ORAL ARGUMENT NOT YET SCHEDULED

No. 14-5249

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEPENDENCE INSTITUTE,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On appeal from the United States District Court

for the District of Columbia, No. 1:14-cv-1500 (CKK)

Opening Brief for Plaintiff-Appellant

Allen Dickerson (D.C. Cir. No. 54137)

Tyler Martinez (D.C. Cir. No. 54964)

CENTER FOR COMPETITIVE POLITICS

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff-Appellant

April 8, 2015

USCA Case #14-5249 Document #1546439 Filed: 04/08/2015 Page 1 of 111
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Plaintiff-Appellant Independence Institute 

hereby provides this certificate as to parties, rulings, and related cases.

A. Parties, Intervenors, and Amici

Plaintiff-Appellant is the Independence Institute. Defendant-Appellee is the 

Federal Election Commission (“FEC” or “Commission”).

The following entities participated as amici curiae in the proceedings before 

the United States District Court for the District of Columbia: Campaign Legal 

Center, Democracy 21, and Public Citizen, Inc. No entities participated as 

intervenors below.

B. Rulings Under Review

The Independence Institute appeals a decision of the United States District 

Court for the District of Columbia (Colleen Kollar-Kotelly, J.) denying the 

Institute’s application for a three-judge court pursuant to 52 U.S.C. § 30110 note,

denying the Institute injunctive relief against the enforcement of 52 U.S.C. § 

30104(f), and dismissing the Institute’s case “in its entirety.” JA 36.

C. Related Cases

This matter has not previously been before this Court or any other federal 

court of appeals. The underlying regulation implementing 52 U.S.C. § 30104(f), 

however, was invalidated pursuant to U.S. District Judge Amy Berman Jackson’s 

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decision in Van Hollen v. FEC, No. 11-0766, 2014 U.S. Dist. LEXIS 164833

(D.D.C. Nov. 25, 2014). Judge Jackson’s decision is currently on appeal before 

this Court. Van Hollen v. FEC, Nos. 15-5016 and 15-5017.

ii

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TABLE OF CONTENTS

Certificate as to Parties, Rulings, and Related Cases .................................................i

A. Parties, Intervenors, and Amici.........................................................................i

B. Rulings Under Review......................................................................................i

C. Related Cases....................................................................................................i

Table of Authorities..................................................................................................vi

Glossary................................................................................................................... xii

Introduction................................................................................................................1

Jurisdictional Statement.............................................................................................2

Statutes and Regulations............................................................................................2

Statement of the Issue ................................................................................................2

Statement of the Case.................................................................................................3

I. The Bipartisan Campaign Reform Act’s Electioneering 

Communications Definitions......................................................................3

II. The Independence Institute, its Proposed Advertisement,

and the Proceedings Below ........................................................................6

Summary of the Argument.........................................................................................9

Standard of Review..................................................................................................13

Argument..................................................................................................................13

I. Scope of this Appeal.................................................................................13

II. The statute requiring the Institute’s claims to be heard by a threejudge court is mandatory and jurisdictional.. ...........................................15

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A. McCutcheon v. FEC proceeded under the same three-judge review 

provision the Independence Institute invokes, and demonstrates the 

propriety of following that procedure here.. ...........................................15

B. The special constitutional review provisions of BCRA and FECA 

must be applied with strict fidelity to Congress’s intent ........................18

1. Under the special review provisions of both BCRA and 

FECA, the relevant test is whether a question has been 

foreclosed by a Supreme Court ruling. .....................................18

2. The special constitutional review provisions of 

FECA and BCRA may not be construed so as to 

alter Congress’s jurisdictional choice.......................................22

III. Neither Citizens United nor any other case has found that compelled 

disclosure for communications that merely mention a candidate 

during the electioneering communications window—without more—

furthers the informational interest. ...........................................................26

A. Compulsory disclosure regimes, including BCRA’s regulation of

electioneering communications, are subject to exacting scrutiny. ........27

B. Under Buckley’s exacting scrutiny, the government’s only legitimate 

interest is informational, and that interest extends only to speech that 

is “unambiguously campaign related.”..................................................30

C. Neither Citizens United nor McConnell modified Buckley’s 

“unambiguously campaign related” limitation......................................34

1. As a facial ruling, McConnell does not resolve the Institute’s 

as-applied challenge. ........................................................................34

2. Citizens United v. FEC did not do away with Buckley’s 

“unambiguously campaign related” standard, and thus, does not 

resolve the Institute’s challenge. ......................................................37

a. Citizens United’s Hillary: The Movie was “unambiguously 

campaign related.” .......................................................................39

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b. The ads promoting Hillary: The Movie contained pejorative 

references to a candidacy, and were thus also 

“unambiguously campaign related.” ...........................................40

1. To the extent that they functioned as commercial 

speech, the Citizens United ads were subject to less 

protection than issue speech. ..........................................42

2. Citizens United, as a § 501(c)(4) organization, was 

permitted to participate in politics, and regularly did so.

The Independence Institute, as a § 501(c)(3) 

organization cannot.........................................................44

c. The regulatory regime challenged today is materially different 

from the one in place when Citizens United was decided...........48

D. Van Hollen v. FEC places this case squarely within this Court’s 

1975 decision in Buckley v. Valeo. ........................................................53

IV. Because no Supreme Court decision resolves the 

Independence Institute’s case, it should be heard by 

a three-judge court. ...................................................................................... 56

Conclusion ...............................................................................................................57

Certificate of Compliance ........................................................................................59

Addendum

Certificate of Service

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TABLE OF AUTHORITIES1

Cases

ACLU of Nev. v. Heller, 

378 F.3d 979 (9th Cir. 2004).........................................................................36

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003).......................................................................28

Am. Meat Inst. v. United States Dep't of Agric., 

760 F.3d 18 (D.C. Cir. 2014).........................................................................42

Anderson v. Spear, 

356 F.3d 651 (6th Cir. 2004).........................................................................36

Bates v. City of Little Rock, 

361 U.S. 516 (1960).......................................................................................28

Bread PAC v. FEC,

455 U.S. 577 (1982).......................................................................................22

*Buckley v. Valeo, 

424 U.S. 1 (1976)............ 11, 15, 17, 27, 28, 29, 30, 31, 32, 33, 38, 50, 52, 53

*Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975).....................................................53, 54, 55, 56

Cal. Bankers Ass’n. v. Shultz, 

416 U.S. 21 (1974).........................................................................................52

Cal. Med. Ass’n v. FEC,

453 U.S. 182 (1981)...........................................................................19, 23, 24

Cao v. FEC,

688 F. Supp. 2d 498 (E.D. La. 2010) ......................................................18, 33

1 Authorities upon which the Institute principally relies are marked with an 

asterisk.

vi

 

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Cent. Hudson Gas & Elec. v. Public Serv. Comm'n, 

447 U.S. 557 (1980).......................................................................................42

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984)...................................................................................5, 45

Citizens United v. FEC, 

558 U.S. 310 (2010)...................................... 10, 21, 24, 27, 30, 37, 39, 40, 44

Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2008).......................................12, 39, 40, 42, 48

Citizens United v. Gessler, 

773 F.3d 200 (10th Cir. 2014).......................................................................46

City of Rochester v. Bond, 

603 F.2d 927 (D.C. Cir. 1979).......................................................................25

FEC v. Furgatch,

807 F.2d 857 (9th Cir. 1987)........................................................................50

*FEC v. Wis. Right to Life, Inc.

551 U.S. 449 (2007).............................................................5, 7, 14, 35, 36, 37

*Feinberg v. Federal Deposit Ins. Corp., 

522 F.2d 1335 (D.C. Cir. 1975)...................................................13, 14, 20, 25

Five Flags Pipe Line Co. v. Dep’t of Transp.,

854 F.2d 1438 (D.C. Cir. 1988).....................................................................25

Gibson v. Florida Legislative Investigation Comm., 

372 U.S. 539 (1962).......................................................................................27

Goland v. United States,

903 F.2d 1247 (9th Cir. 1990).....................................................18, 19, 20, 21

Hicks v. Miranda, 

422 U.S. 332 (1975).......................................................................................17

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Khachaturian v. FEC, 

980 F.2d 330 (5th Cir. 1992).........................................................................19

Libertarian Nat'l Comm., Inc. v. FEC, 

950 F. Supp. 2d 58 (D.D.C. 2013).................................................................21

McConnell v. FEC, 

540 U.S. 93 (2003)................................................ 5, 14, 27, 34, 35, 37, 38, 57

McCutcheon v. FEC, 

572 U.S. ___, 134 S. Ct. 1434 (2014) ...............................................15, 17, 30

NAACP v. Alabama ex rel Patterson, 

357 U.S. 449 (1958)...........................................................1, 27, 28, 29, 52, 56

Republican Nat’l Comm. v. FEC (In re Anh Cao), 

619 F.3d 410 (5th Cir. 2010).........................................................................19

R.J. Reynolds Tobacco Co. v. FDA, 

696 F.3d 1205 (D.C. Cir. 2012).....................................................................42

Schonberg v. FEC, 

792 F. Supp. 2d 14 (D.D.C. 2011)...........................................................15, 25

United States v. Williams, 

553 U.S. 285 (2008).......................................................................................42

*Van Hollen v. FEC, 

No. 11-0766, 2014 U.S. Dist. LEXIS 164833 

(D.D.C. Nov. 25, 2014) .......................................................................6, 48, 51

Wagner v. FEC, 

717 F.3d 1007 (D.C. Cir. 2013)...................................................19, 24, 25, 56

Wis. Right to Life v. Barland, 

751 F.3d 804 (7th Cir. 2014).................................................30, 32, 41, 43, 49

Statutes

26 U.S.C. § 501(c)(3)...............................................................................................44

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26 U.S.C. § 501(c)(4)...............................................................................................44

26 U.S.C. § 6104(b).................................................................................................12

26 U.S.C. 6104(d)(3)(A)....................................................................................11, 45

28 U.S.C. § 1291........................................................................................................2

28 U.S.C. § 1331........................................................................................................2

28 U.S.C. § 1391........................................................................................................2

52 U.S.C. § 30101(17).............................................................................................49

52 U.S.C. § 30104(c) ...........................................................................................2, 50

52 U.S.C. § 30104(c)(2)(C) ...............................................................................50, 51

52 U.S.C. § 30104(f)..................................................................................................2

52 U.S.C. § 30104(f)(1).............................................................................................3

52 U.S.C. § 30104(f)(2)(E)........................................................................................3

52 U.S.C. § 30104(f)(2)(F) ..................................................................................3, 48

52 U.S.C. § 30104(f)(3)(A)(i)....................................................................................3

52 U.S.C. § 30104(f)(3)(A)(ii).............................................................................4, 57

52 U.S.C. § 30104(f)(3)(B)(ii).................................................................................49

52 U.S.C. § 30110..............................................................................2, 16, 18, 20, 56

*52 U.S.C. § 30110 note......................................................... 2, 8, 10, 13, 16, 56, 57

52 U.S.C. § 30116(a)(3)...........................................................................................15

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Bipartisan Campaign Reform Act of 2002, 

Pub. L. 107-155, 116 Stat. 81 (2002) ............................................................16

Federal Election Campaign Act of 1974, 

Pub. L. 93-443, 88 Stat. 1263 (1974) ............................................................15

Federal Election Campaign Act amendments of 1976 

Pub. L. 94-283, 90 Stat. 475 (1976) ..............................................................53

Rules

11 C.F.R. § 100.22(a)...............................................................................................50

11 C.F.R. § 100.29 .....................................................................................................2

11 C.F.R. § 100.29(b)(2)............................................................................................4

11 C.F.R. § 100.29(c)(6)..........................................................................................45

11 C.F.R. § 104.20 .....................................................................................................2

11 C.F.R. § 104.20(c)(9)....................................................................................48, 51

11 C.F.R. § 109.10 .....................................................................................................2

11 C.F.R. § 109.10(e)(vi).........................................................................................51

26 C.F.R. § 1.501(c)(3)-1(a)(3)(i)............................................................................44

Other Authorities

GEORGE W. BUSH, STATEMENT ON SIGNING THE BIPARTISAN CAMPAIGN 

REFORM ACT (March 27, 2002) available at

http://www.presidency.ucsb.edu/ws/?pid=64503............................................4

FEC, Electioneering Communications, 

72 Fed. Reg. 72899 (Dec. 26, 2007)..........................................................5, 48

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INTERNAL REVENUE SERVICE, Social Welfare Organizations, 

http://www.irs.gov/Charities-&-Non-Profits/Other-Non-Profits/SocialWelfare-Organizations (last accessed April 7, 2015)....................................44

Citizens United v. FEC, No. 07-2240, FEC Mem. of L. in Supp. of Mot. for 

Summ. J. (D.D.C. June 6, 2008) (ECF 56)....................................................46

McCutcheon v. FEC, No. 12-cv-1034, V. Compl. (D.D.C. June 22, 2012) 

(ECF No. 1). ..................................................................................................16

McCutcheon v. FEC, No. 12-cv-1034, Def. FEC’s Opp. to Pl. Mot. for 

Prelim. Inj. (D.D.C. July 9, 2012) (ECF No. 16) .........................................16

McCutcheon v. FEC, No. 12-cv-1034, Def. FEC’s Mot. to Dismiss 

(D.D.C. Aug. 20, 2012) (ECF No. 21) ..........................................................16

Van Hollen v. FEC, No. 15-5016, Appellee FEC’s Unopposed Mot. to 

Amend Briefing Schedule (D.C. Cir. Mar. 11, 2015) .....................................6

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GLOSSARY

BCRA Bipartisan Campaign Reform Act of 2002, Pub. L. 

107-155, 116 Stat. 81 (2002)

FEC or Commission Federal Election Commission

FECA Federal Election Campaign Act of 1971, Pub. L. 92-225, 

86 Stat. 3 (1972) and the Federal Election Campaign Act 

of 1974, Pub. L. 93-443, 88 Stat. 1263 (1974).

JA Joint Appendix

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INTRODUCTION

Americans enjoy a First Amendment right “to pursue their lawful private 

interests privately and to associate freely with others in doing so.” NAACP v. 

Alabama ex rel Patterson, 357 U.S. 449, 466 (1958). Nevertheless, the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”) requires public disclosure of virtually 

all significant donors to any organization that airs an advertisement mentioning any 

candidate for public office in the 60 days before a general election. Such 

advertisements are known as “electioneering communications.” 

This case concerns an ad discussing a question of public policy and lacking 

any connection to a campaign for public office. Nevertheless, because that ad 

meets the “electioneering communication” definition, it will trigger comprehensive 

donor disclosure under the Federal Election Commission’s (“FEC” or 

“Commission”) current regime. Surprisingly, if that ad instead expressly advocated 

for or against a candidate—with a phrase like “vote for Jones,” for example—only 

donors who had earmarked their contributions for that specific communication 

would be disclosed.

That result is mystifying, and has never been reviewed by the Supreme 

Court. In such cases, Congress has required constitutional challenges to BCRA—

like this one—to be heard by a three-judge district court. Nonetheless, the district 

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court below reached the merits of Appellant’s claim, denied injunctive relief, and 

dismissed the case. That decision was in error, and should be reversed.

JURISDICTIONAL STATEMENT

The Independence Institute appeals a final decision of the district court 

dismissing its application for a three-judge court, denying its motion for injunctive 

relief, and entering judgment for the FEC. The district court had jurisdiction 

pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1391, and 52 U.S.C. § 30110 note. JA 8-

9. This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. The 

Independence Institute has standing, because its case falls into the class of cases 

“capable of repetition, yet evading review,” which the FEC has acknowledged. 

