IN THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

 ) 

FREE SPEECH, ) 

 ) 

 Plaintiff-Appellant, ) Case No. 12-8078 

 ) 

 v. ) 

 ) OPPOSITION TO MOTION FOR 

FEDERAL ELECTION COMMISSION, ) EMERGENCY INJUNCTION 

 ) 

 Defendant-Appellee. ) 

 ) 

APPELLEE FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

APPELLANT’S MOTION FOR EMERGENCY INJUNCTION 

 Anthony Herman 

 General Counsel 

 Lisa Stevenson 

 Deputy General Counsel – Law 

 David Kolker 

 Associate General Counsel 

 Adav Noti 

 Acting Assistant General Counsel 

 Erin Chlopak 

 Attorney 

 Counsel for Defendant 

 Federal Election Commission 

 999 E Street, NW 

October 29, 2012 Washington, DC 20463 

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TABLE OF CONTENTS 

Page 

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

BACKGROUND .......................................................................................................................2 

I. STATUTORY AND REGULATORY BACKGROUND .............................................2 

 

A. Express Advocacy and Electioneering Communications ..................................2 

B. Political Committee Status .................................................................................4 

II. ADMINISTRATIVE AND PROCEDURAL HISTORY ..............................................6 

ARGUMENT ............................................................................................................................7 

I. AN INJUNCTION PENDING APPEAL IS AN EXTRAORDINARY REMEDY 

THAT REQUIRES APPELLANT TO DEMONSTRATE A CLEAR AND 

UNEQUIVOCAL RIGHT TO RELIEF ........................................................................7 

II. FREE SPEECH IS UNLIKELY TO PREVAIL ON THE MERITS OF ITS CASE ....9 

A. The Disclosure Provisions at Issue Are Subject to Intermediate 

Scrutiny .............................................................................................................9 

B. Section 100.22(b) Is Constitutional .................................................................10 

1. Section 100.22(b) Is Not Unconstitutionally Vague ............................10 

2. Section 100.22(b) Is Not Overbroad ....................................................12 

 

C. The Commission’s Method of Determining PAC Status and the Registration 

and Disclosure Requirements for PACs Are Constitutional ............................14 

1. The Commission’s Approach to PAC Status Is Constitutional ...........15 

2. The Consequences of PAC Status Are Constitutional 

Organizational and Disclosure Obligations .........................................17

III. FREE SPEECH FAILS TO DEMONSTRATE IRREPARABLE HARM .................18 

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ii 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION AND AN 

INJUNCTION WOULD BE ADVERSE TO THE PUBLIC INTEREST ..................19 

CONCLUSION ........................................................................................................................20

 

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INTRODUCTION 

The district court correctly held that Free Speech failed to meet its heavy burden to obtain 

a preliminary injunction. In so holding, the court recognized that “[a]t the core of plaintiff’s 

challenges . . . are rules and policies which implement only . . . disclosure requirements. The 

question before the Court is not whether plaintiff can make expenditures for the speech it 

proposes nor raise money without limitation but simply whether it must provide disclosure of its 

electoral advocacy.” (Mot. for Emer. Inj. Exh. 5 at 16 (Tr. of Telephonic Oral Ruling on Pl.’s 

Mot. for Prelim. Inj.) (hereinafter “Ruling Tr.”) (emphases added).) Such disclosure 

requirements help prevent political corruption and inform the electorate about the source of 

funds used to influence federal elections. They do not ban or suppress speech. Thus, as the 

Supreme Court has explicitly and repeatedly noted, disclosure requirements for electoral 

advocacy are constitutional because they “‘provid[e] the electorate with information’ and ‘insure 

that the voters are fully informed’ about the person or group who is speaking” about a candidate, 

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

speaking.’” Citizens United v. FEC, 130 S. Ct. 876, 914-15 (2010) (quoting Buckley v. Valeo, 

424 U.S. 1, 64 (1976); McConnell v. FEC, 540 U.S. 93, 201 (2003)); see also Real Truth About 

Abortion, Inc. f/k/a Real Truth About Obama, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012) 

(“RTAA”) (rejecting constitutional challenges to same regulation and policy at issue here).

 Free Speech did not satisfy the requirements for a preliminary injunction in the 

proceedings below, and it utterly fails to satisfy them here. Appellant does not and cannot 

demonstrate that it will likely succeed on the merits of its challenge to political disclosure 

requirements, that it will suffer irreparable harm without an injunction, or that the balance of 

harms and the public interest weigh in favor of enjoining the enforcement of decades-old 

disclosure provisions just one week before a nationwide general election. 

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The instant motion also flagrantly abuses this Court’s procedures for emergency relief. 

Free Speech first waited 16 days to file its appeal of the decision below, and then it delayed 

another 5 days before filing its motion for an injunction pending appeal — ultimately doing so 

under the Court’s procedure for movants who need relief within 48 hours. To wait three weeks 

(for the proffered reason that appellant’s counsel has been busy with “pressing election law 

matters for other clients” (Appellant’s Local Rule 8.2 and 27.3(C) Certificates)) and then claim a 

need for Court action within two days not only belies Free Speech’s “emergency,” it also places 

this case so far outside the bounds of properly invoking Tenth Circuit Rule 8.2 that the Court 

should deny the motion on that basis alone. 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Express Advocacy and Electioneering Communications 

Before Citizens United, the Federal Election Campaign Act, 2 U.S.C. §§ 431-57 

(“FECA”), prohibited corporations and labor unions from directly making “expenditures.” 

