IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

INDEPENDENCE INSTITUTE, a Colorado 

nonprofit corporation,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

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) Civil Action No. 1:14-cv-01500-CKK

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REPLY BRIEF IN SUPPORT OF 

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

/s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

Tyler Martinez*

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703-894-6800

Facsimile: 703-894-6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff

*Admission pro hac vice pending

September 26, 2014

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 1 of 24
i

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................................................. iii

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

ARGUMENT.......................................................................................................................................2

I. Buckley v. Valeo requires exacting scrutiny to make certain that the damage 

compelled disclosure inflicts upon associational liberties is appropriately tailored to 

the government’s informational interest.. ......................................................................2

II. Defendant’s authorities do not demonstrate that the electioneering communication 

disclosure provisions are tailored to the informational interest presented in this 

case.................................................................................................................................4

A. McConnell v. FEC. ..................................................................................................5

i. McConnell does not resolve this case because it was a facial challenge 

based upon a lengthy record, whereas this case is an as-applied challenge 

that relies upon decidedly different facts. ....................................................5

ii. To the extent that the Commission even suggests appropriate tailoring, it 

does so by conflating vagueness and overbreadth. This fails, because a law 

can be vague without being overbroad, overbroad without being vague 

(the case here), or both. In any such instance, that law is 

unconstitutional............................................................................................6

B. Citizens United v. FEC does not resolve this case...................................................9

i. Citizens United is distinct because it contemplated advertisements which 

could fairly be characterized as the functional equivalent of express 

advocacy ......................................................................................................9

ii. The fact that the ads for Hillary: The Movie pertained to a commercial 

transaction bolsters rather than weakens Plaintiff’s case...........................11

iii. Although it is constitutional to impose disclosure upon lobbyists and those 

who speak about ballot measures, it does not follow that genuine issue 

speech may constitutionally trigger similar requirements. ........................13

iv. The FEC’s out-of-circuit authorities likewise deal with dissimilar 

communications. ........................................................................................13

v. The Commission’s remaining efforts to apply Citizens United to this case 

are unavailing.............................................................................................15

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 2 of 24
ii

III. Plaintiff must prevail under Buckley, regardless of whether the Institute’s donors face 

a reasonable fear of threats, harassments, or reprisals, because the Commission cannot 

satisfy its burden under exacting scrutiny....................................................................17

CONCLUSION...................................................................................................................................18

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 3 of 24
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TABLE OF AUTHORITIES

Cases

Alvarez v. United States,

132 S. Ct. 2537 (2012).......................................................................................................12

Am. Civil Liberties Union v. Heller,

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

Anderson v. Spear,

356 F.3d 651 (6th Cir. 2004) ...............................................................................................9

Broadrick v. Oklahoma,

413 U.S. 601(1973)..............................................................................................................7

* Buckley v. Valeo,

424 U.S. 1 (1976)....................................................................................................... passim

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

447 U.S. 557 (1980)...........................................................................................................12

Ctr. for Individual Freedom v. Madigan,

694 F.3d 464 (7th Cir. 2012) .............................................................................................14

Chula Vista Citizens for Jobs & Fair Competition v. Norris, 

755 F.3d 671 (9th Cir. 2014) ...............................................................................................3

Citizens United v. FEC, 

558 U.S. 310 (2010)................................................................................................... passim

Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2008)...............................................................................9, 10

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

551 U.S. 449 (2007)...............................................................................................4, 5, 8, 11

Free Speech v. FEC,

720 F.3d 788 (10th Cir. 2013) ...........................................................................................14

Grayned v. City of Rockford,

408 U.S. 104 (1972).............................................................................................................7

Human Life of Washington, Inc. v. Brumsickle,

624 F.3d 990 (9th Cir. 2010) .............................................................................................15

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 4 of 24
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McConnell v. FEC, 

540 U.S. 93 (2003)..................................................................................................... passim

McCutcheon v. FEC, 

134 S.Ct. 1434 (2014)........................................................................................................10

Nat’l Ass’n of Mfrs. v. Taylor,

582 F.3d 1 (D.C. Cir. 2009)...............................................................................................13

Nat’l Org for Marriage v. McKee,

649 F.3d 34 (1st Cir. 2011)................................................................................................15

Nat’l Org. for Marriage v. Sec’y of State of Fla.,

477Fed. Appx. 584 (11th Cir. 2010)..................................................................................14

Shays v. FEC,

337 F. Supp. 2d 28 (D.D.C. 2004).....................................................................................16

SpeechNow.org v. FEC,

599 F.3d 686 (D.C. Cir. 2010).......................................................................................1, 14

Susan B. Anthony List v. Ohio Elections Comm’n,

No. 10-720, 2014 U.S. Dist. LEXIS 127382 (S.D. Ohio, Sept. 11, 2014) ........................12

Real Truth About Abortion, Inc. v. FEC, 

681 F.3d 544 (4th Cir. 2012) .............................................................................................14

