No. 12-8078 

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

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 

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

PLAINTIFF-APPELLANT’S REPLY BRIEF 

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

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 

ORAL ARGUMENT REQUESTED 

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

OR CALL COLLECT (402) 342-2831 

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TABLE OF CONTENTS 

Page 

Table of Contents ...................................................................................... i 

Table of Authorities .................................................................................. ii 

Argument .................................................................................................. 1 

 I. Introduction .................................................................................... 1 

 II. Appropriately Rigorous First Amendment Standards Must 

Govern ............................................................................................ 3 

 III. Exacting Scrutiny is Actually Exacting .......................................... 9 

a. Defining Exacting Scrutiny....................................................... 9 

b. Other Considerations Warrants Heightened Review 

Standards .................................................................................. 12 

 IV. Free Speech is Likely to Prevail on the Merits ............................... 14 

a. Hopelessly Flawed: 100.22(b) Cannot Survive Meaningful 

Review ...................................................................................... 14 

i. The FCC Analogue .............................................................. 15 

ii. A Tale of Two Commissions ................................................ 16 

iii A Failed Advisory Opinion Request, Vague Standards, and 

Thousands of Pages of Conflicting “Guidance” do not 

Make the Challenged System Constitutional ....................... 18 

b. The Major Purpose Test Still Protects Against Burdensome 

PAC Requirements .................................................................... 22 

 V. Free Speech has Demonstrated Irreparable Harm ........................... 27 

 VI. Balance of Harms ........................................................................... 28 

 VII. Conclusion ...................................................................................... 29 

Certificate of Virus Protection 

Certificate of Compliance 

Certificate of Service 

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TABLE OF AUTHORITIES 

Page 

CASES

American Constitutional Law Foundation v. Meyer, 120 F.3d 1092 

(10th Cir. 1997) ........................................................................................... 10 

Ashcroft v. ACLU, 542 U.S. 656 (2004) ......................................................... 7, 8 

Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ................................................ 7 

Baggett v. Bullitt, 377 U.S. 360 (1964) ............................................................ 12 

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

Cir. 1979) ............................................................................................... 17, 18 

Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................... 19, 22 

Burson v. Freeman, 504 U.S. 191 (1992) ........................................................... 9 

Cantwell v. Connecticut, 310 U.S. 296 (1940) ................................................. 13 

Center for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 

2012) ...................................................................................................... 23, 25 

Chandler v. City of Arvada, 292 F.3d 1236 (10th Cir. 2002) ............................ 9 

Chicago Teachers Union, Local No. 1 AFT v. Hudson, 475 U.S. 292 

(1986) ............................................................................................................. 5 

Citizens for Responsible Government State Political Action Cmte. v. 

Davidson, 236 F.3d 1174 (10th Cir. 2000).................................................. 10 

Citizens United v. FEC, 130 S.Ct. 876 (2010) .......................................... passim

Dombrowski v. Pfister, 380 U.S. 479 (1965) ................................................... 13 

Elrod v. Burns, 427 U.S. 347 (1976) .......................................................... 27, 28 

FCC v. Fox Television Stations, 132 S.Ct. 2307 (2012) .................................. 16

FEC v. Central Long Island Tax Reform Immediately, 616 F.2d 45 (2d 

Cir. 1980) ..................................................................................................... 18 

FEC v. GOPAC, 917 F.Supp. 851 (D.D.C. 1996) ............................................ 26 

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

(1986) ..................................................................................... 8, 10, 11, 24, 25 

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TABLE OF AUTHORITIES – Continued 

Page 

FEC v. Wisconsin Right to Life (WRTL), 551 U.S. 449 (2007)...... 6, 7, 8, 17, 18 

Fox Television Stations v. Federal Communications Comm’n (FCC), 

613 F.3d 317 (2d Cir. 2010) .................................................................. 15, 16

Freedman v. Maryland, 380 U.S. 51 (1965) .................................................... 16 

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 

418 (2006) .................................................................................................. 7, 8 

Marbury v. Madison, 1 Cranch 137 (1803) ...................................................... 18 

Minnesota Citizens Concerned for Life v. Swanson, 692 F.3d 864 (8th 

Cir. 2012) ..................................................................................................... 11 

NAACP v. Button, 371 U.S. 415 (1963) ........................................................... 13 

Nat’l Organization for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) ........ 23 

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) ...... 25 

New York Times v. Sullivan, 376 U.S. 254 (1964) ............................................. 5 

Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005) ...... 27

Purcell v. Gonzalez, 549 U.S. 1 (2006) .............................................................. 4 

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

2012) ...................................................................................................... 23, 26 