Mot. for Summ. Affirm. at 10 n.2. 

STATUTES AND REGULATIONS

The relevant portions of the Bipartisan Campaign Reform Act of 2002

(codified at 52 §§ U.S.C. 30104(c), (f); 30110 note, and 11 C.F.R. §§ 100.29, 

104.20, 109.10), as well as 28 U.S.C. § 2284 and 52 U.S.C. § 30110 are 

reproduced in the Addendum to this brief.

STATEMENT OF THE ISSUE

Whether the district court erred in declining to convene a three-judge district 

court to hear Plaintiff-Appellant’s constitutional challenge to the Bipartisan 

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Campaign Reform Act of 2002, as applied to an advertisement unrelated to any 

campaign for public office.

STATEMENT OF THE CASE

I. The Bipartisan Campaign Reform Act’s Electioneering 

Communications Definitions

In 2002, Congress passed the Bipartisan Campaign Reform Act which, in 

relevant part, imposed restrictions upon a previously unregulated form of speech:

“electioneering communications.” BCRA defines electioneering communications 

as 

[A]ny broadcast, cable, or satellite communication which—(I) refers 

to a clearly identified candidate for Federal office; (II) is made 

within—(aa) 60 days before a general, special, or runoff election for 

the office sought by the candidate; or (bb) 30 days before a primary or 

preference election, or a convention or caucus of a political party that 

has authority to nominate a candidate, for the office sought by the 

candidate; and (III) in the case of a communication which refers to a 

candidate for an office other than President or Vice President, is 

targeted to the relevant electorate.

52 U.S.C. § 30104(f)(3)(A)(i). 

Any entity—including a nonprofit corporation—that spends over $10,000 on 

a qualifying communication must file a disclosure report with the FEC. 52 U.S.C. 

§ 30104(f)(1). This report discloses the names and addresses of all donors who 

gave more than $1,000 to the nonprofit during the preceding calendar year. 52 

U.S.C. § 30104(f)(2)(E); (F). Under BCRA and the FEC’s regulations, any

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mention of a candidate within 60 days of a general election triggers such 

disclosure, regardless of context. See, e.g., 11 C.F.R. § 100.29(b)(2). 

In enacting BCRA, both Congress and the President anticipated that the 

breadth of this new regulation would pose significant constitutional questions. 

Congress went so far as to include a “backup” definition for electioneering 

communications, which stated, in relevant part, that if the electioneering 

communications definition

is held to be constitutionally insufficient by final judicial decision to 

support the regulation provided herein, then the term ‘electioneering 

communication’ means any broadcast, cable, or satellite 

communication which promotes or supports a candidate for office, or 

attacks or opposes a candidate for that office (regardless of whether 

the communication expressly advocates a vote for or against a 

candidate) and which also is suggestive of no plausible meaning other 

than an exhortation to vote for or against a specific candidate. 

52 U.S.C. § 30104(f)(3)(A)(ii).

Notably, under this “backup” definition, the Institute’s communication 

would be entirely unregulated, since the proposed ad neither “promotes or 

supports...or attacks or opposes a candidate” for office. Id. 

Despite signing BCRA into law, the President noted in his signing statement

that “[c]ertain provisions present constitutional concerns,” and expressed

“reservations about the constitutionality of the broad ban on issue advertising, 

which restrains the speech of a wide variety of groups on issue of public import in 

the months closest to an election.” GEORGE W. BUSH, STATEMENT ON SIGNING THE 

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BIPARTISAN CAMPAIGN REFORM ACT (March 27, 2002).

2 Perhaps with the backup 

definition in mind, the President observed that he “expect[ed that] the courts 

w[ould] resolve these legitimate legal questions as appropriate.” The backup 

definition never took effect, because the electioneering communications definition 

was upheld facially in McConnell v. FEC, 540 U.S. 93 (2003). 

The Supreme Court’s 2007 ruling in FEC v. Wisconsin Right to Life, Inc.,

(“WRTL II”) permitted certain exceptions to BCRA’s general prohibition on 

corporate electioneering communications. 551 U.S. 449 (2007). In response, the 

FEC promulgated 11 C.F.R. § 120(c)(9), which imposed an earmarking limitation 

on BCRA’s electioneering communication disclosure requirements. FEC, 

Electioneering Communications, 72 Fed. Reg. 72899, 72900 (Dec. 26, 2007). This 

made those requirements consistent with the statutory standard for “independent 

expenditures” (advertisements that expressly advocate for or against a candidate 

for office). Thus, after 2007, corporations would not face generalized donor 

disclosure simply because they mentioned a candidate by name in the months 

before an election. 

On November 25, 2014—after this appeal was docketed—that regulation 

was declared invalid under the Administrative Procedure Act and Chevron U.S.A., 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Van Hollen 

2 Available at: http://www.presidency.ucsb.edu/ws/?pid=64503.

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v. FEC, No. 11-0766, 2014 U.S. Dist. LEXIS 164833, at *76 (D.D.C. 2014). 

Consequently, if the Institute were to air its advertisement during the 

electioneering communications window, it would be required to disclose all donors 

who contributed $1,000, regardless of whether they gave for the purpose of 

electioneering communications, or were even aware that the Institute might 

mention a candidate (let alone which candidate) in a communication. 

While the Commission did not appeal the invalidation of its regulation, 

Intervenors in that case timely appealed. Van Hollen v. FEC, No. 15-5016, 

Appellee FEC’s Unopposed Mot. to Amend Briefing Schedule at 2 (D.C. Cir. Mar. 

11, 2015) (“The Commission did not appeal the district court’s summary judgment 

decision that is now before this court...”).3 That case is presently before this Court.

II. The Independence Institute, its Proposed Issue Advertisement, and the 

Proceedings Below

The Independence Institute is a Denver, Colorado-based nonprofit 

corporation organized under § 501(c)(3) of the Internal Revenue Code and 

Colorado law. JA 10 ¶ 18. Established in 1985, the Institute has a long history of 

conducting research and educating the public on various aspects of public policy, 

including taxation, education, health care, and criminal justice. JA 7 ¶ 2.

3 The FEC successfully moved “to file a brief...to defend the district court’s 

decision denying” one of the intervenors’ “motion to amend its pleading.” Id. at 2.

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To further this mission, the Institute wished to run a radio advertisement 

supporting the Justice Safety Valve Act. JA 12. The ad would urge viewers to 

contact both of Colorado’s sitting senators and express support for the Act, which 

was pending before the U.S. Senate. One of Colorado’s senators, Mark Udall, also 

happened to be a candidate for reelection.4 JA 12, ¶ 31. The proposed ad did not 

discuss or refer to Udall’s candidacy in any way. Nevertheless, the Institute’s 

proposed ad would qualify as an electioneering communication under BCRA, 

because it mentioned Udall’s name within 60 days of the general election.

The text of the proposed advertisement is as follows:

Let the punishment fit the crime. 

But for many federal crimes, that’s no longer true. 

Unfair laws tie the hands of judges, with huge increases in prison 

costs that help drive up the debt. 

And for what purpose? 

Studies show that these laws don’t cut crime. 

In fact, the soaring costs from these laws make it harder to prosecute 

and lock up violent felons. 

Fortunately, there is a bipartisan bill to help fix the problem – the 

Justice Safety Valve Act, bill number S. 619. 

4 The Institute brought the action just before the beginning of BCRA’s 

electioneering communications window. The 2014 election passed. The Institute 

and the FEC agree that this case fits “within the exception to mootness for disputes 

capable of repetition, yet evading review.” Mot. for Summ. Affirm. at 10 n.2. 

(citing WRTL II, 551 U.S. at 461-64).

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It would allow judges to keep the public safe, provide rehabilitation, 

and deter others from committing crimes. 

Call Senators Michael Bennet and Mark Udall at 202-224-3121. Tell 

them to support S. 619, the Justice Safety Valve Act. 

Tell them it’s time to let the punishment fit the crime. 

Paid for by Independence Institute, I2I dot org. Not authorized by any 

candidate or candidate’s committee. Independence Institute is 

responsible for the content of this advertising. 

JA 12, ¶ 35.

Because this radio communication would cost more than $10,000 and reach 

more than 50,000 natural persons in the Denver area, it would trigger BCRA’s 

disclosure requirements for electioneering communications. JA 12 ¶¶ 33, 34. 

The Institute filed suit on September 2, 2014. JA 2 (Dkt #1). The same day, 

it moved for a three-judge court, pursuant to 52 U.S.C. § 30110 note. JA 2 (Dkt # 

3); JA 8 ¶ 9. On September 4, 2014, it moved for preliminary injunctive relief. JA 

2 (Dkt # 5). On September 8th, the parties held a telephonic conference with the

district court. JA 3. The parties agreed to consolidate the Institute’s preliminary 

injunction motion with full briefing on the merits, and filed a joint stipulation to 

that effect. JA 4 (Dkt #13), JA 34-35. The parties also stipulated that “[t]he 

Independence Institute’s challenge does not rely upon the probability that its 

donors will be subject to threats, harassment, or reprisals as a result of the 

Institute’s filing of an Electioneering Communications statement.” JA 34.

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On October 6, 2014, Judge Collen Kollar-Kotelly denied the Institute’s 

application for a three-judge court, believing that the Institute’s case was 

foreclosed by Citizens United. JA 5 (Dkt. #23); JA 57 (“Plaintiff’s claim is 

squarely foreclosed by Citizens United”). The district court also denied the 

Institute’s motion for injunctive relief as moot. JA58. The Institute timely appealed 

to this Court on October 8, 2014. JA 5 (Dkt # 25).

On November 25, 2014, the FEC filed for summary affirmance. On 

December 8, 2014, the Institute cross-moved for summary dismissal, citing, inter 

alia, the change in BCRA’s disclosure burdens after Van Hollen. On February 20, 

2015, this Court denied both motions and set the case for merits consideration.

SUMMARY OF THE ARGUMENT

The Independence Institute, a well-established Colorado think tank, sought 

to air a radio advertisement in the weeks before the 2014 election. That 

advertisement dealt solely with a legislative issue—federal sentencing reform—

and exhorted the listener to contact his or her United States senators and ask them 

to support a particular piece of legislation, the Justice Safety Valve Act. 

One of the two senators mentioned in the ad, Mark Udall, was seeking reelection. Consequently, even though the ad would not, in any sense, “electioneer,” 

it nevertheless fell within BCRA’s “electioneering communication” definition. As 

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a result, if the Institute were to run its ad, federal law would require it to file a 

report with the FEC and publicly disclose its donors.

The Institute filed suit, seeking a declaration that BCRA’s reporting and 

disclosure provisions were unconstitutional as applied to its specific ad. Although 

the Supreme Court has explicitly limited donor disclosure to situations where an 

organization’s speech is “unambiguously campaign related—so as to protect 

discussions of public policy from government regulation—the district court denied 

the Institute’s motion for a preliminary injunction and dismissed its case.

This appeal does not concern the merits of the Institute’s arguments. Rather, 

it asks whether the district court erred in dismissing the Institute’s constitutional 

claims rather than convening a three-judge district court as Congress required. 52 

U.S.C. § 30110 note (constitutional challenges to BCRA “shall be filed in the 

United States District Court for the District of Columbia and shall be heard by a 3-

judge court convened pursuant to section 2284 of title 28, United States Code”) 

(emphasis added). The district court believed that it need not convene such a court 

because, in its view, the Institute’s claims “are foreclosed by clear United States 

Supreme Court precedent, principally by Citizens United v. Federal Election 

Commission, 558 U.S. 310 (2010).” JA 38.

While the district court correctly stated the standard for convening a threejudge BCRA court, its ruling should nonetheless be reversed for two reasons. 

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First, while Citizens United did uphold donor disclosure for “electioneering 

communications” as applied to commercial advertisements for a film critical of 

then-Senator Hillary Clinton’s 2008 presidential candidacy, it has never considered

that disclosure regime as applied to the sort of genuine issue speech at issue here. 

Instead, the last time the government sought to regulate issue speakers in a similar 

manner, the Supreme Court narrowed the reach of the statute, permitting regulation 

only of speech that was “unambiguously campaign related.” Buckley v. Valeo, 424 

U.S. 1, 80 (1976) (per curiam). Because the district court did not apply the 

“unambiguously campaign related” standard, and because the Supreme Court has

never considered BCRA’s disclosure provisions as applied to an advertisement like

the Institute’s, this case should be heard by a three-judge district court.

Second, when this case was filed, the FEC insisted that, pursuant to its

regulations, only contributors who earmarked their contributions for electioneering 

communications would be publicly disclosed. But during the pendency of this 

appeal, a federal district court struck down that regulation. This significantly raises 

the stakes in this case, as the Institute explicitly noted when it filed its lawsuit. JA 

17-18 ¶55 (Van Hollen case). If the ad at issue here were to air in sufficient 

proximity to an election, all donors who gave more than $1,000 to the Institute—a 

§ 501(c)(3) charity whose donors are kept private by operation of federal tax law—

would be publicly disclosed. See, e.g., 26 U.S.C. § 6104(d)(3)(A) (a § 501(c)(3) 

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Form 990 “shall not require the disclosure of the name or address of any 

contributor of the organization”); 26 U.S.C. § 6104(b) (providing for disclosure of 

the organization’s name and address, but “[n]othing in this subsection shall 

authorize the Secretary [of the Treasury] to disclose the name or address of any 

contributor to any organization or trust”).

This, too, is a circumstance the Supreme Court has never addressed, for the 

simple reason that this was not the law when Citizens United was decided. Citizens 

United v. FEC, 530 F. Supp. 2d 274, 280 (D.D.C. 2008) (“requiring that any 

corporation spending more than $10,000 in a calendar year to produce or air 

electioneering communications must file a report with the FEC that includes—

among other things—the names and addresses of anyone who contributed $1,000 

or more in aggregate to the corporation for the purpose of furthering electioneering 

communications”) (emphasis added)).

This case is a novel challenge based upon distinct facts and legal questions 

that were not before the Citizens United Court. Consequently, the district court 

below erred in determining, without a hearing, that Supreme Court precedent 

necessarily forecloses the Institute’s claims. That decision should be reversed, and 

the Institute’s claims presented to a three-judge district court for full consideration 

of the merits, as Congress intended. 

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STANDARD OF REVIEW

“When the district judge denies a request for a three-judge court and 

dismisses the case for want of a substantial constitutional question, this court must 

reverse if it finds that the questions raised were substantial.” Feinberg v. Federal 

Deposit Ins. Corp., 522 F.2d 1335, 1339 (D.C. Cir. 1975). 

ARGUMENT

I. Scope of this Appeal

This Court is not asked to decide the merits of the Independence Institute’s 

claims. Rather, the sole question on appeal is whether the district court erred in 

deciding the merits rather than convening a three-judge district court pursuant to 

52 U.S.C. § 30110 note. That provision creates a compulsory procedure for 

reviewing constitutional challenges to BCRA: “[i]f any action is brought for 

declaratory or injunctive relief to challenge the constitutionality of any provision of 

th[e Bipartisan Campaign Reform] Act or any amendment made by this Act...[t]he 

action shall be filed in the United States District Court for the District of Columbia 

and shall be heard by a 3-judge court convened pursuant to [§] 2284 of title 28, 

United States Code.” Id. (emphasis added); Mem. Op., JA 42 (citing same).