United States v. Harriss,

347 U.S. 612 (1954)...........................................................................................................13

United States v. Williams,

553 U.S. 285 (2008)...........................................................................................................12

Virginia v. Black,

538 U.S. 343 (2003).............................................................................................................7

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

751 F.3d 804 (7th Cir. 2014) .............................................................................................10

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

546 U.S. 410 (2006).............................................................................................................4

Statute

26 U.S.C. § 501(c)(3).....................................................................................................................16

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 5 of 24
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Other Authorities

Advisory Op. Request 2007-32, “SpeechNow.org”,

FEDERAL ELECTION COMMISSION (Nov. 14, 2007)............................................................14

Advisory Op. 2012-11, “Free Speech”,

FEDERAL ELECTION COMMISSION (May 8, 2012) ..............................................................14

Exhibits 2, 3, Nat’l Organization for Marriage v. Sec’y of State of Fla.,

No. 10-192 (N.D. Fla. 2010)..............................................................................................15

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INTRODUCTION

Since Buckley v. Valeo, the Supreme Court has required courts to apply exacting scrutiny 

when reviewing government efforts to compel the disclosure of private donors. This heightened 

standard of review requires the government to demonstrate that its law serves a “sufficiently 

important” state interest and that its regulatory response is “closely drawn” to serve that interest. 

The Federal Election Commission (“FEC” or “Commission”) has not met this burden. Indeed, 

because it incorrectly insists that there cannot be any valid as-applied challenge to the Bipartisan 

Campaign Reform Act’s (“BCRA”) disclosure requirements, it makes little attempt to defend 

that statute as it is applied to Plaintiff’s specific advertisement.

The Commission cannot demonstrate a valid interest in the names and addresses of 

contributors to the Independence Institute, an organization that does not advocate any electoral 

outcome, based upon an advertisement that patently advocates solely for a legislative issue 

unrelated to any election. Its attempt to do so, which consists mostly of selected quotes from 

McConnell v. FEC and Citizens United v. FEC, is unavailing. Neither of these authorities permits 

the government to pry open the private donor lists of a § 501(c)(3) group if that group decides to 

run a genuine issue advertisement mentioning an incumbent officeholder who happens to be a 

candidate for office. Because the FEC’s citations are not applicable here, and Plaintiff relies 

upon the longstanding precedent of Buckley v. Valeo—which foresaw this precise 

circumstance—summary judgment should be entered for the Independence Institute. See 

SpeechNow.org v. FEC, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc) (“As we have observed in 

other contexts, something outweighs nothing every time”) (punctuation altered, citation omitted).

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ARGUMENT

I. Buckley v. Valeo requires exacting scrutiny to make certain that the damage

compelled disclosure inflicts upon associational liberties is appropriately tailored to 

the government’s informational interest.

It is undisputed that compulsory disclosure of an organization’s donors imposes a 

constitutional injury. Buckley v. Valeo, 424 U.S. 1, 64 (1976). It is further undisputed that there 

is an “informational interest” in providing the public with knowledge about “‘who is speaking 

about a candidate shortly before an election.’” Op. at 1, 9 (quoting Citizens United v. FEC, 558 

U.S. 310, 369 (2010)). The Supreme Court first reconciled these competing values in Buckley v. 

Valeo, where it balanced them by “requir[ing] that the subordinating interests of the State must 

survive exacting scrutiny.” 424 U.S. at 64. That is, the Court “insisted that there be a relevant 

correlation or substantial relation between the governmental interest and the information required 

to be disclosed.” Id. at 65 (citations and quotation marks omitted).

In the electoral context, the government’s interest lies in “increas[ing] the fund of 

information concerning those who support the candidates.” Id. at 81. Buckley concluded, 

logically enough, that this interest is only furthered where the activity at issue is “unambiguously 

campaign related.” Id. As discussed at some length in the Institute’s opening brief, the Court 

limited compelled disclosure to those groups which “make expenditures for communications that 

expressly advocate the election or defeat of a clearly identified candidate.” 424 U.S. at 80; see 

also Pl’s Mem. at 8-11. In only those cases does donor disclosure “bear[] a sufficient relationship 

to a substantial governmental interest. 424 U.S. at 80. 

This holding arose from the concern of both the en banc D.C. Circuit and the Supreme 

Court that FECA might compel disclosure from groups “whose only connection with the elective 

process arises from completely nonpartisan,” or even partisan, “public discussion of issues of 

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 8 of 24
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public importance.” Buckley v. Valeo, 519 F.3d 821, 870 (D.C. Cir. 1975); 424 U.S. at 80 

(narrowly construing FECA to prevent disclosure from “reach[ing] all partisan discussion”). 

Thus, the Supreme Court’s decision, mindful that “[c]andidates, especially incumbents, are 

intimately tied to public issues involving legislative proposals and governmental actions,” 

construed FECA to prevent disclosure regulations from capturing the precise kind of issue 

speech that Plaintiff wishes to engage in here. Buckley, 424 U.S. at 42.

