No. 13-8033 

========================================================================================== 

In The United States Court of Appeals 

for the Tenth Circuit 

---------------------------------  --------------------------------- 

FREE SPEECH, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

---------------------------------  --------------------------------- 

On Appeal From United States District Court 

For The District Of Wyoming-Cheyenne (Judge Skavdahl) 

Case No.: 2:12-cv-00127-SWS 

---------------------------------  --------------------------------- 

PETITION FOR REHEARING EN BANC 

---------------------------------  --------------------------------- 

BENJAMIN T. BARR

10737 Hunting Ln. 

Rockville, MD 20850 

Telephone: 

 202-595-4671 

benjamin.barr 

 @gmail.com 

STEPHEN KLEIN

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Suite 201 

Cheyenne, WY 82001 

Telephone: 307-632-7020 

stephen.klein@wyliberty.org 

JACK SPEIGHT

4021 Snyder Ave. 

Cheyenne, WY 82001

Telephone: 

 307-635-1239 

jbspeight

 @gmail.com 

========================================================================================== COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 

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TABLE OF CONTENTS 

Page 

Federal Rules of Appellate Procedure 35(B) Statement ........................... 1 

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

Argument .................................................................................................. 2 

 I. A Primer on Election Law .............................................................. 2 

 II. The District Court and Panel’s Treatment did not Adequately 

Protect Political Speech .................................................................. 5 

 III. This Case Conflicts with Supreme Court and Tenth Circuit 

Precedent Providing Meaningful Protection of Political Speech .... 7 

A. Re-branding Onerous PAC Burdens as Disclosure do not 

Make Them Constitutional ........................................................ 8 

B. PAC Burdens may not be Applied Indiscriminately .................. 9 

 IV. This Case Conflicts with Supreme Court and Tenth Circuit 

Precedent Demanding Heightened Standards of Review ................ 12 

Conclusion ................................................................................................ 14 

Addendum 

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TABLE OF AUTHORITIES 

Page 

CASES

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) .................... 9 

Bantam Books v. Sullivan, 372 U.S. 58 (1963) ................................................ 10 

Bertot v. School Dist. No. 1 Albany County, Wyo., 613 F.2d 245 (10th 

Cir. 1979) ..................................................................................................... 13 

Buckley v. Valeo, 424 U.S. 1 (1976) .......................................................... passim 

Citizens United v. FEC, 558 U.S. 310 (2010) ........................................... passim 

Colorado Right to Life Cmte. v. Coffmann, 498 F.3d 1137 (10th Cir. 

2007) ........................................................................................................ 4, 11 

Cottrell, Ltd. v. Biotrol Int’l, Inc., 191 F.3d 1248 (10th Cir. 1999) ................... 6 

Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001) .............................................. 6 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) .................. passim

Interstate Circuit v. Dallas, 390 U.S. 676 (1968) ............................................ 10 

McConnell v. FEC, 540 U.S. 93 (2003) ............................................................. 9 

Minnesota Citizens Concerned for Life v. Swanson, 2011 WL 1833236 

(8th Cir. May 16, 2011) ................................................................................. 4 

NAACP v. Button, 371 U.S. 415 (1963) ....................................................... 2, 12 

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) ........ 1 

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ...................................... 8 

Real Truth About Abortion v. FEC, 681 F.3d 544 (4th Cir. 2012) .................... 6 

CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS, AND RULES

2 U.S.C. § 434(c) ................................................................................................ 3 

2 U.S.C. § 434(f)(2) ............................................................................................ 3 

2 U.S.C. § 434(f)(3) ............................................................................................ 3 

2 U.S.C. § 437g(a) .............................................................................................. 5 

11 C.F.R. § 100.22 .............................................................................................. 3 

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TABLE OF AUTHORITIES – Continued 

Page 

Federal Rule of Civil Procedure 12(b)(6) ....................................................... 1, 5 

First Amendment to the U.S. Constitution ................................................ passim

OTHER AUTHORITIES

A. BICKEL, THE MORALITY OF CONSENT 78 (1975)......................................... 13 

Background Information Regarding Proposed Enforcement Manual, 

FEC, available at http://www.fec.gov/members/mcgahn/statements/ 

13-21-k.pdf .................................................................................................... 5 

FEC Form 5, http://www.fec.gov/pdf/forms/fecfrm5.pdf .................................. 3 

FEC Form 9, http://www.fec.gov/pdf/forms/fecfrm9.pdf .................................. 3 

IRS’s Lerner Had History of Harassment, Inappropriate Religious 

Inquiries at FEC, The Weekly Standard, http://www.weekly 

standard.com/blogs/irss-lerner-had-history-harassment-inappropriatereligious-inquiries-fec_725004.html?page=1 ............................................... 7 

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FRAP 35(B)(1) STATEMENT

Appellant Free Speech seeks en banc rehearing and reversal of the Panel’s 

decision in this case. Here, the Panel adopted the lower court’s order of dismissal 

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon 

which relief may be granted. The Panel’s decision conflicts with Supreme Court 

and Tenth Circuit precedent that protects grassroots groups against the 

indiscriminate application of burdensome political committee (“PAC”) 

requirements as a prerequisite to speak. It also conflicts with Supreme Court and 

Tenth Circuit precedent that requires stringent review of First Amendment claims 

related to infringements of political free speech. See Buckley v. Valeo, 424 U.S. 1 

(1976); FEC v. Massachusetts Citizens for Life (“MCFL”), 479 U.S. 238 (1986); 

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

2010).

INTRODUCTION

This petition asks whether the holdings of Buckley, 424 U.S. 1, MCFL, 479 

U.S. 238, and NMYO, 611 F.3d 669, continue to be good law, protecting 

individuals from burdensome government interference in their political lives. Free 

Speech asks for en banc review to: (1) reverse the lower court’s grant of dismissal 

under Federal Rule of Civil Procedure 12(b)(6) and provide instruction for 

meaningful review of First Amendment claims; (2) require that MCFL and the 

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major purpose test be applied to the facts of this case; and (3) find that clear speech 

standards must exist to guide citizens between regulated and non-regulated 

conduct.

ARGUMENT

I. A PRIMER ON ELECTION LAW

This petition, while grounded in First Amendment principles, involves the 

operation of obscure components of federal election law. It is this machinery that 

inhibits the exercise of Free Speech’s First Amendment rights, both because of 

how it is designed and applied.

Disclosure is not always beneficial or constitutional. See NAACP v. Button, 

371 U.S. 415 (1963). In the context of election law, disclosure provides 

information to monitor a group’s “independent spending activity and its receipt of 

contributions.” MCFL, 479 U.S. at 262. Properly cabined, disclosure serves a 

defined government informational interest—to provide the electorate with 

information about “sources of election-related spending.” Citizens United v. FEC, 

558 U.S. 310, 367 (2010) (quoting Buckley, 424 U.S. at 66). Still, not every 

system that claims to effectuate disclosure is constitutional simply by invoking the 

term. See generally MCFL, 479 U.S. 238.

