United States District Court

Eastern District of North Carolina

Northern Division

Holly Lynn Koerber and

Committee for Truth in Politics, Inc.,

Plaintiffs,

v.

Federal Election Commission,

Defendant.

Case No.

Verified Complaint for Declaratory and Injunctive Relief

Holly Lynn Koerber and Committee for Truth in Politics, Inc. (“CTP”) complain as follows:

INTRODUCTION

1. Government may only require “disclosure of what an individual or group . . . spends,”

Buckley v. Valeo, 424 U.S. 1, 75 (1976) (emphasis added), for independent communications

touching on candidates and issues, id. (i.e., that might be considered “‘for the purpose of . . .

influencing’ the nomination or election of candidates for federal office”), if the communications

are “unambiguously related to the campaign of a particular federal candidate,” id. at 80

(emphasis added).

2. This unambiguously-campaign-related requirement was applied in FEC v. Wisconsin

Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”) (Roberts, C.J., joined by Alito, J.) (stating

holding) to limit the scope of “electioneering communications” to those that meet the appeal-tovote test, i.e., they “[are] susceptible of no reasonable interpretation other than as an appeal to

vote for or against a specific candidate,” id. at 2667, with all doubts resolved in favor of free

speech, id. at 2667, 2669 n.7, 2674. Although WRTL II involved a challenge to the electioneering

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communication prohibition, the unambiguously-campaign-related principle that it applied also

governs disclosures, Buckley, 424 U.S. at 80, so that the appeal-to-vote test is the application of

the unambiguously-campaign-related principle to any regulation of electioneering

communications.

3. The Fourth Circuit follows Buckley in holding that the unambiguously-campaign-related

requirement applies to all campaign-finance regulation: “campaign finance laws may

constitutionally regulate only those actions that are ‘unambiguously related to the campaign of a

particular . . . candidate.’” North Carolina Right to Life v. Leake, 525 F.3d 274, 282 (4th Cir.

2008) (quoting Buckley, 424 U.S. at 80) (emphasis added). “This is because only unambiguously

campaign related communications have a sufficiently close relationship to the government’s

acknowledged interest in preventing corruption to be constitutionally regulable.” Id. (citing

Buckley, 424 U.S. at 80) (emphasis added).

4. The Fourth Circuit holds that the unambiguously-campaign-related requirement permits

government to only regulate communications that contain magic-words “express advocacy”

(such as “vote for’) or “electioneering communications” limited in scope by WRTL II’s appeal-tovote test:

Pursuant to their power to regulate elections, legislatures may establish campaign

finance laws, so long as those laws are addressed to communications that are

unambiguously campaign related. The Supreme Court has identified two

categories of communication as being unambiguously campaign related. First,

“express advocacy,” defined as a communication that uses specific

election-related words. Second, “the functional equivalent of express advocacy,”

defined as an “electioneering communication” that “is susceptible of no

reasonable interpretation other than as an appeal to vote for or against a specific

candidate.” This latter category, in particular, has the potential to trammel vital

political speech, and thus regulation of speech as “the functional equivalent of

express advocacy” warrants careful judicial scrutiny.

Leake, 525 F.3d at 282-83 (emphasis added).

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5. Despite WRTL II’s clear application of Buckley’s unambiguously-campaign-related

principle to the scope of regulable electioneering communications through the appeal-to-vote

test, the FEC refused in its rulemaking implementing WRTL II to exempt from the Disclosure

Requirements (see infra) electioneering communications that are not unambiguously campaign

related under WRTL II’s appeal-to-vote test. See infra.

6. CTP is an issue-advocacy, nonprofit, ideological corporation that is presently engaging in

constitutionally-protected “issue advocacy” advertising (see infra). “Issue advocacy conveys

information and educates. An issue ad’s impact on an election, if it exists at all, will come only

after the voters hear the information and choose—uninvited by the ad—to factor it into their

voting decisions.” WRTL II, 127 S. Ct. at 2667.

7. Holly Lynn Koerber is a resident of Elizabeth City, North Carolina, one of the places

where CTP is broadcasting its issue advocacy, who wishes to exercise the First Amendment right

to continue hearing CTP’s issue-advocacy speech.