Republican Party of Minnesota v. White, 536 U.S. 765 (2002) ....................... 13 

Service Employees Int’l Union v. Fair Political Practices Comm’n, 955 

F.2d 1312 (9th Cir. 1992) ............................................................................ 10 

Shays v. FEC, 511 F.Supp.2d 19 (D.D.C. 2007) .............................................. 26 

Smith v. California, 361 U.S. 147 (1959) ......................................................... 13 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ...................... 22, 23, 24 

Speiser v. Randall, 357 U.S. 513 (1958) .......................................................... 13 

Thomas v. Collins, 323 U.S. 516 (1945) ............................................................ 4 

Thornhill v. Alabama, 310 U.S. 88 (1940) ....................................................... 13 

Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061 (10th Cir. 

2001) ...................................................................................................... 14, 28 

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TABLE OF AUTHORITIES – Continued 

Page 

United States v. Alvarez, 132 S.Ct. 2537 (2012) .............................................. 10 

United States v. Nat’l Cmte. for Impeachment, 469 F.2d 1135 (2d Cir. 

1972) .......................................................................................................... 1, 2 

Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202 (10th Cir. 2003)...... 14 

STATUTES AND REGULATIONS

2 U.S.C. § 434(a)(4) ......................................................................................... 25 

2 U.S.C. § 434(b) .............................................................................................. 25 

2 U.S.C. §434(c) ............................................................................................... 25 

2 U.S.C. § 434(f)(2) .......................................................................................... 24 

2 U.S.C. § 437g(d)(1)(A)(i) .............................................................................. 12 

2 U.S.C. § 437g(d)(1)(A)(ii) ............................................................................. 12 

2 U.S.C. § 441e ................................................................................................. 23 

11 CFR § 100.22(a) .......................................................................................... 17 

11 CFR § 100.22(b) ................................................................................... passim

11 CFR § 109.10 ................................................................................................. 8 

OTHER AUTHORITIES

11A CHARLES A. WRIGHT, ARTHUR R. MILLER AND MARY KANE, 

FEDERAL PRACTICE AND PROCEDURE § 2948.1 (2d ed. 1995) .................... 27 

A. BICKEL, THE MORALITY OF CONSENT (1975) .............................................. 17 

FEC Advisory Opinion Request 2012-19, available at http://saos. 

nictusa.com/saos/searchao?SUBMIT=ao&AO=3440 ................................ 19 

FEC’s Opposition to Plaintiff’s Application for a Preliminary Injunction, EMILY’S List v. FEC, 569 F.Supp.2d 18 (D.D.C. 2008) (No. 05-

CV-00049), available at http://www.fec.gov/law/litigation/opposition_ 

to_injunction05CV00049.pdf ........................................................................ 3 

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TABLE OF AUTHORITIES – Continued 

Page 

FEC’s Memorandum in Opposition to Plaintiff’s Motion for Preliminary 

Injunction, Carey v. FEC, 791 F.Supp.2d 121 (D.D.C. 2011) (No. 

11-CV-00259), available at http://www.fec.gov/law/litigation/ 

carey_fec_opp_to_mot_for_prelim_inj.pdf .............................................. 3, 4 

G. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW (10th 

ed. 1980) ........................................................................................................ 5 

Instructions for Preparing FEC Form 5, available at http://www.fec. 

gov/pdf/forms/fecfrm5i.pdf ........................................................................... 8 

MUR 5831 (Softer Voices) Certification (FEC 2010), available at

http://eqs.nictusa.com/eqsdocsMUR/10044282476.pdf ............................. 22 

MUR 5842 (Economic Freedom Fund) Certification (FEC 2009), available at http://eqs.nictusa.com/eqsdocsMUR/10044282476.pdf ................. 22 

MUR 5977 (American Leadership Project) Certification (FEC 2009), 

available at http://eqs.nictusa.com/eqsdocsMUR/29044231595.pdf ......... 22 

Supplemental Brief for the Appellee, Citizens United v. FEC, 130 S.Ct. 

876 (2010) (No. 08-205), 2009 WL 2219300 ............................................... 3 

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ARGUMENT

I. Introduction

Nearly 41 years ago, in one of the first judicial treatments of the Federal 

Election Campaign Act (“FECA”), the Second Circuit would predict the 

constitutional fault lines present before this Court today. On May 31, 1972, the 

National Committee for Impeachment thought it simple enough to run an 

advertisement in the New York Times commenting about President Nixon’s 

character and his administration’s actions in Vietnam. United States v. Nat’l Cmte.

for Impeachment, 469 F.2d 1135 (2d Cir. 1972). The advertisement also included 

an “Honor Roll” of officeholders who supported the Committee’s views. But this 

proved too much, as the federal government initially stopped National Committee 

from “performing the functions of a political committee . . . including the 

acceptance of contributions and the disbursement of monies.” Id. at 1137. Thus, 

one of the first bold attempts to ensure “disclosure” under the Act wound up 

dampening free speech.