The Supreme Court has readily upheld simplified, one-time, event-driven 

disclosure. Citizens United, 558 U.S. at 366–71. This simplified type of 

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disclosure is what the MCFL Court referred to as a less restrictive way of 

providing for disclosure that did not impose the “full panoply of regulations that 

accompany status as a political committee under the Act.” MCFL, 479 U.S. at 262.

Two forms of speech are subject to simplified disclosure under federal 

election law—electioneering communications and independent expenditures. See 

2 U.S.C. § 434(f)(3); 11 C.F.R. § 100.22. Individuals or groups who spend more 

than $10,000 on an electioneering communication must provide a single filing with 

the FEC, simple in nature, offering basic information about who funded the speech. 

See 2 U.S.C. § 434(f)(2); see also FEC Form 9, 

http://www.fec.gov/pdf/forms/fecfrm9.pdf. Individuals or groups who spend more 

than $250 on independent expenditures must file single reports with the 

Commission providing basic information. See 2 U.S.C. § 434(c); see also FEC 

Form 5, http://www.fec.gov/pdf/forms/fecfrm5.pdf. These types of disclosure are 

not challenged here.

Unlike filling out simple disclosure forms, registering and reporting as a 

PAC is, as the Supreme Court described it, “onerous” and “burdensome” and the 

heart of the matter here. Citizens United, 558 U.S. at 336, 337. PAC-style 

regulations demand that citizens register with the government to speak, appoint a 

treasurer, impose specific accounting requirements, file disclosure reports even 

when silent, and seek government permission to dissolve. Id. at 337–38. Buckley 

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limited the reach of election law by requiring that only groups whose major 

purpose was the nomination or election of candidates could be forced to undergo 

PAC requirements. Buckley, 424 U.S. at 79. Faced with the option to speak with a 

host of expensive and burdensome regulations, many Americans simply elect to 

self-silence. MCFL, 479 U.S. at 254 (PAC regulations “create a disincentive for 

such organizations to engage in political speech”). The Tenth Circuit has routinely 

applied the protection of the major purpose test and MCFL to ensure the limited 

reach of PAC regulations. See Colorado Right to Life Cmte. v. Coffmann, 498 F.3d 

1137, 1147–51 (10th Cir. 2007).

PAC status, then, is not mere disclosure, but something quite different and

more difficult. It is an unwieldy legal barrier that prevents many Americans from 

being able to speak. Accepting PAC status as just another form of disclosure is 

mistaken and “risks transforming First Amendment jurisprudence into a legislative 

labeling exercise.” Minnesota Citizens Concerned for Life v. Swanson, 2011 WL 

1833236 at *14 (8th Cir. May 16, 2011) (Riley, C.J., dissenting in part). But this is 

just what the lower court and Panel did, accepting PAC requirements to be 

disclosure, applying a relaxed level of exacting scrutiny, and then dismissing this 

suit. This petition asks for en banc review to ensure that the important protections 

of Buckley, MCFL and Citizens United are applied here. 

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II. THE DISTRICT COURT AND PANEL’S TREATMENT DID NOT 

ADEQUATELY PROTECT POLITICAL SPEECH 

This case arose out of Free Speech’s attempt to obtain an advisory opinion 

from the FEC about what specific regulations and policies meant, how they would 

be applied, or not, to Free Speech, and if it would be forced to register and report 

as a political committee under the FECA. See 2 App. 102–131. The FEC could 

not muster a sensible answer. See 2 App. 282–92. After two hearings and several 

contradictory draft advisory opinions, the Commission released a partial answer to 

Free Speech’s request and otherwise failed to answer any of the substantive queries 

contained in it. Whether, when, and if Free Speech would have to comply with 

PAC regulations was left to the best guesses of the members of Free Speech.1

When Free Speech sought a preliminary injunction in the court below, it was 

denied relief. Likewise, the district court dismissed Free Speech’s suit under 

Federal Rule of Civil Procedure 12(b)(6), which was affirmed by the Panel (itself 

adopting the lower court’s order of dismissal as its own). See 4 App. 574. During 

																																																							 1 It has been suggested that since four members of the FEC did not affirmatively 

vote that Free Speech had to register as a PAC that it is free to speak. This is not 

true. FEC staff may begin investigations that Free Speech would be forced to 

defend against well before any Commissioner ever votes on the matter. See 2 

U.S.C. § 437g(a). Beyond this, Vice Chairman McGahn issued a memorandum on 

July 25, 2013 detailing the ad hoc enforcement patterns of Commission staff. See 

Background Information Regarding Proposed Enforcement Manual, FEC, 

available at http://www.fec.gov/members/mcgahn/statements/13-21-k.pdf.

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prior judicial review, the careful administrative record built by Free Speech was 

not examined and important precedent, specifically MCFL, was entirely omitted. 

Instead of analyzing the case at hand, the Panel and lower court borrowed 

the reasoning of the Fourth Circuit in Real Truth About Abortion, Inc. v. FEC 

(“RTAA”), 681 F.3d 544 (4th Cir. 2012) as its own. However, as pled earlier, Free 

Speech raised issues unique and separate from RTAA that deserved review here. 

These include whether the specific advertisements and scripts would trigger 

regulation and whether the major purpose test, as applied to Free Speech, would 

support the imposition of PAC status. RTAA involved a limited factual record, no 

administrative background, and the Fourth Circuit avoided the major purpose 

consideration. See RTAA, 681 F.3d at 557 n.5 (“Real Truth does not assert that the 

major purpose test is unconstitutional as applied to it. Nor could it, since the 

Commission has never claimed that Real Truth is a PAC”).

Granting a motion to dismiss is a “harsh remedy which must be cautiously 

studied, not only to effectuate the spirit of the liberal rules of pleading but also to 

protect the interests of justice.” Duran v. Carris, 238 F.3d 1268, 1270 (10th Cir. 

2001) (quoting Cottrell, Ltd. v. Biotrol Int’l, Inc., 191 F.3d 1248, 1251 (10th Cir. 

1999)). Still, the lower court ordered dismissal here all without reviewing the 

relevant facts in controversy and applying the major purpose doctrine or MCFL

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analysis to them. This omission by the lower court and Panel supports en banc 

review.

III. THIS CASE CONFLICTS WITH SUPREME COURT AND TENTH CIRCUIT 

PRECEDENT PROVIDING MEANINGFUL PROTECTION OF POLITICAL 

SPEECH

At issue in this petition is whether citizens may still rely on the doctrinal 

protection of political speech found in Buckley, MCFL, and Citizens United. The

District Court and Panel failed to properly apply Buckley’s major purpose test and 

other limiting principles to protect political free speech and association rights. 4 

App. 559–73, 574. Without the continued recognition and application of these 

cases, no meaningful firewall exists to police against government intervention into 

the political lives of Americans. Absent the insistence of these standards, 

government agencies are free to harass, investigate, delay, fine, and criminalize 

citizens for the exercise of our most cherished liberty—the right to speak one’s 

mind unapologetically. 2 These standards prove integral to preserve political 

speech, what the Citizens United Court deemed an “essential mechanism of 

democracy.” 558 U.S. at 339. 