8. Because CTP’s ads fits the statutory “electioneering communication” definition (they are,

inter alia, being broadcast within 60 days of the general election and reference a public official

who is a candidate), and because CTP has spent more than $10,000 to communicate its ads, CTP

and its ads are presently subject to the Disclosure Requirements.

9. But CTP’s ads are not unambiguously campaign related under WRTL II’s appeal-to-vote

test because they “may reasonably be interpreted as something other than as an appeal to vote for

or against a specific candidate.” Id. at 2670.

10. The Disclosure Requirements include a Reporting Requirement and a Disclaimer

Requirement. See infra. CTP is presently complying with the Disclaimer Requirement, although

it challenges it, but CTP is not complying with the Reporting Requirement because the First

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Amendment protects CTP by forbidding Congress from requiring disclosure as to expenditures

for independent communications that are not “unambiguously related to the campaign of a

particular federal candidate.” Buckley, 424 U.S. at 80.

11. CTP requires this Court’s protection from an unconstitutional and unauthorized

investigation, enforcement action, and penalties for its refusal to comply with unconstitutional

and unauthorized provisions.

12. This is an as-applied challenge to the constitutionality of (a) § 201 of the Bipartisan

Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, 88-89, titled

“Disclosure of Electioneering Communications,” which added a new subsection “(f)” to § 304 of

the Federal Election Campaign Act (“FECA”) that requires reporting of electioneering

communications and (b) BCRA § 311, 116 Stat. 105, requiring that electioneering

communications contain “disclaimers.” See 11 C.F.R. § 110.11. BCRA § 201 is called herein the

“Reporting Requirement,” BCRA § 311 is called the “Disclaimer Requirement,” and the

requirements together are called the “Disclosure Requirements” for ease of identification. The

Reporting Requirement is codified at 2 U.S.C. § 434(f). The Disclaimer Requirement is codified

at 2 U.S.C. § 441d(a).

13. The Disclosure Requirements are challenged as applied to CTP, its present ads,

materially-similar future ads, and to all statutory electioneering communications that lack an

“electioneering nature,” WRTL II, 127 at 2667, because they “may reasonably be interpreted as

something other than as an appeal to vote for or against a specific candidate,” id. at 2670, and so

are not “unambiguously related to the campaign of a particular federal candidate,” Buckley, 424

U.S. at 80, and are consequently unconstitutionally overbroad in violation of the First

Amendment.

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14. This is also a facial and as-applied challenge to the FEC’s enforcement policy as to

Buckley’s major-purpose test for imposing “political committee” (“PAC”) status, 424 U.S. 1 at

79 (PAC status may only be imposed on “organizations that are under the control of a candidate

or the major purpose of which is the nomination or election of a candidate”), under 2 U.S.C.

§ 431(4) (PAC definition). See FEC, “Political Committee Status . . . ,” 69 Fed. Reg. 68056

(Nov. 23, 2004) (“PAC Status 1”); FEC, “Political Committee Status,” 72 Fed. Reg. 5595 (Feb.

7, 2007) (“PAC Status 2”). The FEC policy examines “a major purpose” instead of “the major

purpose” of an entity, Leake, 525 F.3d at 287 (requiring the latter), to determine PAC status, and

it employs a vague and overbroad totality-of-the-circumstances test for determining major

purpose instead of the required “empirical judgment as to whether an organization primarily

engages in regulable, election-related speech,” id. (emphasis added).

15. The FEC’s PAC enforcement policy is challenged as unconstitutional, facially and as

applied to CTP and its activities, and as void for being beyond FEC authority under the

Administrative Procedure Act (“APA”). 5 U.S.C. § 706.

16. CTP seeks a judgment from this Court declaring (a) that the ads set out herein are neither

express advocacy (including under 11 C.F.R. § 100.22(b)) nor electioneering communications

that may be prohibited under WRTL II’s appeal-to-vote test, 127 S. Ct. at 2667; (b) that the

Disclosure Requirements are unconstitutional as applied to the ads and to all electioneering

communications not subject to prohibition under WRTL II’s appeal-to-vote test; and (c) that the

FEC’s PAC enforcement policy is unconstitutional, beyond FEC authority, void, and set aside

under the APA. 5 U.S.C. § 706.