Plaintiff’s advertisement implicates none of Buckley’s rationales for the informational 

interest. It does not—even by inference or suggestion—support or oppose Senator Udall or 

Senator Bennet. It is not “unambiguously campaign related” (nor could it be, given the Institute’s 

tax status). Its subject is not a candidate, but an issue. Plaintiff’s contributors are not members 

“of the candidates’ constituencies.” Even in the cases upon which the Commission relies, the 

Court has never understood the informational interest to extend to any communication that 

mentions a candidate under any circumstance.

Most fundamentally, “it is the government’s burden to show that its interests...are 

substantial, that those interests are furthered by the disclosure requirement, and that those 

interests outweigh the First Amendment burden the disclosure requirement imposes.” Chula 

Vista Citizens for Jobs & Fair Competition v. Norris, 755 F.3d 671, 684 (9th Cir. 2014) 

(citations and quotation marks omitted, ellipses and emphasis original). See also Op. at 18 (once 

a sufficiently important interest has been identified, the government must still demonstrate that 

the disclosure demanded is “substantially related” to that interest) (capitalization altered). Yet, 

despite the ad’s failure to implicate any of the components of the informational interest identified 

in Buckley, the Commission makes no attempt to demonstrate a link between the government’s 

interest and compelled publication of Plaintiff’s donors.

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II. Defendant’s authorities do not demonstrate that the electioneering communication 

disclosure provisions are tailored to the informational interest presented in this case.

The parties agree that exacting scrutiny applies here, but disagree about what that means.

In the FEC’s view, the Supreme Court has held that BCRA’s disclosure regime is always

appropriately tailored, regardless of a communication’s specific message and content. Plaintiff, 

on the other hand, relies upon Buckley in arguing that this burden cannot be carried absent 

Defendant’s showing that, on the facts of this case, disclosure furthers the informational interest.

The Commission argues that Plaintiff’s case is necessarily foreclosed because “The 

Supreme Court Resolved Facial and As-Applied Constitutional Challenges to BCRA’s EC 

Provisions in McConnell, WRTL [II], and Citizens United.” Op. at 6. This is true, so far as it 

goes, but none of those cases reaches the narrow question presented here.

As Plaintiff explained in its brief requesting a three judge court, McConnell was a facial 

ruling, and cannot dictate the outcome of this as-applied challenge.1In fact, the Supreme Court 

explicitly and unanimously held that that it is “incorrect” to read McConnell “as foreclosing any 

‘as-applied’ challenges to the prohibition on electioneering communications.” Wis. Right to Life, 

Inc. v. FEC, 546 U.S. 410, 411 (2006) (“WRTL I”) (citing McConnell v. FEC, 540 U.S. 93 

(2003)). Instead, McConnell “merely notes that because [the Court] found BCRA’s primary 

definition of ‘electioneering communication’ facially valid when used with regard to BCRA’s 

disclosure and funding requirements, it was unnecessary to consider the constitutionality of the 

backup definition Congress provided. In upholding § 203 against a facial challenge, we did not 

purport to resolve future as-applied challenges.” WRTL I, 546 U.S. at 411-12 (citing McConnell) 

 

1

FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 465 (2007) (“WRTL II”) (noting that McConnell 

was a facial challenge, where the “Court considered the possible facial overbreadth of § 203,” 

and was able “to conclude, on the record before it, that the plaintiffs had not ‘carried their heavy 

burden of proving’ that § 203 was facially overbroad and could not be enforced in any 

circumstances”) (quoting McConnell, 540 U.S. at 207) (emphasis supplied).

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 10 of 24
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(emphasis supplied). This unanimous opinion plainly applies here, and the FEC does not suggest 

otherwise. 

WRTL II, the follow-on case to WRTL I, was an as-applied challenge, which—in the 

Commission’s own words—“did not address BCRA’s EC disclosure provisions.” Op. at 7 (citing 

551 U.S. 449). Thus, in this regard, WRTL II also could not possibly have foreclosed this case, 

which addresses a statutory provision never considered by the WRTL II Court. 

Finally, Citizens United does not apply to the instant case, which deals with a 

communication that only refers to a candidate for office in relation to his ability to act as an 

officeholder—not as a candidate. We take the Commission’s principal citations to McConnell 

and Citizens United—both of which applied the requisite exacting scrutiny—in turn.

A. McConnell v. FEC

i. McConnell does not resolve this case because it was a facial challenge 

based upon a lengthy record, whereas this case is an as-applied 

challenge that relies upon decidedly different facts.