There is a limited, straightforward exception to the three-judge court 

requirement, which applies to cases that have been foreclosed by a decision of the 

Supreme Court. As the district court correctly stated, “Constitutional claims may 

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be regarded as insubstantial if they are ‘obviously without merit,’ or if their 

‘unsoundness so clearly results from the previous decisions of (the Supreme Court) 

as to foreclose the subject and leave no room for the inference that the question 

sought to be raised can be the subject of controversy.’” Mem. Op., JA 42 (citing 

Feinberg v. Federal Deposit Ins. Corp., 522 F.2d 1335, 1338-39 (D.C. Cir. 1975) 

(citations omitted and alteration added in Mem. Op.).

The Supreme Court has taken pains to emphasize that as-applied challenges 

are subject to the three-judge court procedure, even when the challenged provision 

has been upheld on its face. For example, when Wisconsin Right to Life

challenged BCRA § 203’s application to advertisements it sought to run during an 

election, the district court declined to convene a three-judge court because § 203 

had been upheld on its face in McConnell v. FEC. 540 U.S. 93. The Supreme Court 

unanimously reversed that decision. WRTL II, 551 U.S. at 460. (“On appeal, we

vacated the District Court’s judgment, holding that McConnell ‘did not purport to 

resolve future as-applied challenges’ to BCRA § 203.”) (citation, quotation marks 

omitted).

Thus, the scope of this appeal is limited to whether the district court erred in

finding that the Independence Institute’s claims are foreclosed by Supreme Court 

precedent, specifically, a portion of Citizens United v. FEC. JA 56.

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II. The statute requiring the Institute’s claims to be heard by a three-judge 

court is mandatory and jurisdictional.

The district court correctly articulated the applicable standard:

A single district judge need not request that a three-judge court be 

convened if a case raises no substantial claim or justiciable 

controversy...Constitutional claims may be regarded as insubstantial 

if they are “obviously without merit,” or if their “unsoundness so 

clearly results from the previous decisions of (the Supreme Court) as 

to foreclose the subject and leave no room for the inference that the 

question sought to be raised can be the subject of controversy.”

JA 42 (citing Feinberg, 552 F.2d at 1338-39 (citations omitted in Mem. Op.); 

Schonberg v. FEC, 792 F. Supp. 2d 14, 17 (D.D.C. 2011)).

A. McCutcheon v. FEC proceeded under the same three-judge review 

provision the Independence Institute invokes, and demonstrates 

the propriety of following that procedure here.

Just last Term, another campaign finance case, McCutcheon v. FEC, came 

before the Supreme Court under the same three-judge review provision the 

Independence Institute invokes here. 572 U.S. ___, 134 S. Ct. 1434 (2014). The 

McCutcheon plaintiffs challenged the aggregate limit on total political 

contributions an individual may make over a two-year period, which was first 

established by the 1974 amendments to the Federal Election Campaign Act 

(“FECA”). 52 U.S.C. § 30116(a)(3); Buckley, 424 U.S. at 189 (appendix listing 

elements of statute); Pub. L. 93-443 § 101, 88 Stat. 1263 (1974). BCRA § 307(a)-

(b) subsequently split this aggregate limit into two sub-limits: one on contributions 

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to candidates, and another on contributions to parties and PACs.5 Pub. L. 107-155,

116 Stat. 81, 102-03 (2002). The McCutcheon Plaintiffs invoked BCRA § 403 

(codified at 52 U.S.C. 30110 note),6 and sought consideration of their case by a 

three-judge court.7

While the FEC disputed the merits of the McCutcheon plaintiffs’ challenge, 

their briefing in district court did not contest that the case should be considered by 

a three-judge court, as it ultimately was. McCutcheon v. FEC, 893 F. Supp. 2d 133

(D.D.C. 2012) (three-judge court considering merits of claim); cf. McCutcheon v. 

FEC, No. 12-cv-1034, Def. FEC’s Opp. to Pl. Mot. for Prelim. Inj. (D.D.C. July 9, 

2012) (ECF No. 16); McCutcheon v. FEC, No. 12-cv-1034, Def. FEC’s Mot. to 

Dismiss (D.D.C. Aug. 20, 2012) (ECF No. 21).

8 Nevertheless, the FEC has 

vociferously objected to the Plaintiff’s request for a three-judge court here.

The reason this objection is so puzzling—especially in light of the FEC’s 

lack of objection to a three-judge court in McCutcheon—is because the aggregate 

5 This second sub-limit capped the combined total of contributions to (1) noncandidate committees and (2) non-candidate, non-national party committees. Id. 6 Formerly codified at 2 U.S.C. § 437h note, the statutory provision is at 116 Stat. 

at 113-14. 7 Given that components of the statutory regime they challenged arose out of both 

FECA and BCRA, the McCutcheon plaintiffs argued in the alternative that their 

case should be certified to the en banc Court of Appeals for the D.C. Circuit under 

FECA’s parallel provision for expedited consideration of constitutional challenges, 

52 U.S.C. § 30110 (formerly 2 U.S.C. § 437h). McCutcheon v. FEC, No. 12-cv1034 V. Compl. at 4-5 ¶¶ 8-9 (D.D.C. June 22, 2012) (ECF No. 1).

8 Both available at FEC, McCutcheon et al. v. FEC District Court Related 

Documents, available at: http://www.fec.gov/law/litigation/McCutcheon.shtml#dc

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limit challenged there had been facially upheld in Buckley v. Valeo. 424 U.S. 1 

(1976). It is true that BCRA subsequently sub-divided that limit, but the essence of 

the challenge was the same as that which the Buckley Court had explicitly 

considered when, “in three sentences, the Court disposed of any constitutional 

objections to the aggregate limit that the challengers might have had.” 

McCutcheon, 134 S. Ct. at 1445.

Most significantly, the McCutcheon Court found it appropriate to revisit 

whether the aggregate limit was constitutional on its face, despite the fact that it 

had previously been upheld facially. This was at least in part because, in Buckley,

“the constitutionality of the aggregate limit ‘ha[d] not been separately addressed at 

length by the parties.’” McCutcheon, 134 S. Ct. at 1446 (quoting Buckley, 424 U.S. 

at 38). The Court reiterated that it had “‘no discretion to refuse adjudicating of the 

case on its merits,’” and proceeded to invalidate the limit under closely drawn 

scrutiny. Id. at 1444 (quoting Hicks v. Miranda, 422 U.S. 332, 344 (1975)). 

Plaintiff submits that, particularly given McCutcheon’s analogous 

procedural history, declining to convene a three-judge court in this case was error. 

Moreover, the Commission has pointed to no case where the constitutionality of 

the registration and disclosure requirements challenged here has been “addressed at 

length” in the context of speech that is not unambiguously campaign related. If it 

was proper to convene a three-judge court to hear McCutcheon’s facial challenge 

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to the federal aggregate limits—which had been upheld on their face—it is 

certainly also appropriate to do so here, where Plaintiff’s case presents a novel 

application of the law on a concise as-applied record.

B. The special constitutional review provisions of BCRA and FECA 

must be applied with strict fidelity to Congress’s intent.

Both BCRA and its predecessor FECA contain special review provisions for 

constitutional challenges. While BCRA provides for a three-judge district court, 

FECA’s parallel provision provides for certification to the en banc Court of 

Appeals. 52 U.S.C. § 30110 (formerly 2 U.S.C. § 437h). The Supreme Court and 

the Courts of Appeals have consistently required strict fidelity to these 

jurisdictional provisions. 

1. Under the special review provisions of both BCRA and 

FECA, the relevant test is whether a question has been 

foreclosed by a Supreme Court ruling.

While the type of review that FECA and BCRA’s special constitutional 

provisions provide is different, the showing required for each is analogous. In 

Goland v. United States, the Ninth Circuit compared FECA’s standard for 

certifying questions to the en banc Court of Appeals to the three-judge court 

provision invoked here, describing the showing required under either as “closely 

resembl[ing] that applied under Rule 12(b)(6).” 903 F.2d 1247, 1257-58 (9th Cir. 

1990). Other courts tasked with reviewing such challenges have concurred. Cao v. 

FEC, 688 F. Supp. 2d 498, 501 (E.D. La. 2010) aff'd som. nom. Republican Nat’l 

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Comm. v. FEC, 619 F.3d 410 (5th Cir. 2010) (In re Anh Cao) (“[T]he district 

court’s role in certifying questions of FECA’s constitutionality is “similar to that of 

a single judge presented with a motion to convene a three judge court to hear 

constitutional challenges”) (citing Goland, 903 F.2d at 1257). Given the analogous 

nature of these standards, cases applying the three-judge court provision inform 

those applying the en banc certification provision, and vice versa.

The relevant test under both FECA and BCRA is straightforward: 

Constitutional challenges must proceed under these special review provisions 

unless the Supreme Court has already decided the questions presented. Wagner v. 

FEC, 717 F.3d 1007, 1009 (D.C. Cir. 2013) (collecting cases). In California

Medical Association. v. FEC, Justice Marshall described this test as one of 

substantiality or settled law. 453 U.S. 182, 192 n.14 (1981) (“Cal. Med.”). (“the 

issues here are neither insubstantial nor settled. We therefore conclude that this 

case is properly before us pursuant to § [30110]”). The en banc Fifth Circuit stated 

that a “district court need not certify legal issues that have been resolved by the 

Supreme Court.” Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir. 1992) (en 

banc) (per curiam). And in the words of this Circuit, a constitutional question is 

“substantial” for purposes of certification to three-judge court unless the Supreme 

Court has “foreclose[d] the subject” and left “no room for the inference that the 

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question sought to be raised can be the subject of controversy.” Feinberg, 522 F.2d 

at 1339 (quotation marks and internal citations omitted). 

In the related context of special direct review by the en banc Court of 

Appeals, Goland v. United States emphasized that it is not the specific provision of 

law at issue that determines a question’s substantiality, but the factual posture and 

legal theory undergirding the case itself. 903 F.2d at 1257 (9th Cir. 1990)

(discussing 52 U.S.C. § 30110). There, the plaintiff funneled over $120,000 

through 56 people to fund campaign ads without disclosing his identity. Id. at 

1251. After being indicted for violating FECA, he challenged the statute’s 

application to him and sought certification to a three-judge court under the 

procedure the Independence Institute invokes here. Id. at 1252. The Ninth Circuit 

dismissed as “sophistic” and “creative” Goland’s suggestion that, because he 

contributed anonymously, the individual contribution limit upheld in Buckley was 

inapplicable to him. Id. at 1257, 1258.

But, as the Goland Court noted, Buckley had expressly considered a 

challenge to FECA’s ban on anonymous contributions. Id. at 1260. Nevertheless, 

even in rejecting Goland’s claim, the Court of Appeals reiterated that “[o]nce a 

core provision of FECA has been reviewed and approved by the courts, 

unanticipated variations also may deserve the full attention of the appellate court.” 

Id. at 1257. In other words, while Goland had not mounted a proper as-applied 

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challenge, such challenges were certainly still subject to the jurisdictional 

requirements of FECA’s special constitutional review provision. See also, e.g., 

Libertarian Nat'l Comm., Inc. v. FEC, 950 F. Supp. 2d 58, 61 (D.D.C. 2013) 

(Wilkins, J.) (certifying as-applied constitutional question because “[t]he FEC's 

attempt to distinguish Supreme Court cases regarding other individualized asapplied challenges is not persuasive”); Citizens United v. FEC, 558 U.S. 310, 373 

(2010) (opinion of Roberts, C.J.) (noting the Court’s practice “‘never to formulate 

a rule of constitutional law broader than is required by the precise facts to which it 

is to be applied’”) (citing United States v. Raines, 362 U.S. 17, 21 (1960)) (quoting 

Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 

113 U.S. 33, 39 (1885)).

In short, demonstrating that special courts lack jurisdiction to hear 

constitutional challenges to campaign finance laws—despite Congress’s 

unambiguous command—has always been a heavy burden for the state to carry, 

akin to successfully raising a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6). Goland, 903 F.2d at 1257-1258. Absent satisfaction of this 

high bar, convening a three-judge court is neither optional nor subject to the 

district court’s discretion. 

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2. The special constitutional review provisions of FECA and 

BCRA may not be construed so as to alter Congress’s 

jurisdictional choice. 

The Supreme Court has insisted upon strict adherence to these provisions, 

which ensure meaningful review of constitutional challenges to campaign finance 

legislation. For example, in Bread PAC v. FEC, a PAC sought to invoke § 30110’s 

“unique system of expedited review” even though, as a corporation, it was plainly 

not one of the “three carefully chosen classes of persons” named in the statute (the 

FEC itself, national party committees, and natural persons eligible to vote for the 

president). 455 U.S. 577, 581 (1982). The Court rejected the PAC’s “expansive 

construction” in favor of the statute’s “obvious meaning.” Id. In doing so, Bread 

PAC noted the potential burden Congress placed upon the judiciary, and concluded 

that in such cases “close construction of statutory language takes on added 

importance” because “[j]urisdictional statutes are to be constructed with precision 

and with fidelity to the terms by which Congress has expressed its wishes.” Id. at 

580 (quotation marks and citation omitted).

Thus, even in refusing to construe FECA’s special review provision more 

broadly than its plain text, the Court recognized the importance of heeding 

Congress’s unambiguous wishes. In the context of special review for constitutional 

challenges, fidelity to the language that Congress enacted is paramount.

Similarly, in Cal. Med., the FEC attempted (unsuccessfully) to narrow the 

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scope of § 30110 review. 453 U.S. 182. The FEC asked the Court to “preclude the 

use of [§ 30110] actions to litigate constitutional challenges to the Act that have 

been or might be raised as defenses to ongoing or contemplated Commission 

enforcement proceedings.” Id. at 189. The Court declined to adopt this “cramped 

construction of the statute,” noting the “all-encompassing language” of § 30110. 

Id. at 190, 191; see also id. at 190 (“[§ 30110] expressly requires a district court to 

‘immediately...certify all questions of the constitutionality of this Act’ to the court 

of appeals.” (emphasis and ellipses original)). It further stated that the FEC’s 

interpretation would “undermine the very purpose” of the statute: “to provide a 

mechanism for the rapid resolution of constitutional challenges to the Act.” Id. at 

191.

Cal. Med. also contemplated the burden that a special review provision 

might impose upon the judiciary in this context. These burdens were not 

insubstantial: in the FECA context, that provision included a since-repealed 

requirement of direct Supreme Court review, and demanded that cases be 

“expedited to the greatest possible extent.” Nonetheless, the Cal. Med. majority 

criticized the dissenters for “exaggerat[ing] the burden [§ 30110] actions have 

placed on the federal courts.” 453 U.S. at 192 n.13. In particular, the Court noted 

that “only a handful” of such cases had been heard, including six cases from 1979-

80. Id. (collecting cases).

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The Cal. Med. Court further opined that any “concerns about the potential 

abuse of [§ 30110] are in large part answered by other restrictions on the use of 

that section.” Id. at 192 n.14. Importantly, the restrictions the Court referred to are 

principally “the constitutional limitations on the jurisdiction of the federal courts,” 

including standing.9 Id. They also include the ability to avoid constitutional issues 

through “resolution of unsettled questions of statutory interpretation,” and the 

ability to dismiss “frivolous” or “purely hypothetical” claims. Id. 

The most recent pronouncement applying one of these special jurisdictional 

provisions—Wagner v. FEC—echoes this determination to give effect to special 

constitutional review provisions as Congress enacted them. 717 F.3d 1007. In 

Wagner, despite the fact that none of the parties challenged the court’s jurisdiction, 

a panel of the D.C. Circuit concluded that “the plain text of [§ 30110] grants 

exclusive merits jurisdiction to the en banc court of appeals.” 717 F.3d at 1011. 

