to 

challenge the constitutionality of the Federal Election Commission (FEC) rule 

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defining “express advocacy,” the FEC’s policy governing the determination of 

federal “political committee” status and the views expressed in a non-binding draft 

of an FEC advisory opinion on the standard for what constitutes a “solicitation.” 

See Complaint, Counts 1-4 (challenging 11 C.F.R. § 100.22(b), the FEC’s “major 

purpose” policy and FEC AO 2012-11, Draft B). 

FS devotes much of its brief attempting to characterize the FEC’s rules as 

extraordinarily burdensome, claiming they are tantamount to a “prior restraint,” the 

“licensing laws implemented in 16th- and 17th-century England” and “an 

unwieldy, unconstitutional, and contradictory regulatory maze.” Pl.-App. Br. 10, 

34, 53-56. But as the district court found, FS’s invective cannot obscure that at 

“the core of [its] challenges . . . are rules and policies which implement only 

disclosure requirements.” Transcript of Telephonic Oral Ruling at 16, Free Speech 

v. FEC, No. 12-cv-127 (Oct. 3, 2012) (“Ruling”). 

The question before this Court is thus not whether FS can make expenditures 

for the speech it proposes, nor whether it can raise money without limitation, but 

simply whether it must provide full disclosure of its electoral advocacy to the 

American public. And while FS’s brief is heavy on rhetoric, it contains virtually 

no legal authority supporting FS’s attack on political transparency. To the 

contrary, FS instead must grapple with a recent decision by the Fourth Circuit 

Court of Appeals, Real Truth About Abortion (RTAA) v. FEC, 681 F.3d 544 (4th 

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Cir. 2012), cert. denied, No. 12-311 (Jan. 7, 2013), that rejected precisely the same 

arguments as FS makes here. The district court decision in this case relied heavily 

on RTAA, and the Supreme Court in January of this year declined to grant 

certiorari in RTAA, allowing the Fourth Circuit decision to stand. 

As both the district court here and the Fourth Circuit found, FS’s arguments 

have no merit. 

 First, FS’s contention that the FEC rule defining “express advocacy” 11 

C.F.R. § 100.22(b), is overbroad and unconstitutionally vague is contrary to all 

current Supreme Court precedent. FS cites only stale case law that has been called 

into question in recent years. See Pl.-App. Br. 26-27. Since its decision in 

McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court has maintained that 

Congress and the FEC may regulate communications beyond “magic words” 

express advocacy, and that disclosure laws in particular may extend beyond even 

the “functional equivalent of express advocacy.” Id. at 190; Citizens United, 130 

S. Ct. at 915. Furthermore, in a decision FS simply ignores, the Supreme Court in 

FEC v. Wisconsin Right to Life (WRTL), 551 U.S. 449, 469-70 (2007) articulated a 

test for the “functional equivalent of express advocacy” that is virtually the same as 

subpart (b). 

Second, with regard to the FEC’s methodology for determining whether a 

group has a “major purpose” to influence elections, FS provides no legal authority 

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for its claim that the FEC impermissibly implements this standard by making an 

inquiry into vague and overbroad factors. The Supreme Court in Buckley v. Valeo, 

424 U.S. 1 (1976), created the “major purpose” test to narrow the statutory 

definition of “political committee,” but the Court in no way restricted the scope of 

the inquiry that the FEC may make in determining a group’s “major purpose.” Id.

at 79. 

Finally, FS complains about the FEC’s standard for determining whether a 

communication solicits contributions – but can point to no agency action in this 

area beyond 11 C.F.R. § 100.57, a regulation that no longer exists, and Draft B of 

Advisory Opinion 2012-11, an opinion that was never adopted. See Funds 

Received in Response to Solicitations, Allocation of Expenses by Separate 

Segregated Funds and Nonconnected Committees, 75 Fed. Reg. 13,223 (2010), 

available at http://www.fec.gov/law/cfr/ej_compilation/2010/notice_2010-08.pdf; 

FEC AO 2012-11, Draft B, Am. Complaint, Ex. C. There is no reviewable agency 

action here. Amici will not address this argument further, as it is self-evident that 

FS does not have standing to challenge a repealed rule or a draft document, and it 

is unclear even what legal remedy FS seeks. 

For all these reasons, the district court’s decision to deny FS’s motion for a 

preliminary injunction should be affirmed. 

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ARGUMENT 

I. The Challenged Rules All Pertain to Disclosure, and Thus Are 

Reviewed Under “Exacting Scrutiny.” 

A. The Challenged Rules Implement Only Disclosure Requirements. 

FS filed suit to challenge, on an as-applied and facial basis, the FEC’s 

definition of “expressly advocating,” see 11 C.F.R. § 100.22(b), the FEC’s policy 

for determining political committee status, and a draft advisory opinion pertaining 

to when donations given in response to solicitations will be deemed 

“contributions” under FECA. Today, these rules and policies implement the 

reporting requirements for “independent expenditures,” 2 U.S.C. § 434(c), and 

inform determinations of political committee status, which entails registration, 

reporting and organizational requirements, see 2 U.S.C. §§ 432, 433, 434(a)(4), in 

the case of FS. In short, the rules and policies at issue implement only disclosure 

requirements. 

Prior to Citizens United and a decision of the D.C. Circuit Court of Appeals, 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), these rules had 

considerably broader impact. 

Section 100.22(b) previously implemented the federal restrictions on 

corporate independent spending, see 2 U.S.C. § 441b. But by striking down the 

federal corporate spending restrictions, Citizens United has greatly limited the 

effect of Section 100.22(b): the definition no longer defines the scope of 

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“expenditures” prohibited under the corporate spending restrictions, but instead 

simply delineates which political advertisements are subject to disclosure. 