In McConnell, the Court began by identifying the relevant interest: “providing the 

electorate with information.” Op. at 19 (quoting McConnell, 540 U.S. at 196). Next, it 

recognized that applying disclosure to “the entire range of electioneering communications” 

would further this interest; it would, indeed, provide the electorate with information. Op. at 15 

(quoting McConnell at 196) (quotation marks and emphasis omitted). But this was not the end of 

the inquiry. The Court still had to apply the tailoring prong of the exacting scrutiny analysis. 

The Court did so based upon the district court’s finding that “[t]he factual record 

demonstrates...abuse of the present law.” McConnell at 196 (citation omitted). Based upon that 

record, the Court concluded that BCRA was sufficiently tailored, on its face, because “the vast 

majority of ads” which would be regulated as electioneering communications “clearly had” an 

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 11 of 24
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“electioneering purpose.” Id. at 206. The Court described these communications as broadcast ads 

which, rather than “urg[ing] viewers to ‘vote against Jane Doe,’” simply “condemned Jane Doe’s 

record on a particular issue before exhorting viewers to ‘call Jane Doe and tell her what you 

think.’” Id. at 127. “Moreover, the conclusion that such ads were specifically intended to affect 

election results was confirmed by the fact that almost all of them aired in the 60 days 

immediately preceding a federal election.” Id. Thus, the Court referred to these communications 

as “so-called” or “sham issue advocacy”—these “issue” ads’ true purpose was plainly to 

advocate the election of some candidates at the expense of others. Id. at 126, 128, 132.

In short, the McConnell Court engaged with the facts before it. The same must take place 

here, based upon the markedly different communication Plaintiff wishes to make. 

ii. To the extent that the Commission even suggests appropriate 

tailoring, it does so by conflating vagueness and overbreadth. This 

fails, because a law can be vague without being overbroad, overbroad 

without being vague (the case here), or both. In any such instance, 

that law is unconstitutional.

The Institute does not dispute that, on their face, “the elements of [BCRA’s] EC 

definition ‘are both easily understood and objectively determinable.’” Op. at 15 (quoting 

McConnell at 194). The Commission errs, however, in treating this lack of definitional 

vagueness as sufficient to demonstrate as-applied constitutionality. 

The government first suggests that Buckley construed FECA principally to avoid 

unconstitutional vagueness. See, e.g., Op. at 3 (“the [Buckley] Court struck down the Act’s limits 

on expenditures by individuals and candidates...[and] construed ‘expenditure’ narrowly to avoid 

invalidating the provision on vagueness grounds.”) The Commission characterizes the 

McConnell opinion, too, as facially upholding BCRA’s electioneering communication provisions 

based solely upon their lack of vagueness. Op. at 15 (“[t]he [McConnell] Court found that 

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 12 of 24
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BCRA’s EC definition did not raise any of the vagueness concerns that had led the Buckley 

Court to create its ‘express advocacy’ construction of the otherwise vague statutory definition of 

‘expenditure.’ The Court concluded that because the elements of the EC definition ‘are both 

easily understood and objectively determinable...the constitutional objection that persuaded the 

Court in Buckley to limit FECA’s reach to express advocacy is simply inapposite’ in evaluating 

the constitutional scope of BCRA’s definition of electioneering communications.”) (quoting 

McConnell at 194).

But this ignores an important maxim: to be constitutional, a statute must be neither vague 

nor overbroad.2It also misunderstands Buckley and McConnell. In addition to ensuring that 

FECA was not impermissibly vague, the Buckley Court took care to ensure that the scope of its 

reporting requirements was “not impermissibly broad” by “constru[ing] ‘expenditure’ for 

purposes of that section...to reach only funds used for communications that expressly advocate 

the election or defeat of a clearly identified candidate.” Id. at 79. See also Buckley at 61 (“[w]e 

affirm the determination [below] on overbreadth and hold that [FECA’s reporting and disclosure 

provision], if narrowly construed, also is within constitutional bounds”) (emphasis supplied).

McConnell reiterated as much: “[o]ur adoption of a narrowing construction [in Buckley]

was consistent with our vagueness and overbreadth doctrines.” 540 U.S. at 192, n. 75 (citing 

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); Grayned v. City of Rockford, 408 U.S. 104, 

108-14 (1972)). See also McConnell at 192 (“In narrowly reading the FECA provisions in 

 

2 Grayned v. Rockford, 408 U.S. at 109 (“where a vague statute abuts upon sensitive areas of 

basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain 

meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of 

the forbidden areas were clearly marked”) (citations, brackets, ellipses, quotation marks 

omitted); Virginia v. Black, 538 U.S. 343, 367 (2003) (anti-cross burning statute overbroad 

because “prima facie evidence provision in this case ignores all of the contextual factors that are 

necessary to decide whether a particular cross burning is intended to intimidate. The First 

Amendment does not permit such a shortcut”).

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Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute 

that was neither vague nor overbroad would be required to toe the same express advocacy line”) 

(emphasis supplied). And WRTL II explicitly read McConnell as having “concluded that there 

was no overbreadth concern to the extent the speech in question was the ‘functional equivalent’ 

of express campaign speech.” WRTL II, 551 U.S. at 456 (citing McConnell, 540 U.S. at 205-205, 

206).

