No. 13-772 

In the Supreme Court of the United States

FREE SPEECH, PETITIONER

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

BRIEF FOR THE RESPONDENT IN OPPOSITION 

LISA J. STEVENSON

Deputy General Counsel 

KEVIN DEELEY

Acting Associate General 

Counsel 

ERIN CHLOPAK

Acting Assistant General 

Counsel 

CHARLES KITCHER

Attorney 

Federal Election 

 Commission 

Washington, D.C. 20463 

DONALD B. VERRILLI, JR. Solicitor General 

Counsel of Record 

Department of Justice 

Washington, D.C. 20530-0001 

SupremeCtBriefs@usdoj.gov 

(202) 514-2217 

 
(I) 

QUESTION PRESENTED 

Whether the court of appeals correctly rejected petitioner’s constitutional challenge to the Federal Election Commission’s approach to determining politicalcommittee status, as described in Federal Register 

notices. 
(III) 

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1 

Jurisdiction ...................................................................................... 1 

Statement ......................................................................................... 1 

Argument ......................................................................................... 6 

Conclusion ...................................................................................... 15 

TABLE OF AUTHORITIES 

Cases: 

Bennett v. Spear, 520 U.S. 154 (1997) ..................................... 7 

Buckley v. Valeo, 424 U.S. 1 (1976) ................. 2, 3, 8, 9, 13, 14 

Citizens United v. FEC, 558 U.S. 310 (2010) ..... 5, 6, 9, 10, 14 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ....... 11

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

rev’d in part on recons., No. Civ. A. 02-1237, 2005 

WL 588222 (D.D.C. Mar. 7, 2005) ...................................... 11

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ............................................................... 14

FTC v. Standard Oil Co., 449 U.S. 232 (1980) ....................... 7 

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

part by Citizens United v. FEC, 558 U.S. 310 (2010) ........ 9 

McCutcheon v. FEC, No. 12-536 (Apr. 2, 2014), 

slip op. ...................................................................................... 9 

Minnesota Citizens Concerned for Life, Inc. v. 

Swanson, 692 F.3d 864 (8th Cir. 2012) ........................ 14, 15

SEC v. Chenery Corp., 332 U.S. 194 (1947) .......................... 10

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) .......... 10, 11

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

cert. denied, 131 S. Ct. 553 (2010) ........................................ 9 
IV 

Cases—Continued: Page

The Real Truth About Abortion v. FEC: 

681 F.3d 544 (4th Cir. 2012), cert. denied, 

133 S. Ct. 841 (2013) ............................................ 5, 6, 11

133 S. Ct. 841 (2013) (No. 12-311) ..................................... 6 

United States v. Williams, 553 U.S. 285 (2008) .................. 12 

United States v. Wurzbach, 280 U.S. 396 (1930) ................. 12 

Constitution, statutes, regulation and rule: 

U.S. Const. Amend. I ........................................................ 4, 6, 8 

Administrative Procedure Act, 5 U.S.C. 551 et seq.:

5 U.S.C. 704 .......................................................................... 7 

Federal Election Campaign Act of 1971, 2 U.S.C. 

431 et seq. ................................................................................ 2 

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

2 U.S.C. 431(8)(A)(i) ............................................................ 2 

2 U.S.C. 431(9)(A)(i) ............................................................ 2 

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

2 U.S.C. 434(a)-(b) ............................................................... 2 

2 U.S.C. 437c(b)(1) .............................................................. 2 

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

2 U.S.C. 437d(a)(8) .............................................................. 2 

2 U.S.C. 437f ........................................................................ 2 

2 U.S.C. 437g ....................................................................... 2 

2 U.S.C. 437g(d) ................................................................... 2 

2 U.S.C. 438(a)(8) ................................................................ 2 

2 U.S.C. 438(d) ..................................................................... 2 

2 U.S.C. 441a(a)(1)(C) ..................................................... 2, 8 

2 U.S.C. 441b(a) ................................................................... 2 
V 

Statutes, regulation and rule—Continued: Page

Internal Revenue Code of 1986, 26 U.S.C. 1 et seq.: 

