Jack Speight (Wyoming Bar No. 4-0983) 

4021 Snyder Ave 

Cheyenne, WY 82001 

307.635.1239 [Tel.] 

jbspeight@gmail.com 

Benjamin T. Barr 

10737 Hunting Lane 

Rockville, MD 20850 

202.595.4671 [Tel.] 

benjamin.barr@gmail.com 

Stephen R. Klein 

Wyoming Liberty Group 

1902 Thomes Ave 

Ste. 201 

Cheyenne, WY 82001 

307.632.7020 [Tel.] 

307.632.7024 [Fax.] 

stephen.klein@wyliberty.org 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

____________________________________ 

 ) 

FREE SPEECH ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civil Case No. 12-CV-127-S 

) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 ) 

 Defendant. ) 

____________________________________) 

____________________________________________ 

MOTION FOR PRELIMINARY INJUNCTIVE RELIEF 

_________________________________________________________________ 

Case 2:12-cv-00127-SWS Document 19 Filed 07/13/12 Page 1 of 5
1. Introduction 

Plaintiff Free Speech moves for a preliminary injunction for reasons set forth below and 

in its accompanying Memorandum in Support of Motion for Preliminary Injunctive Relief filed 

contemporaneously with this motion. Fed. R. Civ. P. 65(a). Plaintiff notes that it will be filing a 

motion to amend its Verified Complaint and is presently following Local Rules and working 

with the Defendant Federal Election Commission (“FEC”) to achieve just this. A motion to 

amend along with a First Amended Verified Complaint is expected to be filed soon. In accord 

with Local Rule 7.1(a), counsel conferred on July 10, 2012 about this non-dispositive motion by 

telephone and the FEC opposes it. 

 In order to secure a preliminary injunction, the following elements must be established: 

(1) there is a substantial likelihood of success on the merits, (2) irreparable injury will result 

without an injunction, (3) the threatened injury to the moving party would outweigh any damage 

to the opposing party, and (4) issuing the injunction would not be adverse to the public interest. 

Kansas Judicial Watch v. Stout, 653 F.3d 1230, 1234 (10th Cir. 2011); see also International 

Snowmobile Mfrs. Ass’n v. Norton, 304 F. Supp. 2d 1278, 1286 (D. Wyo. 2004). Plaintiff 

submits that because a preliminary injunction presents no monetary risk to the FEC, any bond 

should be waived or set at $1. Fed. R. Civ. P. 65(c). 

In the Tenth Circuit, where movants establish that the latter three elements alone tip in 

their favor, injunctive relief may also be warranted. See Davis v. Mineta, 302 F.3d 1104, 1111 

(10th Cir. 2002). Post-Mineta, the U.S. Supreme Court issued Winter v. Natural Resources 

Defense Council, Inc., 555 U.S. 7 (2008). There, the Supreme Court rejected the Ninth Circuit's 

relaxed approach to preliminary injunctions based on a “possibility” of irreparable harm. Id. at 

22. The Court instructed that movants seeking preliminary injunctive relief must demonstrate 

that irreparable injury is likely in the absence of an injunction. Id. Even where a likelihood of 

success on the merits it established, the mere speculative possibility of irreparable injury will not 

suffice as a basis for injunctive relief. In the First Amendment context, Winter does nothing to 

alter the fact that once movants establish a likelihood of success, injury to First Amendment 

interests follows as a matter of law. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“loss of First 

Case 2:12-cv-00127-SWS Document 19 Filed 07/13/12 Page 2 of 5
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable 

injury”). 

2. Free Speech has Demonstrated a Substantial Likelihood of Success on the Merits 

As described thoroughly in its Memorandum in Support of Motion for Preliminary 

Injunctive Relief, Free Speech will succeed on the merits of this challenge. The FEC maintains 

more than “568 pages of regulations, 1,278 pages of explanations and justifications for those 

regulations, and 1,771 advisory opinions” that effectively operate to inhibit and chill speech 

nationwide. Citizens United v. FEC, 130 S.Ct. 876, 895 (2010). Guessing incorrectly about the 

scope, meaning, or applications of the challenged provisions leads to extensive investigations by 

the FEC and hefty civil penalties. Even in the wake of its many losses on constitutional grounds, 

the FEC has not afforded clarity, comprehensibility, or precision to the challenged regulations, 

policies, and practices, rendering them void both on their face and as applied to Free Speech. 

See id. at 893. 

3. Irreparable Injury will Occur if First Amendment Freedoms are not Protected 

Once a substantial likelihood of success on the merits has been established, the loss of 

First Amendment freedoms, even minimally, constitutes irreparable harm as a matter of law. See 

Elrod, 427 U.S. at 373–74; see also Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061, 

1076 (10th Cir. 2001). In order to stop the chill of the challenged provisions against Free 

Speech, and speakers nationwide not before this court, nationwide injunctive relief is appropriate 

to remedy the injury in question. 

4. The Balance of Harms Tips in Free Speech’s Favor

A threatened injury to plaintiff’s constitutionally protected speech will usually outweigh 

the harm, if any, the defendants may incur from being unable to enforce what appears to be an 

unconstitutional statute. See American Civil Liberties Union v. Johnson, 194 F.3d 1149, 1163 

(10th Cir. 1999). Here, Plaintiff’s political speech—speech deemed an “essential mechanism of 

democracy”—is muted by the octopus-like grasp of the challenged provisions. Citizens United, 

130 S. Ct. at 898. Any “reliance harm” suffered by Defendant with respect to its regulatory 

system can be cured by this Court acknowledging Advisory Opinion Draft C from the Free 

Case 2:12-cv-00127-SWS Document 19 Filed 07/13/12 Page 3 of 5
Speech advisory opinion process as being the correct statement of law for interim guidance until 

the FEC has time to promulgate new regulations and policies consistent with the First 

Amendment. See Free Speech Verified Complaint, EXHIBIT D.

5. Issuing the Injunction Works in Favor of the Public Interest 

Vindicating First Amendment liberties is “clearly in the public interest.” Pacific Frontier 

v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005); see also R.J. Reynolds Tobacco 

Co. v. Food and Drug Admin., 823 F.Supp.2d 36, 52 (D.D.C. 2011) (“the public interest . . . will 

be served by ensuring that plaintiffs’ First Amendment rights are not infringed before the 

constitutionality of the regulation has been definitively determined”) (quoting Stewart v. District 

of Columbia Armory Bd., 789 F.Supp. 402, 406 (D.D.C. 1992)). Because of this, protecting 

these rights favors the public interest and ensures that speech uttered “during a campaign for 

political office” invokes the “fullest and most urgent application” of the First Amendment. Eu v. 

San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989) (quoting Monitor 

Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). 

6. Conclusion

For the reasons contained herein and in the accompanying Memorandum in Support of 

Motion for Preliminary Injunctive Relief, Free Speech prays that this Court grant this motion and 

preliminarily enjoin the FEC from enforcing the challenged provisions and policies facially and 

as applied until a final hearing on the merits may be had. Plaintiff requests a prompt oral 

argument in support of this motion because of the complex legal issues involved and complicated 

points of constitutional law and to effectuate the Federal Rules of Civil Procedure, favoring a 

“just, speedy, and inexpensive determination.” Fed. R. Civ. P. 1. 

Case 2:12-cv-00127-SWS Document 19 Filed 07/13/12 Page 4 of 5
Dated July 13, 2012 

 Respectfully submitted, 

 /s/ Stephen Klein

Stephen R. Klein 

Wyoming Liberty Group 

1902 Thomes Ave 

Ste. 201 

Cheyenne, WY 82001 

307.632.7020 [Tel.] 

307.632.7024 [Fax.] 

stephen.klein@wyliberty.org 

Case 2:12-cv-00127-SWS Document 19 Filed 07/13/12 Page 5 of 5
Jack Speight (Wyoming Bar No. 4-0983) 

4021 Snyder Ave 

Cheyenne, WY 82001 

307.635.1239 [Tel.] 

jbspeight@gmail.com 

Benjamin T. Barr 

10737 Hunting Lane 

Rockville, MD 20850 

202.595.4671 [Tel.] 

benjamin.barr@gmail.com 

Stephen R. Klein 

Wyoming Liberty Group 

1902 Thomes Ave, Ste. 201 

Cheyenne, WY 82001 

307.632.7020 [Tel.] 

307.632.7024 [Fax.] 

stephen.klein@wyliberty.org 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

____________________________________ 

 ) 

FREE SPEECH ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civil Case No. 12-CV-127-S 

) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

____________________________________________ 

MEMORANDUM IN SUPPORT OF 

MOTION FOR PRELIMINARY INJUNCTIVE RELIEF 

_________________________________________________________________ 

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 1 of 50
ii 

TABLE OF CONTENTS 

TABLE OF CONTENTS ................................................................................................................ ii

INTRODUCTION .......................................................................................................................... 1

ARGUMENT .................................................................................................................................. 2

I. Extraordinary Speech Deserves Extraordinary Protection .................................. 3

II. Enough Is Enough: Free Speech Will Succeed on the Merits ............................ 5

a. Defining the Merits: The First Amendment Outweighs Regulatory Interests ....6

b. Section 100.22(b) Is Invalid on its Face and As Applied ...................................10

c. The Commission’s Policies and Practices Concerning Political Committee 

Status, the Major Purpose Test, and Definition of Solicitation Are Invalid on 

Their Face and As Applied .................................................................................27

d. The Challenged Regime, in its Entirety, Acts as a Prior Restraint .....................37

III. Nationwide Suppression Deserves Nationwide Relief ...................................... 40

a. The Overbreadth and Vagueness Doctrines Require Nationwide and Uniform 

Standards to Adequately Preserve First Amendment Freedoms ........................40

b. The Administrative Procedure Act and the Inherent Remedial and Equitable 

Powers of this Court Support Nationwide Relief ...............................................43

c. The First Amendment Is Not Subject to Experimentation by the FEC ..............45

IV. Free Speech Will Be Irreparably Harmed if an Injunction Does Not Issue ...... 47

V. The Balance of Hardships Favors Free Speech and Injunctive Relief .............. 47

VI. Issuing a Preliminary Injunction Is Not Adverse to the Public Interest ............ 48

CONCLUSION ............................................................................................................................. 48

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 2 of 50
1 

INTRODUCTION 

 This case is a constitutional challenge to regulations, policies, and practices that, as 

promulgated, interpreted, and enforced by the Federal Election Commission (“FEC”), irreparably 

damage Plaintiff Free Speech’s, and third parties’, First Amendment rights of association and 

speech. Although the regulatory structure arising out of the Federal Election Campaign Act 

(“FECA”) is complicated, the core of this challenge is not. Free Speech would like to speak 

publicly about political issues it cares about. Though it sought an advisory opinion from the 

FEC, the Commission could not agree what the FECA means and how it would be applied, 

leaving Free Speech subject to penalties and investigations if it speaks “incorrectly.” The 

challenged regulatory structure amounts to a contradictory and shifting set of standards that no 

one understands. This situation leaves Free Speech at the mercy of noblesse oblige—being 

forced to (1) shape and shift its message to a (never defined) form deemed “safe” by the FEC, (2) 

mute itself, or (3) make a wild guess about how to comply with regulations and policies even the 

Commission itself does not understand. 

The challenged system has enabled the FEC to act as a national censor of political 

speech. The Supreme Court recognized this very problem with the Commission’s operations in 

the past. See Citizens United v. FEC, 130 S. Ct. 876, 895 (2010). The challenged regulatory 

structure encourages the Commission to surmise what hypothetical members of the public might 

believe speech to mean and subjects speakers to far-reaching investigations, burdensome 

compliance requirements, and civil and criminal penalties based on government’s determination 

of subjective intent. Today, we refer to this set of laws as “campaign finance.” These 

provisions also permit other individuals to censor, or at least impede, ideological opponents’ 

speech by invoking a veritable heckler’s veto in the midst of an electoral season by launching 

burdensome investigations backed by the force of the FEC. Without the firm protection of the 

First Amendment, political speech would wither in a maelstrom of complaints filed during the 

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 3 of 50
2 

heat of the electoral season.1 The only proven remedy against these evils is the maintenance of 

clarity and objectivity in laws abutting the First Amendment. 

ARGUMENT 

 Free Speech would like to speak. See U.S. CONST. amend. I. It would like to speak 

without facing the hurdles of complicated trial proceedings and generating a 100,000 page record 

as the plaintiffs in McConnell v. FEC did. 251 F.Supp.2d 176, 209 (D.D.C. 2003) (per curiam). 

It would like to speak without wading through more than “568 pages of regulations, 1,278 pages 

of explanations and justifications for those regulations, and 1,771 advisory opinions” issued by 

the Commission. Citizens United v. FEC, 130 S.Ct. 876, 895 (2010). It would like to speak 

without “retain[ing] a campaign finance attorney, conduct[ing] demographic marketing research, 

or seek[ing] declaratory rulings before discussing the most salient political issues of our day.” 

Id. at 889. But all this has been made impossible by the FEC because it remains vigilant in its 

maintenance and enforcement of unconstitutional regulations, policies, and practices. To speak, 

Free Speech must illustrate why a preliminary injunction is appropriate here. The relevant facts 

supporting this motion are set forth in Plaintiff’s Verified Complaint, this memorandum, and its 

forthcoming First Amended Verified Complaint. 

In order to secure a preliminary injunction under FED. R. CIV. P. 65(a), the following 

elements must be established: (1) there is a substantial likelihood of success on the merits, (2) 

irreparable injury will result without an injunction, (3) the threatened injury to the moving party 

would outweigh any damage to the opposing party, and (4) issuing the injunction would not be 

adverse to the public interest. Kansas Judicial Watch v. Stout, 653 F.3d 1230, 1234 (10th Cir. 

 

1

 Two days after Free Speech filed its Verified Complaint, Robert Bauer, General Counsel to 

Obama for America and Democratic National Committee, filed a complaint with the FEC against 

Crossroads GPS under the legal provisions described here. The complaint alleged that 

Crossroads GPS failed to register and report as a political committee. In its complaint, Mr. 

Bauer asks that the Commission take “immediate, expedited actions to remedy Crossroads GPS’s 

failure....” Complaints like these act to stifle political expression across the U.S. See Letter from 

Robert F. Bauer, General Counsel to Obama for America and the Democratic National 

Committee, to Anthony Herman, General Counsel of the FEC, June 19, 2012, available at

http://www.documentcloud.org/documents/370370-obama-lawyers-letter-to-crossroads.html. 