Similarly, Section 100.22(b) and the FEC’s “major purpose” policy govern 

FEC determinations of federal political committee status, and this status previously 

entailed disclosure, 2 U.S.C. §§ 432, 433, 434(a)(4), as well as contribution limits, 

2 U.S.C. §§ 441a(a)(1), (a)(2), and restrictions on corporate and union 

contributions, 2 U.S.C. § 441b(a). But in SpeechNow.org, the D.C. Circuit 

invalidated the contribution limits as applied to federal political committees that 

make only independent expenditures and that do not coordinate expenditures with 

candidates or political parties. 599 F.3d at 696. Following this decision, the FEC 

ruled that political committees that make only independent expenditures are not 

bound by the federal contribution limits, nor the corporate and union contribution 

source restrictions. FEC AO 2010-09 (Club for Growth); FEC AO 2010-11 

(Commonsense Ten). Today, potential “PAC status” for independent groups such 

as FS has thus lost much of its former bite. An “independent expenditure-only 

committee” is now subject only to disclosure requirements, including registration, 

reporting and organizational obligations. 

B. Plaintiff’s Attempts to Distinguish Between “Political Committee” 

Disclosure and Other Forms of Disclosure Are Unavailing. 

Despite these changes in the law, FS devotes much of its brief to arguing 

that the disclosure requirements that attend “PAC status” are uniquely burdensome, 

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going so far as to assert that “PAC” disclosure requirements and the 

“electioneering communications” disclosure requirements are “two entirely 

different regulatory regimes.” Pl.-App. Br. 19; see also id. at 19-24, 39-42. 

While PAC requirements and electioneering communications requirements 

are not identical, compare 2 U.S.C. §§ 432, 433, 434(a)(4) and 2 U.S.C. § 434(f), 

this is a distinction without a difference. Both “regimes” consist only of disclosure 

obligations, and as such, are subject to “‘exacting scrutiny,’ which requires a 

‘substantial relation’ between the disclosure requirement and a ‘sufficiently 

important’ governmental interest.’” Citizens United, 130 S. Ct. at 914, quoting

Buckley, 424 U.S. at 64, 66 (internal citations omitted). 

Indeed, it is unclear what legal import FS’s proposed distinction is supposed 

to have in this case. The district court correctly found that “an intermediate level 

of scrutiny known as ‘exacting scrutiny’ is the appropriate standard to apply in 

reviewing provisions that impose disclosure requirements such as the regulation 

and policy here.” Ruling at 17. And on appeal, FS appears to have abandoned its 

argument that “political committee” disclosure requirements are so burdensome as 

to warrant strict scrutiny. This shift is not surprising. Not a single decision 

following Citizens United supports FS’s demand for strict scrutiny review. See, 

e.g., New Mexico Youth Organized (NMYO) v. Herrera, 611 F.3d 669, 676 (10th 

Cir. 2010) (noting that that regulations that “require disclosure,” in contrast to 

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“regulations that limit the amount of speech a group may undertake,” must pass 

only “exacting scrutiny”); RTAA, 681 F.3d at 549 (“[A]n intermediate level of 

scrutiny known as ‘exacting scrutiny’ is the appropriate standard to apply in 

reviewing provisions that impose disclosure requirements.”); Nat’l Org. For 

Marriage v. Roberts, 753 F. Supp. 2d 1217, 1222 (N.D. Fla. 2010) (noting that 

“instead of strict scrutiny, a standard known as ‘exacting scrutiny’ applies” to 

Florida’s electioneering communications organization law), aff’d 2012 WL 

1758607 (11th Cir. May 17, 2012); Nat’l Org. For Marriage v. McKee, 649 F.3d 

34, 56 (1st Cir. 2011) (“Because Maine’s PAC laws do not prohibit, limit, or 

impose any onerous burdens on speech, but merely require the maintenance and 

disclosure of certain financial information, we reject NOM’s argument that strict 

scrutiny should apply.”); Human Life of Washington (HLW) v. Brumsickle, 624 

F.3d 990, 1005 (9th Cir. 2010) (noting that Citizens United confirms that “a 

campaign finance disclosure requirement is constitutional if it survives exacting 

scrutiny”). 

But insofar as FS is still attempting to heighten this Court’s review of 

political committee status on the basis of the purportedly “onerous” nature of such 

status, this effort has no support in Supreme Court precedent.1

 

 

1

 Plaintiff argues that “[t]he burdens of PAC status remain a heavy weight 

upon free speech” and thus “it must be narrowly tailored to only apply to actual 

political committees.” Pl.-App. Br. 10. But there is no “narrow tailoring” 

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FS cites FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238 

(1986) for the proposition that PAC status entails “myriad burdens,” Pl.-App. Br. 

22, and states that Citizens United “reinforced” this view of PAC status. Pl.-App. 

Br. 39-40. But the laws at issue in MCFL and Citizens United were radically 

different than the disclosure regulations under challenge here. As discussed in 

Section I.A., prior to recent judicial decisions, a political committee – even one 

that made only independent expenditures – was subject to not only disclosure 

requirements, but also contribution limits and source prohibitions. Corporate and 

union PACs were subject to additional restrictions, including a prohibition on the 

use of treasury funds to finance either political contributions or independent 

expenditures, 2 U.S.C. § 441b(b)(2), and restrictions on the class of individuals 

that the corporate or union parent could solicit for contributions, 2 U.S.C. § 

441b(b)(4). Thus, it is unremarkable that earlier cases such as MCFL and Citizens 

United stated that political committee status “impose[d] administrative costs.” See

MCFL, 479 U.S. at 254–55; Citizens United, 130 S. Ct. at 898. Establishment of a 

corporate PAC in those cases was a highly-regulated alternative to an absolute 

prohibition on corporate spending. 