26 U.S.C. 527 .................................................................... 3, 4 

26 U.S.C. 527(a) ................................................................... 3 

26 U.S.C. 527(e)(1) .............................................................. 3 

11 C.F.R. 100.5(a) ...................................................................... 2 

Sup. Ct. R. 10 ........................................................................... 13 

Miscellaneous: 

FEC: 

Disclosure Data Catalogue, www.fec.gov/data/ 

ZCommitteeSummary.do (last visited 

Apr. 2, 2014) ................................................................. 12 

Federal Election Commission Campaign Guide 

for Nonconnected Committees (May 2008), 

www.fec.gov/pdf/nongui.pdf ....................................... 13

Proposed Rules: Political Committee Status, 

69 Fed. Reg. (Mar. 11, 2004): 

p. 11,736 ................................................................................ 3 

pp. 11,748-11,749 ................................................................. 3 

Rules and Regulations: Political Committee Status, 

72 Fed. Reg. (Feb. 7, 2007): 

p. 5595 ........................................................................... 3, 4, 7 

p. 5596 ................................................................................... 8 

pp. 5596-5597.................................................................... 3, 7 

pp. 5601-5602...................................................................... 11 

p. 5604 ................................................................................... 7 

p. 5605-5606 ...................................................................... 4, 7 

 
(1) 

In the Supreme Court of the United States

No. 13-772 

FREE SPEECH, PETITIONER

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

BRIEF FOR THE RESPONDENT IN OPPOSITION 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1-3) 

is reported at 720 F.3d 788. The opinion of the district 

court (Pet. App. 5-23) is published as part of the court 

of appeals’ opinion, but is not published separately. 

JURISDICTION 

The judgment of the court of appeals was entered 

on June 25, 2013. A petition for rehearing was denied 

on September 30, 2013 (Pet. App. 43). The petition for 

a writ of certiorari was filed on December 30, 2013 (a 

Monday). The jurisdiction of this Court is invoked 

under 28 U.S.C. 1254(1). 

STATEMENT 

1. The Federal Election Commission (FEC or 

Commission) is vested with statutory authority over 

the administration, interpretation, and civil enforce-
2 

ment of the Federal Election Campaign Act of 1971 

(FECA), 2 U.S.C. 431 et seq., and other federal 

campaign-finance statutes. The Commission is empowered to “formulate policy” with respect to FECA, 

2 U.S.C. 437c(b)(1); “to make, amend, and repeal such 

rules * * * as are necessary to carry out the provisions of [FECA],” 2 U.S.C. 437d(a)(8); see 2 U.S.C. 

438(a)(8) and (d); to issue written advisory opinions 

concerning the application of FECA and Commission 

regulations to any specific proposed transaction or 

activity, 2 U.S.C. 437d(a)(7), 437f; and to civilly enforce FECA, 2 U.S.C. 437g. The Department of Justice prosecutes criminal violations of FECA. See 2 

U.S.C. 437g(d). 

Under FECA, any “committee, club, association, or 

other group of persons” that receives more than $1000 

in “contributions” or makes more than $1000 in “expenditures” in a calendar year is a “political committee.” 2 U.S.C. 431(4)(A); see 11 C.F.R. 100.5(a). 

FECA defines “contribution” and “expenditure” to 

include any payment of money to or by any person 

“for the purpose of influencing any election for Federal office.” 2 U.S.C. 431(8)(A)(i) and (9)(A)(i). A political committee must register with the Commission and 

file periodic reports for disclosure to the public of all 

receipts and disbursements, with exceptions for 

most transactions of less than $200. 2 U.S.C. 433, 

434(a)-(b). FECA also places certain constraints 

on contributions to political committees. 2 U.S.C. 

441a(a)(1)(C), 441b(a). 