The federal government was certain the National Committee should be 

forced to register as a political committee (“PAC”) “because the advertisement is 

derogatory to the President’s stand on the Vietnam War, the President is a 

candidate for re-election, and the war is a campaign issue.” Id. at 1138. The 

Second Circuit flatly rejected this theory, explaining that on “this basis every 

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position on any issue, major or minor, taken by anyone would be a campaign issue 

and any comment upon it in, say, a newspaper editorial or an advertisement would 

be subject to proscription unless the registration and disclosure regulations of the 

Act in question were complied with.” Id. (emphasis added). This result could only 

be described as “abhorrent.” Id.

Today, the Federal Election Commission (“FEC”) advocates in very much 

the same fashion as the federal government did in National Committee. Without 

stringent limits in interpreting the FECA “every little Audubon Society chapter 

would be a ‘political committee,’ for ‘environment’ is an issue in one campaign 

after another.” Id. at 1142; see also Free Speech Br. at 30–31 (discussing its 

“Environmental Policy” script). With so broad an application of the Act and so 

vague an interpretation, any “organization would be wary of expressing any 

viewpoint lest under the Act it be required to register, file reports, disclose its 

contributors, or the like.” Id.

Today, we are left with a Commission empowered to declare any speech on 

“any issue, major or minor, taken by anyone” “subject to proscription unless the 

registration and disclosure regulations of the Act in question [are] complied with.” 

Id. The imposition of PAC burdens constituted “proscription” for the Second 

Circuit, not reasonable regulation or mere disclosure. See also Citizens United v. 

FEC, 130 S.Ct. 876, 897–98 (2010) (PACs must exist before they can speak). 

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II. Appropriately Rigorous First Amendment Standards Must Govern

The FEC attempts to market its Byzantine regulatory machine as “eminently 

reasonable,” a model of transparency, and one that allows Free Speech to be “free 

to finance and distribute each of its proposed advertisements, and to solicit and 

accept unlimited contributions to pay for them.” FEC Br. at 18. Looking past this 

veneer, the functional equivalent of a prior restraint emerges.

In past challenges, the FEC routinely defended its bans and speech 

suppressing policies in the same way it does today—dressing up prohibitions as

reasonable means to educate and inform the public. See, e.g., Supplemental Brief

for the Appellee at 15, Citizens United v. FEC, 130 S.Ct. 876 (2010) (No. 08-205), 

2009 WL 2219300, at *15 (where the FEC notes that it is “simply wrong to view 

those [electioneering communications provisions] as a complete ban on expression 

rather than a regulation” (internal quotations and citations omitted)); FEC’s 

Opposition to Plaintiff’s Application for a Preliminary Injunction at 42, EMILY’s 

List v. FEC, 569 F.Supp.2d 18 (D.D.C. 2008) (No. 05-CV-00049), available at

http://www.fec.gov/law/litigation/opposition_to_injunction05CV00049.pdf 

(describing funding bans as mere regulatory programs because an organization

“remains free to finance its political speech with all the hard money it can convince 

its supporters to contribute”); FEC’s Memorandum in Opposition to Plaintiff’s 

Motion for Preliminary Injunction at 1, Carey v. FEC, 791 F.Supp.2d 121 (D.D.C. 

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2011) (No. 11-CV-00259), available at

http://www.fec.gov/law/litigation/carey_fec_opp_to_mot_for_prelim_inj.pdf 

(describing a ban on fundraising and contributions as reasonable elements of a 

regulatory program—“This case, therefore, is not about banning plaintiffs’ speech 

or fundraising, but about reasonable requirements that help prevent corruption and 

inform the public”). The FEC never sees a speech ban, even when it enforces one. 

Fortunately, reviewing courts have looked past superficial labels to substance and 

alleviated the constitutional injuries in each case. Careful attention to substantive 

form, not superficial labels of “disclosure,” is equally important here. 

The FEC goes to great lengths to convince this Court that requests for 

injunctive relief concerning alleged government infringement of political speech 

fall into the same category as any other request for injunctive relief. But this is not 

true. See Thomas v. Collins, 323 U.S. 516, 529–30 (1945) (when First Amendment 

interests are implicated the “usual presumption supporting legislation” is reversed 

in favor of the “indispensable democratic freedoms secured by the First 

Amendment”). To achieve its procedural sleight-of-hand, the FEC handily cites 

in-chambers opinions and cases unrelated to the instance at hand. For example, the 

FEC errantly cites Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam), for 

the notion that injunctions are inappropriate in the pre-election context because 

they might result in “voter confusion.” FEC Br. at 19. But Purcell involved the 

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very mechanics of state voter identification processes, not the free speech of 

citizens, and any discussion of “voter confusion” and disfavored injunctive relief is 

properly cabined to those facts. 