 

requirement in the Supreme Court’s articulation of exacting scrutiny, see, e.g., 

Citizen United, 130 S. Ct. at 914, Buckley, 424 U.S. at 64, 66, and FS’s attempt to 

import this standard from strict scrutiny review has no basis. 

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The recent changes in the regulation of federal political committees were 

recognized by the Fourth Circuit Court of Appeals in RTAA. It noted that Section 

100.22(b) and the Commission’s “major purpose” policy today effected only 

disclosure requirements and that “disclosure and organizational requirements . . . 

are not as burdensome on speech as are limits imposed on campaign activities or 

limits imposed on contributions to and expenditures by campaigns.” 681 F.3d at 

548; see also id. at 552 n.3. It acknowledged that the Supreme Court in Citizens 

United had “used the word ‘onerous’ in describing certain PAC-style obligations 

and restrictions” but noted that “it did so in a context significantly different than 

that facing RTAA.” Id. at 549. It highlighted, for example, that the law 

invalidated in Citizens United, 2 U.S.C. § 441b, required corporations to set up a 

separate PAC with segregated funds to make expenditures, and that these funds 

were “subject to several limitations on allowable contributions, including a 

prohibition on the acceptance of funds from the corporation itself.” Id. Because 

PAC status for RTAA entailed none of these burdens – and, like this case, involved 

only reporting and registration – the discussion of political committee status in 

Citizens United and MCFL was inapplicable. 

In short, the Supreme Court has never held that the disclosure requirements 

that attend PAC status warrant a stricter standard of scrutiny than do other forms of 

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disclosure. This Court should affirm the district court’s decision to assess the 

challenged regulations and policies under exacting scrutiny. 

II. The Definition of “Expressly Advocating” at Section 100.22(b) Is 

Indistinguishable From the WRTL “Functional Equivalent” Test and Is 

Constitutional. 

FS claims that the so-called “subpart (b)” definition of express advocacy is 

unconstitutionally vague and overbroad, suggesting that “express advocacy” 

cannot extend beyond “magic words.” Pl.-App. Br. 26 (arguing that FECA can 

constitutionally reach only “communications that include ‘express words of 

advocacy of the election or defeat’ of a clearly identified candidate”). However, 

this stance flies in the face of all recent Supreme Court precedent. 

In McConnell, the Supreme Court cast doubt on the functionality of the 

“magic words” construction of “express advocacy.” 540 U.S. at 193. WRTL then 

made clear that the state may regulate not only express advocacy, but also the 

“functional equivalent of express advocacy,” and articulated a test for the latter that 

is virtually identical with subpart (b). 551 U.S. at 474 n.7. Citizens United cast 

further doubt on the “magic words” test by finding that a communication need not 

constitute express advocacy – or even the functional equivalent of express 

advocacy – to be regulable under the federal “electioneering communications” 

disclosure requirements. 130 S. Ct. at 915. Thus, all three cases contradict FS’s 

suggestion that the FEC can only regulate “magic words” express advocacy and 

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strongly support the constitutionality of the subpart (b) test definition of express 

advocacy. 

 Furthermore, arguments almost identical to those asserted by FS have been 

rejected by the Fourth and Eleventh Circuits; both Courts of Appeal recognized 

that the WRTL test – and disclosure laws based on this test – are neither vague nor 

overbroad, but rather are consistent with all recent Supreme Court precedent. 

A. The Constitutionality of the Subpart (b) Definition of “Expressly 

Advocating” Is Supported by McConnell, WRTL and Citizens 

United. 

 The debate over the scope of the “express advocacy” standard dates back to 

FECA’s enactment. An expenditure limit originally included in FECA provided 

that “[n]o person may make any expenditure . . . relative to a clearly identified 

candidate during a calendar year which, when added to all other expenditures made 

by such person during the year advocating the election or defeat of such candidate, 

exceeds $1,000.” Buckley, 424 U.S. at 39. The Buckley Court was troubled by the 

vagueness of the phrase “relative to a clearly identified candidate,” and 

consequently construed the “relative to” phrase to “apply only to expenditures for 

communications that in express terms advocate the election or defeat of a clearly 

identified candidate for federal office.” Id. at 44 (emphasis added). The Court 

explained in a footnote that “[t]his construction would restrict the application of 

[the spending limit] to communications containing express words of advocacy of 

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election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ 

‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Id. at 44 n.52. These 

phrases became known as the “magic words” of express advocacy. 

More than a decade after Buckley, the Ninth Circuit in FEC v. Furgatch, 807 

F.2d 857 (9th Cir. 1987), concluded that “speech need not include any of the words 

listed in Buckley to be express advocacy under the Act, but it must, when read as a 

whole, and with limited reference to external events, be susceptible of no other 

reasonable interpretation but as an exhortation to vote for or against a specific 

candidate.” Id. at 864 (emphasis added). 

In 1995, the FEC codified this Furgatch test in subpart (b) of its regulation 

defining “expressly advocating.” Section 100.22(b) of the FEC’s regulations 

provides that “expressly advocating” means any communication that: 

When taken as a whole and with limited reference to external events, 

such as the proximity to the election, could only be interpreted by a 

reasonable person as containing advocacy of the election or defeat of 

one or more clearly identified candidate(s) because— 

(1) The electoral portion of the communication is unmistakable, 

unambiguous, and suggestive of only one meaning; and 

(2) Reasonable minds could not differ as to whether it encourages 

actions to elect or defeat one or more clearly identified candidate(s) or 

encourages some other kind of action. 