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 4 of 50
3 

2011). In the Tenth Circuit, where movants establish that the latter three elements alone tip in 

their favor, injunctive relief may also be warranted. See Davis v. Mineta, 302 F.3d 1104, 1111 

(10th Cir. 2002) (describing the Tenth Circuit’s modified approach).2

 

 In the wake of many losses suffered by the Commission on constitutional grounds, the 

foundational rules defining election law and the rigor of protection for First Amendment rights 

have cemented in favor of expression. See, e.g., FEC v. Wisconsin Right to Life (“WRTL”), 551 

U.S. 449, 469 (2007) (speech standards must eschew the “open-ended rough-and-tumble of 

factors, which invit[es] complex argument in a trial court”) (quoting Jerome B. Grubart, Inc. v. 

Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995)); Citizens United, 130 S.Ct. at 896 

(“If parties want to avoid litigation and the possibility of civil and criminal penalties, they must 

either refrain from speaking or ask the FEC to issue an advisory opinion approving of the 

political speech in question. Government officials pore over each word of a text to see if, in their 

judgment, it accords with the 11–factor test they have promulgated. This is an unprecedented 

governmental intervention into the realm of speech”). This brief begins with first principles to 

elucidate how the incorporation of these principles ensures that political speech—“an essential 

mechanism of democracy”—will be adequately protected. Citizens United, 130 S. Ct. at 898. 

I. Extraordinary Speech Deserves Extraordinary Protection 

Speech uttered “during a campaign for political office” invokes the “fullest and most 

urgent application” of the First Amendment. Eu v. San Francisco County Democratic Central 

Cmte., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 

(1971)). The FEC’s regulatory structure is nothing short of a labyrinth of contradictory and 

 

2

 Post-Mineta, the U.S. Supreme Court issued Winter v. Natural Resources Defense Council, 555 

U.S. 7 (2008). There, the Court rejected the Ninth Circuit's relaxed approach to preliminary 

injunctions based on a “possibility” of irreparable harm. Id. at 22. The Court instructed that 

movants seeking preliminary injunctive relief must demonstrate that irreparable injury is likely in 

the absence of an injunction. Id. Even where a likelihood of success on the merits it established, 

the mere speculative possibility of irreparable injury will not suffice as a basis for injunctive 

relief. In the First Amendment context, Winter does nothing to alter the fact that once movants 

establish a likelihood of success, injury to First Amendment interests follows as a matter of law. 

Elrod v. Burns, 427 U.S. 347, 373 (1976) (“loss of First Amendment freedoms, for even minimal 

periods of time, unquestionably constitutes irreparable injury”). 

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 5 of 50
4 

ever-changing regulations. The only question remaining is how the Supreme Court’s past 

speech-protective principles ensure an appropriate remedy here. Just as the substance of having 

rights protected is important, so too is the procedure by which adequate remedies are afforded. 

See Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J., separate opinion) (“The 

history of American freedom is, in no small measure, the history of procedure”). 

One lesson originating out of the FEC’s loss in Wisconsin Right to Life is that the First 

Amendment enjoys primacy over regulatory authority, especially where that authority is 

uncertain or the speech in question is difficult to interpret. 551 U.S. at 469 (rules must give the 

“benefit of any doubt to protecting rather than stifling speech”). After the FEC lost WRTL, it 

went on to lose Citizens United by inventing a two-prong, eleven factor speech code. The Court 

then elucidated: “The First Amendment does not permit laws that force speakers to retain a 

campaign finance attorney, conduct demographic marketing research, or seek declaratory 

rulings before discussing the most salient political issues of our day.” Citizens United, 130 S.Ct. 

at 889. Thus, a guiding principle emerges from Citizens United – complicated regulatory 

structures that inhibit First Amendment rights must fail if average speakers are to have their 

rights protected. Such protection helps prevent speech suppression where subjective laws 

“confer broad powers of censorship, in the form of a ‘heckler’s veto,’ upon any opponent.” 

Reno v. American Civil Liberties Union, 521 U.S. 844, 880 (1997). 

Speed is of the essence when adjudicating political speech controversies. As stated by 

the Citizens United Court, it is “well known that the public begins to concentrate on elections 

only in the weeks immediately before they are held. There are short timeframes in which speech 

can have influence.” 130 S.Ct. at 895. Cumbersome litigation of First Amendment principles 

during the heat of an electoral cycle means that by the time the “lawsuit concludes, the election 

will be over and the litigants in most cases will have neither the incentive nor, perhaps, the 

resources to carry on. . . .” Id. Meaningful remedies are also important. Rather than sanction 

protracted litigation, the Court has explained that once a “case is brought, no general categorical 

line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’ 

cases.” Id. at 893 (quoting Richard Fallon, As-Applied and Facial Challenges and Third-Party 

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 6 of 50
5 

Standing, 113 Harv. L.Rev. 1321, 1339 (2000)). Where a provision is unconstitutional on its 

face, it is the proper course to strike it without months of litigation. Citizens United, 130 S.Ct. at 

896; see also WRTL, 551 U.S. at 482–83 (Alito J., concurring); Thornhill v. Alabama, 310 U.S. 

88, 97–98 (1940). Swift adjudication coupled with broad remedies effectuates meaningful 

relief. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (“a decision allowing 

the desired expenditures would be an empty gesture unless it afforded appellants sufficient 

opportunity prior to the election date to communicate their views effectively”).

II. Enough Is Enough: Free Speech Will Succeed on the Merits 

 Political speech is at the zenith of protection under the Constitution. Meyer v. Grant, 486 

U.S. 414, 425 (1988). Because of this, where challenged regulations implicate political speech, 

strict scrutiny is warranted. WRTL, 551 U.S. at 464. This requires proving that the challenged 

regulations, policies, and practices further a compelling governmental interest and are narrowly 

tailored to achieve it. Id. Where a regulatory structure acts as a content-based restriction on 

speech or is the functional equivalent of a prior restraint, strict scrutiny is also warranted. See, 

e.g., Republican Party of Minnesota v. White, 536 U.S. 765, 774–75 (2002); Citizens United, 130 

S. Ct. at 895. For the reasons presented below, because the challenged system is so far astray 

from constitutional limits, Free Speech has a substantial likelihood of succeeding on the merits. 

 A common, but flawed, argument asserts the present FEC regime places no serious 

burden against First Amendment interests because the system effectuates a system of “mere 

disclosure” that is not subject to strict scrutiny. Looking beyond this simplistic veneer, we find a 

gargantuan regulatory structure to secure “mere disclosure,” using fuzzy factors to trigger 

regulation, and imposing difficult political committee registration and reporting obligations on 

grassroots groups. McConnell v. FEC, 540 U.S. 93, 332 (2003) (Kennedy, J., dissenting) 

(“These regulations . . . create major disincentives for speech, with the effect falling most heavily 

on smaller entities that often have the most difficulty bearing the costs of compliance”)

(overruled, in part, by Citizens United, 130 S.Ct. at 913). Individuals who act outside the scope 

of the law may be subject to investigations, imprisoned, or face hefty civil penalties. See 2 

U.S.C. § 437g(d). This is not “mere disclosure.”

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 7 of 50
6 

Consistent with traditional constitutional principles, this court is empowered to “look 

through forms to the substance and recognize that informal censorship may sufficiently inhibit 

the circulation of publications to warrant injunctive relief.” Bantam Books v. Sullivan, 372 U.S. 

58, 67 (1963). Super-sized and vague regulatory structures often inhibit or censor speech as 

effectively as a ban, prompting the need for relief. Even where a regulatory system invokes 

“classification [of speech] rather than direct suppression,” strict judicial review and meaningful 

remedies are required. Interstate Circuit v. Dallas, 390 U.S. 676, 688 (1968). Despite the best 

marketing efforts of the FEC, its system of “mere disclosure” is a comprehensive system of 

speech censorship, intimidation, and vagary that warrants serious and prompt remedial relief. 

a. Defining the Merits: The First Amendment Outweighs Regulatory Interests 

The Commission enjoyed a rare moment of victory in the Fourth Circuit’s recent decision 

in the Real Truth About Abortion v. FEC (“RTAA”) suit. 681 F.3d 544 (4th Cir. 2012). While 

the Fourth Circuit issued this opinion as an aberration to settled First Amendment and election 

law principles nationwide, nothing in its holding controls the issues before this court. First, 

district courts must follow the precedent of the circuit they are located in. United States v. 

Spedalieri, 910 F.2d 707, 709 (10th Cir. 1990). Here, the Tenth Circuit’s clear adherence to 

speech-protective principles is evident and stands in conflict with the Fourth Circuit. See, e.g.,

Colorado Right to Life Cmte. v. Coffman (“CRTL”), 498 F.3d 1137 (10th Cir. 2007); New 

Mexico Youth Organized v. Herrera (“NMYO”), 611 F.3d 669 (10th Cir. 2010). Second, the 

facts and legal theories presented to this court are different than those presented in RTAA, and 

control this case. Finally, there is no reason to doubt the continued viability of Citizens United

given the Court’s summary reversal of American Tradition Partnership v. Bullock, No. 11-1179, 

2012 WL 2368660 (U.S. June 25, 2012) (“no serious doubt” that the holding of Citizens United

continues to apply with full rigor). Nor is there any reason to believe that the Supreme Court 

has vacated traditional protections against vagueness, overbreadth, or other unconstitutional 

infirmities that are implicated here. See Federal Communications Comm’n v. Fox Television 

Stations, Inc., 132 S.Ct. 2307, 2320 (2012). Because of this, expedited litigation and nationwide 

relief are requested as the only meaningful remedy to secure the rights threatened by the FEC. 

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 8 of 50
7 

i. The Building Blocks of Election Law Still Demand Rigorous First 

Amendment Protections 

 In Buckley v. Valeo, the Supreme Court set the foundational guidelines for the 

permissible reach of the FECA. There, the FECA placed limits and regulations on expenditures, 

communications “relative to a clearly identified candidate.” Buckley, 424 U.S. 1, 7 (1976). The 

Court construed the term “expenditure” to reach “only funds used for communications that 

expressly advocate the election or defeat of a clearly identified candidate.” Id. at 80.3

 It also 

limited the application of the FECA 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. at 

79 (the “major purpose” test).

Buckley’s limits imposed on the FECA were born out of constitutional concerns. As 

written, the FECA’s definition of “expenditure” was invalid due to vagueness because it failed to 

“clearly mark the boundary between permissible and impermissible speech.” Id. at 41. This 

definition of “expenditure” proved constitutionally infirm as the “distinction between discussion 

of issues and candidates and advocacy of election or defeat of candidates may often dissolve in 

practical application.” Id. at 42. Employing too broad a standard swept in protected issue 

advocacy discussion and imposed severe burdens on a class of speech that government possessed 

no legitimate interest in regulating. Thus, from Buckley moving forward, the protection of the 

broad class of speech known as issue advocacy has been of paramount constitutional importance. 

 The Supreme Court further clarified these points in FEC v. Massachusetts Citizens for 

Life (“MCFL”), 479 U.S. 238 (1986). In Buckley, the Court reasoned that in order to cure 

constitutional maladies, the term expenditure reached “only funds used for communications that 

expressly advocate the election or defeat of a clearly identified candidate.” 424 U.S. at 80. The 

MCFL Court explained this construction by noting that “Buckley adopted the ‘express advocacy’ 

 

3

 Congress amended the FECA to define “independent expenditure” as “an expenditure by a 

person advocating the election or defeat of a clearly identified candidate.” 2 U.S.C. § 431 (1976); 

Federal Election Campaign Act Amendments of 1976, Report to Accompany H.R. 12406 

(Report No. 94-917), 94th Congress 2d Session at 82 (Minority Views). 

Case 2:12-cv-00127-SWS Document 19-2 Filed 07/13/12 Page 9 of 50
8 

requirement to distinguish discussion of issues and candidates from more pointed exhortations to 

vote for particular persons.” 479 U.S. at 249.

4

 In the wake of Buckley, several federal courts have found Section 100.22(b) and related 

regulations either beyond the reach of the FECA or constitutionally invalid. See, e.g., 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 (“MRLC”), 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) (Section 100.22(b) deemed “contrary to the statute as 

the United States Supreme Court and First Circuit have interpreted it and thus beyond the power 

of the FEC”); cf. FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999) (limiting the 

reach of “express advocacy” in accord with Buckley and MCFL). Notably, the D.C. Circuit and 

District Court have been consistent in holding that where the FEC promulgates or applies 

regulations contrary to the intent of Congress or which “raise[] serious First Amendment 

difficulties,” no deference is afforded. Chamber of Commerce v. FEC, 69 F.3d 600, 605 (D.C. 

Cir. 1995); FEC v. GOPAC, Inc., 917 F. Supp. 851, 860–61 (D.D.C. 1996). 

 An animating principle that continues since Buckley’s ruling is the need for the judiciary 

to effectively police and maintain a bright line standard between regulated speech and relatively 

unregulated issue advocacy speech. While this may sacrifice flexibility and breadth in 

“capturing” potentially regulable speech, it does so to protect important First Amendment 

interests. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“If the rule were 

otherwise, the contours of regulation would have to be hammered out case by case—and tested 

only by those hardy enough to risk criminal prosecution”); but see Express Advocacy, 60 Fed. 

Reg. 35292, 35295 (Jul. 6, 1995) (claiming the FEC has the power to employ a case-by-case 

approach to determine express advocacy). This is, after all, the narrative of nearly all campaign 

 

4

 One year after the Supreme Court issued MCFL, the Ninth Circuit issued its aberrant opinion in 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). There, the Ninth Circuit adopted a mildly more 

expansive interpretation of express advocacy that still required a “clear plea for action” along 

with clarity about what was being advocated. Id. at 864. While slightly more expansive than 

Buckley, the Ninth Circuit has since confirmed that Furgatch “presumed express advocacy must 

contain explicit words of advocacy” that constituted a clear plea for action. California Pro-Life 

Council v. Getman, 328 F.3d 1088, 1098 (9th Cir. 2003). 

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9 

finance challenges since Buckley. It is impossible, as a matter of constitutional law, to impose 

blurry, shifting, and evolving speech standards, especially during the heat of the election season. 