17. CTP also seeks preliminary and permanent injunctive relief enjoining the FEC from

enforcing (a) the Disclosure Requirements, as applied to CTP’s present ads and materially5

Case 2:08-cv-00039-BR Document 1 Filed 10/03/2008 Page 5 of 21
similar future ads and to all electioneering communications not subject to prohibition under

WRTL II’s appeal-to-vote test, and (b) the provisions of the Federal Election Campaign Act

(“FECA”) concerning “political committee” status, both facially and as applied to CTP and its

activities, as set out herein.

JURISDICTION AND VENUE

18. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 as a case arising

under the First and Fifth Amendments, FECA, the judicial review provisions of the APA, 5

U.S.C. §§ 702-06, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02.

19. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(3), because Defendants

are entities of the United States, Holly Lynn Koerber, who wishes to exercise the First

Amendment right to receive information from CTP, resides in Elizabeth City, North Carolina,

and CTP resides in North Carolina and has been broadcasting its ads in Elizabeth City.

PARTIES

20. Holly Lynn Koerber is a resident of Elizabeth City, North Carolina, where CTP is

broadcasting its issue advocacy, who wishes to exercise the First Amendment right to continue

hearing CTP’s ads and materially-similar future issue advocacy.

21. CTP is a nonstock, nonprofit, North Carolina corporation with its principal place of

business in Cary, North Carolina.

22. FEC is the federal government agency with enforcement authority over FECA. Its

headquarters are located in Washington, District of Columbia. Purporting to act pursuant to its

statutory authority, the FEC adopted the PAC enforcement policy at issue in this case.

FACTS

23. Holly Lynn Koerber is a resident of Elizabeth City, North Carolina, where she has been

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able to receive a broadcast of CTP’s two present ads, Basic Rights and Tragic, but True. She

wants to continue exercising the First Amendment right to receive CTP’s speech, but reasonably

fears that CTP will be silenced and she will be unable to continue receiving CTP’s ads and

materially-similar ads, all in violation of her First Amendment rights.

24. CTP was incorporated in September 2008.

25. CTP is a North Carolina nonstock corporation exempt from tax under 26 U.S.C.

§ 501(c)(4) as an organization primarily devoted to social welfare.

26. CTP meets the criteria for an MCFL-corporation so that it may not be prohibited from

making express-advocacy “independent expenditures,” FEC v. Massachusetts Citizens for Life,

479 U.S. 238, 263-64 (1986) (“MCFL”), or from making “electioneering communications,”

McConnell v. FEC, 540 U.S. 93, 210 (2003), that may be prohibited under WRTL II’s appeal-tovote test, 127 S. Ct. at 2667. Specifically, CTP (a) “was formed for the express purpose of

promoting political ideas, and cannot engage in business activities”; (b) “has no shareholders or

other persons affiliated so as to have a claim on its assets or earnings”; and (c) “was not

established by a business corporation or a labor union, and it is its policy not to accept

contributions from such entities.” MCFL, 479 U.S. at 264.

27. CTP is also a “qualified nonprofit corporation” under the FEC’s term for MCFLcorporations, because it meets the requirements of 11 C.F.R. § 114.10.

28. CTP is not a PAC because it neither is controlled by a candidate nor has “the major

purpose,” Leake, 525 F.3d at 287, of “primarily engag[ing] in regulable, election-related speech,”

id., so that its major purpose is not the “nomination or election of a candidate.” Buckley, 424 U.S.

at 79. Rather, the majority of CTP’s activities will be nonpolitical-intervention, social welfare

activities, including lobbying. Although broadcasting CTP’s ads set out herein and the

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materially-similar ads that CTP intends to broadcast are not “regulable election-related speech,”

Leake 525 F.3d at 287, on which a determination of PAC-status may be based, they will not be

the primary activity of CTP. Expenditures for solicitations to CTP will be insubstantial.

29. As set out in its Articles of Incorporation, CTP’s purposes are as follows:

Purpose. The Corporation is organized for the purpose of promoting the social

welfare of the people of North Carolina by: (a) Advocating honesty in

government; (b) Advocating limited government; and (c) Engaging in any and all

lawful activities that are appropriate to carry out and fulfill any or all of the

foregoing purposes.