11 C.F.R. § 100.22(b) (emphasis added). 

In the time period following the adoption of this rule but prior to the 

issuance of the Supreme Court decisions in McConnell, WRTL and Citizens United, 

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the courts of a few jurisdictions outside the Ninth Circuit expressed doubts as to 

the constitutionality of this formulation of express advocacy. All of the cases FS 

cites in support of its argument are drawn from this period – insofar as they are 

even on point. See Pl.-App. Br. 26 (citing Right to Life of Duchess Co., Inc. v. 

FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998); Maine Right to Life Cmte. v. FEC, 914 

F. Supp. 8, 13 (D. Maine 1996), aff’d per curiam, 98 F.3d 1 (1st Cir. 1996), cert. 

denied, 522 U.S. 810 (1997)); id. at 27 (citing Center for Individual Freedom v. 

Carmouche, 449 F.3d 655 (5th Cir. 2006), Anderson v. Spear, 356 F.3d 651 (6th 

Cir. 2004)). But FS fails to acknowledge that the Supreme Court in McConnell, 

WRTL and Citizens United revised its analysis of “express advocacy,” casting 

doubt on the cases cited by FS. McConnell, WRTL and Citizens United confirm 

that the First Amendment does not limit the scope of campaign finance regulation 

to “magic words,” but rather allows regulation of a broader category of speech 

consisting of the “functional equivalent of express advocacy,” and thus strongly 

support the constitutionality of subpart (b). 

 First, in McConnell, the Supreme Court explained that Buckley’s express 

advocacy test was merely an “endpoint of statutory interpretation, not a first 

principle of constitutional law.” 540 U.S. at 190. The Court reached this 

conclusion in its review of Title II of the Bipartisan Campaign Reform Act of 2002 

(BCRA), which prohibited the use of corporate or union treasury funds to pay for 

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15 

an “electioneering communication” – defined as any broadcast ad that refers to a 

clearly identified federal candidate, is targeted to the candidate’s electorate and is 

aired within 30 days of a primary or 60 days of a general election. 2 U.S.C. §§ 

434(f)(3), 441b(b)(2). These provisions were challenged on grounds that they 

regulated “‘communications’ that do not meet Buckley’s [magic words] definition 

of express advocacy.” 540 U.S. at 190. The Court rejected this assertion, 

however, making clear that “the express advocacy limitation ... was the product of 

statutory interpretation rather than a constitutional command.” Id. at 191-92. The 

Court concluded that “the unmistakable lesson from the record in this litigation . . . 

is that Buckley’s magic-words requirement is functionally meaningless[,]” and “has 

not aided the legislative effort to combat real or apparent corruption.” Id. at 193-

94 (emphasis added). Accordingly, the Court upheld BCRA’s “electioneering 

communication” funding provisions against a facial challenge. 

In WRTL, the Court revisited Title II of BCRA in the context of a challenge 

to the “electioneering communication” provisions as applied to three broadcast ads 

that WRTL wished to air. Chief Justice Roberts, writing the controlling opinion 

for the Court, interpreted McConnell as upholding the Title II funding restrictions 

only insofar as “electioneering communications” contained either express 

advocacy or “the functional equivalent of express advocacy.” 551 U.S. at 469-70. 

As to the latter category, “a court should find that an ad is the functional equivalent 

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16 

of express advocacy only if the ad is susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a specific candidate.” Id. (emphasis 

added). Applying this test, the Court held that WRTL’s ads were not the 

functional equivalent of express advocacy and accordingly were exempt from the 

funding restriction. Id. at 476. 

WRTL’s “functional equivalent” test closely correlates to the FEC’s subpart 

(b) standard for express advocacy. Under WRTL, an ad constitutes the functional 

equivalent of express advocacy if it is “susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a specific candidate”; under subpart 

(b), an ad constitutes express advocacy if it “could only be interpreted by a 

reasonable person as containing advocacy of the election or defeat of one or more 

clearly identified candidate(s).” There is no legal or practical difference between 

these tests. 

 Further, Chief Justice Roberts in WRTL specifically addressed the argument 

asserted by FS here that the “functional equivalent” test is unconstitutionally vague 

because it does not hew to the “express advocacy” test as set forth in Buckley. 551 

U.S. at 474 n.7. The Chief Justice explained that the “magic words” standard of 

express advocacy formulated in Buckley is not “the constitutional standard for 

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17 

clarity . . . in the abstract, divorced from specific statutory language,” and the 

standard “does not dictate a constitutional test.” Id.2

 

In light of Justice Robert’s strong affirmation of his “functional equivalent” 

test, the fact that FEC did not issue a conclusive opinion on some of FS’s proposed 

ads in the advisory opinion process is immaterial. Pl.-App. Br. 29-33. The FEC’s 

partial deadlock does not make a test endorsed by the Supreme Court 

unconstitutionally vague. Some degree of disagreement over application of the 

subpart (b) test “is simply inherent in any kind of standards-based test.” RTAA, 

681 F.3d at 554. See also Roberts, 753 F. Supp. 2d at 1221 (“The fact that it may 

be difficult in some cases to determine whether these clear requirements have been 

met does not mean that the statute is void for vagueness.”) (internal quotations 

omitted). Further, as the district court found, the deadlock is likely the result of 

“the inherent problem in an equal number of Commissioners and the unfortunate 

political divide” on the Commission; indeed, the unprecedented discord among the 

 

2

 And even insofar as subpart (b) definition includes “limited reference to 

external events,” see Pl.-App. Br. 27-28, the WRTL Court made clear that courts 

“need not ignore basic background information that may be necessary to put an ad 

in context – such as whether an ad describes a legislative issue that is either 

currently the subject of legislative scrutiny or likely to be the subject of such 

scrutiny in the near future[.]” 551 U.S. at 474 (internal quotations omitted). In 

keeping with this directive, consideration of context is permitted, but greatly 

limited, under the subpart (b) test (“with limited reference to external events”). 