While the FEC might “hammer out” the precise reach of its ambiguous regulatory system, much 

would be lost in allowing the vice of vagueness to chill speech throughout that process. This 

tension between government’s desire to impose “rigorous regulation” and the protection of the 

First Amendment continues to this day. Free Speech simply seeks to end it. 

ii. Lessons Learned by FEC Failures: Protect Free Speech 

Buckley set the minimal constitutional safeguards that apply to laws, policies, and 

practices that suppress political speech, either by design or inadvertence. Citizens United, 130 S. 

Ct. at 898. Post-Buckley, the FEC, and other bureaucracies nationwide, have kept busy 

experimenting with expansive regulations that impose burdens on political speech. Through its 

many attempts to silence issue advocacy speech and grassroots speakers, the FEC has proven 

itself a rogue agency, isolated from the wisdom of the federal judiciary, and intent on censoring 

speakers with impulsive glee. Id. at 896 (“Because the FEC's business is to censor, there 

inheres the danger that [it] may well be less responsive than a court . . . to the constitutionally 

protected interests in free expression”) (internal quotations and citations omitted). Because the 

FEC views each loss it incurs in isolation and fails to incorporate remedies into its future 

operations, the additional safeguards described earlier must be given effect. 

 While Buckley set the minimal protective standards for First Amendment political speech, 

recent rulings from the Supreme Court show that additional protections must apply for First 

Amendment freedoms to be realized. This is in large part because the FEC has persistently 

evaded judicially mandated standards and has otherwise sacrificed the protection of the First 

Amendment in order to increase its own regulatory power. See, e.g., WRTL, 551 U.S. at 471 

(chastising the FEC for its argument that the “less an issue ad resembles express advocacy, the 

more likely it is to be the functional equivalent of express advocacy”); Citizens United, 130 S. 

Ct. at 895 (continuing chastisement of the FEC for adopting a “two-part, 11-factor balancing 

test” that amounted to the functional equivalent of a prior restraint). 

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 Because of the First Amendment’s special status and the FEC’s continued assault on it, 

the following principles must be realized: (1) any rule affecting political speech must give the 

benefit of the doubt to the speaker, not the censor; (2) complicated and blurry regulatory systems 

act as the functional equivalent of a prior restraint and come before this Court bearing a heavy 

presumption of invalidity; (3) First Amendment jurisprudence properly recognizes the import of 

jus tertii, third party, standing and facial invalidation to secure the speech rights of others not 

before the court; and (4) adjudication of constitutional issues surrounding political speech must 

be swift, lest remedies become meaningless through delayed litigation. 

iii. Even at the Preliminary Injunction Stage, the Burden of Establishing 

the Constitutionality of the Challenged System Rests with the 

Government 

 In deciding whether to grant a preliminary injunction, a district court must decide 

whether the movants have established that they are likely to prevail on the merits. Ashcroft v. 

American Civil Liberties Union, 524 U.S. 656, 666 (2004). But when analyzing the 

constitutionality of regulations affecting speech, the “Government bears the burden of proof on 

the ultimate question” and movants must be “deemed likely to prevail unless the Government has 

shown that the [movants’] proposed less restrictive alternatives are less effective than [the 

regulations in controversy].” Id. Similarly, burdens at the preliminary injunction stage track the 

burdens at trial, where government must prove the constitutionality of the challenged provisions. 

Gonzales v. O Centro Espirita Ben. Uniao do Vegetal, 546 U.S. 418, 429 (2006). Though 

traditional burdens usually apply against movants for injunctive relief, here the burden rests 

squarely on the shoulders of the FEC to prove why its challenged regulations, policies, and 

practices should survive review.

b. Section 100.22(b) Is Invalid on its Face and As Applied 

The main thrust of this challenge is against 11 C.F.R. § 100.22(b). This section acts as a 

veritable Rorschach test for a Commission eager to regulate speech. Under the unrestrained 

reach of 100.22(b), almost any speech can be labeled “express advocacy,” subjecting the speaker 

to a wide range of burdens. Permitting such open-ended standards to be applied indiscriminately 

only welcomes frequent government interference with political speech—speech frequently 

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critical of the government itself. “This danger is especially acute when an official agency of 

government has been created to scrutinize the content of political expression, for such 

bureaucracies feed upon speech and almost ineluctably come to view unrestrained expression as 

a potential ‘evil’ to be tamed, muzzled or sterilized.” FEC v. Central Long Island Tax Reform 

Immediately Cmte., 616 F.2d 45, 54–55 (2d Cir. 1980) (Kaufman, J., concurring). Much as in 

Citizens United, the FEC has maintained a complicated and unwieldy regulatory structure that, 

on its face and as applied to Free Speech, completely muzzles a wide array of protected First 

Amendment activity as effectively as any speech ban. 

Unlike some other areas of the law, determining express advocacy is a “pure question of 

law.” Christian Coalition, 52 F. Supp. 2d at 62. “The only predicate factual determinations are 

identification of the speaker and the communication’s contents. Once those have been made, a 

communication can be held to contain express advocacy only if no reasonable person could 

understand the speech in question—and in particular the verbs in question—to, in effect, contain 

an explicit directive to take electoral action in support of the election or defeat of a clearly 

identified candidate.” Id. See also FED. R. CIV. P. 12(b)(6), 50(a), 56(c). 

i. Section 100.22(b)’s Facial Invalidity

Section 100.22(b) claims to define “express advocacy” as any communication:

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. 

The Commission also issued an Explanation and Justification (“E&J”) for Final Rules on 

Express Advocacy. 60 Fed. Reg. 35292 (July 6, 1995). The E&J claims to grant the 

Commission further authority to sniff out supposed express advocacy by explaining that 

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“communications discussing or commenting on a candidate's character, qualifications or 

accomplishments are considered express advocacy under new section 100.22(b) if, in context, 

they have no reasonable meaning other than to encourage actions to elect or defeat the candidate 

in question.” Id. at 35295. The E&J purports to allow the Commission to conduct contextual 

considerations on a “case by case” basis.” Id. Unfortunately, no one understands what this 

muddled mess means. 

1. Section 100.22(b): Hopelessly Vague 

In the first instance, 100.22(b) is facially vague because it fails to give “fair notice of 

conduct that is forbidden or required.” Fox Television Stations, 132 S.Ct. at 2317. The 

vagueness doctrine, especially in the context of the First Amendment, addresses two important 

constitutional concerns. First, parties potentially regulated must “know what is required of them 

so they may act accordingly.” Id. Second, “precision and guidance are necessary so that those 

enforcing the law do not act in an arbitrary or discriminatory way.” Id; see also Grayned v. City 

of Rockford, 408 U.S. 104, 108–09 (1972). Absent clear standards, uniform interpretation, and 

consistency, such vagueness “operates to inhibit the exercise of (those) freedoms.” Id. at 109 

(citing Cramp v. Board of Public Instruction, 368 U.S. 278, 287 (1961)). Under the FEC’s 

bizarre regulatory regime, individuals guessing incorrectly about whether speech is express 

advocacy can be trapped in lengthy FEC investigations or face civil penalties. See 2 U.S.C. § 

437g(d). It matters not whether the FEC suppresses speech through a direct ban or a prolix and 

complicated regulatory structure. See, e.g., Citizens United, 130 S. Ct. at 895; Bantam Books, 

372 U.S. at 66 (obscenity licensing must include “sensitive tools” to protect First Amendment 

interests); Speiser v. Randall, 357 U.S. 513, 525 (1958) (even where a ban is not present, “the 

line between speech unconditionally guaranteed and speech which may legitimately be regulated, 

suppressed, or punished is finely drawn”). 

 On its face, Section 100.22(b) is remarkably vague because of the ill-defined factors it 

employs, complexity it has bred and the continued “evolution” in meaning it undergoes. To 

make a finding of express advocacy (and subject speakers to burdensome regulations, 

investigations, and penalties), it directs the Commission to examine a communication “as a 

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13 

whole” and with “limited reference” to “external events.” One such “external event” is 

described as the “proximity to the election,” but other unnamed “external events” exist that could 

transform free speech into burdened speech. No one quite knows which external events are 

significant, or not, what constitutes “proximity to the election”, or just how “limited” the 

“limited reference” should be. But rest assured, the FEC will get it right.5

 

The regulation goes on to direct the Commission to determine if the “electoral portion” of 

speech is “unmistakable, unambiguous, and suggestive of only one meaning.” Sadly, would-be 

speakers are never told just what might amount to an “electoral portion” of speech. Perhaps a 

photograph of the Congress is substantially electoral; perhaps not. Perhaps mentioning the fall6

, 

a random autumn month, or an upcoming election illustrates a finding of an “electoral portion”; 

perhaps not. Perhaps uttering “November”7 establishes an “electoral portion,” but “September” 

does not. No one in the United States—not even the Commission itself—understands how this 

hodgepodge of fuzzy factors operates or applies to prospective speech. The safest bet for wouldbe speakers is to just keep their opinions to themselves. 

Plaintiff asks this court to take judicial notice of the FEC’s sordid history of speech 

regulation and enforcement in this area. Because Section 100.22(b) on its face gives the 

Commission fuzzy factors with which to regulate speech, all sorts of ensuing oddities in the 

regulatory process occur—oddities that stifle speech. Examining but two Matters Under Review 

 

5

 But it does so in secret, away from the prying eyes of the public, and from those who might be 

interested in understanding how to comply with these regulations. Even worse, from January 

2007 to November 2009, it withheld crucial documentation from these proceedings that would 

have given fair notice to those who might be regulated. See MUR 5831 (Softer Voices), 

Statement of Reasons of Commissioner Donald F. McGahn n. 174 (FEC 2011). 

6 Three Commissioners felt that referencing the term “fall” did not constitute an “electoral 

portion.” See Ver. Compl. EXHIBIT B at 33–34. But another three Commissioners felt that 

invoking the term “fall” constituted an “electoral portion.” See Ver. Compl. EXHIBIT C at 15 

(“The advertisement’s clarification of when viewers should ‘support’ Congresswoman 

Lummis—this fall—further underscores the manner in which viewers are encouraged to support 

Congresswoman Lummis, i.e., by voting for her in the election ‘this fall’”).

7 Three Commissioners felt the utterance of “November” constituted an “electoral portion.” See 

Ver. Compl. EXHIBIT C at 7. Three Commissioners did not believe “November” constituted an 

“electoral portion.” See Ver. Compl. EXHIBIT B at 25. 

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(“MURs”) helps illustrate how the facial fuzziness of 100.22(b) gives rise to myriad 

unconstitutional investigations and enforcement actions at the FEC. And as the Supreme Court 

has explained routinely, the simple deterrent effect of these practices encroaching on First 

Amendment freedoms is enough to strike them as constitutionally offensive. Lamont v. 

Postmaster General, 381 U.S. 301, 306–07 (1965). 

 In MUR 5988 (American Future Fund), the Commission’s lawyers interpreted an 

advertisement discussing the role of Senator Norm Coleman in rebuilding infrastructure, helping 

the military, and making college more affordable. MUR 5988 (American Future Fund), First 

General Counsel’s Report (“FGCR”) at 8 (FEC 2008). The Commission’s lawyers would have 

classified the speech as express advocacy because it was “candidate centered,” “lack[ed] a 

specific legislative focus,” and “requested[ed] electoral support by characterizing Coleman as an 

Independent Voice for Minnesota.” In the eyes of the Commission, it knew what the American 

Future Fund really meant. Or did it? 

 In a similarly situated enforcement matter, MURs 5474 & 5539 (Dog Eat Dog Films, 

Inc.), another communication seemed to meet these standards, but was not deemed express 

advocacy. The film, Farenheit 9/11, focused on a range of issues, including the Patriot Act and 

the Iraq War, referred to the incumbent President by name, and made statements about his reelection. The film in question referenced two future elections in its harsh criticism of thenPresident Bush. MUR 5474 & 5539 (Dog Eat Dog Films), FGCR at 18 (FEC 2005). It even 

included a mother reading her “son’s last letter to his family in which, shortly after referring to 

President Bush by name, he writes: ‘I really hope they don’t re-elect that fool, honestly.’” There, 

the FEC believed that statement could be read as supportive of the film’s “anti-war theme” and 

was not express advocacy. Id.

 The juxtaposition of American Future Fund and Dog Eat Dog Films is but a small sample 

of what is found when the curtain is pulled back to reveal the FEC’s operations. The 

Commission has, in its usual freewheeling fashion, found express advocacy under Section 

100.22(b) when an advertisement or communication “lacked legislative focus”, did not 

sufficiently urge a candidate to take a specific action—or, inexplicably, urged that the wrong 

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specific action be taken (like “ask[ing] [the candidate] about his plans to bring our children 

back”)—or addressed the character, qualifications or fitness of a candidate for office or after 

engaging in the never-ending quest to determine how an audience would “reasonably interpret” 

the speech in question. See, e.g., MUR 5024R (Council for Responsible Government) (FEC 

2004); MUR 5440 (Media Fund) (FEC 2004); MURs 5511 & 5525 (Swift Boat Veterans and 

POWs for Truth) (FEC 2006); MUR 5631 (Sierra Club) (FEC 2006); MURs 5910 & 5964 

(Americans for Job Security) (FEC 2009); MUR 5988 (American Future Fund) (FEC 2009); 

MUR 5842 (Economic Freedom Fund) (FEC 2009). Though, as Fahrenheit 9/11 showed, some 

speakers get a pass even when they include direct express advocacy, because the FEC invokes its 

multitude of fuzzy factors. It is within this multiverse of confusion and caprice that would-be 

speakers, like Free Speech, find themselves unable to comply with the law. Unlike wealthier and 

more powerful organizations, grassroots speakers simply cannot comply with this regulatory 

absurdity. Because of these jumbled and confusing standards, Free Speech requires facial relief. 

In a Republic proud of its commitment to the idea that “debate on public issues should be 

uninhibited, robust, and wide-open,” citizens should not have to wade through 100.22(b)’s 

standardless standards and play FEC roulette just to speak. Buckley, 424 U.S. at 14 (quoting 

New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). 