																																																							 2 One need look little further than the still-ongoing Internal Revenue Service controversy to 

understand the evils of unfettered disclosure. See IRS’s Lerner Had History of Harassment, 

Inappropriate Religious Inquiries at FEC, The Weekly Standard, 

http://www.weeklystandard.com/blogs/irss-lerner-had-history-harassment-inappropriatereligious-inquiries-fec_725004.html?page=1.

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A. Re-Branding Onerous PAC Burdens as Disclosure do not Make 

Them Constitutional

When facing laws that implement disclosure, one categorical distinction has 

long served as the guiding compass of constitutional concerns. The Supreme Court 

has upheld simple, event-driven disclosure, explaining that its application poses 

few burdens on the exercise of First Amendment rights. Citizens United, 558 U.S.

at 366. However, where laws impose the complicated and onerous demands of 

PAC status their validity has been anything but certain. Id. at 337–39. Stated 

simply by the Citizens United Court, simple, event-driven disclosure represents a 

“less restrictive alternative to more comprehensive regulations of speech” found in 

PAC-style requirements. Id. at 369.

It is important to protect against indiscriminate application of PAC status 

due to its burdensome nature. PAC status “may create a disincentive for []

organizations to engage in political speech.” MCFL, 479 U.S. at 254. Extensive 

and expensive administrative requirements, some 23 detailed by the MCFL Court, 

act as an effective barrier to political participation by average Americans. In a 

nation premised on the notion that everyone should be free to participate in our 

national public debate, public discussion should be “uninhibited, robust, and wideopen,” and this intervention into the political lives of Americans cannot be 

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

Judicial treatment of these concerns must reflect these values.

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The only way the protection of Buckley, MCFL, and Citizens United can be 

achieved is by insisting on firm principles that limit the application of more 

burdensome regulatory programs to political free speech and association. In 

election law parlance, these protections can be found in the formulations of the 

express advocacy test and the major purpose test.3 Their purpose is to ensure that 

disclosure is achieved without burdening constitutional rights too heavily. But 

because the lower court and Panel failed to conduct these considerations or 

analyses, en banc review is supported here.

B. PAC Burdens may not be Applied Indiscriminately

If MCFL remains good law, something Citizens United affirms, then it must 

exist to ensure some constitutional value is achieved. Otherwise, the Citizens 

United Court would have been free to discard its continued validity, as it did Austin

v. Michigan Chamber of Commerce, 494 U.S. 652, 658 (1990), and parts of 

McConnell v. FEC, 540 U.S. 93 (2003). Citizens United, 558 U.S. at 310. 

Both Buckley and MCFL stand for the principle not just that government 

may not ban Audubon Society groups and Big Brother/Big Sister groups from 

speaking. They also hold that government efforts demanding that every coffee 

																																																							 3 Appellant preserves its arguments concerning the express advocacy standards 

employed by the FEC as this supports en banc review as well. Comprehensible 

speech standards allow speakers the ability to comply with the law—a feature 

entirely lacking in the system at hand. The administrative record below is ripe 

with these examples. See, e.g., 2 App. 199–201; 2 App. 249, 337–39.

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klatch register and report as a political committee are constitutionally infirm,

because just requiring a group to register and report as a PAC is, as a matter of law, 

constitutionally burdensome and onerous. Id. at 337. This point was lost on the 

court below and reviewing Panel. Government can ban speech just as effectively 

through prolix and difficult regulations as it can through a direct ban. Id. at 324 

(“The First Amendment does not permit laws that force speakers to retain a 

campaign finance attorney, conduct demographic marketing research, or seek 

declaratory rulings before discussing the most salient political issues of our day”). 

Buckley and MCFL still exist to protect against this very subterfuge. They do so 

through the continued recognition of the major purpose test. 

Were this Court to agree with the FEC, effective judicial protection against 

government efforts to suppress political speech would be lost. It cannot be that 

MCFL and other First Amendment doctrine protects only against the most blatant 

abridgements of speech—bans—but not against more subtle suppression. Courts 

have been careful in every area of the law touching upon sensitive First 

Amendment freedoms to construct and apply meaningful standards that give the 

exercise of free speech breathing room, not just against bans, but against any 

meaningful encroachment of those rights. See, e.g., Interstate Circuit v. Dallas, 

390 U.S. 676, 688 (1968) (even systems involving only “classification [of speech] 

rather than direct suppression” require strict judicial review); Bantam Books v. 

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Sullivan, 372 U.S. 58, 67 (1963) (it is the duty of the courts to “look through forms 

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

circulation of publications to warrant injunctive relief”); Citizens United, 558 U.S. 

at 335 (complicated election law provisions “function as the equivalent of prior 

restraint by giving the FEC power analogous to licensing laws implemented in 

16th- and 17th-century England, laws and governmental practices of the sort that 

the First Amendment was drawn to prohibit”). This Court should do the same 

here.

What is asked in this en banc petition is for the protection of Buckley and

MCFL to be re-affirmed and applied to this case. This requires the resurrection of 

a sensible major purpose test and objective speech standards to be applied to the 

case at hand, something never contemplated by the lower court or Panel. The lower 

court and Panel failed to apply binding Supreme Court and Tenth Circuit precedent 

upholding the constitutional necessity of the major purpose test.

The major purpose test imposes a simple requirement: that only groups 

whose major purpose is the nomination or defeat of candidates must be forced to 

register as a PAC. MCFL, 479 U.S. at 253 n.6. The Tenth Circuit has steadfastly 

applied this protection in its own election law considerations. See, e.g., Coffman, 

498 F.3d 1137. The Supreme Court’s holdings in Buckley, MCFL, and Citizens 

United establish the dividing line between permissible and impermissible 

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regulation of groups engaged in political speech. MCFL acknowledged the 

importance of disclosure and found that regular, simple, event-driven reports 

adequately promoted the government’s informational interest, while other regimes 

proved too burdensome. MCFL, 479 U.S. at 262. Citizens United affirmed this 

distinction. 558 U.S. at 337 (“PACs are burdensome alternatives; they are 

expensive to administer and subject to extensive regulations”). Indeed, As Justice 

Kennedy explained, even “if a PAC could somehow allow a corporation to speak” 

then “the option to form PACs does not alleviate the First Amendment problems.” 

Id. This is because imposing PAC status is far too burdensome when simple, 

event-driven disclosure adequately addresses the governmental interest here. But 

these points were never considered by the lower court or Panel and support review

here.

IV. THIS CASE CONFLICTS WITH SUPREME COURT AND TENTH CIRCUIT 

PRECEDENT DEMANDING HEIGHTENED STANDARDS OF REVIEW 

First Amendment freedoms are “delicate and vulnerable, as well as 

supremely precious in our society.” Button, 317 U.S. at 433. These freedoms, 

whether at the administrative or judicial level, need careful safeguards. Dismissal 

of these concerns cannot be said to adequately protect these rights.