2 U.S.C. §§ 431(9)(A)(i), 441b(a). In Buckley v. Valeo, the Supreme Court construed the term 

“expenditures” in the context of independent political spending — i.e., spending by an entity 

other than a candidate or political party — “to apply only to expenditures for communications 

that in express terms advocate the election or defeat of a clearly identified candidate for federal 

office.” 424 U.S. 1, 44 (1976). Congress then incorporated Buckley’s holding into FECA by 

defining an “independent expenditure” as a communication “expressly advocating the election or 

defeat of a clearly identified candidate” and not made in coordination with a candidate or 

political party. See FECA Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 

479 (1976) (codified at 2 U.S.C. § 431(17)). 

In 1995, defendant-appellee Federal Election Commission (“Commission”) promulgated 

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a regulatory definition of the statutory term “expressly advocating.” 11 C.F.R. § 100.22. 

Paragraph (a) of the regulation encompasses communications that use phrases — such as “vote 

for” or “reject” — “which in context can have no other reasonable meaning than to urge the 

election or defeat” of a candidate. 11 C.F.R. § 100.22(a). This is sometimes referred to as 

“magic words” express advocacy. See McConnell v. FEC, 540 U.S. 93, 126 (2003) (citing 

Buckley, 424 U.S. at 44 n.52). Paragraph (b) of section 100.22 defines a communication as 

“expressly advocating” if it has an “electoral portion” that is “unmistakable, unambiguous, and 

suggestive of only one meaning,” and as to which “[r]easonable minds could not differ [that] it 

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

11 C.F.R. § 100.22(b). An entity that finances express advocacy expenditures must identify 

itself within the communication, 2 U.S.C. § 441d(a), (d)(2), and must file with the Commission a 

disclosure report identifying, inter alia, the date and amount of each expenditure and anyone 

who contributed over $200 to further it. See 2 U.S.C. § 434(c); 11 C.F.R. § 109.10(e). 

In 2002, Congress enacted the Bipartisan Campaign Reform Act (“BCRA”), which 

introduced new financing and disclosure requirements for “electioneering communications.” 

Pub. L. No. 107-155, § 212(a), 116 Stat. 81 (2002). BCRA defined an electioneering 

communication in the context of a presidential election as a “broadcast, cable, or satellite 

communication” that (a) refers to a clearly identified presidential candidate, and (b) is made 

within 60 days before the general election or 30 days before a primary election or convention. 

2 U.S.C. § 434(f)(3)(A)(i). BCRA prohibited corporations and labor unions from financing 

electioneering communications. 2 U.S.C. § 441b(b)(2). It also required entities that finance 

more than $10,000 of electioneering communications in a calendar year to report the maker, 

amount, and recipient of each disbursement over $200 for the communications, as well as 

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information about contributors to the entity making the disbursements. 2 U.S.C. § 434(f)(1)-(2). 

The Supreme Court first upheld the constitutionality of the corporate financing restriction 

for electioneering communications “to the extent that the issue ads . . . are the functional 

equivalent of express advocacy.” McConnell, 540 U.S. at 189-94, 203-08 (quotation at 206). 

Later, in FEC v. Wisconsin Right to Life, Inc. (“WRTL”), the Chief Justice’s controlling opinion 

defined “the functional equivalent of express advocacy” as a communication that is “susceptible 

of no reasonable interpretation other than as an appeal to vote for or against a specific 

candidate.” 551 U.S. 449, 469-70 (2007). In Citizens United, the Court held unconstitutional 

BCRA’s and FECA’s respective bans on corporate financing of electioneering communications 

and independent expenditures. 130 S. Ct. at 913. But an eight-Justice majority upheld BCRA’s 

disclosure requirements for all electioneering communications, even those that are not the 

functional equivalent of express advocacy. 130 S. Ct. at 914-15. 

B. Political Committee Status 

FECA defines a “political committee” — commonly known as a “PAC” — as any 

organization or group that receives more than $1,000 in “contributions” or makes more than 

$1,000 in “expenditures” during a calendar year. 2 U.S.C. § 431(4)(A); see also 2 U.S.C. 

§ 431(8) (defining “contribution”). In Buckley, however, the Supreme Court narrowed this 

statutory definition to “only encompass organizations that are under the control of a candidate or 

the major purpose of which is the nomination or election of a candidate.” 424 U.S. at 79 

(emphasis added). Thus, an organization that is not controlled by a candidate becomes a PAC 

only if (1) the entity crosses the $1,000 threshold of contributions or expenditures, and (2) its 

“major purpose” is the nomination or election of federal candidates. 

FECA provides that PACs must register with the Commission and file periodic reports 

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for disclosure to the public of their total operating expenses and cash on hand, as well as their 

receipts and disbursements (with limited exceptions for most transactions below a $200 

threshold). See 2 U.S.C. §§ 433, 434. In addition, PACs must identify themselves on their 

public political advertising, websites, and mass emails. 11 C.F.R. § 110.11(a)(1). 

As enacted, FECA permitted PACs to accept contributions only from individuals in 

amounts up to $5,000 per year. See 2 U.S.C. §§ 441a(a)(1)(C), 441b(a). In SpeechNow.org v. 

FEC, however, the D.C. Circuit invalidated this restriction as applied to political committees 

whose campaign-related activity consists only of independent expenditures. 599 F.3d 686, 692-

97 (D.C. Cir.) (en banc), cert. denied, 131 S. Ct. 553 (2010). But SpeechNow expressly upheld 

the application of FECA’s PAC reporting and organizational requirements to these independentexpenditure-only PACs, id. at 696-98, which have come to be known as “super PACs.” 