3

The FEC has not shown that the electioneering communication provisions are not 

impermissibly broad as applied to the Institute. Instead, it makes much of McConnell’s notation 

that “Buckley did not establish a ‘constitutionally mandated line’ between express candidate 

advocacy and issue advocacy,” and that “Buckley’s ‘express advocacy restriction was an 

endpoint of statutory interpretation, not a first principle of constitutional law.’” Op. at 15 

(quoting McConnell, 540 U.S. at 190). It consequently suggests that, because McConnell upheld 

the electioneering communication definition on its face, any application of that definition must 

be constitutional. Op. at 15 (disputing Plaintiff’s argument that “McConnell upheld the 

disclosure portion of the EC ‘regime’ only ‘insofar as the regulated advertisements contain 

express advocacy or its functional equivalent.’” (quoting Pl.’s Mem. at 6)).

It is no surprise that Buckley’s distinction between candidate and issue advocacy was an 

“endpoint of statutory interpretation”: the Court was attempting to save a statute that was both

vague and overbroad. Consequently, FECA failed exacting scrutiny and the Court fashioned a 

remedy—the issue speech versus political speech distinction—in order to create a statute that 

was appropriately tailored. The distinction is not obsolete. Courts have recognized that 

 

3

The Court also “assume[d]” that the interests it had found to “justify the regulation of campaign 

speech might not apply to the regulation of genuine issue ads.” McConnell, 540 U.S. at 206, n. 

88.

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“McConnell ‘left intact the ability of courts to make distinctions between express advocacy and 

issue advocacy, where such distinctions are necessary to cure vagueness and over-breadth in 

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

significant governmental interest.’” Am. Civil Liberties Union v. Heller, 378 F.3d 979, 985 (9th 

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

Thus, we return to the lengthy record at issue in McConnell. BCRA’s electioneering 

communication definition was not facially overbroad because the vast majority of covered ads

were sham issue advocacy, and not the type of issue speech that led the Buckley Court to 

dramatically narrow FECA. The Institute’s ad, on the other hand, is exactly the type of issue 

speech that gave rise to Buckley’s narrowing construction. McConnell is consequently unhelpful 

here.

B. Citizens United v. FEC does not resolve this case.

i. Citizens United is distinct because it contemplated advertisements 

which could fairly be characterized as the functional equivalent of 

express advocacy.

The FEC’s assertion that Citizens United was decided “in a context directly analogous to 

the circumstances” here is overstated. Op. at 19. Citizens United funded a full-length feature 

film, Hillary: The Movie, which argued that Hillary Clinton should not be elected President. All 

nine Justices agreed that the film expressly advocated Senator Clinton’s defeat. Obviously, the 

Institute’s advertisement is not the equivalent of a two-hour film aimed at convincing viewers 

that “[Colorado] would be a dangerous place in a [Senator Mark Udall] world, and that viewers 

should vote against [him].” Citizens United v. FEC, 530 F. Supp. 2d 274, 280 (D.D.C. 2010). 

While the ads for Hillary presented a closer question, they were not remotely similar to 

the ad at issue here. Both ads mention the name of a candidate, but the commonalities end there. 

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 15 of 24
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The advertisements for Hillary were communications about Hillary Clinton, a Presidential 

candidate. The ads reflected the film they promoted, and, according to the Citizen United

majority, spoke pejoratively about Senator Clinton’s candidacy. 558 U.S. at 368 (citing 530 F. 

Supp. 2d at 276, n. 2-4). 

The Seventh Circuit Court of Appeals noted that the Citizens United opinion considered 

the ads for Hillary: The Movie the functional equivalent of express advocacy. Wisconsin Right to 

Life, Inc. v. Barland, 751 F.3d 804, 823 (7th Cir. 2014) (“The [Citizens United] Court began by 

holding that Hillary and the ads promoting it were the functional equivalent of express advocacy 

under Wisconsin Right to Life II and thus fell within BCRA’s ban on corporate electioneering 

communications”) (citing Citizens United, 558 U.S. at 324-325). Both the Commission and amici

hand-wave this finding. See, e.g. Amicus Br. of CLC, et al., at 14 (“no fair reading of Citizens

United would support the conclusion that” the Seventh Circuit came to). This blithe dismissal of 

a Federal Court of Appeals’ finding is odd: neither the FEC nor amici spend much time 

dissecting, refuting, distinguishing, or citing authority counter to this precise portion of Barland, 

which is the portion of the case Plaintiff relies upon. They simply assert that it is incorrect.4 But 

at the very least, this appellate ruling suggests that the Institute’s case is far from “necessarily 

foreclosed.” 