 In a prior enforcement proceeding brought by the FEC against the Christian Coalition, the 

DC District Court applied the limiting construction of Buckley to make sense of the FEC’s 

express advocacy standard. 52 F. Supp. 2d 45. There, a strong message by Ralph Reed 

indicating that “[Victory] will be ours here in Montana” and “We’re going to see Pat Williams 

sent bags packing back to Montana in November of this year” were considered “prophecy rather 

than advocacy.” Id. at 63. Another communication consisted of a letter which referred to the 

“1994 elections for Congress” and “Christian voters . . . are going to make our voices heard in 

the elections this November . . . we must stand together, we must get organized, and we must 

stand now.” This second communication included a “Congressional Scorecard” indicating the 

relative support or opposition to candidates. While the court understood that it would be “likely 

that the reader is to make his voice be heard by voting,” the proper judicial focus on the entire 

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communication indicated that it could be reasonably read to indicate the “importance of raising 

the profile of issues important to ‘Christian voters.’” Id. at 63–64. Thus, incorporating First 

Amendment principles, a finding of express advocacy could not be upheld. 

 Just this term, the U.S. Supreme Court struck down a similarly flawed regulatory regime 

in Fox Television Stations. 132 S.Ct. at 2320. It is a fundamental maxim that living under a 

“rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be 

informed as to what the State commands or forbids.’” Papachristou v. Jacksonville, 405 U.S. 

156, 162 (1972) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). In Fox Television 

Stations, the FCC’s three factor “indecency” standard and inconsistent regulatory guidelines 

proved fatal because the regulations touched upon “sensitive areas of basic First Amendment 

freedoms.” 132 S.Ct. at 2318 (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)). 

 Here, the FEC maintains an infinitely more complicated, contradictory, and vague 

regulatory structure, subject to numerous lawsuits and invalidations over decades, that entraps 

political speech with its octopus-like grasp. And the communications in question are less direct 

than the messaging in Christian Coalition, which could not be reasonably construed as express 

advocacy. In Citizens United, the Supreme Court recognized that the FEC often attempts to 

“carve out . . . limited exemption[s] through an amorphous regulatory interpretation” rather than 

protect First Amendment interests. 130 S. Ct. at 889. But if potentially indecent speech received 

a significant degree of protection against vague regulations in Fox, political speech—which 

invokes the “fullest and most urgent application” of the First Amendment—must be protected 

even more robustly from the ever-shifting reach of Section 100.22(b). Eu v. San Francisco 

County Democratic Central Cmte., 489 U.S. 214, 233 (1989). Plaintiff is entitled to restoration 

of its First Amendment rights now, rather than waiting for the Enforcement Division of the FEC 

to pay it a visit like it did in Christian Coalition.8

 

 

8

 It is important to note that this is a Commission which is consistently chided for its secretive 

deliberations and processes that inhibit speech. It was only just recently that the FEC, under 

threat of congressional subpoena, released key documents giving some public details about how 

its murky enforcement and audit procedures actually work. See http://www.politico.com/news/ 

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2. Section 100.22(b): No Meaningful Boundaries 

 In the second instance, Section 100.22(b) suffers from facial overbreadth. As described 

earlier, the purpose of the limiting definition of express advocacy in Buckley was to give sensible 

protection to issue advocacy—largely unregulated speech deserving robust protection of the First 

Amendment. Invalidation of Section 100.22(b) is required in the First Amendment context if a 

“‘substantial number’ of its applications are unconstitutional, ‘judged in relation to the 

[regulation’s] plainly legitimate sweep.’” Washington State Grange v. Washington State 

Republican Party, 552 U.S. 442, 450 n.6 (2008) (quoting New York v. Ferber, 458 U.S. 747, 

769–71 (1982) and Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). Because the ill-defined 

factors embodied in 100.22(b) empower the FEC to regulate broad areas of speech beyond its 

constitutional limit, this provision is facially unconstitutional due to overbreadth. 

 In no manner does Section 100.22(b) confine itself to operate only in accord with the 

limits set by the Supreme Court in Buckley, WRTL, and Citizens United. On its face, Section 

100.22(b) may regulate issue advocacy if an “external event” proves significant to the 

Commission. Issue advocacy might also be regulated if the speech is close to an election or if 

the communication discusses issues deemed too “electoral” during an electoral season. Of 

course, the Supreme Court has already determined that timing of communications, or their 

proximity to an election, is irrelevant for purposes of express advocacy analysis. Citizens 

United, 130 S. Ct. at 895. Similarly, as a matter of law, deciding whether speech is too 

“electoral” is the same as deciding its subjective effect, an analysis already precluded by Buckley

and WRTL. WRTL, 551 U.S. 467–68. 

 An example of classic FEC overreach occurred during the advisory opinion process 

involved in this case. Free Speech wished to publicly disseminate an advertisement critical of 

President Obama and his stance on policies important to the Wyoming ranching community. See 

Ver. Compl. at 6. During the resolution of the advisory opinion process, the Department of 

Labor issued its notice to develop controversial rules that would have prohibited children from 

 

stories/0512/76684.html; 1998 FEC Enforcement Manual, http://www.fec.gov/pdf/1997_ 

Enforcement _Manual.pdf. 

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performing common ranch and farm chores. Id. at 18–19. That proposed rule has since been 

withdrawn and Free Speech was unable to communicate its issue advocacy discussion because, 

on its face, Section 100.22(b) could apply to trigger the host of regulatory burdens overseen by 

the FEC. Indeed, half of the commissioners believed that the proposed communication in 

question morphed into express advocacy because they did not care for its criticism of the 

president, along with its concluding call to speech, “Talk about ranching.” See Free Speech 

Verified Complaint (“Ver. Compl.”) EXHIBIT C at 6–8. This is precisely the evil Buckley

sought to cure. 424 U.S. at 42 (limiting the scope of “expenditure” because “the distinction 

between discussion of issues and candidates and advocacy of election or defeat of candidates 

may often dissolve in practical application”). Under the speech protective rules issued by

Buckley, WRTL, and Citizens United, this cannot stand.9

3. The Tenth Circuit Imposes Strict Protection for the First 

Amendment 

 In accord with Buckley, WRTL, and Citizens United, the Tenth Circuit has maintained 

strict protection for First Amendment speech under both the vagueness and overbreadth 

doctrines. In CRTL, the Tenth Circuit invalidated speech bans aimed at corporations and 

political committee registration requirements based on First Amendment and vagueness 

concerns. 498 F.3d 1137. There, the Tenth Circuit reiterated the Court’s concern that:

The general requirement that “political committees” and candidates disclose 

their expenditures could raise similar vagueness problems, for “political 

committee” is defined only in terms of amount of annual “contributions” and 

 

9

 Other examples detailing the reach of Section 100.22(b) abound. See, e.g., MUR 6073 (Patriot 

Majority 527s), First General Counsel Report at 9 (FEC 2009) (the meaning of “expenditure” 

and express advocacy is found through a “distillation” in the “enforcement process”); MUR 5874 

(Gun Owners of America, Inc.) Statement of Reasons of Commissioner David Mason at 4 (FEC 

2007) (“Section 100.22(b) suffers from the exact type of constitutional frailties described by the 

Chief Justice [in WRTL] because it endorses an inherently vague 'rough-and-tumble of factors' 

approach in demarcating the line between regulated and unregulated speech”); MUR 5988 

(American Future Fund) (FEC 2009) (where the Commission’s lawyers found an advertisement 

that lacked any reference to an election or encouragement to vote to be express advocacy 

because it lacked a “specific legislative focus” and was “candidate centered”); 

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“expenditures,” and could be interpreted to reach groups engaged purely in 

issue discussion. 

Id. at 1152 (quoting Buckley, 424 U.S. at 79). Likewise, in NMYO, the Tenth Circuit explained 

that “speech that expressly advocates or is 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.” 611 F.3d at 676. Post-Citizens United, the Supreme 

Court has abandoned the “unambiguously campaign related” standard and insisted that the strict 

protections of the vagueness and overbreadth doctrines apply as recognized in Buckley and 

WRTL.

10 Citizens United, 130 S. Ct. at 896 (“a statute which chills speech can and must be 

invalidated where its facial invalidity has been demonstrated”).

Speech routinely deemed worthy of the “fullest and most urgent application” of the First 

Amendment, Eu, 489 U.S. at 223, requires meaningful relief where movants have made a 

showing of facial invalidity. Political speech, like the Plaintiff’s, “is an essential mechanism of 

democracy, for it is the means to hold officials accountable to the people.” Citizens United, 130 

S. Ct. at 898. When this rare form of high-value speech collides with Byzantine regulatory 

systems, vague and shifting regulatory triggers, and overbroad provisions (which lead to 

investigations, criminal sanctions, or civil penalties for non-compliance), the appropriate remedy 

is to give the censor the “strong medicine” it deserves—facial invalidation. Plaintiff recognizes 

the atypical nature of this relief, but where prime constitutional interests are at risk and the 

underlying regulatory structure is so far adrift, strong infirmities demand strong medicine. 

ii. Section 100.22(b)’s As-Applied Invalidity 

 

10 To cure the overbreadth of “electioneering communications,” the “functional equivalent of 

express advocacy” standard was employed as a narrowing construction in McConnell and WRTL. 

551 U.S. at 452. Because the electioneering communications provisions were not vague (they 

included bright line timing elements, for example), they still applied too broadly, necessitating 

that a communication would have to meet all elements of the “functional equivalent” test to be 

considered an electioneering communication. This did nothing to alter the requirements of 

express advocacy, which Buckley and its progeny employed to cure the different constitutional 

infirmities of regulable “expenditures.” See WRTL, 551 U.S. at 474 n.7. 

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Because the Buckley Court understood that the “distinction between discussion of issues 

and candidates and advocacy of election or defeat of candidates may often dissolve in practical 

application,” it insisted on the bright line express advocacy formulation. 424 U.S. at 42. The 

Court’s reasoning was simple: candidates running for public office are “intimately tied to public 

issues,” and separating the two proves nearly impossible. Id. Attempting to regulate express 

advocacy without this protection in place proves harmful to speakers’ rights. See Ver. Compl. 

EXHIBIT G (AOR 2012-11 (Free Speech)). Illustrating exactly how the Commission 

disregarded these speech-protective standards here and against other speakers, will demonstrate 

the need for this protection to be maintained by this court. 

1. Section 100.22(b) As Applied Is a Tool of Political Intimidation 

and Harassment 

One of the evils arising out of the FEC’s complex regulatory speech code is that vague 

and broad standards give anyone easy methods to suppress speech they do not like. This is 

because the FECA grants a private right of action to enforce it by allowing third parties to file 

suits to “remedy the violation involved in the original complaint.” 2 U.S.C. § 437g(a)(8). If 

Free Speech were to violate any of the challenged provisions, an ideological opponent could 

challenge the Commission's dismissal of a complaint. It is easy to establish that the agency 

action was “contrary to law” because the FEC’s refusal to enforce would be based not on a 

dispute over the meaning or applicability of the regulation’s terms, but on the Commission's 

unwillingness to enforce its own rule. See Democratic Congressional Campaign Cmte. v. FEC, 

831 F.2d 1131, 1132–34 (D.C. Cir. 1987). 

Unfortunately, political operatives habitually use the FEC’s system to work these very 

evils. This manipulation is the natural conclusion of a regulatory system the FEC makes up as it 

goes along. This system has led to investigations about whether World Wrestling Entertainment 

is corrupting the political process, if NASCAR stickers might have unduly swayed the 2004 

presidential elections, and a host of routinely filed complaints during electoral seasons. 

“Complaint Against World Wrestling Entertainment,” http://courantblogs.com/rick-green/readjournal-inquirer-fec-complaint-against-wwe/; Complaint filed against Shelmerdine Racing, LLC, 

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http://eqs.sdrdc.com/eqsdocsMUR/0000586A.pdf; “CREW Files IRS and FEC Complaints 

Against Americans for Job Security,” http://www.citizensforethics.org/legal-filings/entry/irsfederal-election-commission-complaints-vs-americans-for-job-security. All this acts to logjam 

the marketplace of ideas and empowers the FEC as oracle of purified political speech. 

This process represents the vice of the heckler’s veto, where opponents and those who do 

not understand the speech in controversy may suppress it. See, e.g., Americans United for 

Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1553 (6th Cir. 1992) 

(rejecting a “reasonable person” standard for analysis of endorsement of religion claims and 

explaining how it invariably leads to the “Ignoramus’s Veto”); Doe v. Small, 964 F.2d 611, 630 

(7th Cir. 1992) (Easterbrook, J., concurring) (refusing “an obtuse observer’s veto, parallel to a 

heckler’s veto over unwelcome political speech”). Maintaining fuzzy speech factors that have an 

octopus-like reach ensures an effective, and unconstitutional, chill against many speakers. 

 In a recently filed complaint against Crossroads GPS, Obama for America and the 

Democratic National Committee alleged that the group’s advertisements had an “electoral 

purpose” based on: what newspapers editorials said about the communications, which of the 50 

states the group targeted, and what the phrase “new majority” really meant. See Letter from 

Robert F. Bauer, General Counsel to Obama for America and the Democratic National 

Committee, to Anthony Herman, General Counsel of the FEC, June 19, 2012, available at

http://www.documentcloud.org/documents/370370-obama-lawyers-letter-to-crossroads.html. Of 

course, these are precisely the type of factors the Supreme Court held invalid in WRTL. 551 U.S. 

at 472 (to the extent the timing of advertisements spoke to WRTL’s “subjective intent,” such 

evidence was irrelevant), at 471 (expert third party analysis about what communications really 

meant flatly rejected), at 469 (subjective, open-ended standards “unquestionably chill a 

substantial amount of political speech”). Still, the FEC resurrects these standards when 

considering the reach of Section 100.22(b) even when the Supreme Court has rebuffed these 

fuzzy speech factors time and time again. 

 One of the challenged Crossroads GPS advertisements read as follows: 

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Why isn’t the economy stronger? In the seconds it takes to watch this, our 

national debt will increase 1.4 million. In 2008, Barack Obama said, ‘we 

can’t mortgage our children’s future on a mountain of debt.’ Now he’s adding 

4 billion in debt every day, borrowing from China for his spending. Every 

second, growing our debt faster than our economy. Tell Obama: stop the 

spending. Support the New Majority Agenda at newmajorityagenda.org. 