In 2004, the Commission issued a notice of proposed rulemaking that asked whether the 

agency should promulgate a regulatory definition of “political committee” to establish 

categorical rules regarding the application of Buckley’s “major purpose” test to certain taxexempt organizations. See FEC, Political Committee Status, 69 Fed. Reg. 11,736, 11,743-49 

(Mar. 11, 2004). In 2007, after receiving public comment, the Commission explained its 

decision not to promulgate such a regulation. FEC, Supplemental Explanation & Justification 

for the Regulations on Political Committee Status, 72 Fed Reg. 5595 (Feb. 7, 2007). This notice 

stated that the Commission would instead continue its longstanding practice of determining an 

organization’s major purpose through case-by-case adjudication. See id. at 5596-97. The notice 

then discussed several matters in which the Commission or a court had analyzed a group’s major 

purpose, and it explained that those descriptions cumulatively “provid[ed] considerable guidance 

to all organizations” regarding application of the major-purpose test. See id. at 5595, 5605-06. 

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 The Commission’s case-by-case methodology was upheld in Shays v. FEC, 511 F. 

Supp. 2d 19, 29-31 (D.D.C. 2007). More recently, the Fourth Circuit upheld the Commission’s 

approach to applying the major-purpose test, finding that Buckley “did not mandate a particular 

methodology for determining an organization’s major purpose,” and so the Commission is free to 

make that determination “either through categorical rules or through individualized 

adjudications.” RTAA, 681 F.3d at 556 (citing SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). 

II. ADMINISTRATIVE AND PROCEDURAL HISTORY 

The Commission is the independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce FECA. See generally 2 U.S.C. 

§§ 437c, 437d. Free Speech is an unincorporated nonprofit association that was formed on 

February 21, 2012. (Mot. Exh. 1 ¶¶ 10, 13.) It does not intend to make contributions, but seeks 

to distribute certain political advertisements anonymously, without registering as a PAC or 

complying with FECA’s disclosure requirements. (Mot. Exh. 1 ¶¶ 24-25, 47-50.) 

On February 29, 2012, Free Speech requested from the Commission an advisory opinion 

as to, inter alia, (a) whether certain proposed advertisements were express advocacy; and 

(b) whether certain proposed activities would require Free Speech to register as a PAC. (Mot. 

Exh. 1, Exh. A.) On April 26, 2012, the Commission approved a response to this request, 

concluding that two of Free Speech’s eleven proposed advertisements would expressly advocate 

the election or defeat of a clearly identified federal candidate. (Mot. Exh. 1, Exh. G at 1 (FEC 

Advisory Op. 2012-11 (May 8, 2012)).)1

 The response explained that the Commission was 

unable to approve an advisory opinion by the required four affirmative votes of the FEC’s six 

Commissioners, see 2 U.S.C. §§ 437c(c), 437d(a)(7), as to Free Speech’s remaining ads and 

                                                           

1

 Free Speech’s request (and its subsequent civil complaint) also asked whether certain 

planned communications would constitute regulable “solicitations” under FECA, (Mot. Exh. 1, 

Exh. A at 5; Mot. Exh. 1 ¶¶ 86-96), but its instant motion presents no argument on that issue. 

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whether Free Speech would be required to register as a PAC. (Mot. Exh. 1, Exh. G.) 

Free Speech filed its complaint and a motion for a preliminary injunction in the district 

court on June 14, 2012. (The complaint was then amended on July 26.) The court heard oral 

argument on plaintiff’s motion on September 12 and denied the motion in an oral ruling 

announced during a transcribed teleconference on October 3. More than two weeks later, on 

October 19, Free Speech filed a notice of appeal and a motion in the district court seeking an 

injunction pending appeal. Free Speech filed the instant motion for an injunction pending appeal 

on October 24; the district court denied Free Speech’s similar motion on October 25. 

ARGUMENT 

I. AN INJUNCTION PENDING APPEAL IS AN EXTRAORDINARY REMEDY 

THAT REQUIRES APPELLANT TO DEMONSTRATE A CLEAR AND 

UNEQUIVOCAL RIGHT TO RELIEF 

To obtain an injunction pending appeal, an appellant bears a heavy burden. Free Speech 

must address: “(1) the likelihood that [it] will succeed on appeal; (2) the threat that [it] will be 

irreparably harmed if the injunction is not granted; (3) the absence of harm to appellee[ ] if the 

injunction is granted; and (4) any risk of harm to the public interest.” Homans v. City of 

Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001) (per curiam) (citing 10th Cir. R. 8.1). This 

Court’s inquiry is “the same inquiry [it would make] when reviewing a district court’s grant or 

denial of a preliminary injunction.” Id. (citing McClendon v. City of Albuquerque, 100 F.3d 

863, 868 n.1 (10th Cir. 1996)). Free Speech’s motion thus presents the questions of whether 

“based on a preliminary record . . . the district court abused its discretion and whether the 

movant has demonstrated a clear and unequivocal right to relief.” Id. 

The answer to each of those questions is no. In concluding that appellant was not entitled 

to a preliminary injunction, the district court properly applied the standard articulated by this 

Court in Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012), consistent with Supreme Court 

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precedent. Compare Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008), with

Ruling Tr. at 15 (listing preliminary-injunction factors and citing Awad, 670 F.3d at 1125; 

Winter, 555 U.S. at 20). Free Speech suggests (Mot. at 6) that the district court abused its 

discretion because “[i]t did not presume that Free Speech was likely to prevail” (emphasis 

added), but the Supreme Court has unambiguously foreclosed any such “presumption.” The 

“plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the 

merits.” Winter, 555 U.S. at 20 (emphases added); see also id. at 22, 24 (holding that 

preliminary injunction is “an extraordinary remedy that. . . . [is] never awarded as of right”) 

(emphasis added); Awad, 670 F.3d at 1125. 