The lower court and Panel reviewed the claims presented by Free Speech 

and sanctioned summary dismissal even where substantial free speech rights were 

in jeopardy. See, e.g., 1 App. 32, 87–89; 2 App. 199–201; 2 App. 321–24. 

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Binding precedent from the Supreme Court and Tenth Circuit that protect these 

very rights was not even considered or applied. The analysis provided by the 

lower court and adopted by the Panel did not apply correct precedential standards. 

For example, Judge Skavdahl reasoned that Free Speech “seeks to finance and 

distribute these communications without registering as a political committee or 

complying with the disclaimer and disclosure obligations.” 3 App. 482. However, 

Free Speech routinely pled that it sought clarity as to PAC status and was not 

challenging disclaimer or basic disclosure requirements. See 1 App. 70–71. 

Additionally, Judge Skavdahl viewed Free Speech’s claim as requesting an 

extension of the holding in Citizens United when Free Speech sought the 

application of MCFL and Citizens United. See 3 App. 488 (“The plaintiff appears 

to seek to expand the discussion in Citizens United as to the formation of a PAC 

and the burdens imposed upon going through that process, but this Court does not 

find that those same burdens are analogous in this case and thus do not act as a 

prior restraint or the equivalent of the same”). That the lower court did not apply 

settled law by applying the holding of Buckley, MCFL, and Citizens United to the 

case at hand supports review here. 

Given the Tenth Circuit’s usually strong presumption in favor of speech, the 

outcome of this case is unsupportable. See Bertot v. School Dist. No. 1 Albany 

County, Wyo., 613 F.2d 245, 252 (10th Cir. 1979) (citing A. BICKEL, THE 

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MORALITY OF CONSENT 78 (1975)) (The Tenth Circuit would “prefer that 

governmental officials acting in sensitive First Amendment areas err, when they do 

err, on the side of protecting those interests”). The FEC ignored the need for 

clarity in assessing its political speech regulations while the lower court dismissed 

the suit with no mention of the controlling constitutional precedent at hand. Free 

Speech was left wholly unfree to speak given the constitutional deficiencies 

alleged in its complaint and pleadings. To correct this, en banc review is 

requested.

CONCLUSION

Existing Supreme Court and Tenth Circuit precedent require that 

government programs imposing PAC burdens on groups engaged in political 

speech be evaluated with: (1) meaningful judicial standards and (2) held 

unconstitutional when they are vague and overbroad. That the lower court and 

Panel did not review or apply controlling election law precedent about these points 

supports en banc review to eliminate this conflict.

Dated: August 9, 2013.

Benjamin T. Barr

10737 Hunting Ln

Rockville, MD 20850

Telephone: 202-595-4671

benjamin.barr@gmail.com

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15

Stephen R. Klein

WYOMING LIBERTY GROUP

1902 Thomes Ave, Suite 201

Cheyenne, WY 82001

Telephone: 307-632-7020

stephen.klein@wyliberty.org

Jack Speight

4021 Snyder Ave

Cheyenne, WY 82001

Telephone: 307-635-1239

jbspeight@gmail.com

Attorneys for Free Speech

By: ____/s/____________

Benjamin T. Barr

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CERTIFICATE OF VIRUS PROTECTION

I certify that the digital version of the foregoing is an exact copy of what has 

been submitted to the Court in written form and e-mailed to counsel of record. 

There are no privacy redactions to be made. The digital submission has been 

scanned with the most recent version of Trend Micro PC, which daily scans for 

updates, and according to the program is virus free.

____/s/____________

Stephen Klein

Dated: August 9, 2013

CERTIFICATE OF COMPLIANCE

This petition complies with the page limitation of Fed. R. App. P. 35(b)(2).

This petition has been prepared in a proportionally spaced typeface using

Microsoft Word in Times New Roman font, size 14.

I certify that the information on this form is true and correct to the best of

my knowledge and belief formed after a reasonable inquiry.

____/s/____________

Stephen Klein

Dated: August 9, 2013

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ADDENDUM (10TH CIR. R. 28.2(A))

1. 10th Circuit Panel Judgment – June 25, 2013

2. 10th Circuit Panel Opinion – June 25, 2013

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

FREE SPEECH, 

 Plaintiff - Appellant,

v.

FEDERAL ELECTION COMMISSION, 

 Defendant - Appellee.

No. 13-8033

(D.C. No. 2:12-CV-00127-SWS)

_________________________________

JUDGMENT

_________________________________

Before BRISCOE, Chief Judge, BRORBY, and MURPHY, Circuit Judges.

_________________________________

This case originated in the District of Wyoming and was argued by counsel.

The judgment of that court is affirmed.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

FILED

United States Court of Appeals

Tenth Circuit

June 25, 2013

Elisabeth A. Shumaker

Clerk of Court

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FILED

United States Court of Appeals

Tenth Circuit

June 25, 2013

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FREE SPEECH,

Plaintiff - Appellant,

v. No. 13-8033

FEDERAL ELECTION COMMISSION,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

(D.C. NO. 2:12-CV-00127-SWS)

Benjamin T. Barr, Rockville, Maryland (Stephen Klein, Wyoming Liberty Group,

Cheyenne, Wyoming and Jack Speight, Cheyenne, Wyoming, with him on the

briefs), for Plaintiff-Appellant..

Kevin Deeley, Acting Associate General Counsel (Anthony Herman, General

Counsel, Lisa J. Stevenson, Deputy General Counsel-Law, Erin Chlopak, Acting

Assistant General Counsel, David Kolker, Associate General Counsel and Adav

Noti, Acting Assistant General Counsel, with him on the briefs), Federal Election

Commission, Washington, D.C., for Defendant-Appellee.

Fred Wertheimer, Democracy 21, Washington, D.C.; Donald J. Simon, Sonosky,

Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C.; J. Gerald Hebert,

Tara Malloy and Paul S. Ryan, The Campaign Legal Center, Washington, D.C.;

and Larry B. Jones, Simpson, Kepler & Edwards, LLC, The Cody, Wyoming

Division of Burg Simpson Eldredge Hersh & Jardine, P.C., Cody, Wyoming, on

the Briefs for Amici Curiae.

Before BRISCOE, Chief Judge, BRORBY, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Plaintiff-Appellant, Free Speech, appeals the district court’s dismissal of

the complaint it filed in July 2012, alleging certain regulations and practices of

Defendant-Appellee, the Federal Election Commission (“FEC”), violate its rights

under the First Amendment. After careful review of the appellate filings, the

district court’s order, and the entire record, we affirm the dismissal for

substantially the reasons stated by the district court. 

The district court correctly concluded Free Speech’s claims implicate only

disclosure requirements which are subject to exacting scrutiny, requiring “a

substantial relation between the disclosure requirement and a sufficiently

important governmental interest.” Citizens United v. Fed. Election Comm’n, 558

U.S. 310, 366-67 (2010) (quotations omitted). Further, the district court

comprehensively analyzed and correctly resolved Free Speech’s constitutional

challenges to the FEC’s definition of express advocacy, codified at 11 C.F.R.

