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No. 12-8078 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

FREE SPEECH, 

Plaintiff-Appellant,

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from the United States District Court for the 

District of Wyoming (Judge Scott W. Skavdahl) 

UNOPPOSED MOTION OF CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 FOR LEAVE TO FILE BRIEF AMICI CURIAE 

SUPPORTING DEFENDANT-APPELLEE AND URGING AFFIRMANCE

The Campaign Legal Center (CLC) and Democracy 21 respectfully move 

for leave to participate as amici curiae and to file the attached Brief Amici Curiae

in Support of Defendant-Appellee and Urging Affirmance. Counsel for both 

appellant and appellee have consented to this motion; it is unopposed. 

In support of this motion, amici state: 

1. Plaintiff-appellant Free Speech (FS) is appealing the decision of the 

United States District Court for the District of Wyoming to deny its motion for a 

preliminary injunction to enjoin certain Federal Election Commission (FEC) 

regulations and policies. See Transcript of Telephonic Oral Ruling, Free Speech v. 

FEC, No. 12-cv-127 (Oct. 3, 2012). Specifically, FS sought to have enjoined the 

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

policy for determining a group’s “major purpose,” and a draft advisory opinion 

addressing the question of when donations given in response to solicitations are 

deemed “contributions” under FECA. These regulations and policies collectively 

establish when a group such as FS must abide by the “political committee” 

requirements in the Federal Election Campaign Act (FECA). 

2. The CLC is a non-profit, non-partisan organization created to 

represent the public perspective in administrative and legal proceedings 

interpreting and enforcing the campaign finance and other election laws throughout 

the nation. It participates in rulemaking and advisory opinion proceedings at the 

FEC to ensure that it is properly enforcing federal election laws, and files 

complaints with the Commission requesting that enforcement actions be taken 

against individuals or organizations which violate the law. 

3. Democracy 21 is a non-profit, non-partisan policy organization that 

works to ensure the integrity of our democracy. It supports campaign finance and 

other political reforms, and conducts public education efforts to accomplish these 

goals, participates in litigation involving the constitutionality and interpretation of 

campaign finance laws and engages in efforts to help ensure that campaign finance 

laws are effectively and properly enforced and implemented. 

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4. The amici have substantial experience and expertise in the issues 

raised in this case. The amici participated in the litigation below, and filed an

amici brief with the district court to oppose FS’s motion for a preliminary 

injunction and to defend the constitutionality of the FEC regulations and policies. 

5. The CLC and Democracy 21 have provided legal counsel to parties 

and amici in numerous campaign finance cases at the federal and state court levels, 

including representing intervening defendants in McConnell v. FEC, 540 U.S. 93 

(2003). More recently, the CLC and Democracy 21 have participated as amici 

curiae in a number of Supreme Court cases, including American Tradition 

Partnership v. Bullock, No. 11–1179, 567 U.S. ___ (2012), Citizens United v. 

FEC, 558 U.S. 310, 130 S. Ct. 876 (2010) and FEC v. Wisconsin Right to Life 

(WRTL), 551 U.S. 449 (2007). The amici also participated extensively in Real 

Truth About Abortion (RTAA) v. FEC, 681 F.3d 544 (4th Cir. 2012), cert. denied, 

No. 12-311 (Jan. 7, 2013), a case that addressed precisely the same legal arguments 

as those advanced by FS here. 

6. Amici believe the attached Brief Amici Curiae in Support of 

Defendant-Appellee and Urging Affirmance will assist the Court in considering the 

issues presented in this case. This filing is timely because this motion and the 

attached memorandum are being filed within a week of the date that the principal 

brief of appellee FEC was filed pursuant to Fed. R. App. P. 29(e). 

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7. Pursuant to Fed. R. App. P. 29(c)(5), amici affirm that no party’s 

counsel authored the brief in whole or in part, and no person – other than the amici

– contributed money that was intended to fund the brief. 

8. Pursuant to Fed. R. App. P. 29(a) and Local Rule 27.3(C), counsel for 

appellant FS and appellee FEC were contacted about their consent to the filing of 

the attached memorandum. All parties have consented to the amici’s participation. 

Wherefore, amici respectfully request that the Court grant leave to file the 

attached Brief Amici Curiae in Support of Defendant-Appellee and Urging 

Affirmance. 

/s/ J. Gerald Hebert 

J. Gerald Hebert 

Tara Malloy 

Paul S. Ryan 

THE CAMPAIGN LEGAL CENTER 

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

ghebert@campaignlegalcenter.org 

Donald J. Simon 

SONOSKY, CHAMBERS, SACHSE 

ENDRESON & PERRY, LLP 

1425 K Street, NW, Suite 600 

Washington, D.C. 20005 

Tel.: (202) 682-0240 

Fred Wertheimer, 

DEMOCRACY 21 

2000 Massachusetts Avenue, NW 

Washington, D.C. 20036 

Tel.: (202) 429-2008 

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Larry B. Jones 

SIMPSON, KEPLER & EDWARDS, 

LLC 

The Cody, Wyoming Division of

BURG SIMPSON ELDREDGE HERSH 

& JARDINE, P.C. 

1135 14th Street, P.O. Box 490 

Cody, WY 82414 

Tel.: (307) 527-7891 

Counsel for Amici Curiae

Dated: February 11, 2013 

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CERTIFICATE OF DIGITAL SUBMISSION 

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

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

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

scanned for viruses with the most recent version of Microsoft Security Essentials, a 

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

is virus-free. 

/s/ J. Gerald Hebert 

J. Gerald Hebert 

THE CAMPAIGN LEGAL CENTER 

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

ghebert@campaignlegalcenter.org 

 Dated: February 11, 2013 

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CERTIFICATE OF SERVICE 

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

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

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

record at the listed e-mail addresses: 

John B. Speight, 

 jbspeight@gmail.com 

4021 Snyder Avenue 

Cheyenne, WY 82001 

Stephen R. Klein, 

 stephen.klein@wyliberty.org 

WYOMING LIBERTY GROUP 

1902 Thomes Avenue, Suite 201 

Cheyenne, WY 82001 

Benjamin T. Barr, 

 benjamin.barr@gmail.com 

10737 Hunting Lane 

Rockville, MD 20850 

Counsel for Plaintiff-Appellant 

Anthony Herman, 

 aherman@fec.gov 

David B Kolker, 

 dkolker@fec.gov 

Lisa Stevenson, 

 lstevenson@fec.gov 

Adav Noti, 

 anoti@fec.gov 

Erin R Chlopak, 

 echlopak@fec.gov 

FEDERAL ELECTION 

COMMISSION 

999 E Street, NW 

Washington, DC 20463-0000 

Nicholas Vassallo, 

 nick.vassallo@usdoj.gov 

US ATTORNEY’S OFFICE 

P O Box 668 

Cheyenne, WY 82003-0668 

Counsel for Defendant-Appellee

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/s/ J. Gerald Hebert 

J. Gerald Hebert 

THE CAMPAIGN LEGAL CENTER 

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

ghebert@campaignlegalcenter.org 

 Dated: February 11, 2013 

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