Moreover, an injunction that seeks to “alter the status quo” is “disfavored” and “must be 

more closely scrutinized to assure that the exigencies of the case support granting of a remedy 

that is extraordinary even in the normal course.” Awad, 670 F.3d at 1125; see Turner Broad. 

Sys., Inc. v. FCC, 507 U.S. 1301 (1993) (Rehnquist, C.J., in chambers) (refusing to enjoin 

enforcement statute despite First Amendment claim and noting that “applicants request that I 

issue an order altering the legal status quo.”) (emphasis in original); Univ. of Tex. v. Camenisch, 

451 U.S. 390, 395 (1981). Notwithstanding its specious assertion to the contrary (Mot. at 6 n.1), 

Free Speech seeks to alter the status quo by enjoining enforcement of a federal regulation and 

policy that have been in effect for many years. Such an injunction is even more inappropriate in 

the pre-election context, where “considerations specific to election cases” weigh heavily against 

the issuance of injunctions. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). 

Besides ignoring Winter and Awad regarding the first prong of the standard, Free Speech 

gives short shrift to the other three criteria it must demonstrate to obtain injunctive relief. (See

Mot. at 20 (stating that other criteria “largely” follow from merits and mentioning each prong in 

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one conclusory sentence).) Such cursory treatment neither satisfies the Rules of this Court, see 

10th Cir. R. 8.1 (requiring movant to “address[ ]” each factor), nor constitutes the requisite 

“strong showing” Free Speech must make “with regard to the balance of harms.” Awad, 670 

F.3d at 1125. 

II. FREE SPEECH IS UNLIKELY TO PREVAIL ON THE MERITS OF ITS CASE 

A. The Disclosure Provisions at Issue Are Subject to Intermediate Scrutiny 

The Supreme Court has long distinguished disclosure provisions, which are subject to 

intermediate (sometimes referred to as “exacting”) scrutiny, from expenditure limits, which are 

subject to strict scrutiny. See, e.g., Buckley, 424 U.S. at 64. To be upheld, disclosure provisions 

require only “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently 

important’ governmental interest.” Citizens United, 130 S. Ct. at 914 (quoting Buckley, 424 U.S. 

at 64, 66); N.M. Youth Organized v. Herrera, 611 F.3d 669, 676 (10th Cir. 2010). 

The district court correctly recognized that intermediate scrutiny applies here because, 

after Citizens United, section 100.22’s definition of express advocacy implicates only disclosure 

requirements. (Ruling Tr. at 7-8, 16.) A communication that meets the definition of “expressly 

advocating” in section 100.22 must include certain disclaimers within the communication, and its 

financing must be publicly reported. See supra p. 3. The express-advocacy determination may 

also be relevant to whether a group has made more than $1,000 in expenditures for purposes of 

triggering PAC status. See 2 U.S.C. § 431(4)(A); RTAA, 681 F.3d at 548. But for entities like 

Free Speech that do not make contributions, PAC status gives rise only to disclosure and 

organizational requirements. See supra p. 5. Such “super PACs” remain free to make unlimited 

expenditures and to receive unlimited individual and corporate contributions. Id. Thus, contrary 

to appellant’s hyperbolic assertion, section 100.22(b) does not deny any “free people . . . the 

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right of political expression” (Mot. at 1).2

 The regulation simply triggers disclosure 

requirements, which are subject to intermediate scrutiny. Citizens United, 130 S. Ct. at 914. 

B. Section 100.22(b) Is Constitutional 

 1. Section 100.22(b) Is Not Unconstitutionally Vague 

As the court below concluded, section 100.22(b)’s definition of “express advocacy” is not 

vague because it is almost identical to the definition of the “functional equivalent of express 

advocacy” that the Supreme Court recognized in WRTL and applied in Citizens United. Ruling 

Tr. at 17-18; see RTAA, 681 F.3d at 552-55. Section 100.22(b) — like the Supreme Court’s test 

from WRTL — provides that any communication that can reasonably be interpreted as something 

other than candidate advocacy is excluded from the regulation. Compare 11 C.F.R. § 100.22(b) 

(“[r]easonable minds could not differ”), with WRTL, 551 U.S. at 469-70 (“susceptible of no 

[other] reasonable interpretation”). And both definitions are objective, precluding consideration 

of the speaker’s “subjective intent.” Compare WRTL, 551 U.S. at 472, with Express Advocacy; 

Independent Expenditures; Corporate and Labor Organization Expenditures, 60 Fed. Reg. 

35,292, 35,295 (July 6, 1995); see also Citizens United, 130 S. Ct. at 895, 889-90 (describing 

WRTL’s “functional equivalent of express advocacy” test as “objective”). To the extent the 

standards differ, section 100.22(b) is narrower than the WRTL test, as the regulation requires an 

“unambiguous” electoral portion, 11 C.F.R. 100.22(b)(1), while the lead opinion in WRTL looks 

to the “mention” of an election and similar “indicia of express advocacy.” See 551 U.S. at 470. 

                                                           

2

 For the same reason, Free Speech is wrong to assert that the Commission must 

demonstrate that any “less restrictive alternatives would not effectively carry out the FEC’s 

interest in disclosure.” (Mot. at 6, 14 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).) The 

“less restrictive alternative” test is a hallmark of strict scrutiny, see, e.g., United States v. 

Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000), which Ashcroft applied because it 

concerned an “attempt by Congress to . . . criminaliz[e] certain Internet speech” through 

“[c]ontent-based prohibitions.” 542 U.S. at 660-61 (emphasis added). There is no “prohibition” 

at issue in this case, as disclosure requirements “do not prevent anyone from speaking.” Citizens 

United, 130 S. Ct. at 914 (internal quotation marks omitted). 