§ 100.22(b); the standard used by the FEC to determine whether a request for

funds is a solicitation of contributions under 2 U.S.C. § 441d(a); and the FEC’s

policy of determining political committee status on a case-by-case basis.1

1

The district court relied, inter alia, on the Fourth Circuit’s decision in Real

Truth About Abortion, Inc. v. Federal Election Commission, 681 F.3d 544 (4th

(continued...)

-2-

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Accordingly, this court adopts the district court’s analysis as the opinion of this

court and orders the district court’s memorandum decision and order granting the

FEC’s Motion to Dismiss to be published.

1

(...continued)

Cir. 2010). Free Speech argues that dismissal of its complaint for failure to state

a claim was improper because the record in this matter is more fully developed

than the record analyzed by the Fourth Circuit, thereby providing factual support

for its assertions the FEC’s regulations and policies are either onerous and

burdensome, inconsistent and contradictory, or somehow different from the ones

it publically adopts or articulates. We have reviewed the record and conclude

nothing therein provides any factual support for these conclusory assertions. 

-3-

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FILED 

U.S. QlST f~;c (COURT 

DIS i-F:~C T OF VIYUA ING 

~013 nAR 19 PfTI 3 53 

STEP 'L~N fi.~:RRIS , CL~t 

IN THE UNITED STATES DISTRICT ccf6j{fR 

FOR THE DISTRICT OF WYOMING 

FREE SPEECH, 

Plaintiff, 

vs. Case No. 12-CV-127-S 

FEDERAL ELECTION COMMISSION, 

Defendant. 

ORDER GRANTING FEDERAL ELECTION COMMISSION'S 

MOTION TO DISMISS 

This matter comes before the Court on Defendant Federal Election Commission's ("FEC" 

or"the Commission") Motion to Dismiss [Doc. 33]. The Court, having reviewed the parties' written 

submissions, being familiar with the case file by virtue of having previously heard argument and 

having addressed the likelihood of success on the merits of Plaintiffs claims in conjunction with 

Plaintiffs Motion for Preliminary Injunction (Doc. 19) and this Court's oral ruling denying same 

(Docs. 41 , 42 and 54), and considering itself otherwise fully advised in the premises of the motion, 

hereby FINDS and ORDERS as follows: 

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FACTUAL AND PROCEDURAL BACKGROUND 

PlaintiffFree Speech is an unincorporated nonprofit association formed on February 21 , 2012 

and is comprised of three Wyoming residents. Free Speech's stated mission is to promote and 

protect free speech, limited government, and constitutional accountability, and to advocate positions 

on various political issues including free speech, sensible environmental policy, gun rights, land 

rights, and control over personal health care. Its bylaws require that it operate independently of 

political candidates, committees, and political parties. (Am. Compl. ~~ 1 & 1 0; Am. Compl. Ex. A 

at Ex. 1.) On July 26, 2012, Plaintiff filed this lawsuit challenging certain FEC regulations that 

Plaintiff alleges abridge its First Amendment freedoms. Specifically, Plaintiff brings facial and as 

applied challenges against 11 C.F .R. § 1 00.22(b ), alleging its definition of "express advocacy" is 

unconstitutionally vague and overbroad and triggers burdensome registration and reporting 

requirements which act as the functional equivalent of a prior restraint on political speech. Plaintiff 

further challenges the constitutionality of the FEC's interpretation and enforcement process 

regarding political committee status, solicitation tests, the "major purpose" test, and express 

advocacy determinations. (Am. Compl. ~ 2.) 

On July 13, 2012, Free Speech filed a Motion for Preliminary Injunction (Doc. 19) seeking 

to enjoin the FEC from enforcing any of the challenged regulations or policies. This matter was fully 

briefed by the parties and amicus curiae and the Court heard oral argument on the motion on 

September 12, 2012. On October 3, 2012, this Court issued an oral ruling denying Plaintiffs motion 

for preliminary injunction. (Docs. 41, 42, and 54.) Plaintiff timely appealed on October 19, 2012, 

and Plaintiffs interlocutory appeal is currently pending before the Tenth Circuit Court of Appeals. 

Prior to the Court's oral ruling on Plaintiffs Motion for Preliminary Injunction, the FEC filed 

2 

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a motion to dismiss Plaintiffs claims pursuant to Fed. R. Civ. P. 12(b)(6). This motion has been 

fully briefed and is ripe for a decision on the merits. 

"Ordinarily an interlocutory injunction appeal under 1292(a)(1) does not defeat the power 

of the trial court to proceed further with the case." 16 C. Wright, A. Miller, E. Cooper, Federal 

Practice and Procedure § 3921 .2 (hereinafter "Wright & Miller"). "Although the filing of a notice 

of appeal ordinarily divests the district court of jurisdiction, in an appeal from an order granting or 

denying a preliminary injunction, a district court may nevertheless proceed to determine the action 

on the merits." US. v. Price, 688 F.2d 204, 215 (3d Cir. 1982) (internal citation omitted). "The 

desirability of prompt trial-court action in injunction cases justifies trial-court consideration of issues 

that may be open in the court of appeals. A good illustration is provided by a motion to dismiss for 

failure to state a claim." Wright & Miller§ 3921.2. Although a court of appeals may determine 

whether a claim has been stated as part of the interlocutory appeal, a district court nonetheless retains 

jurisdiction to dismiss for failure to state a claim pending appeal. !d. This power is desirable "both 

in the interest of expeditious disposition and in the face of uncertainty as to the extent to which the 

court of appeals will exercise its power." !d. 

In addressing this matter now, this Court is mindful of the issues that have been presented 

on appeal as well as the current stage of the appellate litigation. This case presents purely legal 

questions that have been fully briefed and argued to this Court. Because this Court's substantive 

analysis of the constitutional issues addressed in the pending motion to dismiss is identical to that 

set forth in the Court's ruling denying Plaintiffs preliminary injunction motion, the Court deems it 

appropriate to address Plaintiffs claims on the merits. Therefore, for the reasons set forth on the 

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record during the Court's oral ruling, and for the reasons set forth more fully below, the Court will 

grant Defendant's motion to dismiss for failure to state a claim. 

STANDARD OF REVIEW 

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 

as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged." !d. at 678 (quoting Twombly, 550 

U.S. at 556). "In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the 

complaint itself, but also attached exhibits, and documents incorporated into the complaint by 

reference." Smith v. United States, 561 F.3d 1090, 1098 (lOth Cir. 2009). 