As discussed in Section III, exacting scrutiny is closely related to strict 

scrutiny. This is especially true when regulations affecting political speech carry 

criminal penalties. That courts regularly apply heightened scrutiny and err in favor 

of free speech in challenges involving political speech reflects foundational 

constitutional concerns. In short, First Amendment freedoms are nothing less than 

fundamental to our democratic system of government. New York Times v. 

Sullivan, 376 U.S. 254 (1964). Because these freedoms are at the core of our free 

society and because they are so fragile and easily destroyed, “procedural 

safeguards often have a special bite in the First Amendment context.” Chicago 

Teachers Union, Local No. 1 AFT v. Hudson, 475 U.S. 292, 303 n.12 (1986) 

(quoting G. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 1373 

(10th ed. 1980)) (the “purpose of these safeguards is to insure that the government 

treads with sensitivity in areas freighted with First Amendment concerns”). Thus, 

it should come with little surprise that courts have acted to jealously guard 

protected First Amendment freedoms through the careful development of speechfriendly procedural rules. Here, Free Speech simply asks that these procedural 

safeguards be recognized.

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The Citizens United Court explained that when citizens decide to speak out 

on issues they care about, 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.” 130 S.Ct. at 889; see also FEC v. Wisconsin Right to Life 

(WRTL), 551 U.S. 449, 469 (2007).

1

 This reflects the simple constitutional truth 

that regulations abutting political speech must be simple, comprehensible, and any 

disputes concerning them must be easily resolved. Otherwise, as the Citizens 

United Court put it, a “speaker’s ability to engage in political speech that could 

have a chance of persuading voters is stifled if the speaker must first commence a 

protracted lawsuit.” 130 S.Ct. at 895. For Citizens United, it took more than two 

years for it to learn whether the speech it wished to communicate in 2008 would 

have been lawful—“long after the opportunity to persuade primary votes has 

passed.”2 Id. Just the same, Free Speech has already lost its initial chance to 

 

1

The FEC suggests that the operative burden-shifting rules announced in WRTL do 

not apply here, since “no speech is being censored.” FEC Br. at 21 n.3. However, 

WRTL speaks 16 times to providing meaningful standards when speech is 

regulated. This is because the WRTL Court understood that vague and overbroad 

regulations lead to censorship. Censorship is rarely announced through banners 

and proclamations.

2

True to form, the Commission argues in its brief that because Free Speech labeled 

its emergency request to speak just before the general election as its “last 

meaningful chance to speak” that this somehow proves its communications are 

“candidate advocacy.” FEC Br. at 59 n.19. There is extreme incongruence 

between the principle applied by the FEC—speech close to an election must 

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communicate when it mattered most and must wade through litigation to secure its 

First Amendment freedoms.

Taking Citizens United, WRTL, and the greater body of case law involving 

political speech seriously means that concrete procedural rules must be in place for 

the adjudication of challenges to campaign finance provisions allegedly infringing 

upon the First Amendment rights of speakers. Following speech-sensitive 

standards when adjudicating requests for injunctive relief concerning the First 

Amendment would not create a “nation without laws.” FEC Br. at 21. But, where 

laws allegedly infringe upon protected First Amendment freedoms, government

actors would face stringent requirements to justify these results. See, e.g., WRTL, 

551 U.S. at 474. It is understandable the FEC might protest.

If the wisdom of WRTL and Citizens United is to have application, then it 

must be paired to existing speech-protective precedent to do so. Ashcroft v. ACLU, 

542 U.S. 656 (2004), and Gonzales v. O Centro Espirita Beneficente Uniao do 

Vegetal, 546 U.S. 418 (2006) provide just the bedrock for this. Ashcroft explains 

that where government is tasked with showing its regulation is the least restrictive 

alternative, burdens are properly shifted to the government in the context of a 

request for preliminary injunctive relief. 542 U.S. at 666; see also Awad v. Ziriax, 

 

necessarily be “candidate advocacy”—and that posited by the Supreme Court in 

Citizens United. 130 S.Ct. at 895 (“It is well known that the public begins to 

concentrate on elections only in the weeks immediately before they are held.

There are short timeframes in which speech can have influence”). 