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 The controlling opinion in WRTL specifically rejected the argument raised by Justice 

Scalia in a separate opinion that the “functional equivalent” test was “impermissibly vague.” 

WRTL, 551 U.S. at 474 n.7. Free Speech nonetheless seeks to argue otherwise by attaching 

controlling significance to the fact that the particular statute at issue in WRTL was BCRA’s 

definition of “electioneering communications.” (See Mot. at 9-10 (citing WRTL, 551 U.S. at 464 

n.7).)3 But the lead opinion did not hold that its own constitutional test would be impermissibly 

vague if not tethered to BCRA’s statutory criteria for electioneering communications; to the 

contrary, the entire footnote on which Free Speech relies is dedicated to providing multiple 

reasons why the “no reasonable interpretation” standard is not vague. And as both RTAA and the 

decision below recognized, what matters for the First Amendment analysis is that the 

communications the Supreme Court has defined as “the functional equivalent of express 

advocacy” are constitutionally indistinguishable from the communications the Commission has 

defined as “expressly advocating”; neither test, therefore, is “impermissibly vague.” Ruling Tr. 

at 17-18 (citing WRTL, 551 U.S. at 474 n.7); RTAA, 681 F.3d at 551-52, 555 (holding that 

“§ 100.22(b) is constitutional . . . and consistent with the test developed in Wisconsin Right to 

Life and is not unduly vague”);4 see also Herrera, 611 F.3d at 676 (“[T]he functional equivalent 

                                                           

3

 Although Free Speech seeks to avoid the holding of WRTL that demonstrates the 

constitutionality of section 100.22(b), it nonetheless refers to WRTL’s statement that, when 

assessing laws that ban speech, “the tie goes to the speaker, not the censor.” (Mot. at 5 (citing 

WRTL).) WRTL’s statement plainly has no application in this case, where no speech is 

“censor[ed].” 

4

 Free Speech asks this Court to disregard RTAA as “fundamentally different” from the 

instant case. (Mot. at 15.) Yet the two cases are nearly identical: They both entail facial 

vagueness and overbreadth challenges to 11 C.F.R. § 100.22(b) based on the text of particular 

advertisements that the respective plaintiffs propose to run. Every major argument appellant 

raises regarding that regulation was also raised by the appellant in RTAA, such as alleged 

vagueness in the WRTL test, supra pp. 10-11, as purportedly demonstrated by disagreement 

regarding its application to particular advertisements, infra p. 12. Thus, although RTAA’s 

analysis does not control here, it directly refutes appellant’s arguments. Free Speech’s separate 

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of express advocacy for the election or defeat of a specific candidate is . . . properly subject to 

regulation regardless of its origination.”) (citing WRTL, 551 U.S. at 476). And in Citizens United

the Supreme Court applied “the standard . . . elaborated in WRTL” and concluded that a film 

criticizing Hillary Clinton “qualifie[d] as the functional equivalent of express advocacy”), 130 S. 

Ct. at 889-90 — thus putting to rest any claim that the standard is constitutionally infirm. 

Free Speech refers repeatedly to the fact that the FEC’s Commissioners were not 

unanimous in opining on how section 100.22(b) would apply to some of Free Speech’s proposed 

communications, arguing that this demonstrates vagueness in the regulation. (Mot. at 2-3, 8, 

10-12.) But as the Fourth Circuit held in addressing essentially the same argument, such 

disagreement “proves little because cases that fall close to the line will inevitably arise when 

applying § 100.22(b). This kind of difficulty is simply inherent in any kind of standards-based 

test.” RTAA, 681 F.3d at 554; United States v. Williams, 553 U.S. 285, 306 (2008) (“Close cases 

can be imagined under virtually any statute. The problem that poses is [not] addressed . . . by the 

doctrine of vagueness.”); United States v. Wurzbach, 280 U.S. 396, 399 (1930) (“Wherever the 

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

 2. Section 100.22(b) Is Not Overbroad

The disclosure requirements triggered by section 100.22(b) do not sweep too broadly. 

Indeed, Supreme Court decisions culminating in Citizens United have held that such provisions 

may constitutionally reach even beyond express advocacy or its functional equivalent. 

In McConnell, the Court clarified that Buckley’s “express advocacy limitation, in both the 

expenditure and the disclosure contexts, was the product of statutory interpretation, rather than a 

constitutional command.” McConnell, 540 U.S. at 191-92. McConnell accordingly upheld 

                                                                                                                                                                                               

(and incorrect) argument that RTAA conflicts with opinions of this Court in relation to the major 

purpose test (Mot. at 14-15) is addressed infra pp. 15-16. 

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BCRA’s disclosure requirements for all electioneering communications, id. at 194-99, in light of 

the “important state interests” served by disclosure requirements — interests that include 

“providing the electorate with information” and “deterring actual corruption and avoiding any 

appearance thereof.” Id. at 196 (citing Buckley). 