DISCUSSION 

A. Standard of Review- Exacting Scrutiny 

At the outset, this Court addresses Plaintiffs contention that this Court should apply strict 

scrutiny to the regulations and policies at issue. Plaintiff challenges, on an as-applied and facial 

basis, the FEC's definition of"express advocating," see 101 C.F.R. § 100.22(b), the FEC's policy 

for determining political committee status, and the FEC's policy for determining when donations 

given in response to solicitations will be deemed "contributions." At their core, however, these 

challenged rules and policies implement only disclosure requirements. See 2 U.S.C. § 434(c) 

(reporting requirements for "independent expenditures"); 2 U.S.C. § 432, 433, 434(a)(4) (political 

reporting and organization requirements). The question before this Court, therefore, is not whether 

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Plaintiff can make expenditures for the speech it proposes or raise money without limitation, but 

simply whether it must provide disclosure of its electoral advocacy. 

"Disclaimer and disclosure requirements may burden the ability to speak, but they impose 

no ceiling on campaign-related activities, and do not prevent anyone from speaking." Citizens 

United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 914 (2010) (internal citations and quotation marks 

omitted). Accordingly, the Supreme Court has subjected those requirements to "exacting scrutiny'' 

which requires "a substantial relation between the disclosure requirement and a sufficiently 

important governmental interest." !d.; see also Real Truth About Abortion (RT AA) v. FEC, 681 F .3d 

544, 549 (4th Cir. 2010) ("[A]n intermediate level of scrutiny known as 'exacting scrutiny' is the 

appropriate standard to apply in reviewing provisions that impose disclosure requirements, such as 

the regulation and policy."); New Mexico Youth Organizedv. Herrera, 611 F.3d 669,676 (lOth Cir. 

201 0) ("The regulations at issue here require disclosure, thus distinguishing them from regulations 

that limit the amount of speech a group may undertake .... As such, the regulations must pass 

'exacting scrutiny."'). Accordingly, the Court applies exacting scruting to determine whether the 

regulations and policies at issue are constitutional. 

B. Express Advocacy -11 C.F.R. § 100.22(b) 

Plaintiffs first challenge involves the FEC's definition of express advocacy codified at 11 

C.F.R. § 100.22. This regulation is used to define what constitutes an "independent expenditure" 

under2 U.S.C. § 431(17), which in tum, determines whether disclosures are required under2 U.S.C. 

§ 434(c). 1 See RTAA, 681 F.3d at 548. 

1 An "independent expenditure" is defined as "an expenditure ... expressly advocating 

the election or defeat of a clearly identified candidate" and not made by or in coordination with a 

candidate or political party or committee. 2 U.S.C. § 431(17) (emphasis added). A person or 

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Regulation 100.22 sets forth a two-part definition of the term "expressly advocating." 

Subsection (a) of the regulation defines "expressly advocating" consistent with the Supreme Court's 

decision in Buckley v. Valeo, 424 U.S. 1, 44, 96 S.Ct. 612 (1976), and includes communications 

using words or phrases "which in context can have no other reasonable meaning than to urge the 

election or defeat of one or more clearly identified candidate(s )". 11 C.F .R. § 1 00.22( a). In Buckley, 

the Supreme Court addressed the constitutionality of an expenditure limit which provided that"[ n ]o 

person may make any expenditure ... relative to a clearly identified candidate during a calendar year 

which, when added to all other expenditures made by such person during the year advocating the 

election or defeat of such candidate, exceeds $1000." Buckley, 424 U.S. at 39. Troubled by the 

vagueness of the phrase "relative to a clearly identified candidate," the Supreme Court construed the 

phrase "relative to" to "apply only to expenditures for communications that in express terms 

advocate the election or defeat of a clearly identified candidate for federal office." !d. at 44 

(emphasis added). The Court explained in a footnote that "[t]his construction would restrict the 

application of [the spending limit] to communications containing express words of advocacy of 

election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 

'vote against,' 'defeat,' 'reject."' !d. at 44 n.52. Consistent with this guidance, subsection (a) of the 

FEC's definition of "expressly advocating" later codified these types of "magic words" to signal 

express advocacy.2 

organization- other than a political committee - that finances independent expenditures 

aggregating more than $250 during a calendar year must file with the FEC a disclosure report 

that identifies, 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) (emphasis added). 

2 See 11 C.F.R. § 100.22(a) (defining "expressly advocating" to mean any communication 

that "[u]ses phrases such as 'vote for the President,' 're-elect your Congressman,' 'support the 

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Subsection (b) of the regulation, on the other hand, "defines 'expressly advocating' more 

contextually, without using the 'magic words."' RTAA, 681 F.3d at 550. This subsection, which is 

the subject of Plaintiffs constitutional challenge, defines "expressly advocating" to include any 

communication that: 

When taken as a whole and with limited reference to external events, such as the 

proximity to the election, could only be interpreted by a reasonable person as 

containing advocacy of the election or defeat of one or more clearly identified 

candidate(s) because--

(1) The electoral portion of the communication is unmistakable, unambiguous, and 

suggestive of only one meaning; and 

(2) Reasonable minds could not differ as to whether it encourages actions to elect or 

defeat one or more clearly identified candidate(s) or encourages some other kind of 

action. 

11 C.F .R. § 1 00.22(b ). 

Plaintiff argues that part (b) of the FEC' s definition of expressly advocating "goes beyond 

any proper construction of express advocacy and offers no clear guidelines for speakers to tailor their 

constitutionally protected conduct and speech," and "fail[s] to limit its application to expenditures 

for communications that in 'express terms' advocate the election or defeat of a clearly identified 

candidate for federal office." (Am. Compl. ~~ 74-75.) In this regard, Plaintiff appears to suggest that 

"express advocacy'' cannot permissibly extend beyond the "magic words" acknowledged in Buckley 

and codified in subsection (a). However, this position is foreclosed by several recent Supreme Court 

Democratic nominee,' 'cast your ballot for the Republican challenger for U.S. Senate in 

Georgia,' 'Smith for Congress,' 'Bill McKay in 94,' 'vote Pro-Life' or 'vote Pro-Choice' 

accompanied by a listing of clearly identified candidates described as Pro-Life or Pro-Choice, 

'vote against Old Hickory,' 'defeat' accompanied by a picture of one or more candidate(s), 

'reject the incumbent,' or communications of campaign slogan(s) or individual word(s), which in 

context can have no other reasonable meaning than to urge the election or defeat of one or more 

clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc. which say 

'Nixon's the One,' 'Carter '76,' 'Reagan/Bush' or 'Mondale! "'). 

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decisions which have upheld the FEC's approach to defining express advocacy not only in terms of 

Buckley's "magic words" as recognized in subsection (a), but also their "functional equivalent," as 

provided in subsection (b). RTAA, 681 F.3d at 550. 

In McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court considered a facial 

overbreadth challenge to Title II of the Bipartisan Campaign Reform Act of2002 ("BCRA") which 

included a provision defining express advocacy for purposes of electioneering communications. In 

rejecting the facial challenge, the Supreme Court noted "that Buckley's narrow construction of the 

FECA to require express advocacy was a function of the vagueness of the statutory definition of 

"expenditure,' not an absolute First Amendment imperative." RTAA, 681 F.3d at 550 (citing 

McConnell, 540 U.S. at 191-92). Accordingly, the Supreme Court inMcConnellheld that "Congress 

could permissibly regulate not only communications containing the 'magic words' of Buckley, but 

also communications that were 'the functional equivalent' of express advocacy." !d. (citing 

McConnell, 540 U.S. at 193). 