See Letter from Robert F. Bauer, supra; see also Crossroads GPS: “Stopwatch,” available at

http://www.youtube.com/watch?v=DnwQAUM8D9E. To support the argument that this is 

regulable speech and trigger a likely investigation into Crossroads GPS’s affairs, Obama for 

America and the Democratic National Committee rely on statements from a third party 

“observer,” a Huffington Post analysis of Crossroads GPS spending, and statements from 

Crossroads GPS’s communications director. Id. No matter what comments the national peanut 

gallery may provide about Crossroad GPS’s (or anyone else’s) speech, the First Amendment 

remains resolute in its protection. Under this approach, the isolated comments of Internet 

observers and ideologues11, and the invocation of the ever-blurry I-know-it-when-I-see-it 

“electoral purpose” standard is enough to get speakers in trouble. The unfortunate result is that 

as Section 100.22(b) is applied over the years it grows, morphs, and becomes even less distinct, 

affording political opponents easy legal ammunition with which to attack their adversaries. See 

MUR 6073 (Patriot Majority 527s), First General Counsel’s Report at 9 (meaning of 

“expenditure” is found through a “distillation” in the enforcement process). This cannot be 

“mere disclosure.” 

 The very inclusion of subjective and open-ended standards in the FEC’s regulatory 

system permits campaign finance laws to be used offensively—the heckler’s veto argument—

against ideological opponents. But the First Amendment acts as an absolute bar to this type of 

prospective intimidation and affords this court the means to invalidate the challenged sections 

 

11 It is apparent the FEC relies on third party comments about speech as part of its express 

advocacy determination. See MURs 5474 & 5539 (Dog Eat Dog Films) at 5 n.5 (where the FEC 

examines statements made at the Cannes Film Festival by Michael Moore and a Daily Variety

interview where “Moore expressed his hope that the film would encourage the Democratic 

Party’s voters to go to the polls on election day”).

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due to their unconstitutionality. There is no need for Free Speech to wait to be sufficiently 

irksome or noticeable for its First Amendment rights to be protected after a complaint is filed. 

2. A Model of Murkiness: Illustrating Section 100.22(b)’s 

Invalidity Through the Advisory Opinion Process 

 Looking past superficial form to substantive function empowers this court to identify the 

truth of what is before it—the nation’s largest system of prior restraint. Free Speech submitted 

its own advisory opinion request with the FEC to determine how the FECA applied to its 

prospective conduct and where regulatory triggers existed so it might structure its affairs 

accordingly. After all, no matter where contending parties might believe the constitutional line 

rests between regulable and non-regulable speech, all should agree that line must exist 

somewhere—preferably somewhere identifiable. 

 After more than two months of waiting, three inconsistent draft advisory opinions, two 

FEC hearings, two contradictory Statements of Reasons, and one “partial response” advisory 

opinion, the FEC could not issue a conclusive opinion about the basic legal questions presented. 

If the Commission cannot determine what will be considered express advocacy under its 

regulations and policies, then it can hardly expect individuals to do so. Through the advisory 

opinion process, Free Speech signaled a good faith effort to comply with the FEC’s regulatory 

system. Free Speech simply wanted to know with some degree of certainty what the FEC’s 

regulations meant and how to comply. The First Amendment demands nothing less. For this 

reason alone, this court should invalidate the challenged provisions as applied to Free Speech. 

 The demonstrated as-applied invalidity of Section 100.22(b) requires little conjecture or 

hypothetical speculation by this court. In fumbling over itself and the regulations it oversees, the 

Commission has provided an ample record to enable this Court to assess the as-applied invalidity 

of Section 100.22(b). Three Commissioners analyzed the various proposed advertisements of 

Free Speech and came to remarkably different conclusions about the application of Section 

100.22(b) than their counterpart Commissioners. A short narrative is helpful in understanding 

how Section 100.22(b) invariably is applied in inconsistent and constitutionally insensitive 

manners. 

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In one draft AO, three Commissioners analyzed the “Environmental Policy” 

advertisement and found it to be express advocacy based on a loose mélange of factors. First, 

although the advertisement discusses the value of the Government Litigation Savings Act, these 

Commissioners believed it did not sufficiently explain the “merits of that legislation,” 

transforming it from unregulated issue advocacy into express advocacy. Ver. Compl. EXHIBIT 

C at 6–8. These Commissioners believed that it contained an “electoral portion” that “expressly 

exhorts listeners to take action ‘[t]his November.’” Id. This mysterious “electoral portion” is 

never identified, and the “express exhort[ation]” described by three Commissioners is to “[t]alk 

about ranching.” Id. Because Plaintiff did not discuss the legislation in a manner deemed 

appropriate by the FEC, mentioned the wrong month, and asked people to “talk about ranching,” 

this somehow triggered a finding of express advocacy for half of the Commissioners. 

Another three Commissioners examined the “Environmental Policy” advertisement and 

determined that it did not constitute express advocacy. Under this analysis, these Commissioners 

found the communication beyond the reach of Section 100.22(b) because it “does not urge the 

listener to vote nor is there any other language that causes ‘This November’ to be an electoral 

portion that is unmistakable, unambiguous, and suggestive of only one meaning.” Ver. Compl. 

EXHIBIT B at 25. In doing so, these Commissioners understood that the advertisement had 

several reasonable constructions, prime among these being a call to local neighbors about the 

importance of ranching. Because First Amendment law required non-regulation if any 

reasonable construction of the advertisement could be had, a finding of issue advocacy was 

warranted here. 

 Another advertisement analyzed by the Commission was the “Gun Control” script. Ver. 

Compl. EXHIBIT A at 2. There, the advertisement discusses the importance of gun rights, asks 

the audience to doubt the qualifications of President Obama due to his support of gun control, 

and to get engaged, enraged, and educated this fall, and “support Wyoming candidates who will 

protect your gun rights.” Three Commissioners believed that discussion of President Obama’s 

qualifications, coupled with a reference to the “fall,” and its discussion to “get enraged, get 

engaged, get educated” could only be interpreted “by a reasonable person as advocating that 

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viewers express their “serious[] doubt” for President Obama’s qualifications by casting a vote to 

defeat him “this fall.” Ver. Compl. EXHIBIT C at 12. Another three Commissioners found that 

the advertisement criticized President Obama for his stance on gun control and asked viewers to 

support state candidates just as the advertisement states. Ver. Compl. EXHIBIT D at 29–30. 

Under this approach, these commissioners gave weight to the stated text of the communication 

and balanced any competing interpretations in favor of the First Amendment. 

 The first set of Commissioners in the “Gun Control” example embraced a common tactic 

of the FEC, chastised by the Supreme Court—linking inference upon inference to declare any 

and all speech regulable. These Commissioners believed that including the word “fall,” speaking 

negatively about the President, and asking an audience to support local candidates who favor gun 

rights amounted to express advocacy against President Obama. But this analysis demands that 

the Commissioners ignore the stated textual meaning of the communication in question (“support 

Wyoming state candidates who will protect your gun rights”) in favor of their own hunches, 

inferences, and crystal ball reading about what the speech really meant. Such is the stuff of 

ordinary FEC investigations and such is the reason Section 100.22(b) cannot survive review. 

 That the FEC regularly fails to “give the benefit of any doubt to protecting rather than 

stifling speech” is hardly a new insight. WRTL, 551 U.S. at 469. In WRTL, the FEC relied on 

expert testimony to supplant the textual meaning of an advertisement with the Commission’s 

(inferred) true meaning. There, the FEC’s expert argued that the more subtle and more issue 

advocacy-like a communication appeared, the more likely that it constituted the functional 

equivalent of express advocacy. Id at 471. The Supreme Court flatly rejected these arguments, 

explaining that the “subjective intent” of the speaker was irrelevant and that investigations into 

the hidden meaning of speech were not justifiable. 

 The FEC continues the soothsaying trend exposed and dismissed in WRTL, 551 U.S. at 

469, with one bloc of Commissioners actually supplanting the meaning of Free Speech’s 

advertisements and forever embracing its role as authoritative experts in the true meaning of 

speech. Plaintiff did not intend its advisory opinion request to be the functional equivalent of a 

telephone call to the Psychic Friends Network. In one draft, three Commissioners read the end 

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of the “Environmental Policy” script (“Talk about ranching”) as an “obvious non sequitur, and 

no reasonable person could conclude that the advertisement actually encourages listeners to 

‘[t]alk about ranching in ‘November’ rather than advocating against President Obama.” Ver. 

Compl. EXHIBIT C at 7. Likewise, when interpreting the “Gun Control” script, these same 

Commissioners read a statement encouraging people to support local candidates supportive of 

gun rights as a call to vote against President Obama. Id. at 12–13. While the FEC might 

regularly engage in Orwellian doublespeak (“Support Wyoming State Candidates” equals “Vote 

Against Obama”), average Americans speak, just like the First Amendment says they can, 

without guessing how six speech bureaucrats might doubleread their speech. 

 These examples illustrate a troubling tendency of the FEC: to ignore an actual, reasonable 

meaning of speech and supplant it with its own “contextual” meaning in favor of regulation. 

One set of Commissioners could not believe that the statement, “Talk about ranching,” could 

mean talk about ranching. The same set could not believe that a request to support local 

candidates who favor gun rights meant just that. Instead, these Commissioners viewed such 

speech as “disclaimers,” and cited MCFL for this proposition. But the MCFL group produced 

real express advocacy and included an actual disclaimer, “This special edition does not represent 

an endorsement of any particular candidate.” MCFL, 479 U.S. at 243. This is dangerous First 

Amendment territory. 

 This Court faces a federal agency charged with interpretation and enforcement of federal 

election law and which regularly shifts, modifies, and remolds speech based on whim. 

Analyzing speech in “context,” fishing for an “electoral portion,” and “distilling” the meaning of 

the law through a scorched-earth enforcement process allows the Commission to do exactly this. 

The result here is to trap innocent speakers and grassroots groups. But the Commission lacks 

any constitutional authority to ignore the reasonable meaning of Plaintiff’s speech, supplant its 

own, and constrict Free Speech in its regulatory maze. If one thing is clear after the FEC’s string 

of losses in Buckley, WRTL, and Citizens United, any speech test tied to public perception or the 

government’s perception about the intent, import, or effect of speech is incurably vague. That 

the FEC cannot, or will not, accept this lesson is manifestly before this Court. 

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 While the FEC continues to tilt at windmills to eradicate the supposed corruption 

stemming from a free people speaking freely, real people are injured. Whether viewed in its 

facial or as-applied sense, Section 100.22(b) lacks any constitutional validity and must be 

stricken by this court and nationwide relief afforded so that First Amendment rights will be 

vindicated this electoral season. 

c. The Commission’s Policies and Practices Concerning Political Committee 

Status, the Major Purpose Test, and Definition of Solicitation Are Invalid on 

Their Face and As Applied 

 Besides the mountain of obscurity that is known as express advocacy at the FEC, other 

areas of regulatory morass must also be invalidated. In light of the recognized burdens of 

political committee registration and reporting requirements at both the United States Supreme 

Court and the Tenth Circuit, the FEC’s policies and practices are particularly troubling when one 

considers its case-by-case approach to determining political committee status, the confusion over 

the major purpose test, and the FEC’s unknown solicitation standard. 

i. The Tenth Circuit Has Consistently Demanded Strict Protection 

Against Intrusive Political Committee Registration and Reporting 

Requirements 

The FEC often attempts an end-run around its vague, overbroad and ever-expanding 

definition of express advocacy by claiming that the result—issue groups registering and 

reporting as political committees—is not a “direct restraint” on speech, and that Section 

100.22(b) survives under an exacting scrutiny standard. See, e.g., Brief of Appellees Federal 

Election Comm’n and United States Dep’t of Justice, Real Truth About Obama v. FEC, 2011 

WL 5006886 at 22 (Oct. 20, 2011). According to this argument, even if § 100.22(b) and its 

related provisions are vague and overbroad, it results in little burden. However, the Supreme 

Court and Tenth Circuit have consistently recognized the severe burdens of registration and 

reporting, and this Court should apply strict scrutiny to regulations that impose political 

committee status just to speak about important political issues. 

 In CRTL, 498 F.3d at 1139–41, a nonprofit ideological corporation challenged an 

amendment to the Colorado Constitution that, among a number of requirements, commanded it 

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to register and report as a political committee and file reports for electioneering communications. 

CRTL’s mission focused on issue advocacy relating to life issues and the organization had a 

history of identifying and discussing the positions of candidates on these issues. Id. at 1141–43. 

When considering CRTL’s challenge to the definition of “political committee,” the court insisted 

on the inclusion of the “major purpose” test from MCFL to protect against burdensome 

registration and onerous reporting requirements. Because the major purpose test was absent 

from the Colorado definition, it was unconstitutional as applied to CRTL. Id. at 1151–54; see 

MCFL, 479 U.S. at 263–64. The court rejected the Colorado Secretary of State’s contention that 

the major purpose test was not constitutionally compelled and also highlighted the importance of 

the distinction between issue advocacy and express advocacy in light of the Supreme Court’s 

WRTL opinion. CRTL, 498 F.3d at 1153–54. The CRTL decision makes clear that the major 

purpose test and the distinction between issue advocacy and express advocacy go hand-in-hand: 

organizations whose major purpose is issue advocacy are not political committees, and thus the 

“‘interest in disclosure . . . can be met in a manner less restrictive than imposing the full panoply 

of regulations that accompany status as a political committee . . . .’” Id. at 1154 (quoting MCFL, 

479 U.S. at 262). It is settled as a matter of law, then, that political committee registration and 

reporting requirements for issue advocacy are an undue restraint on speech. 

 The Tenth Circuit recently reaffirmed the CRTL ruling. In NMYO, 611 F.3d at 671–75, a 

nonprofit sued the Secretary of State of New Mexico for attempting to impose political 

committee registration and reporting requirements under state law after the organization sent out 

different mailers identifying legislators’ positions on issues and sources of their campaign 

funding, urging recipients to make their opinions heard. On appeal, the court required that New 

Mexico incorporate the major purpose test into its law and ruled that a spending threshold for 

determining committee status is unconstitutional. As illustrated below, the FEC now ignores the 

major purpose test and the principles behind it. The Tenth Circuit has recognized the necessity 

of the major purpose test and acknowledges that the government interests that justify placing 

registration and reporting requirements on political committees do not justify such regulation of 

issue advocacy. This Court should do the same for Free Speech and all issue advocacy groups. 