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670 F.3d 1111, 1129 (10th Cir. 2012). Likewise, Gonzales holds for the 

proposition that burdens at the preliminary injunctive phase track those at trial. 

546 U.S. at 429. Taken together, these precedents give concrete effect to the 

requirements of WRTL and Citizens United by ensuring that speech-protective 

standards govern judicial considerations of political speech. 

In this instance, controlling precedent illustrates that any court analyzing the 

constitutional validity of PAC regulations must inquire whether the “state interest 

in disclosure [] can be met in a manner less restrictive than imposing the full 

panoply of regulations that accompany status as a political committee under the 

Act.” FEC v. Massachusetts Citizens for Life (MCFL), 479 U.S. 238, 262 (1986); 

see also Citizens United, 130 S.Ct. at 915 (“disclosure is a less restrictive 

alternative to more comprehensive regulations of speech”). Taken together, this 

means that the lower court should have presumed that Free Speech was likely to 

prevail unless its proposed alternatives were “less effective” than imposing the full 

panoply of PAC regulations. Ashcroft, 542 U.S. at 666. This would have 

demanded that the FEC bear the burden of demonstrating why three retired men 

from Wyoming would be required to register and report under burdensome PAC 

requirements when existing disclosure regimes adequately carried out the 

government’s interest in disclosure. See 11 CFR § 109.10 (describing the less 

burdensome reporting regime applicable to non-PAC filers); see also Instructions 

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for Preparing FEC Form 5, available at

http://www.fec.gov/pdf/forms/fecfrm5i.pdf. Because this did not occur, the lower 

court committed an abuse of its discretion.

III. Exacting Scrutiny is Actually Exacting

Although the FEC argues that exacting scrutiny is synonymous with 

intermediate scrutiny, these two standards are not the same. Exacting scrutiny, 

closely related to strict scrutiny, developed out of a need for the rigorous protection 

of political speech while intermediate scrutiny is usually applied to lesser value 

speech. 

a. Defining Exacting Scrutiny

The FEC errs by differentiating strict and exacting scrutiny far too greatly, 

and appears determined to move the requirements of exacting scrutiny further 

away from strict scrutiny. See FEC Br. at 33. For many years courts—including 

this Court—largely considered strict and exacting scrutiny as synonymous. See, 

e.g., Burson v. Freeman, 504 U.S. 191, 198 (1992) (describing exacting scrutiny as 

requiring that the “State must show that the regulation is necessary to serve a 

compelling state interest and that it is narrowly drawn to achieve that end”) 

(internal quotations omitted); Chandler v. City of Arvada, 292 F.3d 1236, 1241 

(10th Cir. 2002) (“[W]e are persuaded Ordinance No. 3590 is subject to strict

scrutiny. Arvada even acknowledges exacting judicial scrutiny is the appropriate 

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legal standard applicable in this case.” (emphasis added)); Citizens for Responsible 

Government State Political Action Cmte. v. Davidson, 236 F.3d 1174, 1198–1200 

(10th Cir. 2000) (applying strict scrutiny to disclaimer provisions). Although the 

two types of scrutiny are distinct, exacting scrutiny remains much closer to strict 

scrutiny than it does intermediate scrutiny. See Service Employees Int’l Union v. 

Fair Political Practices Comm’n, 955 F.2d 1312, 1322 (9th Cir. 1992) (“The

Supreme Court has applied a somewhat less stringent test than strict scrutiny to 

decide the constitutionality of contribution limitations. . . . However, the test is 

still a ‘rigorous’ one”).

Specifically, exacting scrutiny has a long history in which courts consider 

less restrictive means when determining whether a speech-burdening law bears a 

substantial relation to a sufficiently important governmental interest. The best 

examples of this tradition as it relates to political speech are found in the Tenth 

Circuit in American Constitutional Law Foundation v. Meyer and at the Supreme 

Court in MCFL. 120 F.3d 1092, 1103–1104 (10th Cir. 1997); 479 U.S. at 262; see

Free Speech Br. at 40–42; see also United States v. Alvarez, 132 S.Ct. 2537, 2548–

51 (2012) (Ruling that the Stolen Valor Act could not survive exacting scrutiny 

because of many adequate alternatives to penalizing false speech). Specifically, 

the MCFL Court, in considering the constitutional validity of PAC requirements, 

asked whether there was a “compelling” government interest and whether any 

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interest in disclosure could “be met in a manner less restrictive than imposing the 

full panoply of regulations that accompany status as a political committee.” 479 

U.S. at 262. To avoid this result, the FEC does not ask the proper initial question: 

is this challenge about disclosure or about the burdens of PAC status? Only by 

superficially categorizing the case as one about simple disclosure may it rely on 

precedent to support its premature assumption. 