The most the FEC attempts to do is to argue that Plaintiff “offers no explanation of how” 

one advertisement for Hillary, “Pants,” could meet the WRTL II test for determining whether or 

 

4

Indeed, the FEC strenuously objects to the Institute’s characterization of Citizens United’s

discussion of the ads for Hillary as “brief.” Op. at 23. But Plaintiff has not constructed this 

reading from whole cloth, it echoes the Seventh Circuit’s reading of the case. Barland, 751 F.3d 

at 824 (“[t]he Court took a different approach to the disclaimer and disclosure requirements, 

although this part of the opinion is quite brief”); see also McCutcheon v. FEC, 134 S. Ct. 1434,

1445 (2014) (giving less weight to Buckley’s limited discussion of the “$25,000 aggregate limit 

under FECA” than other holdings of that opinion which “had been separately addressed at length 

by the parties”) (punctuation omitted).

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not a communication functions as express advocacy. Op. at 24. “Pants” suggested that the only 

“kind word” that could be said about Senator Clinton was that “[s]he looks good in a pant suit.” 

Id. at 276 n. 3. In fact, “Pants” is a classic example of the difference between the “functional 

equivalent of express advocacy” and a genuine issue ad.

First, the ad’s content is not “consistent with that of a genuine issue ad.” WRTL II, 551 

U.S. at 470. It does not “focus on a legislative issue, take a position on that issue, extort the 

public to adopt that position, and urge the public to contact public officials with respect to the 

matter.” Id. Second, the communications contains “indicia of express advocacy.” Id. It certainly 

“mentions a[]...candidacy...or challenger”—Hillary Clinton was not an incumbent President. 

Furthermore, it “do[es]...take a position on a candidate’s character, qualifications, or fitness.” Id. 

If the only nice thing that could be said about a candidate is that she wears a suit well, it follows 

that the candidate is of poor moral character and unqualified for office.

In any event, the ads for Hillary cannot be divorced from their immediate context. They 

aimed to convince viewers to purchase a film that unquestionably functioned as express 

advocacy.

But even if the ads for Hillary were not the functional equivalent of express advocacy, 

Citizens United still does not resolve this case, for two reasons. First, the ads were merely 

commercial speech, and not the form of issue speech anticipated and protected by Buckley. And 

second, unlike the advertisement at issue here, they were unequivocally related to a campaign.

ii. The fact that the ads for Hillary: The Movie pertained to a commercial 

transaction bolsters rather than weakens Plaintiff’s case. 

In asserting that the ads for Hillary were not the functional equivalent of express 

advocacy, the FEC relies heavily upon the Court’s statement that the ads proposed a commercial 

transaction. Op. at 19 (quoting Citizens United, 558 U.S. 369) (“‘Even if the ads only pertain to a 

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 17 of 24
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commercial transaction, the public has an interest in knowing who is speaking about a candidate 

shortly before an election’”). Thus, the Commission suggests, speech by the Institute that is not 

the functional equivalent of express advocacy can be subject to greater regulation.

This is backward. Commercial speech is less protected than issue speech, and can 

therefore be more stringently regulated. United States v. Williams, 553 U.S. 285, 298 (2008) 

(noting that “the First Amendment status of commercial speech” is “less privileged” than other 

forms of speech); see also Cent. Hudson Gas & Elec. v. Public Serv. Comm’n, 447 U.S. 557, 

562-563 (1980) (“[t]he Constitution therefore accords a lesser protection to commercial speech 

than to other constitutionally guaranteed expression”). Accordingly, the government may

regulate speech in the commercial context in ways that would never be accepted in the context of 

political speech. To use a recent example, while government could certainly require a 

commercial advertisement to hew to “truth in advertising” laws enforced by the Federal Trade 

Commission, it does not follow that “truth in politics” laws would pass First Amendment muster. 

See, e.g., Alvarez v. United States, 132 S. Ct. 2537 (2012); Susan B. Anthony List v. Ohio 

Elections Comm’n, No. 10-720, 2014 U.S. Dist. LEXIS 127382 (S.D. Ohio, Sept. 11, 2014).

In any event, it is undisputed that the broadcast communication that the Independence 

Institute wishes to disseminate is not commercial speech. Thus, it is not covered by the 

Commission’s understanding of the Citizens United majority opinion, even if that understanding 

were correct. Speech about legislative issues, unlike commercial speech, enjoys the most robust 

First Amendment protection. McConnell, 504 U.S. at 206, n. 88 (recognizing that certain BCRA 

regulations could not apply to genuine issue speech).

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 18 of 24
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iii. Although it is constitutional to impose disclosure upon lobbyists and 

those who speak about ballot measures, it does not follow that genuine 

issue speech may constitutionally trigger similar requirements.