Thus, contrary to FS’s claims, Section 100.22(b)’s reference to “external events” 

does not broaden the rule beyond Chief Justice Roberts’s test. 

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18 

current FEC Commissioners has been widely criticized

3

 for resulting in underenforcement of the law. Ruling at 18. But it is ridiculous to suggest, as FS does 

here, that every time an agency suffers from ideological division, the regulations it 

enforces are suddenly rendered vague. 

 Finally, Citizens United reaffirmed the constitutionality of the WRTL test. 

There, the Supreme Court again reviewed the corporate funding restriction of Title 

II of BCRA, and in a 5-4 opinion, struck down the federal prohibition on corporate 

expenditures in its entirety, see 2 U.S.C. § 441b. 130 S. Ct. at 913. Far from 

questioning the validity of the WRTL “functional equivalent” test, the Supreme 

Court actually applied WRTL’s test to the communications at issue in Citizens 

United to determine whether they would be prohibited by 2 U.S.C. § 441b; only 

because it found that the communications would be prohibited, did the Court then 

proceed to consider the constitutionality of that prohibition. See RTAA, 681 F.3d at 

551 (noting that by “[u]sing Wisconsin Right to Life’s ‘functional equivalent’ test” 

the Court concluded that Hillary: The Movie “qualified as the functional equivalent 

of express advocacy”) (emphasis added). 

 

3

 See also Editorial, The Toothless Watchdog FEC, Wash. Post, Dec, 29, 

2012, available at http://articles.washingtonpost.com/2012-12-

29/opinions/36071872_1_recess-appointments-fec-campaign-finance; Jonathan D. 

Salant, U.S. Federal Election Commission Deadlocks on Greater ’12 Donor 

Disclosure, Bloomberg (June 15, 2011, 4:13 PM), 

http://www.bloomberg.com/news/2011-06-15/u-s-federal-election-panelconsiders-increased-donor-disclosure-for-2012.html.

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19 

The Citizens United Court also consigned the “magic words” standard for 

“express advocacy” to further irrelevance. In an 8-1 opinion, the Court upheld the 

federal disclaimer and disclosure requirements applicable to all “electioneering 

communications.” 130 S. Ct. at 914. In so holding, the Court “reject[ed] Citizens 

United’s contention that the disclosure requirements must be limited to speech that 

is the functional equivalent of express advocacy.” Id. at 915. Otherwise 

expressed, the Supreme Court not only rejected the “magic words” standard when 

delineating the constitutionally permissible scope of disclosure, but also found that 

disclosure could extend beyond speech that was the “functional equivalent of 

express advocacy.” Id. See also HLW, 624 F.3d at 1016 (“Given the Court’s 

analysis in Citizens United, and its holding that the government may impose 

disclosure requirements on speech, the position that disclosure requirements cannot 

constitutionally reach issue advocacy is unsupportable.”). The Citizens United

decision thus directly contradicts FS’s argument that the subpart (b) definition is 

overbroad with respect to disclosure. 

 In short, since the lower court decisions cited by plaintiff were decided, new 

Supreme Court case law – including McConnell, WRTL and Citizens United – has 

in effect overruled those decisions. McConnell made clear that the “magic words” 

standard was “functionally meaningless.” 540 U.S. at 190. WRTL made clear that 

the state may regulate not only “magic words” express advocacy, but also the 

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20 

functional equivalent of express advocacy, which it defined in a manner that 

closely tracked the language of subpart (b). Finally, Citizens United declared that 

for the purposes of disclosure, regulation can extend even beyond communications 

that meet the WRTL test for the “functional equivalent of express advocacy.” All 

three cases thus strongly support the constitutionality of subpart (b), and indeed 

suggest that disclosure-related regulation may sweep yet more broadly. 

B. Lower Court Decisions Following Citizens United Have 

Recognized the Validity of WRTL’s Test for the Functional 

Equivalent of Express Advocacy. 

Following the Supreme Court’s decision in WRTL and Citizens United, 

multiple lower courts have upheld laws based on WRTL’s “functional equivalent” 

test. FS offers no authority to the contrary. 

The Fourth Circuit in RTAA rejected a challenge to Section 100.22(b) that is 

virtually identical to the one it brings here. In RTAA, the Court of Appeals held 

that the subpart (b) definition of express advocacy was neither vague nor 

overbroad according to recent Supreme Court decisions in McConnell, WRTL and 

Citizens United. It dismissed RTAA’s overbreadth argument on grounds that the 

McConnell Court held that “Congress could permissibly regulate not only 

communications containing the ‘magic words’ of Buckley, but also 

communications that were ‘the functional equivalent’ of express advocacy.’” 681 

F.3d at 550-51. The Court further found that Citizens United also suggested that 

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21 

the subpart (b) test was not overbroad, noting that the Supreme Court there actually 

held that disclosure regulations could extend beyond the functional equivalent of 

express advocacy to include some issue speech. Id. at 551. The Court also 

rejected RTAA’s vagueness argument, highlighting that in WRTL, the Supreme 

Court’s formulated a test for the “functional equivalent of express advocacy” that 

is “consistent” with the “language of § 100.22(b).” Id. at 552. 