Citizens United then upheld the same disclosure requirements as applied to a movie that 

was the functional equivalent of express advocacy, 130 S. Ct. at 889-90, and three 

advertisements that mentioned a candidate but were not the functional equivalent of express 

advocacy, id. at 914-16. Eight Justices agreed that disclosure is constitutionally permissible to 

further the public’s important interest in knowing who is responsible for pre-election 

communications that speak about candidates. See id. at 915-16. Such mandatory disclosure is 

constitutional even if the communications contain no direct candidate advocacy. See id. (citing 

Buckley, 424 U.S. at 75-76; McConnell, 540 U.S. at 321).5

 

 As RTAA correctly reasoned, if mandatory disclosure requirements are constitutional 

“when applied to ads that merely mention a federal candidate, then applying the same burden to 

ads that go further and are the functional equivalent of express advocacy cannot automatically be 

impermissible.” RTAA, 681 F.3d at 552. Three other Courts of Appeals have reached similar 

conclusions. See Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 54-55 (1st Cir. 2011), cert. 

denied, 132 S. Ct. 1635 (2012) (“[I]t [is] reasonably clear, in light of Citizens United, that the 

distinction between issue discussion and express advocacy has no place in First Amendment 

review of these sorts of disclosure-oriented laws.”); Ctr. for Individual Freedom v. Madigan, ---

                                                           

5

 That holding is of a piece with the Supreme Court’s long history of applying intermediate 

scrutiny to and upholding disclosure requirements for issue advocacy. Decades before Citizens 

United, the Supreme Court had upheld the constitutionality of lobbying disclosure laws that 

“merely provided for a modicum of information from those who for hire attempt to influence 

legislation or who collect or spend funds for that purpose.” United States v. Harriss, 347 U.S. 

612, 625 (1954); see also infra p. 17 (noting constitutionality of disclosure for ballot initiatives). 

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14

F.3d ---, 2012 WL 3930437, at *13 (7th Cir. Sept. 10, 2012) (“Whatever the status of the express 

advocacy/issue discussion distinction may be in other areas of campaign finance law, Citizens 

United left no doubt that disclosure requirements need not hew to it to survive First Amendment 

scrutiny.”); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010), cert. 

denied, 131 S. Ct. 1477 (2011) (“Given the Court’s analysis in Citizens United and its holding 

that the government may impose disclosure requirements on speech, the position that disclosure 

requirements cannot constitutionally reach issue advocacy is unsupportable.”).6

 

In sum, WRTL and Citizens United confirm that the First Amendment permits the 

government to require disclosure regarding communications that can be reasonably interpreted 

only as encouraging the election or defeat of federal candidates. 

C. The Commission’s Method of Determining PAC Status and the Registration 

and Disclosure Requirements for PACs Are Constitutional 

FECA’s organizational and disclosure requirements for political committees “directly 

serve substantial government interests.” Buckley, 424 U.S. at 68. Such requirements further the 

“public . . . interest in knowing who is speaking about a candidate and who is funding that 

speech”; they also “deter[ ] and help[ ] expose violations of other campaign finance restrictions, 

such as those barring contributions from foreign corporations and individuals.” SpeechNow, 599 

F.3d at 698; see Brumsickle, 624 F.3d at 1013. 

                                                           

6

 Appellant’s reliance (Mot. at 11-12) on FEC v. Christian Coalition, 52 F. Supp. 2d 45 

(D.D.C. 1999), is misplaced. That decision, like others Free Speech relied on below, predated 

the Supreme Court’s recognition in McConnell, WRTL, and Citizens United that the regulation of 

the “functional equivalent” of express advocacy is permissible. As Justice Thomas observed in 

dissent, McConnell “overturned” all of the courts of appeals decisions that had interpreted 

Buckley as limiting government regulation to magic words of advocacy. McConnell, 540 U.S. at 

278 n.11 (Thomas, J., dissenting) (collecting cases). And those earlier cases were predicated on 

certain express advocacy being banned — a function the regulation no longer serves — so they 

had no occasion to consider the constitutionality of section 100.22(b)’s application to disclosure 

requirements. Recognizing this, the Fourth Circuit in RTAA, 681 F.3d at 550 n.2, overruled its 

earlier decision in Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001). 

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1. The Commission’s Approach to PAC Status Is Constitutional 

 For decades, the Commission has determined on a case-by-case basis whether an 

organization is a political committee, including whether its major purpose is the nomination or 

election of candidates. See 72 Fed. Reg. at 5596. To apply the major-purpose test, the 

Commission has consulted sources such as a group’s public statements, fundraising appeals, 

government filings (e.g., IRS notices), charters, and bylaws. See id. at 5601, 5605. The 

Commission decided in 2007 not to promulgate a per se rule classifying certain tax-exempt 

groups as political committees. See id. The Commission thus rejected categorical regulations 

that might have led to overbroad or underinclusive PAC determinations. See id. at 5595-602 

(analyzing differences between political organizations under tax law and PACs under FECA). 

The Commission’s case-by-case approach has been upheld by the courts. As the Fourth 

Circuit recognized, the “determination of whether the election or defeat of federal candidates for 

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

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

group’s activities against others.” RTAA, 681 F.3d at 556; see also Shays, 511 F. Supp. 2d at 

29-31; see generally SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (holding that agencies 

have discretion to implement statutes through rulemaking or case-by-case adjudication). And 

“[t]he necessity of a contextual inquiry is supported by judicial decisions applying the major 

purpose test, which have used the same fact-intensive analysis that the Commission has 

adopted.” RTAA, 681 F.3d at 557 (collecting cases); see also Koerber v. FEC, 583 F. Supp. 2d 

740, 748 (E.D.N.C. 2008) (denying preliminary relief in challenge to Commission’s approach to 

determining PAC status, and noting that “an organization’s ‘major purpose’ is inherently 

comparative and necessarily requires an understanding of an organization’s overall activities, as 

opposed to its stated purpose”); FEC v. Malenick, 310 F. Supp. 2d 230, 234-37 (D.D.C. 2004) 

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16

(considering organization’s statements in brochures and “fax alerts” sent to contributors, as well 

as its election spending); FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 1996) (“[An] 

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

means, such as its expenditures in cash or in kind to or for the benefit of a particular candidate.”). 