The Commission suggests that mandatory disclosure for communications such as the 

Institute’s is “consistent with the Supreme Court’s earlier decisions finding that the 

government’s informational interest is sufficient to justify mandatory disclosure relating to two 

different forms” of speech. Op. at 20. Amici mirror this argument. CLC Br. at 16-20. While 

communications about ballot initiative elections may constitutionally trigger disclosure, this is 

because such speech is about an election. Op. at 20-21. Plaintiff’s speech is wholly divorced 

from any electoral outcome, and thus does not implicate the concerns that motivate ballot 

initiative disclosure. See Citizens United, 558 U.S. at 367 (tying informational interest in 

disclosure to ‘election-related’ speech). 

Moreover, the Commission exaggerates the extent of the informational interest related to 

lobbying disclosure. The Harriss Court narrowed the Regulation of Lobbying Act to apply only

to lobbyists who were paid to directly communicate with members of Congress for the express 

purpose of encouraging those members to cast specific votes on pending legislation. United 

States v. Harriss, 347 U.S. 612, 625 (1954); see Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 7-8 

(D.C. Cir. 2009) (upholding successor statute). That is, the public may have an interest in 

knowing who is paid to meet with members of Congress behind closed doors, or who pays others 

to do so on their behalf. The Institute’s donors, on the other hand, are funding an issue ad to the 

public—not paying a registered lobbyist to speak with Senators Udall and Bennet in private.

iv. The FEC’s out-of-circuit authorities likewise deal with dissimilar 

communications.

At note 11 of its brief, the FEC argues that “[o]ther Courts of Appeals have similarly 

relied on the Supreme Court’s constitutional analysis of EC disclosure requirements in Citizens 

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 19 of 24
14

United to reject constitutional challenges to other federal and state disclosure requirements.” Op. 

at 26, n. 11. But the Commission provides no context for this assertion. A quick review of the 

communications presented in those cases demonstrates why. None of them deals with 

communications which could fairly be called genuine issue speech.5

SpeechNow.org v. FEC explicitly addressed express advocacy. 599 F.3d 686. The PAC’s 

proposed communications urged viewers to use “the right to vote” to “[s]ay no to Burton for 

Congress.” Advisory Op. Request 2007-32, “SpeechNow.org”, FEDERAL ELECTION 

COMMISSION, (Nov. 14, 2007).6

Free Speech v. FEC asked whether advertisements were express advocacy for the 

purpose of determining PAC status, and presented proposed communications quite distinct from 

the Institute’s. 720 F.3d 788 (10th Cir. 2013). One such communication suggested that “Obama 

cannot be counted on to represent Wyoming values and voices as President.” Advisory Op.

2012-11, “Free Speech”, FEDERAL ELECTION COMMISSION at 7 (May 8, 2012).7

Ctr. for Individual Freedom v. Madigan did not discuss any particular scripts for 

electioneering communications, and in any event, was a facial challenge to a state disclosure 

regime. 694 F.3d 464, 470-71 (7th Cir. 2012). Like McConnell, it is inapplicable here.

Nat’l Organization for Marriage v. Sec’y of State of Fla. addressed, inter alia, proposed 

communications that expressly advocated for Rick Scott, the Republican nominee for governor, 

and against Alex Sink, his Democratic opponent. 477 Fed. Appx. 584 (11th Cir. 2010). A 

proposed ad focused upon Scott said “Rick Scott is running for governor. He and his ideas on 

 

5

The suggestion that Plaintiff “relies upon” Real Truth About Abortion v. FEC, 681 F.3d 551 

(4th Cir. 2012), Op. at 26, is odd. That case involved a communication that was without doubt 

the functional equivalent of express advocacy, and thus bears no resemblance to the Institute’s 

ad.

6

http://saos.nictusa.com/aodocs/959641.pdf.

7

http://saos.fec.gov/aodocs/AO%202012-11.pdf.

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marriage are what Floridians want.” Ex. 2, Nat’l Organization for Marriage, No. 10-192 (N. D. 

Fla. 2010) (ECF No. 1). Another ad dealing with Sink said “Alex Sink is running for governor. 

She and her ideas on civil unions are bad for Floridians.” Id., Ex. 3.

Nat’l Organization for Marriage v. McKee contemplated similar ads, one of which 

“raised fears that legalizing same-sex marriage would lead to schools teaching children about 

same-sex relationships,” and criticized by name candidates who supported gay marriage. 649 

F.3d 34, 49 (1st Cir. 2011).

Human Life of Washington, Inc. v. Brumsickle dealt with a ballot measure regarding 

legalized euthanasia, not a candidate election. 624 F.3d 990 (9th Cir. 2010). But the proposed 

communications, inter alia, suggested that legalizing assisted suicide “turns doctors into killers” 

and compared advocates of legalization with “Nazi docs.” Id. at 996.

Plainly, none of these communications are equivalent to the speech the Institute wishes to 

engage in. Thus, the FEC’s attempt to corral out-of-circuit precedent to support its expansive 

reading of Citizens United is unconvincing.

v. The Commission’s remaining efforts to apply Citizens United to this 

case are unavailing.