30. As set out in its Articles of Incorporation, CTP’s prohibited activities are as follows:

Prohibited Activities. Notwithstanding any other provision of these Articles, the

Corporation shall not, except to an insubstantial degree, carryon any activities not

permitted to be carried on by an organization exempt from Federal income tax

under Section 501(c)(4) of the Internal Revenue Code of 1986, as amended

(“Code”), or the corresponding provision of any subsequent federal tax laws.

31. CTP is broadcasting an ad titled Basic Rights on television stations in Wilmington,

North Carolina, that broadcast into Elizabeth City, North Carolina. Basic Rights was broadcast

on stations in Pennsylvania, North Carolina, and Wisconsin on October 2, 2008, and it is

scheduled to be broadcast in those states on October 3, 2008. CTP intends to also broadcast an ad

titled Tragic, but True.

32. The script of Basic Rights is as follows:

Client: CTP

Title: “Basic Rights”

Code: CTP08-TV-01

Length: 30

Draft: 9/29/08 – CG

VIDEO AUDIO

CG: VOTED AGAINST PROTECTING

INFANTS

Announcer: Senator Obama.

Why did you vote against protecting

infants that survived late term

abortions?

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CG: NOT ONCE BUT FOUR TIMES;

ILL. SB 1095, 3/27/01; ILL. SB 1662,

3/5/02; ILL. SB 1662, 4/4/02; ILL. SB

1082, 3/12/03

CG: CONGRESS UNANIMOUSLY

SUPPORTED PROTECTIONS

Source: H.R. 2175;Congressional

Record, 7/18/02; Page S. 7084

CG: UPHELD BY SUPREME COURT

Source: Gonzales v. Carhart Et Al.;

4/18/07

CG: BARACK OBAMA COSPONSORED SENATE BILL 1173

Source: S. 1173; Congressional

Record; Introduced 4/19/07; Cosponsored 5/11/07

CG: CALL SENATOR OBAMA

CG: 202-224-2854

Disclaimer: PAID FOR BY

COMMITTEE FOR TRUTH IN

POLITICS, 102-K COMMONWEALTH

COURT, CARY, NORTH CAROLINA

27511. NOT AUTHORIZED BY ANY

CANDIDATE OR CANDIDATE’S

COMMITTEE.

Not once, but four times.

Even Congress unanimously supported

protections identical to those you

blocked in Illinois.

The Supreme Court upheld the ban on

partial birth abortions. 

And yet today, you keep working to

roll back this law.

Call Senator Obama. Tell him to stop

trying to overturn these basic human

rights.

The Committee for Truth in Politics is

responsible for the content of this

advertising.

33. The Script of Tragic, but True is as follows:

Client: CTP

Title: “Tragic but True”

Code: CTP08-TV-02 

Length: 30

Draft: 9/29/08 – CG

VIDEO AUDIO

CG: TRAGIC. BUT TRUE.

CG: MAJORITY OF SEX CRIMES

ARE COMMITTED AGAINST A

CHILD

Announcer: It’s tragic, but true.

Two thirds of all prisoners convicted

of rape or sexual assault committed

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Source: U.S. Dept. of Justice, Bureau of

Statistics

CG: EXPLOITS 7 TO 200 VICTIMS

Source: U.S. Dept. of Justice, Bureau of

Statistics

CG: BARACK OBAMA VOTED TO

ALLOW EARLY RELEASE FOR

CONVICTED SEXUAL ABUSERS

Source: ILL. SB 485, 3/11/99

CG: CALL SENATOR OBAMA

CG: 202-224-2854

CG: SUPPORT THE PREVENTION

AND DETERENCE OF CRIMES

AGAINST CHILDREN ACT

CG: INNOCENT LIVES ARE AT

STAKE

Disclaimer: PAID FOR BY

COMMITTEE FOR TRUTH IN

POLITICS, 102-K COMMONWEALTH

COURT, CARY, NORTH CAROLINA

27511. NOT AUTHORIZED BY ANY

CANDIDATE OR CANDIDATE’S

COMMITTEE.

their crime against a child.