 Contrary to Free Speech’s contention (Mot. 16-19), the Commission’s approach is 

entirely consistent with the law of this Court. Free Speech cites Colorado Right to Life Comm. v. 

Coffman, 498 F.3d 1137 (10th Cir. 2007), Herrera, and Sampson v. Buescher, 625 F.3d 1247 

(10th Cir. 2010), none of which supports its position. Coffman and Herrera struck down state 

statutes that, unlike the federal statute here, defined groups as PACs based solely on their 

meeting an expenditure threshold, without any consideration of the groups’ major purpose. 

Coffman, 498 F.3d at 1153; Herrera, 611 F.3d at 673. In describing the major purpose 

requirement that these state provisions lacked, Coffman and Herrera noted the Supreme Court’s 

endorsement of “two methods to determine an organization’s ‘major purpose’: (1) examination 

of the organization’s central organizational purpose; or (2) comparison of the organization’s 

independent [express advocacy] spending with overall spending.” Coffman, 498 F.3d at 1152 

(citing FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 252 n.6 (1986)); Herrera, 611 F.3d at 

677-78 (citing Coffman). Because the Commission applies the major purpose test by 

determining each “organization’s central organizational purpose” on a case-by-case basis, this 

approach is entirely consistent not just with Buckley, but also with this Court’s precedent. 

Free Speech’s discussion of Sampson is completely off-point. That decision addressed 

disclosure laws in the context of ballot initiatives, which the Court emphatically distinguished 

from candidate elections: 

The great bulk of th[e] [judicial] decisions [about disclosure requirements] 

. . . concern committees that are working for or against candidates for 

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17

public office. Reporting requirements are justified as necessary . . . to 

give the electorate useful information concerning . . . those to whom the 

candidate is likely to be beholden. 

At issue on this appeal is a different type of campaign committee, . . . 

one seeking to prevail on a ballot initiative. 

625 F.3d at 1248-49 (emphases added); see also id. at 1255-57 (distinguishing government’s 

“legitimate reasons for regulating candidate campaigns” from ballot initiatives). The Supreme 

Court has similarly distinguished between candidate elections and ballot initiatives for First 

Amendment purposes. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) 

(“The risk of corruption perceived in cases involving candidate elections simply is not present in 

a popular vote on a public issue.”) (internal citation omitted).7

 Thus Sampson, by its own terms 

and as a matter of constitutional law, has no application here. 

2. The Consequences of PAC Status Are Constitutional Organizational 

and Disclosure Obligations 

FECA’s disclosure and organizational obligations for PACs “are minimal” and do not 

“impose much of an additional burden” beyond the disclosure requirements for independent 

expenditures. SpeechNow, 599 F.3d at 697-98. Accordingly, relying upon Citizens United’s 

upholding of disclosure for candidate-related communications, the D.C. Circuit upheld those 

organizational and reporting requirements even for “super PACs,” which are constitutionally 

exempt from most financing restrictions. See id.; see also RTAA, 681 F.3d 558 (describing PAC 

status as entailing “‘minimal’ reporting and organizational obligations”) (citing SpeechNow). 

While it is true that Citizens United and FEC v. Mass. Citizens for Life, Inc., 479 U.S. 

238, 253 (1986) (“MCFL”), described speaking through a corporate PAC as a burdensome 

alternative to speaking directly, that context is “significantly different from the one facing” Free 

                                                           

7

 The Supreme Court has nonetheless upheld most disclosure requirements in the ballotinitiative context. E.g., Bellotti, 435 U.S. at 792 n.32; Doe v. Reed, 130 S. Ct. 2811 (2010). 

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Speech. RTAA, 681 F.3d at 549; see Iowa Right to Life Comm., Inc. v. Tooker, 795 F. Supp. 2d 

852, 863 (S.D. Iowa 2011) (distinguishing “statutes that prohibited corporations and unions from 

. . . mak[ing] certain independent expenditures” in Citizens United and MCFL from “provisions 

[that] do not ban any independent expenditures”). As the Fourth Circuit explained: 

The regulation invalidated in Citizens United required corporations to set 

up a separate PAC with segregated funds before making any direct 

political speech. . . . The Court accordingly held that the option to create a 

separate corporate PAC did not alleviate the burden imposed by § 441b on 

the corporation’s own speech. In contrast, the PAC disclosure 

requirements at issue here neither prevent Real Truth from speaking nor 

“impose [a] ceiling on campaign-related activities.” 

RTAA, 681 F.3d at 549 (internal citations omitted). In light of this distinction, “[m]any decisions 

since Citizens United have analyzed various definitions of a ‘political committee,’ which include 

the burdens associated with such classification, and considered them to be ‘disclosure 

requirements.’” Yamada v. Weaver, Civ. No. 10-497, 2012 WL 983559, at *20 (D. Haw. Mar. 

21, 2012) (collecting cases). Among those decisions is Herrera, where this Court observed that 

regulations classifying groups as PACs “require disclosure, thus distinguishing them from 

regulations that limit the amount of speech a group may undertake.” 611 F.3d at 675-76. 

The court below was accordingly correct to reject Free Speech’s attempt to “expand the 

discussion in Citizens United as to the formation of a PAC and the burdens imposed upon going 

through that process” because “those same burdens are [not] analogous in this case and thus do 

not act as a prior restraint or the equivalent of the same.” Ruling Tr. at 19 (emphasis added). 

III. FREE SPEECH FAILS TO DEMONSTRATE IRREPARABLE HARM 

As demonstrated above, the provisions challenged here do not limit appellant’s speech. 

The only actual harms alleged here are those associated with registration and disclosure. 