In FEC v. Wisconsin Right to Life, Inc. (WRTL), 551 U.S. 449 (2007), the Supreme Court 

adopted a test for the "functional equivalent of express advocacy" which is consistent with the 

language set forth in section 110.22(b). See WRTL, 551 U.S. at 474 n.7; RTAA, 681 F.3d at 552. 

The controlling opinion in WRTL clarified that "a court should find that an ad is the functional 

equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific candidate." WRTL, 551 U.S. at 460-470 

(emphasis added). This functional equivalent test closely correlates to the test set forth in subsection 

(b), which provides that a communication is express advocacy if it "could only be interpreted by a 

reasonable person as containing advocacy of the election or defeat of one or more clearly identified 

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candidate(s)." 11 C.F.R. § 100.22(b). Indeed, as the Fourth Circuit has noted, although the language 

ofSection 110.22(b) does not exactly mirror WRTL's functional equivalent test, the test set forth in 

Section 110.22(b) is "likely narrower ... since it requires a communication to have an 'electoral 

portion' that is 'unmistakeable' and 'unambiguous."' RTAA, 681 F.3d at 552. 

Finally, the Supreme Court's recent decision in Citizens United reaffirmed the 

constitutionality of the WRTL test and provided further support for the FEC's use of the functional 

equivalent test to define express advocacy. In Citizens United, the Court applied the WRTL 

functional equivalent test to determine whether the communication at issue would be prohibited by 

the corporate funding restrictions set forth in Title II of the BCRA, ultimately concluding that 

"[ u ]nder the standard stated in McConnell and further elaborated in WRTL, the film qualifies as the 

functional equivalent of express advocacy." Citizens United, 130 S.Ct. at 890. In that opinion, the 

Supreme Court upheld federal disclaimer and disclosure requirements applicable to all 

"electioneering communications." !d. at 914. In so holding, the Court "reject[ed] Citizens United's 

contention that the disclosure requirements must be limited to speech that is the functional equivalent 

of express advocacy." !d. at 915. In other words, in addressing the permissible scope of disclosure 

requirements, the Supreme Court not only rejected the "magic words" standard urged by Plaintiff 

but also found that disclosure requirements could extend beyond speech that is the "functional 

equivalent of express advocacy'' to address even ads that "only pertain to a commercial transaction." 

!d. at 916. Thus, "Citizens United ... supports the [FEC's] use of a functional equivalent test in 

defining 'express advocacy.' ... If mandatory disclosure requirements are permissible 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." 

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RTAA, 681 F.3d at 551-52 (emphasis original). As a result, Citizens United directly contradicts 

Plaintiffs argument that the definition of express advocacy set forth in subsection (b) is overly broad 

with respect to disclosure requirements. 

In addition to its overbreadth argument, Plaintiff urges that section 1 00.22(b) is 

impermissibly vague based on the fact that the FEC did not "issue a conclusive opinion" as to 

whether some of Plaintiffs proposed ads constituted express advocacy in the advisory opinion 

process. However, as the Fourth Circuit has noted, "cases that fall close to the line will inevitably 

arise when applying § 100.22(b)." RTAA, 681 F.3d at 554. "This kind of difficulty is simply 

inherent in any kind of standards-based test." !d.; see also National Organization for Marriage, Inc. 

v. Sec. of State of Fla., 753 F.Supp.2d 1217, 1221 (N.D. Fla. 2010) ("The fact that 'it may be 

difficult in some cases to determine whether these clear requirements have been met' does not mean 

that the statute is void for vagueness.") (quoting United States v. · Williams, 553 U.S. 285, 306, 128 

S.Ct. 1830 (2008)). 

C. The "Solicitation" Standard 

Plaintiff also challenges the constitutionality of the "solicitation" standard used by the FEC 

as vague and overbroad, arguing that it lacks clarity and guidance sufficient to enable interested 

persons to tailor their activities in compliance with the law. The FECA defines "contribution" to 

include "any gift, subscription, loan, advance, or deposit of money or anything of value made by any 

person for the purpose of influencing any election for Federal office." 2 U.S.C. § 431 (8)(A)(i). It 

further requires "any person" who "solicits any contribution through any broadcasting station, 

newspaper, magazine, outdoor advertising facility, mailing, or any other type of general public 

political advertising" to include a specified disclaimer in the solicitation. !d. § 441d(a); see 11 

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C.P.R.§ 110.11(a)(3). Thus, the FECA requires disclaimers for communications that "solicit[] any 

contribution," 2 U.S.C. § 441d(a), but it does not define when a request for donations constitutes a 

"solicitation." 

The standard applied by the FEC for determining whether a request for funds "solicits" a 

"contribution" under the FECA was set forth by the Second Circuit in FEC v. Survival Education 

Fund, Inc., 65 F .3d 285, 295 (2d Cir. 1995) ("SEF'). Under that standard, disclosure is required "if 

[a communication] contains solicitations clearly indicating that the contributions will be targeted to 

the election or defeat of a clearly identified candidate for federal office." !d. This solicitation 

standard does not interfere with Plaintiffs ability to raise funds to support its advocacy. Plaintiff 

is free to spend unlimited funds on its solicitations and to solicit unlimited funds for its express 

advocacy. Any "solicitations" of"contributions" simply trigger disclosure requirements, and those 

disclosure requirements are substantially related to the government's interest in requiring disclosure. 

As the Second Circuit recognized in SEF, disclosure requirements for solicitations "serve[] 

important First Amendment values." !d. at 296. "Potential contributors are entitled to know that 

they are supporting independent critics of a candidate and not a group that may be in league with that 

candidate's opponent." !d. The disclosure requirement is thus "a reasonable and minimally 

restrictive method of ensuring open electoral competition that does not unduly trench upon 

defendants' First Amendment rights." !d. (internal quotation marks and citation omitted). As the 

Supreme Court explained in Citizens United, disclosures serve important interests even in the 

context of electioneering communications that need not be targeted to the election or defeat of a 

federal candidate. Such disclaimers "insure that the voters are fully informed about the person or 

group who is speaking." Citizens United, 130 S.Ct. 915 (citations omitted). "At the very least, the 

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disclaimers avoid confusion by making clear that the ads are not funded by a candidate or political 

party." !d. 

Plaintiffs vagueness argument appears to be premised upon the fact that the advisory opinion 

issued to Plaintiff by the FEC concluded that two of Plaintiffs donation requests would not be 

solicitations under the Act, while the Commission could not approve a response regarding the 

remaining two donation requests. (Am. Compl., Ex. G.) However, as noted above, "[t]he fact that 

'it may be difficult in some cases to determine whether these clear requirements have been met' does 

not mean that the statute is void for vagueness." National Organization for Marriage, Inc., 753 

F.Supp.2d at 1221 (quoting Williams, 553 U.S. at 306); see also RTAA, 681 F.3d at 554. 