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ii. As a Matter of Law, Imposing Political Committee Requirements on 

Issue Advocacy Groups Is a Severe Burden Unsupported by any 

Legitimate Governmental Interest 

As a matter of law, this Court should recognize that political committee status is a severe 

burden on issue advocacy organizations. Buckley and its progeny made clear that strict scrutiny 

must apply to limits on independent expenditures, since such limits posed a direct ceiling on 

political speech. 424 U.S. at 39–52. Although ruling that disclosure is subject to exacting 

scrutiny, the Buckley Court discussed disclosure only in the context of contributions and 

expenditures, not issue advocacy. Id. at 66–68. The Court acknowledged its decision in NAACP 

v. Alabama, which recognized the importance of associational privacy for an issue-oriented 

group, and distinguished disclosure of contributions and expenditures under the FECA as serving 

“the ‘free functioning of our national institutions.’”12 Id. at 66 (quoting Communist Party v. 

Subversive Activities Control Bd., 367 U.S. 1, 97 (1961)); see NAACP v. Alabama, 357 U.S. 449, 

460–66 (1958). When construing the term “expenditure,” the Court construed it to “apply only 

to expenditures for communications that in express terms advocate the election or defeat of a 

clearly identified candidate for federal office.” Buckley, 424 U.S. at 44. It did so because 

otherwise the definition would be so vague that it would capture issue advocacy, meaning that 

the political committee registration and reporting regime would be far too burdensome. Id. at 

39–40. The Court also planted the seeds of the major purpose test for political committees for 

the same reason, lest registration and reporting requirements “reach groups engaged purely in 

issue discussion.” Id. at 79. When discussing disclosure provisions that related to individuals, 

 

12 None of the specific governmental interests that followed implicated issue advocacy: 

“First, disclosure provides the electorate with information ‘as to where 

political campaign money comes from and how it is spent by the candidate’ in 

order to aid voters in evaluating those who seek federal office . . . . Second, 

disclosure requirements deter actual corruption and avoid the appearance of 

corruption by exposing large contributions and expenditures to the light of 

publicity . . . . Third . . . disclosure requirements are an essential means of 

gathering the data necessary to detect violations of the contribution limitations

discussed above.” 

Id. at 66–68. 

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the Court again limited the sweep of the law to contributions and (narrowly-defined) 

expenditures to avoid vagueness concerns, again out of concern that issue advocacy would be 

encroached. Id. at 77–82. The burdens and governmental interests discussed in Buckley relate to 

contributions or expenditures, and the Court worked diligently to avoid the capture of issue 

advocacy in the political committee registration and reporting regime. The Buckley decision 

unequivocally demands that such burdensome regulations steer clear of issue advocacy. 

It is important to pause and inquire why so many courts insist on protecting against 

political committee registration and reporting requirements. Certainly, many would claim that 

this is a system that effectuates “mere disclosure” and must be upheld. But the political 

committee system maintained by the FEC is anything but “mere disclosure.” As described in the 

Verified Complaint, organizations labeled as a “political committee” must comply with 

significant structural and compliance requirements that limit their ability to speak. See, e.g., 11 

C.F.R. §§ 104.3(a), 104.3(b), 104.4(b), 104.4(c); see also MCFL, 479 U.S. at 255 n.7 (“the 

administrative costs of complying with such increased responsibilities may create a disincentive 

for the organization itself to speak”). While the FEC still leaves an open avenue to speak, “the 

avenue it leaves open is more burdensome than the one it forecloses.” Id. at 255. This alone 

illustrates that the system discourages political speech and infringes the First Amendment. Id.

More recently, the Supreme Court affirmed disclosure in the Citizens United case, but the 

ruling only concerned electioneering communications. 130 S.Ct. at 914–16. The Court also 

recently upheld disclosure of signatures supporting ballot initiatives, when citizens serve as 

legislators in direct democracy. Doe v. Reed, 130 S.Ct. 2811, 2819–21 (2010). However, as the 

Tenth Circuit acknowledges, even in the wake of McConnell v. FEC, there have been no changes 

to the major purpose test. CRTL, 498 F.3d at 1153. Thus, the principles behind the major 

purpose test and the narrow definitions of “contribution” and “expenditure” remain sound, and 

indicate that these requirements are a burden not to be placed on issue advocacy organizations. 

Whether a system that imposes political committee registration and reporting 

requirements is subject to strict scrutiny or not, no governmental interest justifies either burden. 

As the Court acknowledged in MCFL before elaborating the major purpose test: 

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Detailed recordkeeping and disclosure obligations, along with the duty to 

appoint a treasurer and custodian of the records, impose administrative costs 

that many small entities may be unable to bear. Furthermore, such duties 

require a far more complex and formalized organization than many small 

groups could manage . . . . Faced with the need to assume a more 

sophisticated organizational form, to adopt specific accounting procedures, to 

file periodic detailed reports . . . it would not be surprising if at least some 

groups decided that the contemplated political activity was simply not worth 

it. 

479 U.S. at 254–55. The Court also reasoned that reporting requirements for independent 

expenditures themselves are sufficient for organizations whose major purpose is issue advocacy: 

“The state interest in disclosure therefore can be met in a manner less restrictive than imposing 

the full panoply of regulations that accompany status as a political committee under the 

[FECA].” Id. at 262. Justice Kennedy, writing the majority opinion in Citizens United, and the 

dissent in McConnell, stated the same concern: “PACs are burdensome alternatives; they are 

expensive to administer and subject to extensive regulations” and these “regulations are more 

than minor clerical requirements. Rather, they create major disincentives for speech, with the 

effect falling most heavily on smaller entities that often have the most difficulty bearing the costs 

of compliance.” 130 S. Ct. at 898; 540 U.S. at 332. Of course, as with registering and reporting 

as a political committee, ad-specific disclosure requires an understandable standard of the type of 

speech regulated—“express advocacy” as well, which the Commission itself cannot articulate. 

The United States Supreme Court and the Tenth Circuit have shown consistent concern 

against entrapping issue advocacy organizations within the political committee registration and 

reporting regime. This implicitly supports one of two lines of reasoning: that political committee 

registration and reporting requirements are a severe burden on issue advocacy unsupported by a 

compelling governmental interest, or that political committee registration and reporting 

requirements are a cognizable burden on issue advocacy unsupported by an important 

governmental interest. Absent either concern, there would be no major purpose test. Despite 

changes to campaign finance law since MCFL, the major purpose test remains unchanged, and 

the activities of issue advocacy associations have proceeded largely protected. The Tenth Circuit 

has justly stopped attempts in New Mexico and Colorado to ignore the major purpose test, and 

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this Court should acknowledge the FEC’s attempt to nullify it, first by acknowledging the

already-determined burden political committee status places on Free Speech and second by 

finding that governmental interests can be served through means more narrowly tailored than the 

panoply of requirements placed on political committees. 

iii. The Commission’s Vague and Overbroad Political Committee 

Practices and Policies Silence Free Speech 

In practice, the FEC’s determination of political committee status transforms the vague 

and overbroad language of § 100.22(b) into an even more vague and more overbroad regulatory 

scheme. Specifically, the very existence of a case-by-case approach to determining political 

committee status, the FEC’s careless use of the major purpose test, and the unknown definition 

of “solicitation” silence Free Speech and other groups.

1. Political Committee Status: We’ll Let the Coin Decide

The FEC maintains that it will determine political committee status on a case-by-case 

basis. Political Committee Status, 72 Fed. Reg. 5595, 5596 (Feb. 7, 2007). The agency believes 

its roles of enforcement and rulemaking can be combined, in that “developments in the law . . . 

include[] the distillation of the meaning of ‘expenditure’ through the enforcement process . . . .” 

MUR 6073 (Patriot Majority 527s), First General Counsel Report (“FGCR”) at 9 (FEC 2009). 

This “living law” approach to regulation allows the FEC to flip the proverbial coin whenever it 

sets out to determine whether an organization is a political committee or not. Unfortunately, this 

amounts to heads the FEC wins, and tails the grassroots lose. See WRTL, 551 U.S. at 471 

(describing the flaws with the Commission’s regulatory approach, this “‘heads I win, tails you 

lose’ approach cannot be correct”). 

In Citizens United, the Supreme Court issued a broad ruling recognizing political speech 

by both corporations and unions. One reason it did so was because the FEC’s alternative “would 

require case-by-case determinations. But archetypal political speech would be chilled in the 

meantime . . . . We decline to adopt an interpretation that requires intricate case-by-case 

determinations to verify whether political speech is banned . . . .” 130 S.Ct. at 892. Just a few 

years earlier, in WRTL, the Court also dismissed a regulatory scheme that “would . . . typically 

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lead to a burdensome, expert-driven inquiry, with an indeterminate result . . . . [I]t will 

unquestionably chill a substantial amount of political speech.” 551 U.S. at 469. Having 

established the burdens that registration and reporting place on organizations, they are only 

heightened by the vague and overbroad policies described herein. 

 The mere existence of a case-by-case approach, where the already-vague definition of 

express advocacy prevents grassroots groups like Free Speech from easily finding the breathing 

room they need to avoid cumbersome political committee reporting requirements, chills issue 

advocacy. Just as there must be a bright-line definition for express advocacy, so too should there 

be a practicable, bright-line standard throughout the FEC’s determination of political committee 

status. 

2. Major Confusion over the Major Purpose Test 

Major purpose, a factor of political committee status, is also determined on a haphazard, 

case-by-case basis at the FEC, under the belief that both Buckley and MCFL “make clear that the 

major purpose doctrine requires a fact-intensive analysis of a group’s campaign activities 

compared to its activities unrelated to campaigns.” See 72 Fed. Reg. at 5597. It remains 

undoubtedly true that in conducting the major purpose analysis, fact-intensive inquiries are often 

appropriate. However, there must be comprehensible standards that guide this fact-intensive 

inquiry. The FEC possesses no authority for standardless discretion, shifting standards, and 

blurry lines in this constitutionally sensitive area. 

Buckley unequivocally states that the major purpose test distinguishes issue advocacy 

organizations from political committees who have the major purpose of “the nomination or 

election of a candidate.” 424 U.S. at 79–80. MCFL describes the same distinction, with the 

major purpose of political committees being “campaign advocacy,” “further[ing] the election of 

candidates,” or “campaign activity.” 479 U.S. at 252, 253, 262. The Court specifically tied the 

definition of express advocacy to major purpose (being determined in part by the amount of 

express advocacy an organization engages in), but the FEC has adopted a vague and overbroad 

approach to determining the major purpose of an organization and relies on broad factors like 

whether a group intends to influence an election, influence the outcome of certain elections, or 

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engage in “federal campaign activity.” See, e.g., MUR 5753 (League of Conservation Voters), 

FGCR at 5 (FEC 2008); MUR 5754 (Moveon.org Voter Fund), FGCR at 5 (FEC 2006); MURs 

5910 & 5694 (Americans for Job Security), FGCR at 15 (FEC 2008); MUR 5988 (American 

Future Fund), FGCR at 11 (FEC 2008). 

As one Commissioner analyzed, under the Commission’s free-floating “fact-intensive” 

major purpose analysis, the “FEC . . . consider[s] all sorts of non-campaign activity as evidence 

of a campaign purpose (regardless of whether it is a group’s major purpose).” MUR 5831 

(Softer Voices), Statement of Reasons of Commissioner Donald F. McGahn at 40 (FEC 2011). 

Some examples of these factors include: 

x Timing of an organization’s formation;

x The geographic targeting of advertisements; 

x Analyzing the portion of an advertising budget allocation to television, 

radio and print ads that reference someone who was a candidate; 

x Any proportion of funds raised that were spent on speech in states with 

supposedly hotly contested races; and 

x The number of donors to the organization. 

Id. at 40–41. The District Court for the District of Columbia reprimanded the FEC for its 

broadening of Buckley and the major purpose test because such readings were beyond the FECA 

and constitutionally suspect. FEC v. GOPAC, 917 F.Supp. 851 (D.D.C. 1996). Rather than 

permit a host of elusive factors to determine express advocacy or the reach of the major purpose 

test, a “bright-line test is also necessary to enable donees and donors to easily conform to the law 

and to enable the FEC to take the rapid, decisive enforcement action that is called for in the 

highly-charged political arena.” Id. at 861 (quoting Orloski v. FEC, 795 F.2d 156, 165 (D.C. 

Cir. 1986)). To cure the expansive reach of the FEC’s operations, the D.C. District Court 

examined public and non-public statements of the group and its spending and contributions to 

determine the major purpose. 

Free Speech encountered the slipshod application of some of the FEC’s expansive factors 

during the advisory opinion process. Although following the formula properly by first 

determining (however erroneously) that Free Speech was predominantly engaging in express 

advocacy for the election or defeat of candidates, three commissioners supported a draft that 

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claims “[t]he conclusion . . . that Free Speech has as its major purpose federal campaign activity 

is further supported by the fact that even its non-express advocacy spending will attack or oppose 

a clearly identified Federal candidate.” Ver. Compl. EXHIBIT C at 24. This ignores the 

reasoning in Buckley that issue advocacy will often relate to candidates who support or oppose a 

respective issue, and further chills grassroots groups from speaking, out of fear that any praise or 

criticism of a candidate makes a group susceptible to registration and reporting as a political 

committee, or at least a rigorous “fact-intensive” inquiry into its operation. 

The FEC’s free-floating major purpose test is not the test mandated by the Supreme Court 

and Tenth Circuit to preserve important First Amendment rights. Although the major purpose 

test does require factual inquiries, the FEC has improperly morphed the test into one that requires 

broad-range, intrusive inquiries without any meaningful guidelines. But that is not the major 

purpose test enunciated by Buckley, MCFL, or as recognized in the Tenth Circuit. This Court 

should invalidate the major purpose test used by the FEC, enjoin its application nationwide, and 

insist on the FEC’s adoption of a constitutionally-sound major purpose analysis. 

3. Haphazard Hopes: Defining “Solicitations”

 Beyond the uncertainties found in Section 100.22(b), political committee status, and the 

major purpose test, the FEC’s lack of clear boundaries concerning “solicitations” is also 

problematic. Under the FECA, “any person” who “solicits any contribution through any 

broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any other 

type of general public political advertising” must include a specified disclaimer in the 

solicitation. See 2 U.S.C. § 441d(a); see also 11 CFR § 110.11(a)(3). In addition, some 

fundraising communications may be deemed “solicitations,” transforming some or all of the 

resulting funds into regulated “contributions.” 