The present case calls only for an affirmation of MCFL as far as scrutiny and 

disclosure is concerned, an affirmation that a sizeable but hardly exclusive “body 

of authority” has overlooked. Compare FEC Br. at 35 with Minnesota Citizens 

Concerned for Life v. Swanson, 692 F.3d 864, 875 (8th Cir. 2012) (“We question 

whether the Supreme Court intended exacting scrutiny to apply to laws . . . which 

subject associations that engage in minimal speech to ‘the full panoply of 

regulations that accompany status as a [PAC]’”). The added step that this Court 

must take is to affirm that laws applying comprehensive burdens to political 

speech—that is, PAC status—must be understandable to a person of ordinary 

intelligence and properly tailored. The FEC’s current regime fails these tests. 

Only when the PAC regime is not vague and overbroad will it meet the edicts of

MCFL and Citizens United. See MCFL, 479 U.S. at 262 (“[T]here is no need for 

the sake of disclosure to treat MCFL any differently than other organizations that 

only occasionally engage in independent spending on behalf of candidates”). 

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b. Other Considerations Warrant Heightened Review Standards

It must not be forgotten that government efforts to criminalize speech, like 

those at issue here, warrant additional scrutiny by this Court. Under the FECA, 

individuals who knowingly and willfully spend beyond $2,000 during a calendar 

year for speech without properly reporting or registering with the Commission may 

be imprisoned for up to one year. 2 U.S.C. § 437g(d)(1)(A)(ii). Similarly, 

aggregating beyond $25,000 for speech without properly reporting or registering 

with the Commission allows for imprisonment for up to five years. 2 U.S.C. § 

437g(d)(1)(A)(i). The FECA has transformed political speech, an “essential 

mechanism of democracy,” into criminal speech. Citizens United, 130 S.Ct. at 

898. Thus, three gentlemen from Wyoming who dare spend more than $2,000 for 

a newspaper advertisement criticizing the government while discussing their views 

may be jailed if they elect not to register with the government beforehand. 

The FEC attempts to mollify the serious penal consequences of nonregistration and reporting with promises of enlightened guidance and fair 

administrative or prosecutorial proceedings. Whatever promises the Commission 

might offer, a “prosecutor’s sense of fairness” is insufficient to remedy the 

constitutional maladies here. Baggett v. Bullitt, 377 U.S. 360, 373 (1964). Just the 

same, well-intentioned bureaucrats and administrative safeguards do not cure 

bedrock constitutional defects. Id. at 373–74. It cannot be said that the FEC’s 

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enforcement procedure or defending against criminal sanctions in court assure the 

ample vindication of constitutional rights. They do not. Dombrowski v. Pfister, 

380 U.S. 479, 486 (1965). The mere existence of penal penalties combined with 

vague and overbroad laws work a constitutional injury in the first place. See 

NAACP v. Button, 371 U.S. 415, 433 (1963). Because First Amendment freedoms 

are “delicate and vulnerable, as well as supremely precious in our society,” courts 

employ strict standards of review when reviewing efforts of the government to 

criminalize speech. See, e.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); 

Thornhill v. Alabama, 310 U.S. 88 (1940); Smith v. California, 361 U.S. 147 

(1959); Speiser v. Randall, 357 U.S. 513 (1958). 

Further still, where laws operate to ban speech on the “basis of its content” 

or burden political speech at the core of our First Amendment freedoms, strict 

scrutiny is regularly warranted. Republican Party of Minnesota v. White, 536 U.S. 

765, 774 (2002) (internal quotations omitted). As the majority found in Citizens 

United, “a speaker who wants to avoid threats of criminal liability and the heavy 

costs of defending against FEC enforcement must ask a governmental agency for 

prior permission to speak.” 558 U.S. at 895. Here, prospective speakers must 

entrust their speech to be evaluated by bureaucrats at the FEC who will decide if an 

“electoral portion,” contextual factors, or its proximity to an election will transform 

free speech into regulated or banned speech. The FEC has admitted as such. FEC 

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Br. at 39 (arguing that the term “expressly advocating” is “without definition or 

limit”). This “unprecedented governmental intervention into the realm of speech” 

supports the application of stricter scrutiny as was recognized in Citizens United. 

130 S.Ct. at 896. Because the lower court failed to apply the correct scrutiny 

relevant to these First Amendment claims, it committed an abuse of its discretion. 

See, e.g., Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202 (10th Cir. 2003) 

(applying incorrect legal standard constitutes an abuse of discretion); Utah 

Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061 (10th Cir. 2001) (applying 

incorrect First Amendment standard constitutes an abuse of discretion).