Similarly, the Eleventh Circuit Court of Appeals recently upheld Florida’s 

electioneering communications disclosure statute which incorporates WRTL’s test 

for the “functional equivalent of express advocacy.” National Organization for 

Marriage Inc. v. Sec’y, 2012 WL 1758607 (11th Cir, May 17, 2012) (affirming

Roberts). The plaintiff there had challenged the state’s definition of “electioneering 

communications” on grounds that its inclusion of language drawn from the WRTL

test rendered it vague and overbroad. See Fla. Stat. § 106.011(18) (defining 

“electioneering communications” as a communication that, inter alia, refers to “a 

clearly identified candidate for office without expressly advocating the election or 

defeat of a candidate but that is susceptible of no reasonable interpretation other 

than an appeal to vote for or against a specific candidate”) (emphasis added). The 

district court disagreed, holding that the language included in Florida’s statute 

“provides an objective standard that was created and applied by the United States 

Supreme Court” in WRTL. 753 F. Supp. 2d at 1221. The Court also rejected the 

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22 

argument that Citizens United cast doubt on the validity of the WRTL test, finding 

that “[f]ar from overruling WRTL, the Court [in Citizens United] embraced a 

straight forward application of the appeal to vote test.” Id. at 1220. 

The Tenth Circuit appears to be in accord with the consensus. FS suggests 

that NMYO limited campaign finance regulation to express advocacy, but there this 

Court ruled on a different issue, namely the constitutionality of a statutory 

definition of “political committee” that relied upon a $500 monetary spending 

threshold as a proxy for a more traditional “major purpose” test. See Pl.-App. Br. 

27, 44 (citing NMYO, 611 F.3d 669). NMYO did not consider the definition of 

express advocacy, much less suggest that the WRTL test was constitutionally 

suspect. To the contrary, NMYO indicated that speech that was the “functional 

equivalent of express advocacy for the election or defeat of a specific candidate is 

unambiguously related to the campaign of a candidate and thus properly subject to 

regulation regardless of its origination.” 611 F.3d at 676 (emphasis added). Thus, 

albeit in dicta, the Tenth Circuit has opined that disclosure may apply to speech 

beyond “express advocacy” and to the “functional equivalent of express 

advocacy.” This stance puts the Tenth Circuit in concord with other appellate 

decisions that have upheld WRTL’s test for the “functional equivalent of express 

advocacy” – and by extension, the subpart (b) test for the same. 

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23 

III. The FEC’s Methodology for Determining a Group’s “Major 

Purpose” Is Constitutional. 

FS also asserts that the FEC’s approach to the “major purpose” test is 

“unconstitutionally vague and overbroad.” Pl.-App. Br. 12. The FEC, however, is 

simply using the standards established by the Supreme Court to determine a 

group’s “major purpose” and evaluating factors identified as relevant by the courts 

to this analysis. 

The so-called “major purpose” test was first articulated by the Supreme 

Court in Buckley in its analysis of FECA’s disclosure requirements. 424 U.S. at 

78-81. FECA established disclosure requirements both for individuals and for 

“political committees,” prompting the Court to address constitutional concerns that 

the statutory definition of the term “political committee” was overbroad and, to the 

extent it incorporated the definition of “expenditure,” vague as well. The Court 

feared that because the term “expenditure” potentially “encompass[ed] both issue 

discussion and advocacy of a political result,” the “political committee” definition 

(which relies on the definition of “expenditure”) might “reach groups engaged 

purely in issue discussion.” Id. at 79. 

The Buckley Court resolved these concerns by narrowing the definition of 

“political committee” 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). For such “major purpose” groups, the Court had 

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24 

no vagueness concern about the statutory definition of “expenditure” because, the 

Court held, “expenditures” by such groups “are, by definition, campaign related.” 

Id. (emphasis added). 

The first objection raised by FS is that in assessing whether a group must 

register and operate as a “political committee,” the Commission has improperly 

expanded its “major purpose” inquiry by examining whether a group’s major 

purpose is “federal campaign activity” or “influencing a federal election,” rather 

than the purportedly “narrower” standard of whether the group’s major purpose is 

the “nomination or election of a candidate.” Pl.-App. Br. 13. 

 There is no basis for this purported distinction, however, and indeed the 

Supreme Court in MCFL used various descriptions of “major purpose” 

interchangeably. In exempting MCFL from the federal corporate expenditure ban, 

the Court acknowledged that MCFL could nevertheless be required to register and 

operate as a “political committee” if it met the “major purpose” test set forth in 

Buckley. Although it found that MCFL at the present was not an entity “the major 

purpose of which is the nomination or election of a candidate,” 479 U.S. at 253 

n.6, it noted that: 

[S]hould MCFL’s independent spending become so extensive that the 

organization’s major purpose may be regarded as campaign activity, 

the corporation would be classified as a political committee. As such, 

it would automatically be subject to the obligations and restrictions 

applicable to those groups whose primary objective is to influence 

political campaigns. 

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25 

Id. at 262 (emphasis added). 

 The MCFL Court set forth the Buckley standard – whether the group’s major 

purpose is “the nomination or election of a candidate” – and then equated that test 

with whether the group’s “major purpose may be regarded as campaign activity” or 

whether its “primary objective is to influence political campaigns.” Thus, the 

Supreme Court has already used a variety of expressions to describe the “major 

purpose” test – many of which closely resemble the formulations that FS deems 

unconstitutionally vague and overbroad. The fact that the Commission may 

express the “major purpose” test as an inquiry into a group’s “federal campaign 

activity” therefore not only is sufficiently tailored, but closely tracks the language 

of Buckley and MCFL. 