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

this Court explained that defining political-committee 

status “only in terms of amount of annual ‘contributions’ and ‘expenditures’ ” might result in overbroad 
3 

application by reaching “groups engaged purely in 

issue discussion.” Id. at 79 (footnotes omitted). The 

Court therefore concluded that FECA’s politicalcommittee provisions “need 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.” Ibid. Under that limiting construction, an entity that is not controlled by a candidate 

must register as a political committee only if the 

group (1) crosses the $1000 threshold of contributions 

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

nomination or election of federal candidates. 

In March 2004, the Commission issued a notice of 

proposed rulemaking. That notice sought comment on 

whether the FEC should, inter alia, promulgate a 

regulatory definition of “political committee” that 

would encompass all “527” groups—i.e., political organizations holding tax-exempt status under Section 

527 of the Internal Revenue Code. Proposed Rules: 

Political Committee Status, 69 Fed. Reg. 11,736, 

11,748-11,749 (Mar. 11, 2004); see 26 U.S.C. 527(a) and 

(e)(1). In February 2007, after receiving comments 

and hearing testimony, the Commission published in 

the Federal Register a Supplemental Explanation and 

Justification explaining its decision not to promulgate 

such a regulation. Rules and Regulations: Political 

Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007). 

The notice stated that the Commission would instead 

continue its longstanding practice of determining an 

organization’s major purpose through case-by-case 

adjudication. See id. at 5596-5597. The notice then 

discussed a number of prior administrative and civil 

matters in which the Commission or a court had analyzed a group’s major purpose. The notice explained 
4 

that those decisions taken together “provid[ed] considerable guidance to all organizations” regarding the 

criteria that are used to apply the major-purpose test. 

See id. at 5595, 5605-5606.

2. Petitioner is an unincorporated Wyoming nonprofit association that was formed in 2012 and that 

identifies itself as a “political organization” under 

Section 527 of the Internal Revenue Code. Pet. App. 

6, 25. Petitioner’s bylaws require it to operate independently of political candidates, committees, and 

political parties. Id. at 6. Petitioner alleges a desire 

to advocate views on various political issues and, in 

particular, to disseminate a variety of political advertisements without complying with certain FECA disclosure requirements, including the registration and 

reporting requirements applicable to political committees. 12-cv-00127 Docket entry No. 24 (D. Wyo. July 

26, 2012) (Am. Compl.). Petitioner asked the Commission for an advisory opinion about whether, inter alia, 

its proposed activities would require it to register with 

the Commission as a political committee. Pet. App. 

28. Although the Commission rendered opinions on 

certain other matters, it was unable to approve by the 

necessary number of votes an opinion addressing the 

political-committee issue. Id. at 24-42. 

Petitioner filed this lawsuit seeking declaratory 

and injunctive relief against, inter alia, the Commission’s approach to determining political-committee 

status, on the ground that the approach violates the 

First Amendment. Pet. App. 6; Am. Compl. 2. The 

district court granted the Commission’s motion to 

dismiss. Pet. App. 5-23. The court explained that 

because, “[a]t their core,” the “challenged rules and 

policies implement only disclosure requirements,” 
5 

they “‘impose no ceiling on campaign-related activities’ ”; “‘do not prevent anyone from speaking’”; and 

are thus constitutional so long as they bear “‘a substantial relation’ ” to “‘a sufficiently important governmental interest.’ ” Id. at 9-10 (quoting Citizens 

United v. FEC, 558 U.S. 310, 366-367 (2010)). The 

court concluded that the Commission’s case-by-case 

adjudicatory approach to determining politicalcommittee status satisfies that standard. Id. at 20-22. 

The district court reasoned that because Buckley, 

which “create[d] the major purpose test,” had “not 

mandate[d] a particular methodology for determining 

an organization’s major purpose,” the Commission 

“was free to administer FECA political committee 

regulations either through categorical rules or 

through individualized adjudications.” Pet. App. 21 

(quoting The Real Truth About Abortion, Inc. v. FEC, 

681 F.3d 544, 556 (4th Cir. 2012), cert. denied, 133 S. 

Ct. 841 (2013) (RTAA)). The court upheld the Commission’s adoption of the latter approach, observing 

that “[t]he determination of whether the election or 

defeat of federal candidates for office is the major 

purpose of an organization, and not simply a major 

purpose, is inherently a comparative task,” and that 

“judicial decisions applying the major purpose test 

* * * have used the same fact-intensive analysis 

that the Commission has adopted.” Ibid. (quoting 

RTAA, 681 F.3d at 556-557). 