Plaintiff fails to establish any constitutional deficiency in the FEC' s approach to determining 

whether a communication is a "solicitation" for "contributions." Plaintiffs claim relating to the 

solicitation standard is insufficient as a matter of law and must be dismissed. 

C Political Committee Status- The "Major Purpose" Test 

Finally, Plaintiff challenges the FEC's policy of determining political committee status on 

a case-by-case basis. Under the FEC's approach, "the Commission first considers a group's political 

activities, such as spending on a particular electoral or issue-advocacy campaign, and then it 

evaluates an organization's 'major purpose,' as revealed by that group's public statements, 

fundraising appeals, government filings, and organizational documents." RTAA, 681 F.3d at 555 

(internal citations omitted). 

A "political committee" is defined by the FECA as any "committee, club, association or other 

group of persons" that makes more than $1,000 in political expenditures or receives more than 

$1,000 in contributions during a calendar year. 2 U.S.C. § 431 ( 4)(A). "Expenditures" and 

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"contributions" are defined to encompass any spending or fundraising "for the purpose of influencing 

any election for Federal office." 2 U.S.C. §§ 431(8)(A)(i), 431(9)(A)(i). However, in Buckley v. 

Valeo, the Supreme Court concluded that defining political committees only in terms of expenditures 

and contributions "could be interpreted to reach groups engaged purely in issue discussion." Buckley, 

424 U.S. at 79. "Accordingly, the Court limited the applicability ofFECA's PAC requirements to 

organizations controlled by a candidate or whose 'major purpose' is the nomination or election of 

candidates." RTAA, 681 F.3d at 555 (citing Buckley, 424 U.S. at 79). "Thus the major purpose test 

serves as an additional hurdle to establishing political committee status. Not only must the 

organization have raised or spent $1 ,000 in contributions or expenditures, but it must additionally 

have the major purpose of engaging in Federal campaign activity." See Political Committee Status, 

72 Fed. Reg. 5595, 5601 (Feb. 7, 2007). 

As the Fourth Circuit has observed, "[a]lthough Buckley did create the major purpose test, 

it did not mandate a particular methodology for determining an organization's major purpose. And 

thus the Commission was free to administer FECA political committee regulations either through 

categorical rules or through individualized adjudications." RTAA, 681 F.3d at 556. The FEC opted 

for the latter approach, explaining that "[a]pplying the major purpose doctrine ... requires the 

flexibility of a case-by-case analysis of an organization's conduct that is incompatible with a onesize-fits-all rule." 72 Fed. Reg. at 5601. "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." See RTAA, 681 F.3d at 556 (emphasis original). 

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"The 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." 

!d. at 556-57. This Court agrees with the assessment of the Fourth Circuit in RTAA: 

[T]he Commission, in its policy, adopted a sensible approach to determining whether 

an organization qualifies for PAC status. And more importantly, the Commission's 

multi-factor major-purpose test is consistent with Supreme Court precedent and does 

not unlawfully deter protected speech. 

!d. at 558. Plaintiffs constitutional challenge to that policy is therefore unavailing. 

CONCLUSION 

The FEC disclaimer requirements at issue are necessary to provide the electorate with 

information and to insure that the voters are fully informed about the person or group who is 

speaking. Citizens United, 130 S. Ct. at 915. Moreover, the disclosure requirements provide the 

transparency that "enables the electorate to make informed decisions and give proper weight to 

different speakers and messages." !d. at 917. The FEC's functional equivalent and major purpose 

tests are essential components to narrowly, but effectively identifying those entities, ads and 

solicitations that fall within the FEC's reporting, disclaimer, and disclosure requirements. These 

disclaimer and disclosure requirements become even more essential and necessary to enable 

informed choice in the political marketplace following Citizen United's change to the political 

campaign landscape with the removal of the limit on corporate expenditures. For all of the reasons 

set forth above, and as previously set forth in this Court's oral ruling denying Plaintiffs Motion for 

Preliminary Injunction, Plaintiffs Complaint fails to state a claim upon which relief may be granted. 

It is therefore ORDERED that Defendant Federal Election Commission's Motion to Dismiss [Doc. 

14 

Appellate Case: 13-8033 Document: 01019078794 Date Filed: 06/25/2013 Page: 17 Appellate Case: 13-8033 Document: 01019106805 Date Filed: 08/09/2013 Page: 39 
Elisabeth A. Shumaker

Clerk of Court 

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

OFFICE OF THE CLERK

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

(303) 844-3157

June 25, 2013

Douglas E. Cressler

Chief Deputy Clerk 

Mr. Benjamin Barr

10737 Hunting Lane

Rockville, MD 20850

Mr. Stephen Ralph Klein

Wyoming Liberty Group 

1902 Thomes Avenue, Suite 201

Cheyenne, WY 82001

Mr. John B. Speight

4021 Snyder

Cheyenne, WY 82001

RE: 13-8033, Free Speech v. Federal Election Commission

Dist/Ag docket: 2:12-CV-00127-SWS

Dear Counsel: 

Enclosed is a copy of the opinion of the court issued today in this matter. The court has 

entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.

Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 

days after entry of judgment. Please note, however, that if the appeal is a civil case in 

which the United States or its officer or agency is a party, any petition for rehearing must 

be filed within 45 days after entry of judgment. Parties should consult both the Federal 

Rules and local rules of this court with regard to applicable standards and requirements. 

In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is 

permitted unless the court enters an order requiring a response. If requesting rehearing en 

banc, the requesting party must file 18 paper copies with the clerk, in addition to 

satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, 

and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.

Appellate Case: 13-8033 Document: 01019106805 Date Filed: 08/09/2013 Page: 40 Appellate Case: 13-8033 Document: 01019078797 Date Filed: 06/25/2013 Page: 1 
2

Please contact this office if you have questions.

Sincerely,

Elisabeth A. Shumaker

Clerk of the Court 

cc: Erin Rebecca Chlopak

Kevin Deeley

Anthony Herman

David Brett Kolker

Adav Noti

Lisa J. Stevenson

Nicholas Vassallo

EAS/sds

Appellate Case: 13-8033 Document: 01019106805 Date Filed: 08/09/2013 Page: 41 Appellate Case: 13-8033 Document: 01019078797 Date Filed: 06/25/2013 Page: 2 
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy hereof was served by electronic 

filing this 9th day of August, 2013 to:

Anthony Herman

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

aherman@fec.gov

Erin Chlopak

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

echlopak@fec.gov

Kevin Deeley

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

kdeeley@fec.gov

Lisa Stevenson

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

lstevenson@fec.gov

Nicholas Vassallo

United States Attorney’s Office

District of Wyoming

P.O. Box. 668

Cheyenne, WY 82003-0668

(307) 772-2124

nick.vassallo@usdoj.gov

____/s/____________

Stephen Klein

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