The court continued, if 

“there exists a special statutory review procedure, it is ordinarily 

9 That the Court found standing to be relevant in this context is particularly 

interesting given that in cases involving elections—even those brought under the 

rapid review provisions of FECA and BCRA—standing is often achieved only 

because the circumstances fall into the capable of repetition, yet evading review 

exception to mootness. E.g. Citizens United v. FEC, 558 U.S. at 334 (“Today, 

Citizens United finally learns, two years after the fact, whether it could have 

spoken during the 2008 Presidential primary—long after the opportunity to 

persuade primary voters has passed”). See also, e.g., Davis v. FEC, 554 U.S. 724 

(2008). The necessary implication is that, under BCRA’s expedited review 

procedures, courts ought to error on the side of convening three-judge courts.

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supposed that Congress intended that procedure to be the exclusive 

means of obtaining judicial review in those cases to which it applies.”

Section [30110] is indeed a “special statutory review procedure.” We 

therefore presume that the Congress intended to deprive both the 

district court and panels of the court of appeals of authority to hear the 

merits of constitutional challenges to the provisions of FECA.” 

Id. at 1011-12 (quoting City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 

1979) (internal citation omitted, emphasis in Wagner).

The Wagner Court expressed doubts about the wisdom and effectiveness of 

§ 30110, but recognized that it “‘simply [was] not at liberty to displace, or to 

improve upon, the jurisdictional choices of Congress.” Id. at 1016 (quoting Five 

Flags Pipe Line Co. v. Dep’t of Transp., 854 F.2d 1438, 1441 (D.C. Cir. 1988)).

Thus, for a question to escape review by a three-judge court, it must be 

necessarily foreclosed by a Supreme Court holding. Constitutional claims may be 

regarded as insubstantial if they are “obviously without merit,” or if their 

“unsoundness so clearly results from the previous decisions of (the Supreme Court) 

as to foreclose the subject and leave no room for the inference that the question 

sought to be raised can be the subject of controversy.” Mem. Op., JA 42 (citing 

Feinberg, 522 F.2d at 1338-39 (citations omitted in Mem. Op.); Schonberg, 792 F. 

Supp. 2d at 17). Neither the district court nor the FEC has identified a case where 

the Court has upheld disclosure for communications that merely mention a 

candidate—without more—during the electioneering communications window. 

This is particularly so given Van Hollen v. FEC, which changed the disclosure 

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regime at issue, and was handed down a few months after Judge Kollar-Kotelly 

issued the opinion below. Thus, it was improper for the district court to refuse to 

convene a three-judge district court, which is the only body with jurisdiction to 

consider the merits of Plaintiffs’ as-applied challenge.

III. Neither Citizens United nor any other case has found that compelled 

disclosure for communications that merely mention a candidate during 

the electioneering communications window—without more—furthers 

the informational interest. 

The Supreme Court has never foreclosed a claim like the Independence 

Institute’s, where a speaker wishes to air a genuine issue ad unrelated to any 

campaign for public office during the electioneering communications window. 

Protections for issue speech date back to Buckley, which established the 

foundational standards for judicial review of campaign finance laws, and continues 

to control resolution of such cases today. Nevertheless, the district court relied 

upon a single, distinguishable as-applied ruling in closing the courthouse door to 

the Independence Institute. Mem. Op., JA 42.

Buckley held that the government may only regulate speech that is 

“unambiguously campaign related,” thereby strictly protecting genuine issue 

speech. Id. at 41. Later, a facial challenge—McConnell v. FEC—and an as-applied 

challenge—Citizens United v. FEC—explored BCRA’s electioneering 

communications regime. In each instance, the Court upheld the statute. 

Nevertheless, neither holding forecloses the Institute’s as-applied challenge here. 

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McConnell was a facial challenge that never overruled Buckley, while 

Citizens United was an-as-applied challenge contemplating ads that commented 

“pejoratively” upon a candidacy. Reading Buckley, McConnell, and Citizens 

United together—as we must—demonstrates that the Institute’s claim is not 

foreclosed. The Supreme Court has never permitted a state to compel generalized 

organizational disclosure in connection with speech about an issue of public 

importance that lacks an unambiguous relationship to a particular campaign.

A. Compulsory disclosure regimes, including BCRA’s regulation of

electioneering communications, are subject to exacting scrutiny.

The Supreme Court has consistently subjected campaign finance disclosure 

regimes to exacting scrutiny. Buckley, 424 U.S. at 64; Citizens United, 558 U.S. at 

366-67 (quoting and applying Buckley in reviewing BCRA disclaimer and 

disclosure requirements); see also McConnell, 540 U.S. at 201-202 (in context of 

major donor disclosure). In an unbroken, 60-year line of jurisprudence, the Court 

has repeatedly acknowledged that “[e]ffective advocacy of both public and private 

points of view, particularly controversial ones, is undeniably enhanced by group 

association.” NAACP v. Alabama ex rel Patterson, 357 U.S. 449, 460 (1958).10

10 In the 1950’s and 1960’s, the Supreme Court rejected numerous states’ efforts to 

compel disclosure on the grounds that privacy in association is a fundamental right 

of “all legitimate organizations”. Gibson v. Fla. Legislative Investigation Comm., 

372 U.S. 539, 556 (1962)); see also NAACP v. Alabama, 357 U.S. at 462 (“It is

hardly a novel perception that compelled disclosure of affiliation with groups 

engaged in advocacy may constitute a[n] effective... restraint on freedom of 

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Americans enjoy a First Amendment right “to pursue their lawful private interests 

privately and to associate freely with others in so doing.” NAACP, 357 U.S. at 466. 

Indeed, “[i]nvoilability of privacy in group association may in many circumstances 

be indispensable to preservation of freedom of association.” Id. at 462. Thus,

compulsory disclosure is “a significant encroachment upon personal liberty.” Bates 

v. City of Little Rock, 361 U.S. 516, 524 (1960) (collecting cases). 

Buckley v. Valeo specifically applied this civil-rights-era jurisprudence to the

modern campaign finance regime. 424 U.S. at 15 (quoting NAACP v. Alabama, 

357 U.S. at 460); id. at 64-66 (applying associational privacy principles from 

NAACP v. Alabama, 357 U.S. at 460-61; Bates, 361 U.S. at 522-523; and NAACP 

v. Button, 371 U.S. at 438). This Court in turn has recognized the precedential 

value of both these civil rights cases and Buckley in the compulsory disclosure 

context. E.g., AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (“[t]he 

Supreme Court has long recognized that compelled disclosure of political 

affiliations and activities cam impose just as substantial a burden on First 

Amendment rights as can direct regulation”) (citing Buckley, 424 U.S. at 64-68; 

association...”); Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (The 

freedom of association must be protected “not only against heavy-handed frontal 

attack, but also from being stifled by more subtle governmental interference” such 

as disclosure and its attendant sanctions for failing to disclose); NAACP v. Button, 

371 U.S. 415, 433 (1963) (The freedoms of speech and association are “delicate 

and vulnerable” to “[t]he threat of sanctions [which] may deter their exercise 

almost as potently as the actual application of sanctions”).

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NAACP, 357 U.S. at 462-63). Thus, like all compelled disclosure, BCRA’s 

electioneering communications regime is subject to exacting scrutiny.

In the campaign finance context, it has “long [been]... recognized that 

significant encroachments on First Amendment rights of the sort that compelled 

disclosure imposes cannot be justified by a mere showing of some legitimate 

governmental interest.” Buckley, 424 U.S. at 64. Buckley therefore considered that 

the distinction between discussion of issues and candidates and 

advocacy of election or defeat of candidates may often dissolve in 

practical application. Candidates, especially incumbents, are 

intimately tied to public issues involving legislative proposals and 

governmental actions.

424 U.S. at 42 (emphasis added). Candidates who win public office are vested with 

public authority. A call for a candidate—especially an incumbent—to take official 

action is materially different from commentary upon that candidate’s fitness for 

office. In other words, an incumbent can be (and often is) both a candidate and a 

government official. It is inevitable, then, that a call for action in the latter capacity 

is distinct from a statement of fitness concerning the former. Recognizing these 

truths, the Buckley Court “insisted that there be a ‘relevant correlation’ or 

‘substantial relation’ between the governmental interest and the information to be 

disclosed.” Id. at 64. This standard is “exacting scrutiny.” 

Buckley called exacting scrutiny a “strict test.” 424 U.S. at 66. In this very 

context, the Seventh Circuit noted that exacting scrutiny is “not a loose form of 

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judicial review.” Barland, 751 F.3d at 840 (construing Citizens United). To apply 

exacting scrutiny, the Supreme Court demands careful review of both the asserted 

governmental interest and whether the law is tailored to that interest, because “[i]n 

the First Amendment context, fit matters.” McCutcheon, 134 S. Ct. at 1456. 

B. Under Buckley’s exacting scrutiny, the government’s only 

legitimate interest is informational, and that interest extends only 

to speech that is “unambiguously campaign related.”

The government has an informational interest in providing the public with 

knowledge about “who is speaking about a candidate shortly before an election.” 

Citizens United, 558 U.S. at 369. Of course, such an informational interest only 

applies to speech that is, in fact, related to a campaign. Buckley, 424 U.S. at 66-67.

Buckley’s entire discussion of disclosure was grounded in the need to protect issue 

speech from comprehensive disclosure, while still furthering the government’s 

informational interest (where it was, in fact, legitimate). 

FECA, as challenged in Buckley, required disclosure from “political 

committees”—a term defined only as organizations making “contributions” or 

“expenditures” over a certain threshold amount. Id. at 79 n.105. Both 

“contributions” and “expenditures” were defined in terms of “the use of money or 

other objects of value ‘for the purpose of... influencing’ the nomination or election 

of any person to federal office.” Id. at 63 (quoting FECA §§ 431 (e)(1); 431 (f)(1)).

Since such a vague definition “could be interpreted to reach groups engaged purely 

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in issue discussion,” the Court limited FECA’s reach to only that speech that is 

“unambiguously campaign related.” Id. at 79, 80.

Moreover, Buckley limited compelled contributor disclosure to

“organizations that are under the control of a candidate or the major purpose of 

which is the nomination or election of a candidate.” Id. In this context, such an 

organization’s expenditures “are, by definition, campaign related.” Id. But in the 

context of an organization without “the major purpose” of supporting or opposing a 

candidate, the Court deemed disclosure constitutionally appropriate only “(1) when 

[organizations] make contributions earmarked for political purposes or authorized 

or requested by a candidate or his agent, to some person other than a candidate or 

political committee, and (2) when [organizations] make expenditures for 

communications that expressly advocate the election or defeat of a clearly 

identified candidate.” Id. at 80 (upholding disclosure on narrow grounds). 

The Court narrowly defined the term “expressly advocate” to encompass 

only “express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ 

‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ 

[and] ‘reject.’” Id. at 80 n.108 (incorporating by reference id. at 44 n.52). Such 

communications have a “substantial connection with the governmental interests” in 

disclosure, because they involve “spending that is unambiguously related” to 

electoral outcomes. Id. at 80-81. Thus, Buckley held that comprehensive disclosure 

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can be required of groups only insofar as those groups exist to engage in 

unambiguously campaign related speech.

The FEC can point to no case where an ad even remotely like the Institute’s 

proposed communication has been found to satisfy this standard. Thus, it has failed 

to meet its burden under exacting scrutiny. Buckley, 424 U.S. at 25 (burden is on 

“the State [to] demonstrate[] a sufficiently important interest and employ[] means 

closely drawn to avoid unnecessary abridgment of associational freedoms”).

Moreover, the district court neither mentioned nor grappled with this standard in 

the decision below. Thus, a three-judge court should be convened to perform this 

inquiry, consistent with Buckley.

The decisions of other federal courts implementing this standard underscore 

this conclusion. For example, in Barland, the Seventh Circuit stated that “[t]o 

protect against an unconstitutional chill on issue advocacy by independent 

speakers, Buckley held that campaign-finance regulation must be precise, clear, and 

may only extend to speech that is ‘unambiguously related to the campaign of a 

particular federal candidate.’” 751 F.3d at 811 (quoting Buckley, 424 U.S. at 80). 

The Fourth Circuit used Buckley’s unambiguously campaign related standard in 

finding North Carolina’s “political committee” definition overbroad and vague. 

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 290 (4th Cir. 2008). And, in the 

words of the Tenth Circuit, “[i]n Buckley, the Court held that the reporting and 

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disclosure requirements...survived ‘exacting scrutiny’ so long as they were 

construed to reach only that speech which is ‘unambiguously campaigned 

related.’” N.M. Youth Organized v. Herrera, 611 F.3d 669, 676 (10th Cir. 2010)

(citing 424 U.S. at 79-81). 

Likewise, the district courts have applied the “unambiguously campaign 

related” standard in various contexts. In examining the federal disclosure regime, 

the Eastern District of Louisiana upheld federal campaign fund coordination 

regulation by noting that “it is the act of coordination that...arguably make a 

communication ‘unambiguously campaign related.’” Cao, 688 F. Supp. 2d at 541 

(E.D. La. 2010). Just two years before Cao, the District of Utah noted Buckley’s 

standard in examining a state disclosure regime: “Supreme Court precedent makes 

clear that campaign finance laws may constitutionally regulate only those activities 

that are unambiguously campaign related.” Nat’l Right to Work Legal Def. and Ed. 

Found. v. Herbert, 581 F. Supp. 2d 1132, 1144 (D. Utah 2008) (citing Buckley, 

424 U.S. at 80). 

By contrast, the district court below did not apply Buckley’s “unambiguously 

campaign related” standard. Instead, it declined to convene a three-judge court,

relying upon an as-applied challenge with materially different facts—Citizens 

United v. FEC. In doing so, it eliminated the possibility of any future as-applied 

challenge based upon the content of a particular communication.

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C. Neither Citizens United nor McConnell modified Buckley’s 

“unambiguously campaign related” limitation.

1. As a facial ruling, McConnell does not resolve the Institute’s 

as-applied challenge. 

As a facial challenge, McConnell cannot possibly resolve the as-applied case 

at bar. 540 U.S. at 194 (discussing the facial overbreadth claims against the 

electioneering communications provisions of BCRA). The McConnell plaintiffs 

challenged nearly every aspect of BCRA, based upon a record “over 100,000 

pages” long. McConnell v. FEC, 251 F. Supp. 2d 176, 209 (D.D.C. 2003) (per 

curiam) aff’d in part and rev’d in part 540 U.S. 93. This record was replete with 

examples of “sham issue advocacy,” or “candidate advertisements masquerading 

as issue ads.” 540 U.S. at 132 (quotations and citations omitted).11 On that 

extensive record, the Supreme Court found that the electioneering communication 

ads were unambiguously campaign related in a “vast majority” of instances. 

McConnell, 540 U.S. at 206 (discussing the rise of “sham issue ads” in the context 

of BCRA’s ban on electioneering communications by corporations). When 

McConnell recognized that much “campaign related” speech was not being 

captured because it lacked Buckley’s express words of advocacy, the Court 

11 For example, the McConnell district court opinion—issued by a three-judge 

court— featured a side-by-side comparison chart, demonstrating that at least one of 

the “sham issue ads” paid for with funds from the National Rifle Association’s 

general treasury was virtually identical to an express advocacy ad paid for by that 

same organization’s PAC. The “issue ad” simply omitted the sentence containing 

express advocacy. McConnell, 251 F. Supp. 2d at 548.

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extended the test to include “the functional equivalent of express advocacy.” 