3. The court of appeals affirmed on the reasoning 

of the district court. Pet. App. 1-4. The court concluded that the district court had applied the correct 

standard of review and had “comprehensively analyzed and correctly resolved [petitioner’s] constitutional challenges.” Id. at 3. The court of appeals 
6 

additionally rejected petitioner’s contention that the 

district court had erred in relying on the Fourth Circuit’s decision in RTAA, supra, which had rejected 

similar First Amendment claims. Id. at 3 n.1; see 

RTAA, 681 F.3d at 548-558. The court found no support for petitioner’s “conclusory assertions” that the 

record in this case distinguishes it from RTAA. Pet. 

App. 3 n.1. 

ARGUMENT 

Petitioner challenges (Pet. 8-40) the FEC’s approach to determining political-committee status.*

 

The lower courts’ rejection of that challenge reflects a 

straightforward application of this Court’s precedents, 

and it is consistent with every other circuit-court 

decision that has addressed the issue following Citizens United v. FEC, 558 U.S. 310 (2010). This Court 

recently denied certiorari in RTAA, which presented 

the same political-committee-status issue and on 

which the decision below relied. See 133 S. Ct. 841 

(2013) (No. 12-311). Further review is not warranted. 

1. Petitioner has identified no proper basis for judicial review in this case of the Commission’s approach to determining political-committee status. The 

 

*

 Petitioner asserts (Pet. 26 n.3) that it is also preserving challenges it raised below to the FEC’s definitions of “express advocacy” and to the standard applied by the FEC in determining whether a particular communication is a “solicitation” for a contribution. 

See Pet. 26-28 (discussing express-advocacy determinations). The 

questions presented, however, address only political-committee 

status, see Pet. i; petitioner presents no sustained argument about 

why the additional issues would warrant this Court’s review; and 

the Court recently denied a petition for certiorari challenging the 

express-advocacy definition, RTAA, 133 S. Ct. 841 (2013) (No. 12-

311); see Br. in Opp. at 11-18, RTAA. 
7 

Administrative Procedure Act (APA), on which petitioner appears to rely, authorizes courts to hear challenges only to “final agency action”—i.e., action that 

consummates the agency’s decisionmaking process 

and determines the rights and obligations of parties. 

5 U.S.C. 704; see Bennett v. Spear, 520 U.S. 154, 177-

178 (1997); see also Am. Compl. 33-34. The Commission has not expressed any view, let alone a “definitive 

statement of position,” FTC v. Standard Oil Co., 449 

U.S. 232, 241 (1980), about petitioner’s politicalcommittee status. Rather, the Commission declined 

to take any view on that question. Pet. App. 41-42. 

Petitioner’s repeated references (Pet. 3, 21, 26 n.4, 27-

28, 32) to draft advisory opinions, which were never 

issued by the Commission, do not identify any “final 

agency action” subject to review under the APA. 

The Federal Register notice describing the Commission’s case-by-case adjudicatory approach to 

political-committee-status determinations also is not 

final agency action under the APA. The Commission’s 

notice does not purport either to establish a binding 

norm or to decide any entity’s legal status. The primary purpose of the notice was to explain why a broad 

regulation was not created, and the notice simply 

provides guidance about political-committee status 

and the major-purpose test based on specific administrative and civil enforcement precedents. 72 Fed. 

Reg. at 5604; see pp. 3-4, supra. The publication of 

Federal Register notices describing the results of the 

Commission’s adjudications does not permit petitioner 

to make a preemptive challenge to the adjudicatory 

process in the absence of some final determination 

about petitioner’s own status. Rather, if the Commission ever initiates an enforcement proceeding against 
8 

petitioner—which it has not done, and may never do—

petitioner will be entitled to raise all of its challenges 

to the Commission’s approach in that context. 