The FEC concludes its argument by attempting to refute two other characteristics which 

distinguish the Institute’s case from Citizens United. First, the Commission suggests that Justice 

Kennedy’s use of the word “pejorative” in every instance in which the Court discusses the ads 

for Hillary: The Movie is irrelevant. Op. at 28. Specifically, the FEC suggests that the “[t]he 

Court...at no point purported to limit the scope of th[e electioneering communication] definition, 

or the disclosure requirements attendant to it, to communications that” are “pejorative.” Op. at 

28. Yet, the Citizens United Court described the Hillary ads as “fall[ing] within BCRA’s 

definition of an ‘electioneering communication’: They referred to then-Senator Clinton by name 

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 21 of 24
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shortly before a primary and contained pejorative references to her candidacy.” 558 U.S. at 368. 

Plaintiff is at a loss what the second part of that sentence is doing, if the word “pejorative” is 

irrelevant. At a bare minimum, Justice Kennedy’s description of the ads as “pejorative” toward 

Hillary Clinton’s “candidacy” limits his reasoning; it cannot be fairly said to apply to every ad 

that happens to refer to a legislator. Again, the Citizens United advertisements made pejorative 

statements about a candidacy; they were consequently election-related in a way the Institute’s 

communication is not.

Second, the FEC suggests that the Institute’s § 501(c)(3) status is irrelevant. Yet, § 

501(c)(3) organizations are prohibited from engaging in electoral advocacy, and the harm donor 

disclosure works against a § 501(c)(3) is greater than other exempt entities (a point that the FEC 

has at least once explicitly recognized). 26 U.S.C. § 501(c)(3); Shays v. FEC, 337 F. Supp. 2d 

28, 125 (D.D.C. 2004) (“[i]n implementing this provision of BCRA, the FEC promulgated a 

regulating provision that ‘[e]lectioneering communication does not include any 

communication...paid for by any organization operating under section 501(c)(3) of the Internal 

Revenue Code of 1986”).8 Because § 501(c)(3) organizations, by definition, are barred from 

activity that “electioneers,” these organizations should not have to worry that an incidental 

mention of a candidate in compliance with their educational mission will subject their donors to 

disclosure. 

In short, the Commission would answer vagueness with overbreadth; an as-applied

challenge with facial precedent; and exacting scrutiny with a government interest shorn of 

tailoring. In all of these instances, the Commission meets only half its burden. In none is the 

 

8

The FEC correctly notes that this regulation was rejected under a Chevron analysis, but only 

because the Commission did not provide a “reasoned analysis” why it was issuing the regulation. 

Shays, 337 F. Supp. 2d at 127. This does not mean that such a “reasoned analysis” does not exist.

Case 1:14-cv-01500-CKK Document 22 Filed 09/26/14 Page 22 of 24
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result constitutional. The only thing that would control the outcome of this case is an on-point, 

as-applied challenge based upon a similar issue ad. There is no such case.

III. Plaintiff must prevail under Buckley, regardless of whether the Institute’s donors 

face a reasonable fear of threats, harassments, or reprisals, because the Commission 

cannot satisfy its burden under exacting scrutiny.

Since McConnell and Citizens United do not apply, we are left with the two Buckley 

cases. Both demand a ruling in favor of the Independence Institute. This is so despite the fact that 

the Institute does not assert that “disclosure would result in a reasonable probability of threats, 

harassments, or reprisals.” Op. at 31 (quotation marks and citations omitted). 

Buckley placed genuine issue speakers’ contributor information beyond the government’s 

reach. As a result, the Independence Institute need not invoke this exception to mandatory 

disclosure, which was designed for PACs and political parties which are generally already 

required to disclose under FECA. Buckley, 424 U.S. at 71 (discussing threats, harassment, or 

reprisals as an exception to FECA’s disclosure requirements as narrowed by the Court). That is, 

the “threats, harassment, or reprisals” standard that Plaintiff has foresworn reliance upon only 

applies to those entities who must disclose under Buckley. The Institute is not such a group, and 

may avail itself of Buckley’s protection of anonymous non-electoral association.

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CONCLUSION

At bottom, the Commission argues for a wooden, overly formalistic view of the 

constitutional liberties that compelled disclosure implicates. This is emphasized by their failure 

to demonstrate that disclosure of Plaintiff’s contributors is tailored, on the facts presented here, 

to its informational interest. But there is no shortcut past Buckley’s exacting scrutiny, which the 

Supreme Court imposed to protect precisely the type of speech at issue here. This standard 

requires courts to carefully consider whether the government has limited the disclosure it seeks 

to speech that advocates an electoral outcome or, at the barest minimum, is election-related. As 

the FEC has failed to meet its burden, judgment should be entered for Plaintiff.

Dated this 26th day of September, 2014.

Respectfully submitted,

/s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

Tyler Martinez*

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, VA 22314

Telephone: 703-894-6800

Facsimile: 703-894-6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff

*Admission pro hac vice pending

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