 Contributions, as interpreted by the Buckley Court, include donations to political parties, 

candidates, and campaign committees, expenditures made in coordination with candidates or 

campaign committees, or donations given to others and “earmarked for political purposes.” 424 

U.S. at 24, 78. The Second Circuit limited the reach of the “earmarked for political purposes” 

phrase due to vagueness concerns in FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 

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1995). In doing so, only donations “that will be converted into expenditures subject to regulation 

under FECA” were deemed “contributions.” Id. at 295. 

 Just as clarity and objectivity are important constitutional elements for other aspects of 

federal election law, so too must they apply in analyzing what constitutes a “solicitation.” The 

SEF Court understood that many fundraising communications might have a nebulous “political 

purpose” and parties would “be at a loss to know when a solicitation triggered FECA disclosure 

requirements” that would subject “them to a potential civil penalty.” Id. To cure these 

vagueness concerns, the Court explained that a request for funds is a “solicitation” if it “leaves 

no doubt that the funds contributed would be used to advocate [a candidate’s election or] defeat 

at the polls, not simply to criticize his policies during the election year.” Id. 

 Under former Section 100.57, applicable non-profits had to treat as (regulated) 

contributions all funds received in response to a “solicitation.” This was later invalidated by the 

DC Circuit in EMILY’s List v. FEC because the regulation was beyond the reach of the FECA 

and unconstitutional. 581 F.3d 1 (D.C. Cir. 2009). The FEC has repealed Section 100.57, but 

what exactly constitutes a “solicitation” remains unknown. See Funds Received in Response to 

Solicitations; Allocation of Expenses by Separate Segregated Funds and Nonconnected 

Committees, 75 Fed. Reg. 13,223 (FEC Mar. 19, 2010). 

 Three Commissioners in this matter noted that while Section 100.57 might have been 

invalidated, it still lives on because “nothing in the [EMILY’s List] opinion undermined the 

general premise that a solicitation that indicates that donated funds will be used to support or 

oppose the election or defeat of a clearly identified federal candidate results in ‘contributions.’” 

EXHIIT C at 17–18 n. 6. These same Commissioners instructed Plaintiff to review extensive 

enforcement matters to understand what might constitute a “solicitation” in the absence of any 

regulation or guidance by the FEC. Id. In light of these three Commissioners’ reasoning, 

fundraising scripts that used the term “war chest,” or “win big this fall,” or references to this 

“coming fall” were clearly campaign references (which, apparently, triggers regulation). Id. at 

18. Another Three Commissioners embodied the wisdom of the Buckley, WRTL, and Citizens 

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United Courts to analyze the fundraising scripts and find multiple reasonable interpretations, 

leaving them free of the octopus-like grasp of the FEC. See Ver. Compl. EXHIBIT D at 26–34. 

 Just as Free Speech, and others not before this Court, must have the ability to speak out 

about issues they care about, they must also have the ability to raise funds to support these 

efforts. And fundraising requires the full protection of the First Amendment. See, e.g., Riley v. 

National Fed. Of the Blind of North Carolina, Inc., 487 U.S. 781, 788 (1988) (“solicitations 

involve a variety of speech interests”) (internal quotations and citations omitted); Village of 

Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980) (“solicitation is 

characteristically intertwined with informative and perhaps persuasive speech seeking support 

for particular causes or for particular views on economic, political, or social issues, and for the 

reality that without solicitation the flow of such information and advocacy would likely cease”); 

Davis v. FEC, 554 U.S. 724, 726 (2008) (FEC regulation that required choice between 

“unfettered political speech” and “discriminatory fundraising limitations” violated First 

Amendment); EMILY’s List, 581 F.3d at 18 (“donations to and spending by a non-profit cannot 

corrupt a candidate or officeholder”). 

 Since the invalidation of Section 100.57 in EMILY’s List and its apparent resurrection by 

some of the Commissioners here, strict protection must be given to fundraising communications 

under the FECA. This court must enjoin the Commission from capturing a wide variety of 

speech as undefined and unknown “solicitations” and instead apply the speech-protective rules 

described earlier in this memo. 

d. The Challenged Regime, in its Entirety, Acts as a Prior Restraint 

The Supreme Court already recognized what this memo makes clear: complicated and 

shifting regulatory systems affecting First Amendment interests act as the functional equivalent 

of a prior restraint. Citizens United, 130 S. Ct. at 895. In Citizens United, the Supreme Court 

analyzed the constitutional propriety of a two-prong, eleven-factor speech code deciding whether 

communications were “electioneering communications.” Because average Americans would 

have to wade through hundreds of pages of regulatory provisions, hire expensive election law 

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experts, and still guess at how to comply with the law, the Court invalidated the FEC’s 

regulations concerning what constituted an “electioneering communication.” 

 Just as the FEC developed a prolix speech code in the context of electioneering 

communications, so too has it spent extensive time developing the express advocacy paradox, the 

unsolved political committee status riddle and related major purpose puzzle, and the enigmatic 

solicitation standard. Taken in their entirety, this complicated maze of ever-shifting, undefined 

regulatory burdens operates as the functional equivalent of a prior restraint against speakers like 

Free Speech. In order to speak, Free Speech must necessarily file an advisory opinion request 

with the FEC to get permission to speak outside of its regulatory bounds. This is no simple task, 

as the FEC itself could not answer the basic questions of law presented to it by Free Speech. 

Any system of prior restraint comes before a court “bearing a heavy presumption against 

its constitutional validity.” Bantam Books, 372 U.S. at 70. In such instances, the government 

carries a “heavy burden of showing justification for the imposition of such a restraint.” 

Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The proper relief where a 

prior restraint has been identified is found “through a facial challenge.” City of Lakewood v. 

Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988). Though this is traditionally considered 

“strong medicine,” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973), the evils found in systems 

of prior restraint require just such relief. This is because a system of prior restraint is not 

injurious in how it is applied, but rather it inflicts a “pervasive threat inherent in its very 

existence that constitutes the danger to freedom of discussion.” City of Lakewood, 486 U.S. at 

758 (quoting Thornhill v. Alabama, 310 U.S. 88, 97 (1940)). In these instances, “only a facial 

challenge can effectively test” the challenged system. Id. at 758. 

 In rare instances, the Supreme Court has approved of licensing and prior restraint systems 

for certain forms of low-value speech when stringent safeguards applied. See, e.g., Kingsley 

Books, Inc. v. Brown, 354 U.S. 436 (1957). Some of the important procedural safeguards for 

licensing include: (1) immediate judicial review, (2) due process entitlements of notice and 

hearing at the administrative level, and (3) clear and objective regulations that are (4) given 

precision and consistency by the interpreting agency. See Bantam Books, 372 U.S. at 70–77 (in 

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analyzing the constitutional sufficiency of an obscenity licensing system, lack of notice and 

hearing coupled with vague regulations were “radically deficient”). Even prior restraint systems 

affecting child pornography and animal “crush” videos are routinely stricken as violative of the 

First Amendment. See, e.g., Center for Democracy & Technology v. Pappert, 337 F. Supp. 2d 

606 (E.D. Pa. 2004) (declaring state statute invalid which imposed a “prior administrative 

restraint” against prospective child pornography); United States v. Stevens, 130 S. Ct. 1577, 1591 

(2010) (the “First Amendment protects against the Government; it does not leave us at the mercy 

of noblesse oblige. We would not uphold an unconstitutional statute merely because the 

Government promised to use it responsibly”).

 While low-value speech might tolerate the stringent safeguards described above, highvalue speech, like the political speech here, cannot. In addition, the FEC’s procedures fail to 

meet even the minimal requirements imposed upon obscenity boards by the Supreme Court. 

While the FEC offers an advisory opinion process, requestors are not allowed to speak unless 

spoken to. See Advisory Opinion Procedure, 74 Fed. Reg. 32160, 32161 (Jul. 7, 2009) 

(requestors of advisory opinions may attend open meetings and “respond to any questions 

Commissioners may have”); see also Ver. Compl. EXHIBIT K (Open Meeting of the FEC, April 

12, 2012) at 5 (“Benjamin Barr: May I reply to your comment Madam Vice Chair? Vice Chair 

Weintraub: I don’t really have any questions for you”). This hardly constitutes hearing and 

notice. The FEC often “waives” its own rules and springs last minute advisory opinions hours or 

minutes before said “hearings”—further negating meaningful standards of “notice and hearing.” 

See Ver. Compl. EXHIBITS B, D (cover pages noting both documents “Submitted Late”). 

Lastly, the FEC’s fuzzy speech factors, shifting regulatory definitions, and “case by case” 

standards hardly represent clear and objective standards and practices. Under controlling 

precedent, the FEC’s system fails to pass muster as a licensing system for obscene speech. But 

political speech enjoys the “fullest and most urgent application” of the First Amendment, 

necessitating the facial invalidation of the FEC’s prior restraint. Eu, 489 U.S. at 223. As the 

Lakewood Court understood, only facial invalidation offers a meaningful remedy against a 

system of prior restraint. 486 U.S. at 758. 

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III. Nationwide Suppression Deserves Nationwide Relief 

After considering the heightened protection afforded to political speech and applying it to 

the system in question, this Court should grant a nationwide preliminary injunction. The 

challenged regulations, policies, and practices are facially vague and overbroad under the First 

Amendment, and the Supreme Court has repeatedly recognized that such harm reaches well 

beyond the plaintiff in such cases. Furthermore, the Administrative Procedure Act states that 

regulations contrary to constitutional rights should be set aside entirely. Finally, the FEC’s 

history of inconsistently applying the challenged provisions shows appalling disregard for First 

Amendment freedoms, and anything short of nationwide relief will further the FEC’s strategy of 

avoiding Supreme Court rulings through obfuscation, prolonged litigation, and experimentation, 

all of which makes the system even more vague and overbroad, and thus unconstitutional. 

a. The Overbreadth and Vagueness Doctrines Require Nationwide and 

Uniform Standards to Adequately Preserve First Amendment Freedoms 

The Supreme Court has stated the general rule that “injunctive relief should be no more 

burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” 

Califano v. Yamasaki, 442 U.S. 682, 702 (1979). However, an exception to this rule is found in 

cases where challenged provisions are facially invalid under the First Amendment: “Facial 

challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for 

the benefit of society—to prevent the statute from chilling the First Amendment rights of other 

parties not before the court.” Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958 

(1984); see also Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634 

(1980) (the overbreadth doctrine allows “a litigant whose own activities are unprotected [to] 

challenge a statute by showing that it substantially abridges the First Amendment rights of other 

parties not before the court”). Vagueness challenges enjoy more expansive remedies just the 

same: “When asserting a facial challenge, a party seeks to vindicate not only his own rights, but 

those of others who may also be adversely impacted by the statute in question. In this sense, the 

threshold for facial challenges is a species of third party (jus tertii) standing . . . .” City of 

Chicago v. Morales, 527 U.S. 41, 55 n. 22 (1999). Thus, Free Speech is far from alone in 

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challenging the regulations, policies, and practices in question and represents individuals and 

associations across the country who would like to speak out about important political issues. The 

relief afforded to Free Speech must be afforded to all. 

Upon determining the facial invalidity of the challenged provisions due to either 

overbreadth, vagueness, or both, this Court should not require other individuals or associations 

(many of whom do not have the means to afford experienced campaign finance attorneys) to 

establish the same objective determination in other circuits. See Washington State Republican 

Party, 552 U.S. at 449. The burden belongs on the FEC to establish the validity of its 

regulations, policies, and practices on appeal; it should not fall on Free Speech or others to battle 

the FEC in dozens of federal district courts and up to twelve different federal circuits to strike 

regulations, policies, and practices that are an affront to the First Amendment. 

 Federal district courts have recognized the importance of nationwide injunctive relief 

when the doctrines of overbreadth and vagueness are implicated. In American Civil Liberties 

Union v. Reno, 929 F.Supp. 824 (E.D. Penn. 1996), the court issued a nationwide preliminary 

injunction against portions of the Communications Decency Act of 1996 (“CDA”), specifically a 

vague provision that prohibited the transmission of “patently offensive” or “indecent” material in 

certain circumstances. Id. at 855. The court also found that the CDA was overbroad. Reno, 929 

F.Supp. at 855–57. Its preliminary injunction spanned against “Defendant Attorney General 

Janet Reno, and all acting under her direction and control . . . from enforcing, prosecuting, 

investigating or reviewing any matter premised upon” the laws in question. Id. at 883. The 

Supreme Court affirmed this ruling, concluding that “[t]he interest in encouraging freedom of 

expression in a democratic society outweighs any theoretical but unproven benefit of 

censorship.” Reno v. American Civil Liberties Union, 521 U.S. 844, 885 (1997). As these 

overbroad and vague provisions abridged free speech on the Internet, the challenged regulations, 

policies, and practices here impose onerous requirements on all groups wishing to speak about 

political issues, threatening civil and criminal sanctions for noncompliance. 

 Recently the Southern District of New York issued a nationwide preliminary injunction 

against the enforcement of provisions of the National Defense Authorization Act (“NDAA”) in a 

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facial challenge. Hedges v. Obama (“Hedges II”), No. 12 Civ. 331, 2012 WL 2044565 at *3 

(S.D.N.Y. June 6, 2012). In this case, the court considered terms of who would constitute 

“associated forces” with al-Qaeda or the Taliban or other terrorist organizations, and what it 

would mean to “substantially” or “directly” “support” them. Hedges v. Obama (Hedges I), No. 

12 Civ. 331, 2012 WL 1721124 at *23 (S.D.N.Y. May 16, 2012). Finding each provision vague, 

and causing “a chilling of specific associational and expressive conduct” against the plaintiffs, 

the court found a likelihood of success on the merits of a facial challenge. Id. at ** 17, 24. In a 

memorandum opinion and order, the court clarified the nationwide scope of the injunction 

against enforcing these provisions, noting that “the plaintiffs in this case hail from across the 

nation, and . . . they represent the interests of similarly situated individuals not party to this 

case.” Hedges II, 2012 WL 2044565 at *3.13 Just as Free Speech represents other speakers 

nationwide via jus tertii standing in this challenge, Morales, 527 U.S. at 55 n. 22, Free Speech 

also represents speech that will occur across the nation. With the recent donor interest it has 

garnered, Free Speech, if permitted to speak, will distribute its communications both locally and 

nationally. Its new communication outreach would target local media (newspapers, radio, 

Internet), and national publications like Beef Magazine and USA Today. See Ver. Compl. 