2. Even if the Commission’s approach to determining political-committee status were subject to APA 

review, the lower courts correctly rejected petitioner’s 

challenge. Petitioner agrees (e.g., Pet. 36) that determination of political-committee status should be 

governed by the major-purpose test, under which an 

organization is not regulated as a political committee 

unless its “major purpose * * * is the nomination 

or election of a candidate.” Buckley v. Valeo, 424 U.S. 

1, 79 (1976) (per curiam). The Commission has consistently determined on a case-by-case basis whether 

an organization’s major purpose is the nomination or 

election of candidates. See 72 Fed. Reg. at 5596. Petitioner essentially contends (Pet. 8-9) that the burdens 

of political-committee status, in combination with a 

perceived indeterminacy about whether the Commission will find any particular organization to be a political committee, causes the current administrative regime to violate the First Amendment. That argument 

lacks merit. 

a. Petitioner acknowledges (Pet. 10 n.1) that strict 

scrutiny does not apply in this case. As the district 

court correctly observed, the definition of “political 

committee,” even if applicable to petitioner, would 

ultimately affect only the disclaimer and disclosure 

requirements (if any) to which petitioner would be 

subject. Pet. App. 9; see p. 2, supra. Because petitioner does not make campaign contributions or otherwise coordinate its advocacy with candidates or 

parties, Pet. App. 6, the FEC could not enforce the 

limitations of 2 U.S.C. 441a(a)(1)(C) on petitioner’s 
9 

collection and spending of its money. See SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir.) (en 

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

Although “[d]isclaimer and disclosure requirements may burden the ability to speak,” they “impose 

no ceiling on campaign-related activities and do not 

prevent anyone from speaking.” Citizens United, 558 

U.S. at 366 (internal quotation marks and citations 

omitted); see McCutcheon v. FEC, No. 12-536 (Apr. 2, 

2014), slip op. 35-36. Indeed, disclosure requirements 

can improve political discourse by creating “transparency” that “enables the electorate to make informed 

decisions and give proper weight to different speakers 

and messages.” Citizens United, 558 U.S. at 371. 

This Court accordingly has subjected such requirements only to “‘exacting scrutiny,’ ” rather than strict 

scrutiny, upholding them so long as the government 

can show “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id. at 366-367 (quoting Buckley, 

424 U.S. at 64, 66); see ibid. (citing McConnell v. FEC, 

540 U.S. 93, 231-232 (2003), overruled in part by Citizens United, 558 U.S. at 310). 

Petitioner is wrong in suggesting (Pet. 14-18) that 

the lower courts applied too “lax” a standard of review 

here. Quoting this Court’s decision in Citizens United, the district court explained that it was applying 

“exacting scrutiny” by examining whether the disclosure requirements at issue bear a “substantial relation” to a “sufficiently important governmental interest.” Pet. App. 10 (quoting Citizens United, 558 U.S. 

at 366-367). The court correctly upheld the politicalcommittee disclosure requirements under that standard, recognizing that they “provide the transparency 
10 

that ‘enables the electorate to make informed decisions and give proper weight to different speakers and 

messages,’ ” and that the major-purpose test is “essential” to “narrowly, but effectively identifying” the 

organizations that should be covered by those requirements. Id. at 22 (quoting Citizens United, 558 

U.S. at 371). Petitioner’s suggestion (Pet. 14-18) that 

other courts would apply a different approach simply 

identifies fact-specific applications of a settled standard, not disagreements as to the standard itself. 

b. To the extent petitioner contends that case-bycase adjudication under the major-purpose test is per 

se unlawful, that argument is unsound. This Court’s 

precedents give agencies discretion to administer the 

law through individual adjudications rather than by 

promulgating categorical rules. See, e.g., SEC v. 