IV. Free Speech is Likely to Prevail on the Merits

a. Hopelessly Flawed: 100.22(b) Cannot Survive Meaningful Review

In order to avoid the perils of criminal prosecution and hefty civil penalties, 

speakers must know in advance what triggers regulation. This guarantee is 

especially important in the context of political speech, and that is why this Court’s 

focus on the FEC’s accordion-like interpretation and application of Section 

100.22(b) is especially needed.

3

 

 

3

Free Speech rests on its argument submitted in its opening brief concerning the 

constitutional standards surrounding what constitutes regulated solicitations and 

contributions. See Free Speech Br. at 34–38. The same limiting concerns 

identified in construing Section 100.22(b) apply to the Commission’s policy for 

interpreting solicitations.

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Whether dealing with a “two-prong, eleven-factor balancing test,” Citizens 

United, 558 U.S. at 895, a three-factor “patently offensive” test, Fox Television 

Stations v. Federal Communications Comm’n (FCC), 613 F.3d 317, 330 (2d Cir. 

2010) (vacated on other grounds), or other similarly vague speech codes, courts 

have been insistent on ensuring that objectivity, fair notice, and a simple ability to 

understand the regulations at issue rule the day. Comparing the FEC’s approach to 

regulating high-value, political speech to the FCC’s approach to regulating lowvalue, indecent speech is instructive in this regard.

i. The FCC Analogue 

For many years, the FCC focused its indecency enforcement efforts on 

“seven ‘dirty’ words” described in the infamous George Carlin monologue. See id. 

This approach, while considered anemic by some, had one clear constitutional 

benefit: broadcasters and those subject to the law could consult a clear list of 

prohibited speech to avoid penalties. Id. at 330–31. Under this standard, the FCC 

did not undertake a single enforcement action in nine years. Unsatisfied with this 

result, the FCC abandoned this policy in favor of a “flexible standard” because 

broadcasters found “offensive ways of depicting sexual or excretory organs or 

activities without using any of the seven words.” Id. at 331. The FCC’s argument, 

much like the FEC’s, was simple: because speakers could “circumvent” these 

seven words, the agency needed the “maximum amount of flexibility to be able to 

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decide what is indecent.” Id. Upon reviewing this flexible standard, it led the 

Second Circuit to conclude that such standards are constitutionally deficient 

because if the “FCC cannot anticipate what will be considered indecent under its 

policy, then it can hardly expect broadcasters to do so.” Id.

Likewise, the Supreme Court found the FCC’s flexible standard problematic. 

In short, “the due process protection against vague regulations does not leave 

[regulated parties] . . . at the mercy of noblesse oblige.” FCC v. Fox Television 

Stations, 132 S.Ct. 2307, 2318 (2012) (internal quotations and citations omitted).

On top of this, conflicting enforcement actions and regulatory guidance only made 

the matter worse, leading to additional uncertainty about the reach and application 

of the regulations in question. Id. at 2319–20. 

ii. A Tale of Two Commissions

Both the FCC and the FEC routinely trumpet the need for flexible standards 

lest citizens find ways to circumvent their authority, regulations, and control. The 

FEC is particularly problematic with its history of expanding the reach of its 

regulatory programs and policies while circumventing the confinement of the First 

Amendment. See Citizens United, 130 S.Ct. at 896 (“Because the FEC’s business 

is to censor, there inheres the danger that [it] may well be less responsive than a 

court . . . to the constitutionally protected interests in free expression”) (quoting 

Freedman v. Maryland, 380 U.S. 51, 57–58 (1965)). The purported need for these 

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flexible standards, as described by both commissions, is to prevent 

“circumvention” of regulatory authority—at the expense of breathing space for 

constitutional liberties. 

Under the FEC’s regulatory regime, 11 CFR § 100.22(a) affords citizens the 

type of fair notice and clear standards necessary to comply with the law. It 

includes a simple description of express advocacy along with explicit examples of 

speech that would trigger regulation. Like the FCC’s prior seven dirty words list, 

it is narrow in its reach and easy to understand. But the FEC’s flexible standard, 

the approach in 11 CFR § 100.22(b), suffers from the same flaws as the FCC’s, but 

in an area of speech of much greater constitutional magnitude. 

Recent losses suffered by the FEC illustrate the same point. No matter the 

import of government’s need to regulate, rigid barriers must exist between 

regulated and non-regulated speech. It has been the position of the Tenth Circuit 

for some 34 years to “prefer that governmental officials acting in sensitive First 

Amendment areas err, when they do err, on the side of protecting those interests.” 