Because Free Speech has not suffered any “loss of First Amendment freedoms,” the presumption 

of irreparable harm from a law that “deprives” speech rights, Elrod v. Burns, 427 U.S. 347, 373 

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19

(1976), is inapplicable. And appellant has failed to identify any irreparable harm that would 

result from compliance with FECA’s disclosure, reporting, and registration requirements. (See, 

e.g., Mot. Exh. 1 ¶¶ 6, 43 (complaining of burden of “having to expend time and money 

complying with FEC registration, reporting and disclaimer requirements”).) Indeed, although 

Free Speech complains about various generalized burdens, it has not produced any evidence — 

or even alleged specific facts — demonstrating that complying with the PAC registration and 

reporting requirements would be unduly burdensome to itself. See Tooker, 795 F. Supp. 2d at 

862 n.16 (noting plaintiff’s failure explain how challenged disclosure requirements “‘impinge[ ] 

upon its associational freedoms’”) (citing Brumsickle, 624 F.3d at 1021-22). 

The Supreme Court has repeatedly held that a party claiming irreparable harm from 

disclosure must show a “reasonable probability” that there will be “threats, harassment, and 

reprisals” against the entities or people who are disclosed. See McConnell, 540 U.S. at 197-99;

Citizens United, 130 S. Ct. at 914. Serious harm of this kind has been demonstrated only by 

organizations — such as the NAACP and the Socialist Workers Party — whose members faced 

actual, documented danger. See Buckley, 424 U.S. at 69 (noting that NAACP members faced 

“economic reprisal, loss of employment, threat of physical coercion, and other manifestations of 

public hostility”) (citation omitted). Because Free Speech has alleged no such harm, its 

challenge to FECA’s disclosure requirements is “foreclose[d].” McConnell, 540 U.S. at 197. 

Free Speech’s failure on this element alone warrants denial of an injunction pending appeal. 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION AND AN 

INJUNCTION WOULD BE ADVERSE TO THE PUBLIC INTEREST 

In contrast to the relatively modest administrative burdens Free Speech seeks to avoid, 

enjoining the Commission from enforcing its regulation and policies would substantially harm 

the Commission and the public. A “presumption of constitutionality . . . attaches to every Act of 

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20

Congress,” and that presumption is “an equity to be considered in favor of [the government] in 

balancing hardships.” Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) 

(Rehnquist, J., in chambers). 

The harm to the public if the Commission is enjoined from enforcing compliance with the 

relevant disclosure requirements in the days leading up to a nationwide election far outweighs 

appellant’s interest in avoiding the administrative burdens resulting from such compliance. 

Indeed, for the same reasons that Free Speech wants to air its ads now, the public has “a 

heightened interest in knowing who [is] trying to sway [its] views on the [candidates] and how 

much they were willing to spend to achieve that goal.”8

 Brumsickle, 624 F.3d at 1019. The 

injunction appellant seeks could cause confusion among political actors and undermine the 

public’s confidence in the federal campaign finance system. See Purcell, 549 U.S. at 4-5 (“Court 

orders affecting elections . . . can themselves result in voter confusion,” and “[a]s an election 

draws closer, that risk will increase.”); Iowa Right to Life Comm., Inc. v. Smithson, 750 F. Supp. 

2d 1020, 1049 (S.D. Iowa 2010) (declining to impose preliminary injunction that would 

“radically change Iowa’s campaign finance rules mid-stream during an election”). 

Free Speech fails to make any showing, much less a strong one, that the balance of harms 

tips in its favor. See Awad, 670 F.3d at 1125. For this reason, too, its motion should be denied.

CONCLUSION 

Free Speech has failed to meet its heavy burden to obtain an extraordinary injunction that 

would alter the status quo in the days before a presidential election and limit disclosure of 

campaign finance information to the public. The Court should deny appellant’s motion. 

                                                           

8

 Free Speech characterizes the upcoming election as its “last meaningful chance to speak.” 

(Appellant’s Local Rule 8.2 and 27.3(C) Certificates; see also Mot. at 4.) This acknowledgment 

that the proposed advertisements will not be “meaningful” after the election appears to 

undermine the fundamental premise of Free Speech’s claims — i.e., that its communications are 

not candidate advocacy. 

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21

Respectfully submitted, 

 Anthony Herman 

 General Counsel 

 Lisa Stevenson 

 Deputy General Counsel – Law 

 David Kolker 

 Associate General Counsel 

 Adav Noti* 

 Acting Assistant General Counsel 

 /s/ Erin Chlopak

 Erin Chlopak* 

 Attorney 

 Counsel for Defendant 

 Federal Election Commission 

 999 E Street, NW 

October 29, 2012 Washington, DC 20463 

    *Tenth Circuit Bar admission pending

Appellate Case: 12-8078 Document: 01018940281 Date Filed: 10/29/2012 Page: 24 
CERTIFICATE OF SERVICE 

 I hereby certify that on October 29, 2012, the foregoing Federal Election Commission’s 

Opposition to Appellant’s Motion for Emergency Injunction on Appeal was filed electronically 

with the Clerk of Court through the Court’s ECF system, and served by electronic filing on the 

following recipients: 

John B. Speight 

4021 Snyder 

Cheyenne, WY 82001 

jbspeight@gmail.com

Stephen R. Klein 

Wyoming Liberty Group 

1902 Thomas Avenue, Suite 201 

Cheyenne, WY 82001 

Stephen.klein@wyliberty.org

Benjamin T. Barr 

10737 Hunting Lane 

Rockville, MD 20850 

benjamin.barr@gmail.com

/s/ Erin Chlopak

Erin Chlopak 

Appellate Case: 12-8078 Document: 01018940281 Date Filed: 10/29/2012 Page: 25