Chenery Corp., 332 U.S. 194, 203 (1947) (“[T]he choice 

made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in 

the informed discretion of the administrative agency.”); Shays v. FEC, 511 F. Supp. 2d 19, 31 (D.D.C. 

2007) (“[P]laintiffs have been unable to cite any case 

where a court, absent a clear directive from Congress, 

required an agency to institute rulemaking in the 

place of adjudication. This Court will not be the 

first.”). 

The Commission has reasonably determined that 

an adjudicatory approach is the best way to make the 

inherently context-specific determination of an organization’s “major purpose.” See Pet. App. 21-22 (“The 

determination of whether the election or defeat of 

federal candidates for office is the major purpose of an 

organization, and not simply a major purpose, is inherently a comparative task, and in most instances it 
11 

will require weighing the importance of some of a 

group’s activities against others.”) (quoting RTAA, 

681 F.3d at 556); Shays, 511 F. Supp. 2d at 31 (concluding that the FEC’s “decision not to employ rulemaking” in this context “is not arbitrary and capricious”). In making such determinations, the Commission has consulted sources such as a group’s public 

statements, government filings (e.g., IRS notices), 

statements of purpose, and spending in particular 

election campaigns. See 72 Fed. Reg. at 5601-5602, 

5605 (describing prior cases). These are the same 

sources that courts have considered in applying Buckley’s major-purpose test. See, e.g., FEC v. Malenick, 

310 F. Supp. 2d 230, 234-237 (D.D.C. 2004) (basing 

major-purpose determination on, inter alia, organization’s statements in brochures, fax alerts sent to potential and actual contributors, and activities to influence federal elections), rev’d in part on recons., No. 

Civ. A. 02-1237, 2005 WL 588222 (D.D.C. Mar. 7, 

2005); FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 

(D.D.C. 1996) (“The organization’s purpose may be 

evidenced by its public statements of its purpose or by 

other means, such as its expenditures in cash or in 

kind to or for the benefit of a particular candidate or 

candidates.”). 

Petitioner’s objection to the asserted lack of predictability in the Commission’s approach is, at bottom, 

a challenge to the standard that this Court itself 

adopted in Buckley. The application of that standard 

to different factual scenarios will necessarily produce 

circumstance-specific results. Assessing which of a 

group’s purposes is its major purpose “is inherently a 

comparative task.” Pet. App. 21 (quoting RTAA, 681 

F.3d at 556). The possibility that the Commission’s 
12 

determination might differ from an organization’s own 

view of its political-committee status—or the possibility that, as in this case, individual Commissioners 

might disagree with each other about a particular 

organization’s political-committee status—does not 

render the Commission’s approach unconstitutional. 

This Court has squarely rejected the suggestion that 

“the mere fact that close cases can be envisioned renders a [law] vague.” United States v. Williams, 553 

U.S. 285, 305 (2008); see United States v. Wurzbach, 

280 U.S. 396, 399 (1930) (“Whenever the law draws a 

line there will be cases very near each other on opposite sides.”). 

Petitioner’s practical concerns about the Commission’s approach are substantially overstated. First, as 

petitioner acknowledges, the major-purpose test 

“‘serves as an additional hurdle to establishing political committee status.’” Pet. 39 (quoting Pet. App. 20-

21). Thus, unless the Commission (or a court, or both) 

makes an affirmative determination that an organization’s major purpose is the nomination or election of 

candidates, the organization cannot be found to have 

violated the registration and reporting requirements 

that FECA places on political committees. Second, 

contrary to petitioner’s assertions (Pet. 5, 29), the 

disclosure requirements applicable to political committees are not unduly burdensome for groups of 

petitioner’s size. FEC data for the 2012 election cycle 

reflect, for example, that nearly half of the political 

committees that made only independent expenditures 

(i.e., expenditures not coordinated with a candidate or 

party) had receipts smaller than petitioner’s anticipated budget of $41,000. FEC, Disclosure Data Catalogue, www.fec.gov/data/ZCommitteeSummary.do 
13 