WRTL II, 551 U.S. at 456 (“The Court concluded that there was no overbreadth 

concern to the extent the speech in question was the "functional equivalent" of 

express campaign speech”) (applying, in context of a speech ban, McConnell, 540 

U.S. at 204-205). 

Nevertheless, the McConnell plaintiffs did not “carry their ‘heavy burden’ of 

establishing that all enforcement of the law should...be prohibited.” WRTL II, 551 

U.S. at 455 (emphasis original) They failed to show that BCRA “§ 203 was 

facially overbroad and could not be enforced in any circumstances.” WRTL II, 551 

U.S. at 465 (quoting McConnell, 540 U.S. at 207)) (emphasis added). Had the 

McConnell record instead been filled with examples of issue speech (such as the 

Institute’s proposed ad here), the case would likely have been decided differently. 

Only because “the vast majority of ads” which would be regulated as 

electioneering communications “clearly had” an “electioneering purpose” did the 

Court find the statute sufficiently tailored to survive a facial constitutional 

challenge.

Thus, selective citations to certain passages in McConnell, shorn of their 

context in a facial challenge, do not resolve this case. Given the as-applied nature 

of the Institute’s claim, McConnell is simply beside the point for purposes of the 

three-judge court that is the subject of this appeal. Wis. Right to Life, Inc. v. FEC, 

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546 U.S. 410, 412 (2006) (“WRTL I”) (requiring three-judge district court to hear 

as-applied challenge to provision facially upheld in McConnell). McConnell relied 

upon a factual finding that, in the vast majority of instances in the record before 

that Court, electioneering communications were equivalent to express advocacy—

and thus, unambiguously campaign related. It did not discuss those examples in 

which speech that qualifies as an electioneering communication is not

unambiguously campaign related. This is precisely why this as-applied challenge 

involving genuine issue speech is not foreclosed.

As other Courts of Appeals have noted, McConnell did not alter Buckley’s 

distinction between campaign speech and issue speech. The Ninth Circuit—

quoting the Sixth Circuit—explicitly held that “McConnell ‘left intact the ability of 

courts to make distinctions between express advocacy and issue advocacy, where 

such distinctions are necessary to cure vagueness and over-breadth in statutes 

which regulate more speech than that for which the legislature has established a 

significant governmental interest.’” ACLU of Nev. v. Heller, 378 F.3d 979, 985 

(9th Cir. 2004) (quoting Anderson v. Spear, 356 F.3d 651, 664-65 (6th Cir. 2004)). 

Likewise, the Supreme Court continues to draw the distinction between issue 

speech and “unambiguously campaign related speech”—even after McConnell. 

WRTL II, 551 U.S. at 456 (“We now confront such an as-applied challenge. 

Resolving it requires us first to determine whether the speech at issue is the 

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‘functional equivalent’ of speech expressly advocating the election or defeat of a 

candidate for federal office, or instead a ‘genuine issue a[d]’” (quoting McConnell, 

540 U.S. at 206) (brackets in WRTL II, emphasis added). “Unambiguously 

campaign related” is the overall category of speech which the government has a 

sufficient interest in regulating, while express advocacy and its functional 

equivalent are subsets of speech that is already clearly about an electoral 

outcome.12

2. Citizens United v. FEC did not do away with Buckley’s 

“unambiguously campaign related” standard, and thus, 

does not resolve the Institute’s challenge.

In Citizens United, the Court faced an as-applied challenge dealing with 

speech that was unambiguously campaign related—both in the form of Hillary: 

The Movie and the ads used to promote the film. It is true that the Citizens United

Court stated that the “functional equivalent of express advocacy” test was 

inapplicable to electioneering communications disclosure. Citizens United, 558 

U.S. at 369. But the “functional equivalent of express advocacy” is a narrow test 

12 Plainly, the Institute’s advertisement carries none of the indicia of speech which 

functions as express advocacy, as described by the Chief Justice in his controlling 

opinion in WRTL II. It is not “susceptible of [any] reasonable interpretation other 

than as an appeal to vote for or against a specific candidate” as it “do[es] not 

mention an election, candidacy, political party, or challenger; and...do[es] not take 

a position on a candidate's character, qualifications, or fitness for office.” 551 U.S. 

at 469-470. Rather, its “content is consistent with that of a genuine issue ad.” Id. at 

470. The ad “focus[es] on a legislative issue, take[s] a position on the issue, 

exhort[s] the public to adopt that position, and urge[s] the public to contact public 

officials with respect to the matter.” Id.

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for finding speech that is advocating for electoral outcomes. All express advocacy

and its functional equivalents are unambiguously campaign related speech.

Nevertheless, that still leaves much speech that is not about electoral outcomes—

such as genuine issue ads like the Institute’s proposed communication. 

The Supreme Court’s decisions have demonstrated that speech exists on a 

spectrum. One narrow band of speech is express advocacy—speech that uses the 

so-called “magic words” set forth in Buckley. 424 U.S. at 42, n.52. The Court has 

also recognized an analogous category of speech that, while falling short of express 

advocacy, functions in the same way. McConnell, 540 U.S. at 126-127 (“Little 

difference exist[s], for example, between an ad that urge[s] viewers to ‘vote against 

Jane Doe’ and one that condemn[s] Jane Doe’s record on a particular issue before 

exhorting viewers to ‘call Jane Doe and tell her what you think’”). This speech, 

like the speech reviewed by the Supreme Court in Citizens United, is 

“unambiguously campaign related,” and therefore may lawfully trigger donor 

disclosure. 

Citizens United merely applied McConnell’s reasoning to a set of 

advertisements which—like the “vast majority” of electioneering 

communications—were unambiguously campaign related. But the Court said 

nothing about speech that is not “unambiguously campaign related.” Protections 

for that category of speech date back to Buckley and remain in effect. 

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a. Citizens United’s Hillary: The Movie was 

“unambiguously campaign related.”

The Citizens United litigation involved two communications: the featurelength film Hillary: The Movie, and ads urging viewers to see the film. Hillary: the 

Movie was about a presidential candidate, and “focuse[d] on....her Senate record, 

her White House record [as first lady]...her presidential bid, and include[d] 

express opinions on whether she would make a good president.” Citizens United v. 

FEC, 530 F. Supp 2d. 274, 275 (D.D.C. 2008) (internal citation and quotation 

marks omitted). All nine members of the Court concluded that Hillary: the Movie

was “a feature-length negative advertisement that urges viewers to vote against 

Senator Clinton for President.” Citizens United, 558 U.S. at 325. The film “d[id] 

not focus on legislative issues,” but rather “reference[d] the [2008] election and 

Senator Clinton’s candidacy, and [took] a position on her character, qualifications, 

and fitness for office.” Citizens United, 530 F. Supp. 2d at 279 (citing 11 C.F.R. § 

114.15(b)).

The film suggested that as “a politician of the left,” Clinton’s election would 

not “[be] good for the security of the United States.” Id. at 279, n.12 (internal 

citations omitted). At one point in the film, an interviewee declared that “the 

Hillary Clinton that I know is not equipped, not qualified to be our commander in 

chief.” Id. It is undisputed that Hillary was a negative ad whose “thesis...is that 

[Hillary Clinton] is unfit for the Presidency,” and generally “that Senator Clinton is 

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unfit for office, that the United States would be a dangerous place in a President 

Hillary Clinton world, and that viewers should vote against her.” Citizens United, 

558 U.S. at 325, 322; see also Citizens United, 530 F. Supp. 2d at 279. 

b. The ads promoting Hillary: The Movie contained 

pejorative references to a candidacy, and were thus 

also “unambiguously campaign related.” 

Citizens United’s ads promoting Hillary also took a negative—or, in the 

Court’s words, perjorative—position on Senator Clinton’s candidacy. Thus, the 

ads were clearly campaign related. In fact, the Citizens United majority 

consistently described the ads as “pejorative” in the context of the then-Senator’s 

political campaign. 558 U.S. at 320 (“Each ad includes a short (and, in our view, 

pejorative) statement about Senator Clinton...”); id. at 368 (“The ads...contained 

pejorative references to [Clinton’s] candidacy”) (emphasis added).

Obviously, pejorative statements about a presidential candidate’s candidacy 

for that office are “unambiguously campaign related.” In fact, at least one Court of 

Appeals has read the Supreme Court’s opinion as finding that the Citizens United

ads crossed the line into the functional equivalence of express advocacy. In 

Wisconsin Right to Life, Inc. v. Barland, the Seventh Circuit noted

the [Citizens United] Court declined to apply the express-advocacy 

limitation to the federal disclosure and disclaimer requirements for 

electioneering communications. This was dicta. The Court had already 

concluded that Hillary and the ads promoting it were the equivalent of 

express advocacy. 

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751 F.3d at 836 (emphasis added). The district court dismissed the Seventh 

Circuit’s notation of “dicta” out of hand. JA 43-46. Nevertheless, the Seventh 

Circuit’s understanding of this language—along with Justice Kennedy’s decision 

to twice refer to the ads as “pejorative” toward Mrs. Clinton’s candidacy—are 

sufficient to demonstrate that Citizens United left room for the this challenge 

which is (1) as-applied, and (2) based on a genuine issue ad which (3) never 

mentions a candidacy. 

In short, Citizens United centered on “unambiguously campaign related” 

speech. The proof is in the very wording of the ads promoting Hillary: The Movie, 

which were reproduced in the district court opinion. One ad, called “Wait,” stated: 

“If you thought you knew everything about Hillary Clinton... wait ‘til you see the 

movie.” 530 F.Supp. 2d at 276 n.2. Another asserted that then-Senator Clinton 

“looks good in a pant suit” but Hillary: The Movie was about “the [sic] everything 

else.” Id. n.3 (“Pants” ad). Finally, the ad “Questions” asks, “Who is Hillary 

Clinton?” followed by responses from the film’s participants critical of Clinton’s 

character and fitness for the Presidency. Id. n.4.

1. To the extent that they functioned as 

commercial speech, the Citizens United ads were 

subject to less protection than issue speech.

Moreover, to the extent they did not function as express advocacy, the 

Citizen United ads were commercial speech, entitled to a lower level of protection 

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than issue advocacy. Citizens United, 530 F. Supp. 2d at 280 (discussing 

commercial nature of the ads urging people to “buy the DVD of The Movie”). The 

Supreme Court has long held that commercial speech can be more heavily 

regulated than issue speech. See, e.g., United States v. Williams, 553 U.S. 285, 298 

(2008) (noting that “the First Amendment status of commercial speech” is “less 

privileged” than other forms of speech); Cent. Hudson Gas & Elec. v. Public Serv. 

Comm'n, 447 U.S. 557, 562-563 (1980) (“[t]he Constitution therefore accords a 

lesser protection to commercial speech than to other constitutionally guaranteed 

expression”). In fact, the government may compel speech in the commercial 

context in a way it cannot for discussions of public policy. Am. Meat Inst. v. United 

States Dep't of Agric., 760 F.3d 18, 31 (D.C. Cir. 2014) (“The Government has 

long required commercial disclosures to prevent consumer deception or to ensure 

consumer health or safety”) see also R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 

1205, 1211, (D.C. Cir. 2012) (noting that there was no dispute about Congress's 

authority to require health warnings on cigarette packages).

Thus, to the extent that the Citizens United Court relied upon the commercial 

nature of the Hillary advertisements—as opposed to finding that the ads were 

advocacy against a candidacy—this supports the Institute’s point that Citizens 

United does not foreclose this case. 

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Nevertheless, the district court rejected this distinction, and the conclusion

that commercial speech can be more heavily regulated than pure issue advocacy, 

despite recognizing that the communications urging viewers to see Hillary: the 

Movie were “commercial advertisements.” See J.A. 50. Of course, the Citizens 

United ads were also unambiguously campaign related—and possibly the

functional equivalent of express advocacy. E.g., Barland, 751 F.3d at 823. It is not 

unreasonable to believe that the ads served both purposes: while they inveighed 

against then-Senator Clinton, they also urged viewers to buy a DVD of Hillary: 

The Movie—a film that was also unambiguously campaign related. 

By contrast, the Institute’s proposed ad is about a public policy issue—

specifically, reform of the federal penal system. It says nothing about either 

Senator Udall’s or Senator Bennet’s character or fitness for office. It never 

mentions any election. Instead, it merely asks Coloradoans to urge their Senators to 

exercise the power inherent in their office—to vote for a specific bill that the 

Institute cares about. The Institute’s ad is not campaign related speech, while 

Citizens United’s ads were.

2. As a § 501(c)(4) organization, Citizens United 

was permitted to participate in politics, and 

regularly did so. The Independence Institute, as 

a § 501(c)(3) organization, cannot. 

Not only is the speech at issue in Citizens United distinct from that proposed 

here, the speakers are also different. While Citizens United, due to its tax status, 

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could engage in speech that functioned as advocacy against Senator Clinton, the 

Independence Institute is barred, by federal law, from carrying out any candidatecentered electioneering. Compare 26 U.S.C. § 501(c)(3) with 26 U.S.C. § 

501(c)(4). Citizens United concerned the speech of a § 501(c)(4) organization, 

whose affiliated entities regularly disclosed their donors. 558 U.S. at 370 (“To the 

contrary, Citizens United has been disclosing its donors for years”).13 By contrast, 

the Independence Institute is organized under § 501(c)(3) and, like all such 

charities, has the right to keep its donors private. 

Nevertheless, the district court found tax status “immaterial” for purposes of 

this case. JA 47. But § 501(c)(3) organizations like the Institute enjoy greater 

donor protection, because they are prohibited from engaging in political activity. 

They may not engage in activity supporting or opposing a candidate, and they are 

forbidden from electioneering. 26 U.S.C. § 501(c)(3). Furthermore, § 501(c)(3) 

organizations are limited in the amount of grassroots lobbying activity they can 

perform, unlike § 501(c)(4) organizations.14 Id.; 26 C.F.R. § 1.501(c)(3)-1(a)(3)(i). 

13 The Citizens United Supreme Court decision does not mention the section of the 

tax code Citizens United was organized under, simply describing the group as “a 

nonprofit corporation.” Id. at 370. The Citizens United district court described the 

filmmakers’ nonprofit status. Citizens United, 530 F.Supp. 2d at 275. 

14 The § 501(c)(4) organization is specifically conceptualized as a group 

advocating for certain public policies as a means to promote “social welfare. 

INTERNAL REVENUE SERVICE, Social Welfare Organizations, 

http://www.irs.gov/Charities-&-Non-Profits/Other-Non-Profits/Social-WelfareOrganizations (last accessed April 7, 2015) (“Seeking legislation germane to the 

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Thus, unlike an IRC § 501(c)(4) organization like Citizens United, the Institute can 

engage in no political activity, and only limited lobbying. 

Consistent with this difference in permitted activity, donors to § 501(c)(4) 

organizations are generally offered less protection than those to § 501(c)(3) groups. 

See, e.g., 26 U.S.C. § 6104(c)(3) (differentiating between disclosure to state 

officials of donors to § 501(c)(3) organizations and other § 501(c) organization 

types). The tax code specifically protects § 501(c)(3) donor lists from public 

disclosure. 26 U.S.C. § 6104(d)(3)(A). 

Initially, the Commission’s own regulations recognized the difference 

between speakers, and categorically exempted § 501(c)(3) activity. Shays v. FEC, 

337 F. Supp. 2d 28, 125 (D.D.C. 2004) aff’d by 414 F.3d 76, 96 (D.C. Cir. 2005)

(“In implementing this provision of BCRA, the FEC promulgated a regulating 

provision that ‘electioneering communication does not include any 

communication...paid for by any organization operating under section 501(c)(3) of 

the Internal Revenue Code of 1986”) (quoting 11 C.F.R. § 100.29(c)(6)) (ellipses 

in Shays, emphasis removed). Ultimately, that rule failed judicial review under the 

Administrative Procedures Act and Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 

837, 842-43 (1984). Id. at 129. The Institute is thus left without an administrative 

organization's programs is a permissible means of attaining social welfare 

purposes”).