Even worse, the average child predator

exploits seven to two hundred victims

in their lifetime.

In the Illinois Senate, Barack Obama

was the only member that voted to

allow early release for convicted

sexual abusers.

Call Senator Obama.

Tell him to support the Prevention and

Deterrence of Crimes Against Children

Act.

The Committee for Truth in Politics is

responsible for the content of this

advertising.

34. CTP has not, and will not, coordinate the production and broadcast of Basic Rights and

Tragic, but True (collectively “Ads”) with any candidate, campaign committee, political

committee, or political party.

35. The Ads meet the electioneering communications definition at 2 U.S.C. § 434(f)(3) and

11 C.F.R. § 100.29 because each will be a “broadcast, cable, or satellite communication,” id. at

§ 100.29(a), that “[r]efers to a clearly identified candidate for Federal office,” id., and “[i]s

publicly distributed with 60 days before a general election for the office sought by the candidate.”

Id.

36. Because the Ads are electioneering communications, they are subject to the Disclaimer

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Requirement, codified at 2 U.S.C. § 441d(a). The Ads include the prescribed disclaimer

language, see 11 C.F.R. § 110.11, but CTP challenges the constitutionality of requiring the

prescribed disclaimer and it would prefer to use a shorter identification of itself so as not to

consume so much valuable advertising time.

37. Because CTP has spent more than $10,000 in 2008 “for the direct costs of producing and

airing” Basic Rights, CTP is subject to the Reporting Requirement, codified at 2 U.S.C.

§ 434(f)(1).

38. Under the Reporting Requirement, once CTP reached the $10,000 trigger amount (the

“disclosure date,” id.), it was to have filed the required report “within 24 hours.” Id.

39. CTP reached the $10,000 trigger amount (“disclosure date”) on October 2, 2008, making

its report due on October 3, 2008.

40. CTP has not filed the required report and so is currently in violation of the Reporting

Requirement.

41. CTP reasonably fears that a complaint will be filed against it for noncompliance with the

Reporting Requirement, that the FEC will initiate an investigation and enforcement action, and

that CTP may suffer penalties for noncompliance, all in violation of CTP’s First Amendment

rights.

42. CTP also reasonably fears that the FEC may deem CTP to be a political committee under

the FEC’s vague, overbroad, and unauthorized PAC enforcement policy, in violation of CTP’s

First and Fifth Amendment rights. See PAC Status 1; PAC Status 2. The policy examines “a

major purpose” instead of “the major purpose” of an entity, Leake, 525 F.3d at 287 (requiring the

latter), to determine PAC status, and it employs a vague and overbroad totality-of-thecircumstances test for determining major purpose instead of the required “empirical judgment as

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to whether an organization primarily engages in regulable, election-related speech,” id.

(emphasis added).

43. CTP reasonably fears that a complaint will be filed against it for noncompliance with

FECA’s PAC requirements, that the FEC will initiate an investigation and enforcement action,

and that CTP may suffer penalties for noncompliance, all in violation of CTP’s First and Fifth

Amendment rights.

44. CTP intends to continue its issue advocacy by broadcasting ads that are materiallysimilar to the Ads in that they will contain similar issue advocacy, but will similarly not be

‘unambiguously related to the campaign of a particular . . . candidate,’” id. at 282 (quoting

Buckley, 424 U.S. at 80) (emphasis added), because they “may reasonably be interpreted as

something other than as an appeal to vote for or against a specific candidate,” id. at 2670.

45. In addition, CTP’s materially-similar ads will be consistent with protected ads under the

“safe harbor” in the FEC’s own regulation implementing WRTL II, 11 C.F.R. § 114.15, in that

they will fit the following criteria:

(1) Does not mention any election, candidacy, political party, opposing

candidate, or voting by the general public;

(2) Does not take a position on any candidate’s or officeholder’s character,

qualifications, or fitness for office; and

(3) Either:

(i) Focuses on a legislative, executive or judicial matter or issue; and

(A) Urges a candidate to take a particular position or action with respect to

the matter or issue, or

(B) Urges the public to adopt a particular position and to contact the

candidate with respect to the matter or issue . . . .

46. CTP is at risk for the irreparable harm of an investigation, an enforcement action, and

possible penalties, and has no adequate remedy at law.