(last visited Apr. 2, 2014); see Am. Compl. 6-7, 18 (describing plans to spend $41,286). To assist such 

groups, the FEC’s Information Division publishes lay 

handbooks and maintains toll-free phone lines. FEC, 

Federal Election Commission Campaign Guide for 

Nonconnected Committees (May 2008), www.fec.gov/ 

pdf/nongui.pdf. 

c. Petitioner asserts (Pet. 36) that this Court 

should grant certiorari to “re-affirm” the majorpurpose test. That would not serve any useful purpose. No one disputes the existence, or constitutional 

importance, of that test. Although petitioner criticizes 

(Pet. 38-39) the Commission’s reliance on particular 

factors in applying the test, it does not argue that any 

of those factors is improper, it does not provide any 

reason to believe that the Commission is treating 

substantially identical organizations differently, and 

it does not offer any alternative formulation of the 

major-purpose test that would eliminate the need for 

case-by-case adjudication. 

Petitioner’s apparent objective is to obtain an articulation of the major-purpose test that would exempt 

petitioner itself, should it undertake the activities 

alleged in its complaint, from classification as a political committee. That is essentially a request that this 

Court apply its previously announced major-purpose 

test to the particular (alleged) facts of this case. Such 

a fact-bound issue does not warrant this Court’s review. See Sup. Ct. R. 10. 

3. As discussed above, the result in this case is 

consistent with this Court’s decision in Buckley, which 

both adopted the major-purpose test, 424 U.S. at 79, 

and held that FECA’s disclosure requirements for 

political committees “directly serve substantial gov-
14 

ernmental interests,” id. at 68. To the extent petitioner suggests (Pet. 32-40) that the decisions below 

are in tension with FEC v. Massachusetts Citizens for 

Life, Inc., 479 U.S. 238 (1986), and Citizens United, 

that suggestion is unfounded. The major-purpose test 

was not at issue in Massachusetts Citizens for Life, 

where it was “undisputed” that the plaintiff’s “central 

organizational purpose” was not candidate-related and 

that the organization therefore could not be regulated 

as a political committee. Id. at 252 n.6. The majorpurpose test was not even mentioned in Citizens 

United, which concerned regulation of direct corporate expenditures for election-related speech. 558 

U.S. at 318-319. Indeed, the Court expressly distinguished between a ban on direct political speech by a 

corporation (which the Court struck down as unconstitutional) and the government’s authority to “regulate 

corporate political speech through disclaimer and 

disclosure requirements” (which it upheld). Id. at 318; 

see id. at 367-371. 

The decision below does not conflict with any decision of another court of appeals. Petitioner appears to 

acknowledge (Pet. 6, 13-14, 36-37) that the decision 

below is generally in accord with the decisions of other 

circuits. The only circuit it contends to be on the 

other side of a conflict is the Eighth Circuit. See Pet. 

6. But the Eighth Circuit decision on which petitioner 

relies, Minnesota Citizens Concerned for Life, Inc. v. 

Swanson, 692 F.3d 864 (2012) (en banc), simply concluded that a state statute that imposed politicalcommittee-style disclosure requirements without any 

major-purpose constraint was “most likely unconstitutional.” Id. at 874-877. The Eighth Circuit distinguished that state statute from disclosure require-
15 

ments for federal political committees, id. at 875 nn.9-

10. The Eighth Circuit’s particular application of 

exacting scrutiny in that context does not suggest that 

it would perceive any constitutional infirmity in the 

FEC’s approach to determining political-committee 

status under federal law. 

CONCLUSION 

The petition for a writ of certiorari should be denied. 

Respectfully submitted. 

LISA J. STEVENSON

Deputy General Counsel 

KEVIN DEELEY

Acting Associate General 

Counsel 

ERIN CHLOPAK

Acting Assistant General 

Counsel 

CHARLES KITCHER

Attorney 

Federal Election 

 Commission 

DONALD B. VERRILLI, JR. Solicitor General 

APRIL 2014