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rule providing protection for its donors—all for simply asking Coloradoans to urge 

Colorado’s Senators to vote for a bill.

Comparing the Institute with Citizens United highlights the fact that what 

the organizations actually do is vastly different. Citizens United actively uses its 

ability to advocate, and regularly creates films and advertisements about the 

Democratic Party’s candidates. In fact, just “[f]our days after Senator Barack 

Obama won the Iowa presidential caucuses, [Citizens United] announced its intent 

to produce and broadcast a ‘documentary’ film about Senator Obama, as well as 

television advertising for that film.” Citizens United v. FEC, No. 07-2240, FEC 

Mem. of L. in Supp. of Mot. for Summ. J. at 5 (D.D.C. June 6, 2008) (ECF 56).

15

Indeed, Hillary: The Movie and its ads may not have existed if Hillary Clinton had 

decided against running for President in 2008. This last election cycle, the 

organization again created content that was about candidates and campaigns. For 

example, Citizens United created Rocky Mountain Heist, a film that 

“unambiguously refer[ed] to elected Colorado officials running for office... and 

include footage of events where participants advocate the election or defeat of 

Colorado candidates.” Citizens United v. Gessler, 773 F.3d 200, 202 (10th Cir. 

2014) (emphasis added). 

15 Available at http://fec.gov/law/litigation/citizens_united_fec_motion_sj.pdf.

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By contrast, the Institute’s communication neither electioneers nor is 

unambiguously campaign related. It does not take a position on Senator Udall or 

Senator Bennet’s character, qualifications, or fitness for office. Instead, the ad 

focuses solely on the merits of a legislative issue—encouraging the passage of the 

Justice Safety Valve Act. It is but a small portion of the Institute’s overall 

activities, because even grassroots lobbying is limited under IRC § 501(h). 

Nevertheless, the FEC maintains that it may constitutionally compel the 

disclosure of the Institute’s donors for engaging in genuine issue speech, and that 

the Institute is not entitled to challenge that disclosure. But this cannot be the law: 

as the civil rights cases of the 1950s and 1960s, discussed supra at Section III. A., 

aptly demonstrate, disclosure of a nonpolitical, nonprofit organization’s donors is 

particularly troublesome. The Institute’s IRC § 501(c)(3) status demonstrates the 

excessive breadth of BCRA’s disclosure regime as-applied, and is thus far from

“immaterial.” 

c. The regulatory regime challenged today is materially 

different from the one in place when Citizens United

was decided. 

Even if Citizens United did foreclose the Institute’s case, the present BCRA 

disclosure regime bears little resemblance to the one reviewed by that Court or by 

Judge Kollar-Kotelly below. As the Institute anticipated when it brought its suit, 

the BCRA disclosure regime has been undone by the recent decision in Van Hollen 

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v. FEC, which struck down 11 C.F.R. 104.20(c)(9). JA 17-18 ¶55 (noting pending 

Van Hollen case); Van Hollen v. FEC, 2014 U.S. Dist. LEXIS 164833 (D.D.C. 

Nov. 25, 2014). Under that regulation, corporations making electioneering 

communications needed only disclose the “name and address of each person who 

made a donation aggregating $1,000 or more to the corporation...aggregating since 

the first day of the preceding calendar year, which was made for the purpose of 

furthering electioneering communications.” 11 C.F.R. § 104.20(c)(9) (emphasis 

added); see also Citizens United, 530 F. Supp. 2d at 280 (citing same). The FEC 

specifically promulgated this regulation to protect “corporations...[from being] 

required to report the sources of funds that made up their general treasury funds.” 

72 Fed. Reg. 72899, 72910 (Dec. 26, 2007). 

Without the FEC’s narrowing construction, all of the Institute’s donors 

giving over $1,000 in aggregate since “the first day of the preceding calendar 

year”—not simply those who earmark funds for an electioneering communication, 

or even for electioneering communications generally—must be publicly disclosed. 

52 U.S.C. § 30104(f)(2)(F). The Van Hollen ruling was issued after the 

Independence Institute’s application for a three-judge court and its motions for 

declaratory and injunctive relief were denied. If nothing else, this intervening 

change in the law necessitates new, as-applied review by a three-judge court. After 

all, the Supreme Court cannot foreclose that which it has not reviewed.

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This new disclosure regime is decidedly more burdensome than the pre-Van 

Hollen system, which—for all its manifold flaws—at least ensured that the 

information disclosed bore some relationship to the communication triggering the 

disclosure. Now, if the Institute chooses to run a similar communication to the one 

it sought to air in 2014, all significant donors to the Institute will be disclosed to 

the FEC and publicized. Nothing in the Supreme Court’s terse discussion of 

disclosure under BCRA indicates that the Court would have approved of such a 

far-reaching scheme. Barland, 751 F.3d at 836 (“The [Citizens United] Court’s 

language relaxing the express-advocacy limitation applies only to the specifics of 

the disclosure requirement at issue there”) (emphasis added).

Indeed, and surprisingly, now that the FEC’s earmarking regulation has been 

struck, the law mandates that the Institute produce more private information as a 

result of airing its proposed advertisement than if the Institute’s specifically said 

“vote for Senator Udall.”

Under federal campaign finance law, an independent expenditure is “an 

expenditure by a person...expressly advocating the election or defeat of a clearly 

identified candidate...” 52 U.S.C. § 30101(17). Independent expenditure are 

exempted from the definition of electioneering communications. 52 U.S.C. § 

30104(f)(3)(B)(ii). Therefore, if an advertisement expressly advocates, it is not an 

electioneering communication.

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“Expressly advocating” is a term of art dating back to Buckley, which 

limited the disclosure regime attached to independent expenditure regulation “to 

reach only funds used for communications that expressly advocate the election or 

defeat of a clearly identified candidate.” Buckley, 424 U.S. at 80. The Buckley 

Court provided examples of express advocacy: words “such as ‘vote for’, ‘elect,’ 

‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ 

[and] ‘reject.’’ Buckley, 424 U.S. at 80 n.108 (incorporating by reference id. at 44 

n.52). Buckley’s “magic words” help identify when a communication contains 

express advocacy, and may be regulated as an independent expenditure. See 11 

C.F.R. § 100.22(a); FEC v. Furgatch, 807 F.2d 857, 860 (9th Cir. 1987) (the 

express advocacy “standard is designed to limit the coverage of the [independent 

expenditure] disclosure provision ‘precisely to that spending that is unambiguously 

related to the campaign of a particular federal candidate’”) (quoting Buckley, 424 

U.S. at 80).

Independent expenditures, like electioneering communications, are subject 

to reporting and disclosure requirements. 52 U.S.C. § 30104(c). Unlike 

electioneering communications, however, producers of independent expenditures 

need only report contributions were were earmarked for the independent 

expenditure. 52 U.S.C. § 30104(c)(2)(C). (requiring “identification of each person 

who made a contribution in excess of $200 to the person filing such statement 

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which was made for the purpose of furthering an independent expenditure”); 11 

C.F.R. § 109.10(e)(vi) (implementing 52 U.S.C. § 30104(c)(2)(C).

Van Hollen vacated the Commission’s regulation treating electioneering 

communications in a manner similar to independent expenditures. See Van Hollen, 

2014 U.S. Dist. LEXIS 164833 at *75 (“[T]he Court finds that 11 C.F.R. § 

104.20(c)(9) is unreasonable...arbitrary, capricious, and contrary to law”). If an ad 

is an electioneering communication, disclosure is no longer limited to donors who 

gave “for the purpose of furthering electioneering communications.” 11 C.F.R. § 

104.20(c)(9). Post-Van Hollen, if an organization runs an electioneering 

communication, all donors who gave more than $1,000 to the organization will be 

publicly disclosed. 

Suppose that the Institute’s ad had supported Senator Udall’s reelection by 

saying, “Senator Udall is the just the man we need in Washington. Support Udall, 

support federal sentencing reform.” Under 52 U.S.C. § 30104(c)(2)(C), only the 

donors who specifically gave money for that advertisement would be disclosed. 

But if the Independence Institute runs the ad as proposed in this case—

without any candidate advocacy, express or implied—then all of the nonprofit’s 

donors are subject to disclosure. This outcome is peculiar and troubling. It is also 

precisely the scenario the Independence Institute articulated in its Verified 

Complaint and its briefing in the district court. 

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The Supreme Court has repeatedly held such generalized donor disclosure to 

be unconstitutional. See, e.g., NAACP v. Alabama, 357 U.S. at 462 (“[i]t is hardly a 

novel perception that compelled disclosure of affiliation with groups engaged in 

advocacy may constitute as effective a restraint on the freedom of association”). 

Financial support “can reveal much about a person’s activities, associations, and 

beliefs.” Buckley, 424 U.S. at 66 (quoting Cal. Bankers Ass’n. v. Shultz, 416 U.S. 

21, 78-79 (1974) (Powell, J., concurring)). Therefore, compelled disclosure of 

financial support “cannot be justified by a mere showing of some legitimate 

governmental interest.” Id. at 64. Instead, the government bears the burden of 

showing both interest and proper tailoring. Id. 

Affirmance of the district court’s denial of the Institute’s application for a 

three-judge court is—after Van Hollen—inappropriate, as the Supreme Court has 

clearly never considered whether a single “electioneering communication” that 

does not “electioneer” may nonetheless serve as the trigger for disclosure of all 

substantive donors to a nonprofit educational charity. Moreover, such a ruling 

would close the door to any future as-applied challenges to BCRA’s electioneering 

communication disclosure requirements. By contrast, reversal would simply 

require the merits of the Independence Institute’s constitutional claims to be fully 

considered by a three-judge district court, as Congress intended.

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D. Van Hollen v. FEC places this case squarely within this Court’s 

1975 decision in Buckley v. Valeo.

After the Van Hollen decision, BCRA’s disclosure regime replicates the 

situation this Court, sitting en banc, declared unconstitutional in 1975. Buckley v. 

Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en banc). There, this Court rejected the 

federal government’s effort, in the name of campaign finance disclosure, to 

regulate practically all issue communications and communicators, and compel 

disclosure of all of a group’s significant donors. Buckley, 519 F.2d at 870. That 

case dealt with—and dispatched—the only portion of the Buckley plaintiffs’ 

comprehensive challenge to FECA that never made its way to the Supreme Court. 

Buckley, 424 U.S. at 11 n. 7.

The offending provision was 2 U.S.C. § 437a, which provided that:

Any person (other than an individual) who expends any funds...who 

publishes or broadcasts to the public any material relating to a

candidate (by name, description, or other reference), advocating the 

election or defeat of such candidate, setting forth the candidate’s 

position on any public issue, his voting record, or other official

acts...or otherwise designed to influence individuals to cast their 

votes for or against such candidate or to withhold their votes from 

such candidate shall file reports with the [FEC] as if such person were 

a political committee.

Buckley, 519 F.2d at 869-870 (citing 2 U.S.C. § 437a (repealed by Federal Election 

Campaign Act amendments of 1976 Pub.L.94-283, § 105, 90 Stat. 475, 481 (1976) 

(emphasis added).

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“Dissecting the statutory language,” it was clear that § 437a applied to any 

broadcast material which named a candidate for office and her official acts. 

Buckley, 519 F.2d at 870. The en banc Court invalidated this provision, 

observing—with considerable understatement—that its regulatory scope was 

“potentially expansive.” Id. This Court pointedly observed that one plaintiff, the 

New York Civil Liberties Union was, by charter, “forbidden...from endorsing or 

opposing any candidate for public office,” but the “organization also publicize[d] 

the civil liberties...positions and actions of elected public officials, some of whom 

[we]re candidates for federal office.” Id. at 871. Despite the New York Civil 

Liberties Union’s commitment to avoid endorsing or opposing candidates, under § 

437a its regular, public discussions of civil liberties would suddenly trigger farreaching, invasive disclosure because § 437a “necessitate[d] reporting by groups 

whose only connection with the elective process arises from completely 

nonpartisan public discussion of issues of public importance.” Id. at 870. And, like 

BCRA after Van Hollen, § 437a required a speaker who merely mentioned a 

candidate’s official acts to disclose all significant donors “as if...[the speaker] 

were a political committee.” Id. Judge Edward Tamm, writing separately, said he 

could “hardly imagine a more sweeping abridgment of [F]irst [A]mendment 

associational rights. Section 437a creates a situation whereby a group contributes 

to the political dialog in this country only at the severest cost to their associational 

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liberties. I can conceive of no governmental interest that requires such sweeping 

disclosure... It represents a greater intrusion than any found in the line of cases 

commencing with NAACP v. Alabama.” Buckley, 519 F.2d at 914 (Tamm, J., 

concurring in part, dissenting in part).

While § 437a, unlike the federal electioneering communications regime, was 

not limited to a 60-day time period before a general election, the en banc Court’s 

opinion suggests that proximity to an election does not create a governmental 

interest in knowing all funders to an organization conducting non-campaign related 

speech. Regardless of the time period, “issue discussions unwedded to the cause of

a particular candidate...are vital and indispensable to a free society and an

informed electorate. Thus, the interest of a group engaging in nonpartisan

discussion ascends to a high plane, while the governmental interest in

disclosure correspondingly diminishes.” Buckley, 519 F.2d at 873. In fact, the en

banc Court anticipated that much speech covered by § 437a would, in fact, occur

close in time to an election, given that “[p]ublic discussion of public issues

which also are campaign issues readily and often unavoidably draws in

candidates and their positions, their voting records[,] and other official conduct.”

Id. at 876 (emphasis added).

Thus, FECA § 437a explicitly sought the same scope of government power 

that the Commission claims here: namely, the right to regulate any speech, 

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regardless of whether that speech advocates an election result or is related to a 

political campaign, or if it instead merely mentions a candidate in relation to “any 

public issue.” Id. at 869. In response, this Court determined that imposing 

disclosure requirements upon communicators for “tak[ing] public stands on public 

issues” was impermissible under the First Amendment because, when compared to 

campaign-related speech, “the nexus” between issue speech and any cognizable 

governmental interest “may be far more tenuous.” Buckley, 519 F.2d at 872; see 

also NAACP, 357 U.S. at 466 (fundamental right for Americans “to pursue their 

lawful private interests privately, and to associate freely with others in doing so”).

IV. Because no Supreme Court decision resolves the Independence 

Institute’s case, it should be heard by a three-judge court.

Because no Supreme Court case forecloses the Institute’s challenge, a three 

judge court should be assembled pursuant to 52 U.S.C. § 30110 note and 28 U.S.C. 

§ 2284. Ruling for the Independence Institute would merely ensure that Congress’ 

intent for speedy judicial review be preserved for an as-applied challenge. See 

Wagner v. FEC, 717 F.3d 1007, 1013 (D.C. Cir. 2013) (discussing Congressional 

intent of the related FECA review procedure of 52 U.S.C. § 30110).

Allowing the Independence Institute to present its case to a three-judge court

would not gut “electioneering communications” regulations for other, campaignfocused organizations and advertisements. In the event that the expansive definition 

of “electioneering communications” was found to be overbroad, Congress 

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specifically provided for narrowing the reach of BCRA: the backup definition 

discussed supra. 52 U.S.C. § 30104(f)(3)(A)(ii). Under the backup definition, any 

communication in the electioneering communications window that Promotes, 

Attacks, Supports, or Opposes (“PASO”) a candidate may be regulated. The PASO 

standard is narrower, and more constitutionally defensible, than regulating any 

speech that merely mentions a candidate within the electioneering communications 

window—the current law—but it still captures the “unambiguously campaign 

related” speech in which the government has an appropriate informational interest. 