 Second, FS asserts that the Commission’s implementation of the “major 

purpose” test, particularly its inquiry into a group’s “central organizing purpose,” 

is an overbroad and open-ended investigation. Again, this complaint is 

unwarranted. 

 FS argues that under Tenth Circuit precedent, the “major purpose” test takes 

the form of two inquiries: (1) “comparison of the organization’s independent 

spending with overall spending,” and (2) “examination of the organization’s 

central organizational purpose.” Pl.-App. Br. 44-45 (citing Colorado Right to Life 

Comm., Inc. (CRTL) v. Coffman, 498 F.3d 1137, 1152 (10th Cir. 2007); NMYO, 

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26 

611 F.3d at 6780.4 FS does not object to the first line of inquiry, but claims the 

FEC has taken the latter inquiry to “unconstitutional lengths,” because it does not 

limit its review of a group’s “central organizational purpose” to the group’s 

“organizational documents” and official statements – but also examines “anything 

else it may find pertinent.” Pl.-App. Br. at 12-13. 

 But this is a restriction that FS simply makes up. FS offers no authority to 

support this draconian limitation on the evidence the FEC may consider in 

assessing a group’s central organizational purpose. Indeed, FS’s agreement boils 

down to a complaint that the FEC does not limit its “major purpose” inquiry to a 

group’s public documents, but instead seeks to corroborate the accuracy of these 

often self-serving pronouncements by reviewing the group’s expenditures, internal 

 

4

 Although the two methods for “major purpose” determinations set forth in 

CRTL do not seem to conflict with the FEC’s methodology, amici note that no 

Supreme Court decision has articulated the major purpose inquiry in this manner. 

To support its formulation of the “major purpose” inquiry, the CRTL Court 

highlighted two passages in MCFL: first, the Supreme Court’s statement that 

MCFL’s “central organizational purpose [wa]s issue advocacy,” MCFL, 479 U.S. 

at 252 n.6, and second, its statement that “if MCFL’s independent spending 

become so extensive that the organization’s major purpose may be regarded as 

campaign activity, the corporation would be classified as a political committee,” 

id. at 262. But the first statement was merely a description of MCFL: as MCFL’s 

“central purpose” was not in dispute in the litigation, id. at 252 n.6, it was merely 

dicta. With respect to the second statement, as the Fourth Circuit points out, the 

MCFL Court “indicates that the amount of independent spending is a relevant 

factor in determining PAC status, but it does not imply that the Commission may 

only consider spending.” RTAA, 681 F.3d at 557. Thus neither passage from 

MCFL highlighted by the CRTL Court purported to set forth an authoritative 

methodology for the major purpose inquiry. 

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27 

statements and other evidence. Furthermore, FS does not explain why such a 

constriction of the “major purpose” inquiry would even remedy the allegedly 

vagueness of FEC’s approach to the major purpose test. It is unclear, for instance, 

why an effort by the FEC to substantiate a group’s public statements by reviewing 

its fundraising appeals or political advertisements would detract from the “clarity” 

of the major purpose test. The only apparent purpose of such a constraint would be 

to hamstring FEC enforcement efforts and shield groups from any attempts to 

verify whether their own characterization of their activities was accurate. Indeed, 

FS admits as much, making the extraordinary assertion that “it is an organization’s 

right to determine its central organizational purpose, not the FEC’s.” Pl.-App. Br. 

52. But there is no constitutional right to be free of legitimate efforts to enforce the 

federal disclosure requirements. The Constitution does not require the FEC to 

serve merely as a rubber stamp. 

This Circuit certainly has not endorsed the highly circumscribed major 

purpose inquiry that FS urges. See Pl.-App. Br. 41 (arguing that the Tenth Circuit 

has “a long tradition of protecting political speech”). FS cities NMYO and CRTL

but neither case supports its position. Both cases focused on whether a “major 

purpose” test was required to be included in a definition of “political committee,” 

not how the major purpose test should be implemented. To be sure, the Tenth 

Circuit has appeared to approve “examination of the organization’s central 

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28 

organizational purpose” as one means of determining a group’s major purpose. 

CRTL, 498 F.3d at 1152 (citing MCFL, 479 U.S. at 252, 262); NMYO, 611 F.3d at 

678. But it has not suggested that the analysis of an organization’s “central 

organizational purpose” must be limited to its “organizational documents” and 

official statements. Indeed, the Court has not addressed the process of 

investigating a group’s “central organizational purpose” in any detail at all. 

 Finally, FS complains that “the factors within the FEC’s inquiry are 

boundless and undefined.” Pl.-App. Br. 13. Again, however, it provides no 

authority for its assertion that the consideration of factors such as the “timing of 

advertisements” or “whether communications identify a candidate” is 

impermissible. Id. at 47. And there is no such authority. Every court to have 

specifically considered the FEC’s multi-factor approach has upheld it as 

constitutional. In Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007), the plaintiff 

sought a judicial determination requiring the FEC to issue a regulation governing 

when “527 organizations” would be deemed political committees. The FEC 

defended its decision to not adopt a regulation but, instead, to make political 

committee status determinations through enforcement actions, arguing that the 

major purpose doctrine “requires the flexibility of a case-by-case analysis of an 

organization’s conduct,” including “whether there is sufficiently extensive 

spending on federal campaign activity,” “the content of [a group’s] public 

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29 

statements,” “internal statements of the organization,” “all manner of the 

organization’s spending” and “the organization’s fundraising appeals.” Id. See 

also FEC v. Malenick, 310 F. Supp. 2d. 230, 234 (D.D.C. 2004) (“An 

organization’s purpose may be evidenced by its public statements of its purpose or 

by other means, such as its expenditures in cash or in kind to or for the benefit of a 

particular candidate or candidates.”) (quoting FEC v. GOPAC, 917 F. Supp. 851, 

859 (D.D.C. 1996)). The Shays court approved the FEC’s approach, noting that 

“Buckley established the major purpose test, but did not describe its application in 

any fashion.” Id. 