EXHIBIT N. It would be an onerous exercise to require Free Speech, or others not before the 

 

13 In considering the denial of nationwide injunctive relief in a previous challenge against 11 

C.F.R. § 100.22(b), Va. Soc’y for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) overruled by 

RTAA, 681 F.3d 544, the Hedges court made an incomplete distinction: “the stakes in this case 

differ from those relating to a Federal Election Commission regulation. Here, plaintiffs argue 

that they and others could be subject to indefinite military detention under Section 1021(b)(2); 

accordingly, the public interest in ensuring that ordinary citizens understand the scope of such a 

statute justifies its breadth.” Hedges II, 2012 WL 2044565 at *3. However, VSHL concerned a 

group distributing advertisements in Virginia, possibly the District of Columbia. The scope of 

remedial relief was necessarily narrow to be in line with the limited distribution of the speech. 

The chill inflicted by the challenged provisions here inflicts civil and criminal penalties if they 

are violated, and undermine the core of free speech. And while the FEC may not order indefinite 

detention, it may pursue vigorous criminal and civil penalties against individuals nationwide just 

for exercising their First Amendment freedoms. 

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court, to re-assert their claims in other circuits, and equally offensive to the First Amendment to 

carve out an exemption for one organization while others are muted under its chilling purview.14

b. The Administrative Procedure Act and the Inherent Remedial and Equitable 

Powers of this Court Support Nationwide Relief 

When regulations fail to pass scrutiny under the Administrative Procedure Act (“APA”), 

the usual operation is to void them in their entirety. The APA specifically calls for courts 

reviewing regulations to set aside those that are unconstitutional: 

To the extent necessary to decision and when presented, the reviewing court 

shall decide all relevant questions of law, interpret constitutional and statutory 

provisions, and determine the meaning or applicability of the terms of an 

agency action. The reviewing court shall-- . . . . (2) hold unlawful and set 

aside agency action, findings, and conclusions found to be-- (A) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; 

(B) contrary to constitutional right, power, privilege, or immunity; 

5 U.S.C. § 706. Free Speech has asserted that the challenged provisions are contrary to the First 

Amendment and they are beyond the reach of the FECA. See Ver. Compl. at 22–33. As 

recognized by several courts, Section 100.22(b)’s definition of express advocacy is not 

authorized by the FECA as interpreted by the Supreme Court in Buckley and MCFL. See Right 

to Life of Duchess Co., 6 F. Supp. 2d 248; MRLC, 914 F. Supp. at 13 (Section 100.22(b) deemed 

“contrary to the statute as the United States Supreme Court and First Circuit have interpreted it 

and thus beyond the power of the FEC”). The Tenth Circuit, and many of its sister circuits, 

agree with the proposition that McConnell did not eliminate Buckley’s express advocacy 

requirement and it still remained a viable device with which to limit a vague or overbroad 

provision. See, e.g., Herrera, 611 F.3d 669; Center for Individual Freedom v. Carmouche, 449 

F.3d 655 (5th Cir. 2006), cert. denied, 549 U.S. 1112 (2007); Anderson v. Spear, 356 F.3d 651 

(6th Cir. 2004), cert. denied, Stumbo v. Anderson, 543 U.S. 956 (2004). 

 

14 If a person adversely affected by an agency rule may sue in the D.C. District Court, as is 

usually the case, see 28 U.S.C. § 1391(e), a district court’s “refusal to sustain a broad injunction 

is likely to generate a flood of duplicative litigation” and a broad injunction “obviates such 

repetitious filings.” National Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1309, 1409 

(D.C. Cir. 1998); see also 2 U.S.C. § 437g(a)(6)(A) (entrusting broad nationwide enforcement 

remedies with the FEC upon a showing that a speaker “transacts business” in a given region).

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That Section 100.22(b), and the FEC’s complicated regulatory maze, is invalid remains 

even truer today, given the continued expansion of the regulation by the FEC, and its vague and 

overbroad application as detailed in this memorandum. In short, there is no way to reconcile the 

Supreme Court’s limiting construction of expenditure in Buckley and MCFL with the octopuslike reach of the challenged provisions. 

 As Justice Blackmun summarized, in certain instances relief from invalid agency actions 

should go beyond the plaintiffs in the case: 

In some cases the “agency action” will consist of a rule of broad applicability; 

and if the plaintiff prevails, the result is that the rule is invalidated, not simply 

that the court forbids its application to a particular individual. Under these 

circumstances a single plaintiff, so long as he is injured by the rule, may 

obtain “programmatic” relief that affects the rights of parties not before the 

court. 

Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting). 

Recently, the Eastern District Court for the District of California used the APA to set aside 

arbitrary and capricious regulations issued by the United States Forest Service. Sequoia 

Forestkeeper v. Tidwell, 2012 WL 928703 (E.D. Cal. March 19, 2012). Taking the APA on its 

face, the court ruled that “this Court must hold unlawful and set aside the regulations that were 

impermissible interpretations of their governing statute. A geographically-restricted injunction is 

insufficient, as the Forest Service has no authority to continue to implement ultra vires 

regulations in any district of the United States.” Id. at *9. After determining the unconstitutional 

overbreadth and vagueness of Section 100.22(b) and related provisions, and likewise the FEC’s 

implementation of Section 100.22(b) from its governing statute, the APA calls for this Court to 

set aside the system entirely, not just as it relates to Free Speech. Given the new donor interest 

in Free Speech and new plans for nationwide advertisements, relief by the means of invalidation 

under the APA is appropriate here.15 Section 100.22(b), and the challenged policies, are a “rule 

of broad applicability” and call for “programmatic” relief, ensuring that free speech, and not 

 

15 Plaintiff is currently filing its motion to file its First Amended Verified Complaint to include 

these new details. Since this process is not yet complete, Plaintiff has included copies of its new 

advertising plans as EXHIBIT 1 to this memo. 

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merely Free Speech, is protected. For either facial or as-applied vagueness and overbreadth and 

as a violation of the APA, the challenged provisions should be enjoined nationwide. 

c. The First Amendment Is Not Subject to Experimentation by the FEC 

Although the Supreme Court’s First Amendment overbreadth and vagueness rulings 

support nationwide injunctive relief in cases of facial overbreadth or vagueness and largely 

confine relief in as-applied challenges to the parties in a given case, the sordid history of the 

FEC’s experimentation with the challenged provisions call for a nationwide injunction as well. 

In one past challenge that ruled Section 100.22(b) unconstitutional, the court held that a 

nationwide injunction would be improper, and it “must allow the FEC, if it chooses, to press its 

position in those circuits that have not yet ruled on the constitutionality of 11 C.F.R. § 

100.22(b).” Va. Soc’y for Human Life v. FEC (“VSHL”), 263 F.3d 379, 394 (4th Cir. 2001). 

Since VSHL, however, Section 100.22(b) has grown even more encompassing and oppressive of 

political speech, and Free Speech is but the latest in a line of organizations whose speech has 

fallen under the grasp of an ever-evolving definition of express advocacy. The time for the FEC 

to press its position is finished: its experiment is irreconcilable with the First Amendment. 

Free Speech took the good faith step of asking the FEC for an advisory opinion in this 

matter to clarify the reach and meaning of the law. The result was complete chaos. A Statement 

of Reasons by Commissioner Matthew Petersen, Chair Caroline Hunter, and Commissioner 

Donald McGahn included an attachment that illustrates the immensity and vagueness of the 

regulatory reach here, totaling nearly four pages. See Ver. Compl. EXHIBIT I at 26–29. Even 

upon cursory review it is evident that the Commission charged with enforcement of the FECA 

maintains a freewheeling, undefined, ever growing list of nebulous factors with which to 

penalize speech and speakers. This cannot stand anywhere in the United States. 

 The challenged provisions targeted in this litigation this are but part of an ever-expanding 

scheme that captures all political speech, however far removed from express advocacy, when 

uttered by average grassroots groups. It is within the inherent equitable powers of this Court to 

grant nationwide injunctive relief from § 100.22(b) in the event the regulation is unconstitutional 

as applied to Free Speech. See, e.g., FED. R. CIV. P. 65; Stichting Mayflower Recreational Fonds 

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v. Newpark Resources, 917 F.2d 1239, 1245 (10th Cir. 1990) (district courts enjoy “considerable 

discretion” in fashioning equitable relief); Friends for All Children, Inc. v. Lockheed Aircraft 

Corp., 746 F.2d 816, 834 (D.C. Cir. 1984) (district court may “properly employ [ ] its inherent 

equitable powers ... to prevent plaintiffs from suffering irreparable injury”).

In denying a nationwide injunction, the VSHL court relied on the fact that VSHL planned 

to broadcast its communications only in Virginia, possibly in the District of Columbia, thus 

explaining the geographically limited relief of the injunction. See Brief of Appellees/CrossAppellants, VSHL, 2000 WL 33990680 at *7–*8. The court also stated that “[a] contrary policy” 

to limited injunctive relief “would ‘substantially thwart the development of important questions 

of law by freezing the first final decision rendered on a particular legal issue.’” 263 F.3d at 393

(quoting United States v. Mendoza, 464 U.S. 154, 160 (1984)). However, the questions 

surrounding Section 100.22(b) have not only been developed; they have multiplied in the decade 

since VSHL. As the FEC has expanded the reach of 100.22(b), political committee status, and 

the major purpose test, so too have injuries nationwide multiplied. This is precisely the situation 

the Citizens United Court warned about when it explained that when the “FEC issues advisory 

opinions that prohibit speech, [m]any persons, rather than undertake the considerable burden 

(and sometimes risk) of vindicating their rights through case-by-case litigation, will choose 

simply to abstain from protected speech—harming not only themselves but society as a whole, 

which is deprived of an uninhibited marketplace of ideas.’” 130 S. Ct. at 896 (internal citations 

omitted). While the FEC might value intercircuit nonacquiesence, the Supreme Court has placed 

primacy in the protections offered by the First Amendment, not on novel experimentation by 

federal agencies with constitutional liberties. 

For the time being, the Fourth Circuit holds Section 100.22(b) and related provisions as 

constitutionally sound. RTAA, 681 F.3d at 558. The regulation remains unconstitutional in the 

First Circuit and other federal district courts. Intercircuit development of the constitutional 

issues at hand has already occurred. These opinions, along with thousands of pages of FEC 

analysis (nearly 200 pages in the case of Free Speech alone), indicate the questions of Section 

100.22(b) are as developed as they need be, and that courts must at least move to encourage final 

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justiciability of the definition of express advocacy while protecting core First Amendment 

freedoms. The Commission’s speech experiment has gone far enough. 

IV. Free Speech Will Be Irreparably Harmed if an Injunction Does Not Issue 

 Where First Amendment rights are at issue, irreparable harm is established: “[t]he loss of 

First Amendment freedoms, for even minimal periods of time, unquestionably constitutes 

irreparable injury.” Elrod, 427 U.S. at 373–74; see Utah Licensed Beverage Ass’n v. Leavitt, 

256 F.3d 1061, 1076 (10th Cir. 2001) (meeting irreparable injury requirement due to deprivation 

of speech rights). Free Speech silenced itself for the duration of the FEC’s advisory opinion 

process, which lasted over 60 days. It has missed a number of opportunities to speak out about 

important political issues. See Ver. Compl. at 15, 18. When the FEC could not issue a binding 

advisory opinion, Free Speech sought relief in this Court and has already waited for weeks 

during the process of filing. Free Speech continues to be irreparably harmed by the vague and 

overbroad reach of Section 100.22(b) and the challenged policies and practices, and absent 

injunctive relief will continue to suffer in silence. 

V. The Balance of Hardships Favors Free Speech and Injunctive Relief 

 The balance of harms requirement is usually met once a First Amendment plaintiff 

demonstrates a likelihood of success on the merits. A threatened injury to plaintiff’s 

constitutionally protected speech will usually outweigh the harm, if any, the defendants may 

incur from being unable to enforce what appears to be an unconstitutional statute. See American 

Civil Liberties Union v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). Section 100.22(b), 

along with the challenged policies and practices, are unconstitutionally overbroad and vague, 

facially and as-applied to Free Speech. It violates the First Amendment’s protection of political 

speech, and would not pass muster even under less compelling guidelines that protect obscenity. 

Since the challenged provisions serve no purpose but to erase the bright-line distinction 

of political committees from issue advocacy organizations, there will be no harm to the FEC 

from a lack of enforcement. Any “reliance harm” found in invalidating unconstitutional 

regulations, policies, and practices can be cured by this Court recognizing “Draft C” as interim 

guidance during the pending electoral cycle until the FEC is able to promulgate constitutionally 

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sound replacements. See Ver. Compl. EXHIBIT D. If anything, the FEC will have an easier 

time acting as a regulatory agency when it promulgates and then enforces understandable rules 

instead of “distilling” its rules through the enforcement process, or promulgating regulations as it 

enforces them. The balance of hardships favors Free Speech, and injunctive relief is necessary 

for its issue advocacy and advocacy of all other such organizations that just wish to speak. 

VI. Issuing a Preliminary Injunction Is Not Adverse to the Public Interest 

Vindicating First Amendment liberties is “clearly in the public interest.” Pacific Frontier 

v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005); Christian Legal Soc’y v. Walker, 

453 F.3d 853, 859 (7th Cir. 2006) (“injunctions protecting First Amendment freedoms are 

always in the public interest”); R.J. Reynolds, 823 F.Supp.2d at 52 (“the public interest ... will be 

served by ensuring that plaintiffs’ First Amendment rights are not infringed before the 

constitutionality . . . has been definitively determined”) (quoting Stewart v. District of Columbia 

Armory Bd., 789 F. Supp. 402, 406 (D.D.C. 1992)). Thus, permitting Free Speech to speak 

freely serves the important goal of protecting an “essential mechanism of democracy” and our 

safeguard to “hold officials accountable to the people.” Citizens United, 130 S. Ct. at 898.

CONCLUSION 

For the foregoing reasons, the Court should grant Plaintiff’s motion for preliminary 

injunction. Free Speech requests an expedited hearing on this matter pursuant to the goals of 

FED. R. CIV. P. 1. The Court should also waive the bond requirement under the FED. R. CIV. P. 

65(c). 

 

Dated: July 13, 2012 

/s/ Stephen R. Klein

Stephen R. Klein 

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