And the PASO standard has already been reviewed and approved by the Supreme 

Court. McConnell, 540 U.S. at 170, id. n.64. 

Thus a ruling in favor of the Independence Institute will not upset the ordinary 

enforcement of campaign finance law. But it will protect the Institute’s genuine 

issue speech from the burdens of campaign finance disclosure. By contrast, the 

district court’s ruling would explicitly foreclose any future as-applied challenges 

concerning the scope of compelled electioneering communications disclosure, an 

outcome contrary to both the letter and spirit of Buckley.

CONCLUSION

The judgment of the district court should be reversed, and the merits of the 

Independence Institute’s constitutional claims heard by a three-judge district court 

pursuant to 52 U.S.C. § 30110 note.

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Respectfully Submitted,

s/ Allen Dickerson

Allen Dickerson (D.C. Cir. No. 54137)

Tyler Martinez (D.C. Cir. No. 54964)

CENTER FOR COMPETITIVE POLITICS

124 S. West St., Suite 201

Alexandria, VA 22314

Telephone: (703) 894-6800

Fax: (703) 894-6811

adickerson@campaignfreedom.org

Counsel for Plaintiff-Appellant

April 8, 2015

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitation set 

forth in Federal Rule of Appellate Procedure 32(a)(7)(B)(i) and District of 

Columbia Circuit Rule 32(a)(1) because it contains 13,402 words, excluding the 

parts of the brief exempted by Federal Rule of Appellate Procedure 

32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because it has been prepared in a proportionallyspaced typeface using Microsoft Word 2010 in Times New Roman 14-point font.

Dated: April 8, 2015 s/ Allen Dickerson

Allen Dickerson

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ADDENDUM

i 

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Table of Contents

U.S. CONST. amend. I.......................................................................................ADD-1

52 U.S.C. § 30110 note....................................................................................ADD-2

52. U.S.C. § 30110...........................................................................................ADD-5

28 U.S.C. § 2284..............................................................................................ADD-6

52 U.S.C. § 30104(f)........................................................................................ADD-8

11 C.F.R. § 100.29 .........................................................................................ADD-14

11 C.F.R. § 104.20 .........................................................................................ADD-24

52 U.S.C. § 30104(c) .....................................................................................ADD-29

11 C.F.R. § 109.10 .........................................................................................ADD-31

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U.S. CONST., amend. I

Congress shall make no law respecting an establishment of religion, or prohibiting 

the free exercise thereof; or abridging the freedom of speech, or of the press; or the 

right of the people peaceably to assemble, and to petition the Government for a 

redress of grievances.

ADD-1

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52 U.S.C. § 30110 note

Bipartisan Campaign Reform Act of 2002; constitutional challenges. Act 

March 27, 2002, P.L. 107-155, Title III, § 403, 116 Stat. 113 (effective on 

enactment, as provided by § 402 of such Act, which appears as 52 USCS § 

30101 note), provides:

 “(a) Special rules for actions brought on constitutional grounds. If any action is 

brought for declaratory or injunctive relief to challenge the constitutionality of any 

provision of this Act or any amendment made by this Act [for full classification,

consult USCS Tables volumes], the following rules shall apply:

 “(1) The action shall be filed in the United States District Court for the District 

of Columbia and shall be heard by a 3-judge court convened pursuant to section 

2284 of title 28, United States Code.

 “(2) A copy of the complaint shall be delivered promptly to the Clerk of the 

House of Representatives and the Secretary of the Senate.

 “(3) A final decision in the action shall be reviewable only by appeal directly to 

the Supreme Court of the United States. Such appeal shall be taken by the filing of 

a notice of appeal within 10 days, and the filing of a jurisdictional statement within 

30 days, of the entry of the final decision.

 “(4) It shall be the duty of the United States District Court for the District of 

Columbia and the Supreme Court of the United States to advance on the docket 

ADD-2

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and to expedite to the greatest possible extent the disposition of the action and 

appeal.

 “(b) Intervention by Members of Congress. In any action in which the 

constitutionality of any provision of this Act or any amendment made by this Act 

[for full classification, consult USCS Tables volumes] is raised (including but not 

limited to an action described in subsection (a)), any member of the House of 

Representatives (including a Delegate or Resident Commissioner to the Congress) 

or Senate shall have the right to intervene either in support of or opposition to the 

position of a party to the case regarding the constitutionality of the provision or

amendment. To avoid duplication of efforts and reduce the burdens placed on the 

parties to the action, the court in any such action may make such orders as it 

considers necessary, including orders to require intervenors taking similar 

positions to file joint papers or to be represented by a single attorney at oral 

argument.

 “(c) Challenge by Members of Congress. Any Member of Congress may bring an 

action, subject to the special rules described in subsection (a), for declaratory or 

injunctive relief to challenge the constitutionality of any provision of this Act or 

any amendment made by this Act [for full classification, consult USCS Tables 

volumes].

 “(d) Applicability.

ADD-3

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 “(1) Initial claims. With respect to any action initially filed on or before 

December 31, 2006, the provisions of subsection (a) shall apply with respect to 

each action described in such section.

 “(2) Subsequent actions. With respect to any action initially filed after 

December 31, 2006, the provisions of subsection (a) shall not apply to any action 

described in such section unless the person filing such action elects such provisions 

to apply to the action.”

ADD-4

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52 U.S.C. § 30110

§ 30110. Judicial review

The Commission, the national committee of any political party, or any individual 

eligible to vote in any election for the office of President may institute such actions 

in the appropriate district court of the United States, including actions for 

declaratory judgment, as may be appropriate to construe the constitutionality of 

any provision of this Act. The district court immediately shall certify all questions 

of constitutionality of this Act to the United States court of appeals for the circuit 

involved, which shall hear the matter sitting enbanc.

ADD-5

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28 U.S.C. § 2284

§ 2284. Three-judge court; when required; composition; procedure

(a) A district court of three judges shall be convened when otherwise required by 

Act of Congress, or when an action is filed challenging the constitutionality of the 

apportionment of congressional districts or the apportionment of any statewide 

legislative body.

(b) In any action required to be heard and determined by a district court of three 

judges under subsection (a) of this section, the composition and procedure of the 

court shall be as follows:

 (1) Upon the filing of a request for three judges, the judge to whom the request is 

presented shall, unless he determines that three judges are not required, 

immediately notify the chief judge of the circuit, who shall designate two other 

judges, at least one of whom shall be a circuit judge. The judges so designated, and 

the judge to whom the request was presented, shall serve as members of the court 

to hear and determine the action or proceeding.

 (2) If the action is against a State, or officer or agency thereof, at least five days' 

notice of hearing of the action shall be given by registered or certified mail to the 

Governor and attorney general of the State.

ADD-6

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 (3) A single judge may conduct all proceedings except the trial, and enter all 

orders permitted by the rules of civil procedure except as provided in this 

subsection. He may grant a temporary restraining order on a specific finding, based 

on evidence submitted, that specified irreparable damage will result if the order is 

not granted, which order, unless previously revoked by the district judge, shall 

remain in force only until the hearing and determination by the district court of 

three judges of an application for a preliminary injunction. A single judge shall not 

appoint a master, or order a reference, or hear and determine any application for a 

preliminary or permanent injunction or motion to vacate such an injunction, or 

enter judgment on the merits. Any action of a single judge may be reviewed by the 

full court at any time before final judgment.

ADD-7

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52 U.S.C. § 30104(f)

§ 30104. Reporting requirements 

(f) Disclosure of electioneering communications.

 (1) Statement required. Every person who makes a disbursement for the direct 

costs of producing and airing electioneering communications in an aggregate 

amount in excess of $10,000 during any calendar year shall, within 24 hours of 

each disclosure date, file with the Commission a statement containing the 

information described in paragraph (2).

 (2) Contents of statement. Each statement required to be filed under this 

subsection shall be made under penalty of perjury and shall contain the following 

information:

 (A) The identification of the person making the disbursement, of any person 

sharing or exercising direction or control over the activities of such person, and of 

the custodian of the books and accounts of the person making the disbursement.

 (B) The principal place of business of the person making the disbursement, if 

not an individual.

 (C) The amount of each disbursement of more than $200 during the period 

covered by the statement and the identification of the person to whom the 

disbursement was made.

 (D) The elections to which the electioneering communications pertain and the 

ADD-8

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names (if known) of the candidates identified or to be identified.

 (E) If the disbursements were paid out of a segregated bank account which 

consists of funds contributed solely by individuals who are United States citizens 

or nationals or lawfully admitted for permanent residence (as defined in section 

101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20))) directly 

to this account for electioneering communications, the names and addresses of all 

contributors who contributed an aggregate amount of $1,000 or more to that 

account during the period beginning on the first day of the preceding calendar year 

and ending on the disclosure date. Nothing in this subparagraph is to be construed 

as a prohibition on the use of funds in such a segregated account for a purpose 

other than electioneering communications.

 (F) If the disbursements were paid out of funds not described in subparagraph 

(E), the names and addresses of all contributors who contributed an aggregate 

amount of $1,000 or more to the person making the disbursement during the period 

beginning on the first day of the preceding calendar year and ending on the 

disclosure date.

 (3) Electioneering communication. For purposes of this subsection--

 (A) In general.

 (i) The term "electioneering communication" means any broadcast, cable, or 

satellite communication which--

ADD-9

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 (I) refers to a clearly identified candidate for Federal office;

 (II) is made within--

 (aa) 60 days before a general, special, or runoff election for the office 

sought by the candidate; or

 (bb) 30 days before a primary or preference election, or a convention or 

caucus of a political party that has authority to nominate a candidate, for the office 

sought by the candidate; and

 (III) in the case of a communication which refers to a candidate for an 

office other than President or Vice President, is targeted to the relevant electorate.

 (ii) If clause (i) is held to be constitutionally insufficient by final judicial 

decision to support the regulation provided herein, then the term "electioneering 

communication" means any broadcast, cable, or satellite communication which 

promotes or supports a candidate for that office, or attacks or opposes a candidate 

for that office (regardless of whether the communication expressly advocates a 

vote for or against a candidate) and which also is suggestive of no plausible 

meaning other than an exhortation to vote for or against a specific candidate. 

Nothing in this subparagraph shall be construed to affect the interpretation or 

application of section 100.22(b) of title 11, Code of Federal Regulations.

 (B) Exceptions. The term "electioneering communication" does not include--

 (i) a communication appearing in a news story, commentary, or editorial 

ADD-10

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distributed through the facilities of any broadcasting station, unless such facilities 

are owned or controlled by any political party, political committee, or candidate;

 (ii) a communication which constitutes an expenditure or an independent 

expenditure under this Act;

 (iii) a communication which constitutes a candidate debate or forum 

conducted pursuant to regulations adopted by the Commission, or which solely 

promotes such a debate or forum and is made by or on behalf of the person 

sponsoring the debate or forum; or

 (iv) any other communication exempted under such regulations as the 

Commission may promulgate (consistent with the requirements of this paragraph) 

to ensure the appropriate implementation of this paragraph, except that under any 

such regulation a communication may not be exempted if it meets the requirements 

of this paragraph and is described in section 301(20)(A)(iii) [52 USCS § 

30101(20)(A)(iii)].

 (C) Targeting to relevant electorate. For purposes of this paragraph, a 

communication which refers to a clearly identified candidate for Federal office is 

"targeted to the relevant electorate" if the communication can be received by 

50,000 or more persons--

 (i) in the district the candidate seeks to represent, in the case of a candidate 

for Representative in, or Delegate or Resident Commissioner to, the Congress; or

ADD-11

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 (ii) in the State the candidate seeks to represent, in the case of a candidate for 

Senator.

 (4) Disclosure date. For purposes of this subsection, the term "disclosure date" 

means--

 (A) the first date during any calendar year by which a person has made 

disbursements for the direct costs of producing or airing electioneering 

communications aggregating in excess of $10,000; and

 (B) any other date during such calendar year by which a person has made 

disbursements for the direct costs of producing or airing electioneering 

communications aggregating in excess of $10,000 since the most recent disclosure 

date for such calendar year.

 (5) Contracts to disburse. For purposes of this subsection, a person shall be 

treated as having made a disbursement if the person has executed a contract to 

make the disbursement.

 (6) Coordination with other requirements. Any requirement to report under this 

subsection shall be in addition to any other reporting requirement under this Act.

 (7) Coordination with Internal Revenue Code. Nothing in this subsection may be 

construed to establish, modify, or otherwise affect the definition of political 

activities or electioneering activities (including the definition of participating in, 

intervening in, or influencing or attempting to influence a political campaign on 

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behalf of or in opposition to any candidate for public office) for purposes of the 

Internal Revenue Code of 1986 [26 USCS §§ 1 et seq.].

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11 C.F.R. § 100.29

§ 100.29 Electioneering communication (52 U.S.C. 30104(f)(3)).

 (a) Electioneering communication means any broadcast, cable, or satellite 

communication that:

(1) Refers to a clearly identified candidate for Federal office;

(2) Is publicly distributed within 60 days before a general election for the office 

sought by the candidate; or within 30 days before a primary or preference election, 

or a convention or caucus of a political party that has authority to nominate a 

candidate, for the office sought by the candidate, and the candidate referenced is 

seeking the nomination of that political party; and

(3) Is targeted to the relevant electorate, in the case of a candidate for Senate or the 

House of Representatives.

(b) For purposes of this section -- (1) Broadcast, cable, or satellite communication 

means a communication that is publicly distributed by a television station, radio 

station, cable television system, or satellite system.

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(2) Refers to a clearly identified candidate means that the candidate's name, 

nickname, photograph, or drawing appears, or the identity of the candidate is 

otherwise apparent through an unambiguous reference such as "the President," 

"your Congressman," or "the incumbent," or through an unambiguous reference to 

his or her status as a candidate such as "the Democratic presidential nominee" or 

"the Republican candidate for Senate in the State of Georgia."

(3)(i) Publicly distributed means aired, broadcast, cablecast or otherwise 

disseminated through the facilities of a television station, radio station, cable 

television system, or satellite system.

(ii) In the case of a candidate for nomination for President or Vice President, 

publicly distributed means the requirements of paragraph (b)(3)(i) of this section 

are met and the communication:

(A) Can be received by 50,000 or more persons in a State where a primary 

election, as defined in 11 CFR 9032.7, is being held within 30 days; or

(B) Can be received by 50,000 or more persons anywhere in the United States 

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within the period between 30 days before the first day of the national nominating 

convention and the conclusion of the convention.

(4) A special election or a runoff election is a primary election if held to nominate 

a candidate. A special election or a runoff election is a general election if held to 

elect a candidate.

(5) Targeted to the relevant electorate means the communication can be received 

by 50,000 or more persons --

(i) In the district the candidate seeks to represent, in the case of a candidate for 

Representative in or Delegate or Resident Commissioner to, the Congress; or

(ii) In the State the candidate seeks to represent, in the case of a candidate for 

Senator.

(6)(i) Information on the number of persons in a Congressional district or State that 

can receive a communication publicly distributed by a television station, radio 

station, a cable television system, or satellite system, shall be available on the 

Federal Communications Commission's Web site, http://www.fcc.gov. A link to 

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that site is available on the Federal Election Commission's Web 

site, http://www.fec.gov. If the Federal Communications Commission's Web site 

indicates that a communication cannot be received by 50,000 or more persons in 

the specified Congressional district or State, then such information shall be a 

complete defense against any charge that such communication constitutes an 

electioneering communication, so long as such information is posted on the 

Federal Communications Commission's Web site on or before the date the 

communication is publicly distributed.

