Oral Argument Not Yet Scheduled 

________________________________ 

No. 08-5223 

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UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

__________________________________ 

SPEECHNOW.ORG, et al., 

 Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant-Appellee. 

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FEDERAL ELECTION COMMISSION’S RESPONSE TO APPELLANTS’ 

MOTION TO EXPEDITE CONSIDERATION OF APPEAL 

 FROM DENIAL OF PRELIMINARY INJUNCTION 

___________________________________ 

 On July 15, 2009, appellants (collectively “SpeechNow”) asked this Court to 

expedite the briefing and oral argument in this appeal.1

 SpeechNow originally 

filed the appeal of the district court’s July 1, 2008, denial of a preliminary 

injunction on July 23, 2008, and after this Court set a briefing schedule, moved to 

hold the appeal in abeyance. The Commission does not object to the Court’s 

 

1

 This Court’s July 1, 2009, scheduling order set December 1, 2009, for 

appellants’ opening brief; December 31 for the Commission’s brief; January 15, 

2010, for amicus curiae’s brief; and January 29, 2010, for appellants’ reply brief. 

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advancing the schedule in SpeechNow’s renewed appeal. But the Commission 

notes some errors in the motion to expedite. 

 First, neither of the two statutes on which SpeechNow relies (Mot. at 2, 4) 

requires this Court to expedite its consideration of the underlying case or the 

district court’s denial of a preliminary injunction. Contrary to SpeechNow’s 

suggestion (Mot. at 2) , 2 U.S.C. § 437h—the jurisdictional basis for this challenge 

to the constitutionality of several provisions of the Federal Election Campaign Act 

(“Act”)—does not require this Court to expedite its review of the constitutional 

issues. Indeed, Congress repealed the Act’s expedition requirement (2 U.S.C. 

§ 437h(c)) a quarter of a century ago. An Act to Amend Title 28, United States 

Code, Pub. L. No. 98-620, Title IV, § 402(1)(B), 98 Stat. 3335, 3357 (1984). The 

two Supreme Court cases that SpeechNow cites (Mot. at 2) predate the repeal. 

 The other statute on which SpeechNow relies, 28 U.S.C. § 1657 (“Priority of 

civil actions”), does not unconditionally mandate expedited review of the denial of 

a preliminary injunction. SpeechNow quotes (Mot. at 4) only part of the provision. 

The omitted portion states that a court “shall expedite” consideration of an action 

for preliminary injunctive relief “if good cause therefore is shown. . . . ‘[G]ood 

cause’ is shown if a right under the Constitution . . . would be maintained in a 

factual context that indicates that request for expedited consideration has merit.” 

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 Although the Commission does not contest a change in the briefing 

schedule, it does not concede that the “factual context” of this case—a test case 

challenging decades-old law—indicates a meritorious request for expedition. 

Indeed, SpeechNow’s delay in pursuing a preliminary injunction may “indicate 

[the] absence of irreparable harm required to support a preliminary injunction.” 

Rodriguez v. De Buono, 175 F.3d 227, 235 n.9 (2d Cir. 1999) (citations omitted); 

see also 11A Wright, Miller, & Kane, Federal Practice and Procedure § 2948.1, 

156 n.12 (2007). Moreover, SpeechNow has never attempted to raise the funds it 

seeks in accordance with the Act’s $5,000 contribution limit, so its claims of 

irreparable harm remain unproven. If as few as twenty other individuals would 

each contribute the maximum $5,000 to SpeechNow.org, then their $100,000 plus 

$20,000 total from the four individuals mentioned in Keating’s accompanying 

affidavit (¶ 4 at 3) would give the organization $120,000 for advertising, the 

approximate amount that SpeechNow had planned to spend in the last election 

cycle. 

 Second, the Supreme Court has indicated that Congress may constitutionally 

limit the aggregate annual dollar amount a person may contribute to a political 

committee that makes only independent expenditures. In FEC v. Mass. Citizens 

for Life, Inc. (“MCFL”), 479 U.S. 238 (1986), for example, the Court addressed 

the electoral activities of a nonprofit, pro-life organization and noted that “[s]hould 

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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.” Id. at 262. And “[a]s such, [MCFL] would 

automatically be subject to the obligations and restrictions applicable to those 

groups whose primary objective is to influence political campaigns.” Id. 

In California Medical Ass’n v. FEC (“Cal Med”), 453 U.S. 182 (1981), the 

Supreme Court upheld the Act’s $5,000 aggregate annual limit on a person’s 

contributions to a multicandidate political committee. The Court “conclude[d] that 

[the limit] applies equally to all forms of contributions specified in [the Act.]” Id.

at 198 n.19. In McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court noted 

that the Act’s source and dollar limits on contributions apply not only to 

contributions to candidates but also to “funds available to engage in express 

advocacy and numerous other noncoordinated expenditures.” Id. at 152 n.48 

(discussing Cal Med). 

Contrary to SpeechNow’s assertion (Mot. at 7), therefore, Justice Blackmun 

in Cal Med is not the “only Supreme Court justice to express an opinion on the 

issue.” Justice Blackmun presented his views in dicta in a solo concurring opinion, 

and those views clash with the Court’s opinions in MCFL and McConnell.

 Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

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/s/ David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s/ Vivien Clair 

Attorney 

FOR DEFENDANT-APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

July 21, 2009 (202) 694-1650 

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CERTIFICATE OF SERVICE 

 I certify that on this 21st day of July 2009, I caused to be filed electronically 

using this Court’s ECF system and sent via the ECF electronic notification system 

a true copy of the Federal Election Commission’s RESPONSE TO 

APPELLANTS’ MOTION TO EXPEDITE CONSIDERATION OF APPEAL 

FROM DENIAL OF PRELIMINARY INJUNCTION on the following counse for 

plaintiffs-appellants: 

Robert Gall 

Institute for Justice 

901 N. Glebe Road, Suite 900 

Arlington, VA 22203. 

 I further certify that on this date I sent by e-mail an electronic copy of the 

Commission’s Response to wmellor@ij.org; ssimpson@ij.org; bgall@ij.org; 

psherman@ij.org; dsimon@sonosky.com; and GHebert@campaignlegalcenter.org. 

July 21, 2009 /s/ Vivien Clair 

 Attorney 

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, D.C. 20463 

 (202) 694-1650 

 

 

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