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Count 1—Ads

47. CTP realleges and incorporates by reference all of the allegations contained in all of the

preceding paragraphs.

48. CTP seeks a declaration that the Ads (Basic Rights and Tragic, but True) are neither

express advocacy under 11 C.F.R. § 100.22(b) nor electioneering communications that may be

prohibited under WRTL II’s appeal-to-vote test, 127 S. Ct. at 2667. This is necessary because in

another district court in this Circuit, the FEC took the litigation position that a similar

communication was neither express advocacy nor subject to prohibition under WRTL II’s appealto-vote test, but the district court decided that the communication was in fact express advocacy

under 11 C.F.R. § 100.22(b). CTP’s argument that it should not be subject to the Disclosure 1

Requirements or the FEC’s PAC-status enforcement policy is premised on the fact that the Ads

The ad at issue, titled Change, is as follows: 1

(Woman’s voice)Just what isthe real truth about Democrat Barack Obama’s position on abortion?

(Obama-like voice) Change. Here is how I would like to change America . . . about abortion:

• Make taxpayers pay for all 1.2 million abortions performed in America each year

• Make sure that minor girls’ abortions are kept secret from their parents

• Make partial-birth abortion legal

• Give Planned Parenthood lots more money to support abortion

• Change current federal and state laws so that babies who survive abortions will die soon after

they are born

• Appoint more liberal Justices on the U.S. Supreme Court.

One thing I would not change about America is abortion on demand, for any reason, at any time during

pregnancy, as many times as a woman wants one.

(Woman’s voice). Now you know the real truth about Obama’s position on abortion. Is this the

change that you can believe in?

To learn more real truth aboutObama, visitwww.The RealTruthAboutObama.com. Paid for by The

Real Truth About Obama.

In The Real Truth About Obama, Inc. v. FEC, No. 3:08-cv-483, this ad was set out in the Verified

Complaint, Dkt. 1 at 5-6; the FEC said that Change was protected issue advocacy, not express advocacy

under 11 C.F.R. § 100.22(b) or a prohibited electioneering communication under WRTL II’s appeal-tovote test, 127 S. Ct. at 2667, Dkt. 32 at 6; but the Court said that Change was express advocacy under 11

C.F.R. § 100.22(b). Dkt. 77 at 13-14 (mem. op. denying prelim. inj.; Sep. 24, 2008) (all documents

available on PACER).

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are neither express advocacy nor subject to regulation under WRTL II’s appeal-to-vote test, so

this is a necessary first step in this Court’s analysis.

Count 2—Disclosure Requirements

49. CTP realleges and incorporates by reference all of the allegations contained in all of the

preceding paragraphs.

50. As applied to (a) communications that may not be prohibited as electioneering

communications under WRTL II, 127 S. Ct. 2652, and (b) CTP’s Ads and materially-similar

future ads, the Disclosure Requirements, i.e., BCRA §§ 201 and 311, are unconstitutional

because the activity is not “unambiguously related to the campaign of a particular federal

candidate,” Buckley, 424 U.S. at 80. Failing this threshold requirement, the Disclosure

Requirements do not come within congressional authority to regulate elections and are overbroad

for sweeping in First Amendment activity without authority.

51. As applied to (a) communications that may not be prohibited as electioneering

communications under WRTL II, 127 S. Ct. 2652, and (b) CTP’s Ads and materially-similar

future ads, the Disclosure Requirements are unconstitutional under the First Amendment

guarantees of free expression and association.

Count 3—PAC Enforcement Policy

52. CTP realleges and incorporates by reference all of the allegations contained in all of the

preceding paragraphs.

53. The FEC’s enforcement policy regarding PAC status is set out in two FEC policy

statements: PAC Status 1 and PAC Status 2.The FEC’s interpretation of the major-purpose test is

a central element of the FEC’s PAC status enforcement policy. In PAC Status 2, the FEC

explained that, after having initiated a rulemaking proceeding, it declined to adopt a rule for the

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major-purpose test, declaring that “the major purpose doctrine . . . requires the flexibility of a

case-by-case analysis of an organization’s conduct.” Id. PAC Status 2, 72 Fed. Reg. at 5601.