(ii) If the Federal Communications Commission's Web site does not indicate 

whether a communication can be received by 50,000 or more persons in the 

specified Congressional district or State, it shall be a complete defense against any 

charge that a communication reached 50,000 or more persons when the maker of a 

communication:

(A) Reasonably relies on written documentation obtained from the broadcast 

station, radio station, cable system, or satellite system that states that the 

communication cannot be received by 50,000 or more persons in the specified 

Congressional district (for U.S. House of Representatives candidates) or State (for 

U.S. Senate candidates or presidential primary candidates);

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(B) Does not publicly distribute the communication on a broadcast station, radio 

station, or cable system, located in any Metropolitan Area in the specified 

Congressional district (for U.S. House of Representatives candidates) or State (for 

U.S. Senate candidates or presidential primary candidates); or

(C) Reasonably believes that the communication cannot be received by 50,000 or 

more persons in the specified Congressional district (for U.S. House of 

Representatives candidates) or State (for U.S. Senate candidates or presidential 

primary candidates).

(7)(i) Can be received by 50,000 or more persons means --

(A) In the case of a communication transmitted by an FM radio broadcast station 

or network, where the Congressional district or State lies entirely within the 

station's or network's protected or primary service contour, that the population of 

the Congressional district or State is 50,000 or more; or

(B) In the case of a communication transmitted by an FM radio broadcast station or 

network, where a portion of the Congressional district or State lies outside of the 

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protected or primary service contour, that the population of the part of the 

Congressional district or State lying within the station's or network's protected or 

primary service contour is 50,000 or more; or

(C) In the case of a communication transmitted by an AM radio broadcast station 

or network, where the Congressional district or State lies entirely within the 

station's or network's most outward service area, that the population of the 

Congressional district or State is 50,000 or more; or

(D) In the case of a communication transmitted by an AM radio broadcast station 

or network, where a portion of the Congressional district or State lies outside of the 

station's or network's most outward service area, that the population of the part of 

the Congressional district or State lying within the station's or network's most 

outward service area is 50,000 or more; or

(E) In the case of a communication appearing on a television broadcast station or 

network, where the Congressional district or State lies entirely within the station's 

or network's Grade B broadcast contour, that the population of the Congressional 

district or State is 50,000 or more; or

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(F) In the case of a communication appearing on a television broadcast station or 

network, where a portion of the Congressional district or State lies outside of the 

Grade B broadcast contour --

(1) That the population of the part of the Congressional district or State lying 

within the station's or network's Grade B broadcast contour is 50,000 or more; or

(2) That the population of the part of the Congressional district or State lying 

within the station's or network's broadcast contour, when combined with the 

viewership of that television station or network by cable and satellite subscribers 

within the Congressional district or State lying outside the broadcast contour, is 

50,000 or more; or

(G) In the case of a communication appearing exclusively on a cable or satellite 

television system, but not on a broadcast station or network, that the viewership of 

the cable system or satellite system lying within a Congressional district or State is 

50,000 or more; or

(H) In the case of a communication appearing on a cable television network, that 

the total cable and satellite viewership within a Congressional district or State is 

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50,000 or more.

(ii) Cable or satellite television viewership is determined by multiplying the 

number of subscribers within a Congressional district or State, or a part thereof, as 

appropriate, by the current national average household size, as determined by the 

Bureau of the Census.

(iii) A determination that a communication can be received by 50,000 or more 

persons based on the application of the formula at paragraph (b)(7)(i)(G) or (H) of 

this section shall create a rebuttable presumption that may be overcome by 

demonstrating that --

(A) One or more cable or satellite systems did not carry the network on which the 

communication was publicly distributed at the time the communication was 

publicly distributed; and

(B) Applying the formula to the remaining cable and satellite systems results in a 

determination that the cable network or systems upon which the communication 

was publicly distributed could not be received by 50,000 persons or more.

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(c) The following communications are exempt from the definition of electioneering 

communication. Any communication that:

(1) Is publicly disseminated through a means of communication other than a 

broadcast, cable, or satellite television or radio station. For example, electioneering 

communication does not include communications appearing in print media, 

including a newspaper or magazine, handbill, brochure, bumper sticker, yard sign, 

poster, billboard, and other written materials, including mailings; communications 

over the Internet, including electronic mail; or telephone communications;

(2) Appears in a news story, commentary, or editorial distributed through the 

facilities of any broadcast, cable, or satellite television or radio station, unless such 

facilities are owned or controlled by any political party, political committee, or 

candidate. A news story distributed through a broadcast, cable, or satellite 

television or radio station owned or controlled by any political party, political 

committee, or candidate is nevertheless exempt if the news story meets the 

requirements described in 11 CFR 100.132(a) and (b);

(3) Constitutes an expenditure or independent expenditure provided that the 

expenditure or independent expenditure is required to be reported under the Act or 

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Commission regulations;

(4) Constitutes a candidate debate or forum conducted pursuant to 11 CFR 110.13, 

or that solely promotes such a debate or forum and is made by or on behalf of the 

person sponsoring the debate or forum; or

(5) Is paid for by a candidate for State or local office in connection with an election 

to State or local office, provided that the communication does not promote, 

support, attack or oppose any Federal candidate. See 11 CFR 300.71 for 

communications paid for by a candidate for State or local office that promotes, 

supports, attacks or opposes a Federal candidate.

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11 C.F.R. § 104.20

§ 104.20 Reporting electioneering communications (52 U.S.C. 30104(f)).

 (a) Definitions.

(1) Disclosure date means:

(i) The first date on which an electioneering communication is publicly distributed 

provided that the person making the electioneering communication has made one 

or more disbursements, or has executed one or more contracts to make 

disbursements, for the direct costs of producing or airing one or more 

electioneering communications aggregating in excess of $10,000; or

(ii) Any other date during the same calendar year on which an electioneering 

communication is publicly distributed provided that the person making the 

electioneering communication has made one or more disbursements, or has 

executed one or more contracts to make disbursements, for the direct costs of 

producing or airing one or more electioneering communications aggregating in 

excess of $10,000 since the most recent disclosure date during such calendar year.

(2) Direct costs of producing or airing electioneering communications means the 

following:

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(i) Costs charged by a vendor, such as studio rental time, staff salaries, costs of 

video or audio recording media, and talent; or

(ii) The cost of airtime on broadcast, cable or satellite radio and television stations, 

studio time, material costs, and the charges for a broker to purchase the airtime.

(3) Persons sharing or exercising direction or control means officers, directors, 

executive directors or their equivalent, partners, and in the case of unincorporated 

organizations, owners, of the entity or person making the disbursement for the 

electioneering communication.

(4) Identification has the same meaning as in 11 CFR 100.12.

(5) Publicly distributed has the same meaning as in 11 CFR 100.29(b)(3).

(b) Who must report and when. Every person who has made an electioneering 

communication, as defined in 11 CFR 100.29, aggregating in excess of $10,000 

during any calendar year shall file a statement with the Commission by 11:59 p.m. 

Eastern Standard/Daylight Time on the day following the disclosure date. The 

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statement shall be filed under penalty of perjury, shall contain the information set 

forth in paragraph (c) of this section, and shall be filed on FEC Form 9. Political 

committees that make communications that are described in 11 CFR 

100.29(a) must report such communications as expenditures or independent 

expenditures under 11 CFR 104.3 and104.4, and not under this section.

(c) Contents of statement. Statements of electioneering communications filed 

under paragraph (b) of this section shall disclose the following information:

(1) The identification of the person who made the disbursement, or who executed a 

contract to make a disbursement, and, if the person is not an individual, the 

person's principal place of business;

(2) The identification of any person sharing or exercising direction or control over 

the activities of the person who made the disbursement or who executed a contract 

to make a disbursement;

(3) The identification of the custodian of the books and accounts from which the 

disbursements were made;

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(4) The amount of each disbursement, or amount obligated, of more than $200 

during the period covered by the statement, the date the disbursement was made, or 

the contract was executed, and the identification of the person to whom that 

disbursement was made;

(5) All clearly identified candidates referred to in the electioneering 

communication and the elections in which they are candidates;

(6) The disclosure date, as defined in paragraph (a) of this section;

(7) If the disbursements were paid exclusively from a segregated bank account 

consisting of funds provided solely by persons other than national banks, 

corporations organized by authority of any law of Congress, or foreign nationals as 

defined in 11 CFR 110.20(a)(3), the name and address of each donor who donated 

an amount aggregating $1,000 or more to the segregated bank account, aggregating 

since the first day of the preceding calendar year.

(8) If the disbursements were not paid exclusively from a segregated bank account 

described in paragraph (c)(7) of this section and were not made by a corporation or 

labor organization, the name and address of each donor who donated an amount 

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aggregating $1,000 or more to the person making the disbursement, aggregating 

since the first day of the preceding calendar year.

(9) If the disbursements were made by a corporation or labor organization and 

were not paid exclusively from a segregated bank account described in paragraph 

(c)(7) of this section, the name and address of each person who made a donation 

aggregating $1,000 or more to the corporation or labor organization, aggregating 

since the first day of the preceding calendar year, which was made for the purpose 

of furthering electioneering communications.

(d) Recordkeeping. All persons who make electioneering communications or who 

accept donations for the purpose of making electioneering communications must 

maintain records in accordance with 11 CFR 104.14.

(e) State waivers. Statements of electioneering communications that must be filed 

with the Commission must also be filed with the Secretary of State of the 

appropriate State if the State has not obtained a waiver under 11 CFR 108.1(b).

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52 U.S.C. § 30104(c)

(c) Statements by other than political committees; filing; contents; indices of 

expenditures.

 (1) Every person (other than a political committee) who makes independent 

expenditures in an aggregate amount or value in excess of $250 during a calendar 

year shall file a statement containing the information required under subsection 

(b)(3)(A) for all contributions received by such person.

 (2) Statements required to be filed by this subsection shall be filed in accordance 

with subsection (a)(2), and shall include--

 (A) the information required by subsection (b)(6)(B)(iii), indicating whether 

the independent expenditure is in support of, or in opposition to, the candidate 

involved;

 (B) under penalty of perjury, a certification whether or not such independent 

expenditure is made in cooperation, consultation, or concert, with, or at the request 

or suggestion of, any candidate or any authorized committee or agent of such 

candidate; and

 (C) the identification of each person who made a contribution in excess of $200 

to the person filing such statement which was made for the purpose of furthering 

an independent expenditure.

 (3) The Commission shall be responsible for expeditiously preparing indices 

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which set forth, on a candidate-by-candidate basis, all independent expenditures 

separately, including those reported under subsection (b)(6)(B)(iii), made by or for 

each candidate, as reported under this subsection, and for periodically publishing 

such indices on a timely pre-election basis.

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11 C.F.R. § 109.10

 § 109.10 How do political committees and other persons report independent 

expenditures?

 (a) Political committees, including political party committees, must report 

independent expenditures under 11 CFR 104.4.

(b) Every person that is not a political committee and that makes independent 

expenditures aggregating in excess of $250 with respect to a given election in a 

calendar year shall file a verified statement or report on FEC Form 5 in accordance 

with 11 CFR 104.4(e) containing the information required by paragraph (e) of this 

section. Every person filing a report or statement under this section shall do so in 

accordance with the quarterly reporting schedule specified in 11 CFR 

104.5(a)(1)(i) and (ii) and shall file a report or statement for any quarterly period 

during which any such independent expenditures that aggregate in excess of $250 

are made and in any quarterly reporting period thereafter in which additional 

independent expenditures are made.

(c) Every person that is not a political committee and that makes independent 

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expenditures aggregating $10,000 or more with respect to a given election any time 

during the calendar year up to and including the 20th day before an election, must 

report the independent expenditures on FEC Form 5, or by signed statement if the 

person is not otherwise required to file electronically under 11 CFR 104.18. 

(See 11 CFR 104.4(f) for aggregation.) The person making the independent 

expenditures aggregating $10,000 or more must ensure that the Commission 

receives the report or statement by 11:59 p.m. Eastern Standard/Daylight Time on 

the second day following the date on which a communication is publicly 

distributed or otherwise publicly disseminated. Each time subsequent independent

expenditures relating to the same election aggregate an additional $10,000 or more, 

the person making the independent expenditures must ensure that the Commission 

receives a new 48-hour report of the subsequent independent expenditures. Each 

48-hour report must contain the information required by paragraph (e)(1) of this 

section.

(d) Every person making, after the 20th day, but more than 24 hours before 12:01 

a.m. of the day of an election, independent expenditures aggregating $1,000 or 

more with respect to a given election must report those independent expenditures 

and ensure that the Commission receives the report or signed statement by 11:59 

p.m. Eastern Standard/Daylight Time on the day following the date on which a 

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communication is publicly distributed or otherwise publicly disseminated. Each 

time subsequent independent expenditures relating to the same election aggregate 

$1,000 or more, the person making the independent expenditures must ensure that 

the Commission receives a new 24-hour report of the subsequent independent 

expenditures. (See 11 CFR 104.4(f) for aggregation.) Such report or statement 

shall contain the information required by paragraph (e) of this section.

(e) Content of verified reports and statements and verification of reports and 

statements.

(1) Contents of verified reports and statement. If a signed report or statement is 

submitted, the report or statement shall include:

(i) The reporting person's name, mailing address, occupation, and the name of his 

or her employer, if any;

(ii) The identification (name and mailing address) of the person to whom the 

expenditure was made;

(iii) The amount, date, and purpose of each expenditure;

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(iv) A statement that indicates whether such expenditure was in support of, or in 

opposition to a candidate, together with the candidate's name and office sought;

(v) A verified certification under penalty of perjury as to whether such expenditure 

was made in cooperation, consultation, or concert with, or at the request or 

suggestion of a candidate, a candidate's authorized committee, or their agents, or a 

political party committee or its agents; and

(vi) The identification of each person who made a contribution in excess of $200 to 

the person filing such report, which contribution was made for the purpose of 

furthering the reported independent expenditure.

(2) Verification of independent expenditure statements and reports. Every person 

shall verify reports and statements of independent expenditures filed pursuant to 

the requirements of this section by one of the methods stated in paragraph (e)(2)(i) 

or (ii) of this section. Any report or statement verified under either of these 

methods shall be treated for all purposes (including penalties for perjury) in the 

same manner as a document verified by signature.

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(i) For reports or statements filed on paper (e.g., by hand-delivery, U.S. Mail, or 

facsimile machine), the person who made the independent expenditure shall 

certify, under penalty of perjury, the independence of the expenditure by 

handwritten signature immediately following the certification required by 

paragraph (e)(1)(v) of this section.

(ii) For reports or statements filed by electronic mail, the person who made the 

independent expenditure shall certify, under penalty of perjury, the independence 

of the expenditure by typing the treasurer's name immediately following the 

certification required by paragraph (e)(1)(v) of this section.

ADD-35

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CERTIFICATE OF SERVICE

I hereby certify that on April 8, 2015, I electronically filed the foregoing 

using the court’s CM/ECF system which will automatically generate and send by 

email a Notice of Docket Activity to all registered attorneys currently participating 

in this case, constituting service on those attorneys.

I also caused 8 copies of the foregoing to be delivered to the Clerk of this 

Court, and 2 copies to be delivered to counsel for each represented party.

s/ Allen Dickerson

Allen Dickerson

1

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