More recently, the Fourth Circuit upheld the FEC’s multi-factor method for 

political committee determinations in RTAA. It found that “[a]lthough Buckley did 

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

determining an organization’s major purpose.” 681 F.3d at 556. It went on to note 

that “the 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.” Id. at 557 (citing FEC v. Malenick, 310 F. 

Supp. at 234-37; GOPAC, 917 F. Supp. at 859, 864-66). The Court of Appeals 

concluded that the FEC had “adopted a sensible approach to determining whether 

an organization qualifies for PAC status,” id. at 558, highlighting that “[t]he 

determination of whether the election or defeat of federal candidates for office is 

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30 

the major purpose of an organization, and not simply a major purpose, is inherently 

a comparative task, and in most instances it will require weighing the importance 

of some of a group’s activities against others . . . .” Id. at 556. 

In short, the Supreme Court in Buckley added the “major purpose” test to 

narrow statutory definition of “political committee.” But neither the Supreme 

Court nor any lower court has constricted the scope of the inquiry that the FEC is 

to use in making a “major purpose” determination as narrowly as FS apparently 

demands. The district court was correct in rejecting FS’s challenge to the FEC’s 

“major purpose” policy. 

CONCLUSION 

For the foregoing reasons, the district court’s decision to deny FS’s motion 

for preliminary injunction should be affirmed. 

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31 

Respectfully submitted, 

 /s/ J. Gerald Hebert 

J. Gerald Hebert 

Tara Malloy 

Paul S. Ryan 

THE CAMPAIGN LEGAL CENTER 

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

ghebert@campaignlegalcenter.org 

Donald J. Simon 

SONOSKY, CHAMBERS, SACHSE 

ENDRESON & PERRY, LLP 

1425 K Street, NW, Suite 600 

Washington, D.C. 20005 

Tel.: (202) 682-0240 

Fred Wertheimer, 

DEMOCRACY 21 

2000 Massachusetts Avenue, NW 

Washington, D.C. 20036 

Tel.: (202) 429-2008 

Larry B. Jones 

SIMPSON, KEPLER & EDWARDS, 

LLC 

The Cody, Wyoming Division of

BURG SIMPSON ELDREDGE HERSH 

& JARDINE, P.C. 

1135 14th Street, P.O. Box 490 

Cody, WY 82414 

Tel.: (307) 527-7891 

Counsel for Amici Curiae

Dated: February 11, 2013

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i 

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 Microsoft Security Essentials, a 

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

is virus-free. 

/s/ J. Gerald Hebert 

J. Gerald Hebert 

THE CAMPAIGN LEGAL CENTER 

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

ghebert@campaignlegalcenter.org 

 Dated: February 11, 2013 

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ii 

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a) 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 6,990 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

 This brief complies with the typeface requirements of Fed. R. App. P. 

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/s/ J. Gerald Hebert 

J. Gerald Hebert 

THE CAMPAIGN LEGAL CENTER 

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

ghebert@campaignlegalcenter.org 

 Dated: February 11, 2013 

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iii 

CERTIFICATE OF SERVICE 

I certify that on February 11, 2013, I electronically filed a copy of the 

foregoing document using the CM/ECF system, and that a true and correct copy of 

such filing was served by electronic filing or by email on the following counsel of 

record at the listed e-mail addresses: 

John B. Speight, 

 jbspeight@gmail.com 

4021 Snyder Avenue 

Cheyenne, WY 82001 

Stephen R. Klein, 

 stephen.klein@wyliberty.org 

WYOMING LIBERTY GROUP 

1902 Thomes Avenue, Suite 201 

Cheyenne, WY 82001 

Benjamin T. Barr, 

 benjamin.barr@gmail.com 

10737 Hunting Lane 

Rockville, MD 20850 

Counsel for Plaintiff-Appellant 

Anthony Herman, 

 aherman@fec.gov 

David B Kolker, 

 dkolker@fec.gov 

Lisa Stevenson, 

 lstevenson@fec.gov 

Adav Noti, 

 anoti@fec.gov 

Erin R Chlopak, 

 echlopak@fec.gov 

FEDERAL ELECTION 

COMMISSION 

999 E Street, NW 

Washington, DC 20463-0000 

Nicholas Vassallo, 

 nick.vassallo@usdoj.gov 

US ATTORNEY’S OFFICE 

P O Box 668 

Cheyenne, WY 82003-0668 

Counsel for Defendant-Appellee

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iv 

I further certify that I also caused seven printed copies of the brief to be 

filed with the Clerk by mailing them via U.S. Post, postage prepaid, to the 

following address: 

Clerk of Court 

United States Court of Appeals for the Tenth Circuit 

Byron White U.S. Courthouse 

1823 Stout Street 

Denver, CO 80257 

/s/ J. Gerald Hebert 

J. Gerald Hebert 

THE CAMPAIGN LEGAL

CENTER 

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

ghebert@campaignlegalcenter.org 

 Dated: February 11, 2013 

Appellate Case: 12-8078 Document: 01018999923 Date Filed: 02/11/2013 Page: 43