Instead, it set out its vague and overbroad enforcement policy regulating major purpose, requiring

the FEC to engage in “a fact intensive inquiry,” in order to weigh various vague and overbroad

factors with undisclosed weight, requiring “investigations into the conduct of specific

organizations that may reach well beyond publicly available statements,” including all an

organization’s “spending on Federal campaign activity” (but not limited to spending on regulable

activity) and other spending, and public and non-public statements, including statements to

potential donors. Id.

54. PAC Status 2 identified the “major purpose” at issue in its major-purpose test as being

“Federal campaign activity,” id. at 5605 (emphasis added), not the narrower “nomination or

election of a candidate,” which Buckley required as “the major purpose.” 424 U.S. at 79

(emphasis added). While MCFL used “campaign advocacy,” 479 U.S. at 252 (plurality opinion)

(emphasis added), to “further the election of candidates,” id. at 253 (plurality opinion) (emphasis

added), and “campaign activity,” id. at 262 (majority opinion), when speaking of the purpose at

issue in the major-purpose test, it did so solely as synonyms for Buckley’s “nomination or

election” requirement, which it cited and quoted, id. at 252 n.6 (citing Buckley, 424 U.S. at 79).

There is no authority for the FEC’s reformulation of the major-purpose test to focus on “Federal

campaign activity.”

55. PAC Status 2 also indicated that the FEC would consider other factors in its ad hoc,

totality-of-the-circumstances, major-purpose test when it discussed its application of the policy to

some 527 organizations in previous investigations. PAC Status 2, 72 Fed. Reg. at 5603-04. These

included the fact that an entity spent much of its money “on advertisements directed to

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Presidential battleground States and direct mail attacking or expressly advocating,” id. at 5605

(emphasis added), the fact that groups ceased activity after an election, id., and the fact that they

did not make disbursements in state and local races, id. In addition, the FEC thought that it could

determine a 527 group’s major purpose from internal planning documents and budgets, id.,

which would normally be protected by First Amendment privacy concerns and were only

obtained because the organization was subjected to a burdensome, intrusive investigation. Major

purpose was even based on a private thank-you letter to a donor, after the donation had already

been made. Id.

56. PAC Status 2, therefore, sets out an enforcement policy based on an ad hoc, case-bycase, analysis of vague and impermissible factors applied to undefined facts derived through

broad-ranging, intrusive, and burdensome investigations, often begun when a complaint is filed

by a political or ideological rival, that, in themselves, can shut down an organization, without

adequate bright lines to protect issue advocacy in this core First Amendment area.

57. Under the major-purpose test set out in Buckley, 424 U.S. at 79, however, PAC status

may be determined by either an entity’s expenditures, MCFL, 479 U.S. at U.S. at 262 (major

purpose calculation looks at express-advocacy independent expenditures in relation to total

expenditures: “should MCFL’s independent spending become so extensive that the

organization’s major purpose may be regarded as campaign activity, the corporation would be

classified as a political committee”); Leake, 525 F.3d at 287 (“an empirical judgment as to

whether an organization primarily engages in regulable, election-related speech”), or by the

organization’s central purpose revealed in its organic documents, MCFL, 479 U.S. at 252 n.6

(“[O]n this record . . . MCFL[’s] . . . central organizational purpose is issue advocacy.”). Thus,

the first test for major purpose requires a comparison of the entity’s total disbursements for a year

16

Case 2:08-cv-00039-BR Document 1 Filed 10/03/2008 Page 16 of 21
with its unambiguously campaign related and regulable expenditures, so that only the amount of

true political “contributions” and “expenditures” would be counted. The second test requires an

examination of the entity’s organic documents to determine if there was an express intention to

operate as a political committee, e.g., by being designated as a “separate segregated fund” (an

internal “PAC”) under 2 U.S.C. § 441b(2)(c). Because Buckley’s and MCFL’s major-purpose test

is an authoritative construction of the definition of “political committee,” and a constitutional

limit on the application of the political committee requirements of FECA, the FEC’s enforcement

policy that does not comply with this construction is beyond the FEC’s statutory authority.

58. Because the FEC’s enforcement policy for determination of PAC status goes beyond any

permissible construction of the major-purpose test, employs invalid regulations to determine

whether the entity received a “contribution” or made an “expenditure,” is unconstitutionally

vague and overboad, and is “in excess of the statutory . . . authority . . .” of the FEC, it is void

under 5 U.S.C. § 706.

PRAYER FOR RELIEF

Wherefore, CTP prays for the following relief:

1. A declaratory judgment that CTP’s Ads (Basic Rights and Tragic, but True) are neither

express advocacy nor statutory “electioneering communications” that are subject to regulation

under WRTL II’s appeal-to-vote test;

2. A declaratory judgment declaring BCRA §§ 201, 203, and 311 unconstitutional as applied

to (a) communications that may not be prohibited as electioneering communications under WRTL

II’s appeal-to-vote test, (b) CTP’s Ads, and (c) CTP’s materially-similar future ads;

3. A preliminary and permanent injunction enjoining the FEC from enforcing the Disclosure

Requirements as applied to (a) communications that may not be prohibited as electioneering

17

Case 2:08-cv-00039-BR Document 1 Filed 10/03/2008 Page 17 of 21
communications under WRTL II’s appeal-to-vote test, (b) CTP’s Ads, and (c) CTP’s materiallysimilar future ads;

4. A declaratory judgment that the FEC’s PAC-status enforcement policy is unconstitutional

on its face and as applied and void for being beyond statutory authority;

5. A preliminary and permanent injunction enjoining the FEC from employing its PACstatus enforcement policy to enforce FECA’s PAC provisions;

6. Costs and attorneys fees pursuant to any applicable statute or authority; and

7. Any other relief this Court in its discretion deems just and appropriate.

18

Case 2:08-cv-00039-BR Document 1 Filed 10/03/2008 Page 18 of 21
01/21/2008 05:57 919-4812919-3196302 THE LAI;) OFFICES PAGE 02

VERIFICATION

I, William W. Peaslee, declare as follows:

1. I am the Incorporator ofCTP and an officer.

2, I have personal knowledge ofCTP and its activities, including those set out in the

foregoing Complaint, and if called upon to testify I would competently testifY as t.o the matters

stated herein.

3. I verify under penalty ofpetjury under the laws ofthe United States ofAmerica that the

factual statements in this Complaint conceming CTP and its activity are true and correct.

E:x,ecuted on October 2,2008.

William W. Peaslee

Case 2:08-cv-00039-BR Document 1 Filed 10/03/2008 Page 19 of 21
Mit4JIl:n+1ii.U1l.••••••••~'~IItI:.~•••if.m =tDidm.. [l1l.II!&.1iiIm••mu.ln~IIJIlmi1mnmmJ!nlml)llIlI••••••muz .

Oct 02 08 03:19

VERIFICATION

I~ Holly L)'TI£L Koerber, declare as follows:

1. I have personal knowledge ofmyself and my activities, including those set out in the

foregoing Complaint, and if called upon to testify I would competently testify as to the matters

stated herein.

2. I verify under penalty of peIjury under the laws ofthe United States ofAmerica that the

factual statements in this Complaint concerning myself and my activities are true and correct.

Executed on October 2, 2008.

p.1

Case 2:08-cv-00039-BR Document 1 Filed 10/03/2008 Page 20 of 21
Dated: October 2, 2008

/s/ Paul Stam 

Paul Stam, paulstam@bellsouth.net

State Bar No. 6865

STAM FORDHAM & DANCHI, P.A.

P.O. Box 1600

510 W. Williams Street

Apex, NC 27502

919/362-8873 telephone

919/387-7329 facsimile

Local Counsel for Plaintiffs

Respectfully submitted,

/s/ James Bopp, Jr. 

James Bopp, Jr., jboppjr@aol.com

 Ind. Bar No. 2838-84

Richard E. Coleson, rcoleson@bopplaw.com

 Ind. Bar No. 11527-70

Clayton J. Callen, ccallen@bopplaw.com

 Mo. Bar No. 59885

Sarah Troupis, stroupis@bopplaw.com

 Wis. Bar No. 1061515

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for Plaintiffs

Case 2:08-cv-00039-BR Document 1 Filed 10/03/2008 Page 21 of 21