Bertot v. School Dist. No. 1 Albany County, Wyo., 613 F.2d 245, 252 (10th Cir. 

1979) (citing A. BICKEL, THE MORALITY OF CONSENT 78 (1975)). This operative 

rule was recognized by the Supreme Court in WRTL. 551 U.S. at 457 (“First 

Amendment requires us to err on the side of protecting political speech rather than 

suppressing it”). In order to err in favor of First Amendment interests, government 

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regulations, policies, and actions must reflect and obey these judicial constructs. 

See generally Marbury v. Madison, 1 Cranch 137 (1803). But the FEC has 

manifestly ignored this instruction. When presented with an advisory opinion 

request asking whether the advertisements in question were regulated under the 

law, the Commission reached a three-three vote among commissioners for five of 

the advertisements—a tie—but failed to give the benefit of the doubt to Free 

Speech. 2 App. 280. Instead, the FEC left Free Speech in legal limbo, unprotected 

against agency action. Beyond these five advertisements, no majority bloc of 

commissioners could agree on the legal standards that limit the reach of Section 

100.22(b). Compare 2 App. 197–210 with 2 App. 227–57.

iii. A Failed Advisory Opinion Request, Vague Standards, and 

Thousands of Pages of Conflicting “Guidance” do not Make 

the Challenged System Constitutional

Guided by its supposed need for flexible standards, the FEC implements the 

very inverse of the principles established in Bertot and WRTL. These principles 

demand breathing space, regulatory restraint, and clarity, but frustrate the 

regulatory ambition of the Commission. See, e.g., FEC v. Central Long Island Tax 

Reform Immediately, 616 F.2d 45, 55 (2d Cir. 1980) (Kaufman, J., concurring) 

(“such bureaucracies feed upon speech and almost ineluctably come to view 

unrestrained expression as a political ‘evil’ to be tamed, muzzled, or sterilized”). 

If they were implemented in a meaningful way, the FEC’s authority would shrink 

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considerably. It should come as little surprise, then, that the Commission 

continues to recognize regulatory flexibility and discretion over regulatory restraint 

and constitutional limits. 

The English language enjoys no shortage of creative and clumsy ways to 

articulate one’s perspective about politics, candidates for office, and public 

policies. Indeed, with each electoral cycle, new issues, new technologies, and new 

means of communication evolve, making the FEC’s mission to capture more 

speech ever the more elusive. See, e.g., FEC Advisory Opinion Request 2012-19, 

available at http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=3440

(splintered Commission vote about whether the term “Obamacare” constituted a 

reference to a candidate or to legislation). But along the way, the constitutional 

liberties of a free people are placed in greater peril. The Buckley Court understood 

this point and warned that the “distinction between discussion of issues and 

candidates and advocacy of election or defeat of candidates may often dissolve in 

practical application.” Buckley v. Valeo, 424 U.S. 1, 42 (1976). The proven cure, 

and the remedy sought all along in this litigation, is the resurrection of clear lines 

of regulatory demarcation for prospective speakers. 

Free Speech provided detailed pleadings and references to the deep inner 

dissonance at the FEC over Section 100.22(b). Its experience in the slow-moving 

advisory opinion process produced utter confusion and illustrates the FEC’s history 

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of consistent inconsistency. The FEC chastises Free Speech for doing “little to 

support its purported as-applied claims, barely mentioning Free Speech’s proposed 

communications. . . .” FEC Br. at 24 n.4. Of course, given the length and density 

of the issues involved, repetitive briefing on each proposed advertisement planned 

by Free Speech is impossible. However, the record below, combined with Free 

Speech’s arguments herein, demonstrates the inconsistency and constitutional 

chaos connected with the FEC’s administration of Section 100.22(b). 

When reviewing this appeal, one conclusion becomes quickly evident. The 

FEC is an agency deeply confused over the meaning of its own regulations, 

policies, and their application. FEC attorneys elected to represent the legal 

position of three commissioners as controlling authority in this litigation. Yet, the 

record below proves just the opposite—that commissioners at the FEC could not 

decide upon the proper standards to be applied when asked about them 

prospectively. This means that speakers must now guess the legal standards that 

the FEC’s attorneys, not commissioners, will employ in enforcement actions, 

investigations, and for prospective speech—all without an ounce of meaningful 

guidance.

It is true that close calls happen with some frequency when interpreting 

well-defined regulatory criteria. But it is ever truer that complete deadlocks and 

chaos ensue when the regulatory agency interpreting Section 100.22(b) cannot 

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agree on its meaning, viability, scope, or application. Compare Free Speech 

Advisory Opinion (AO) Draft B, 2 App. 199–201 (interpreting the “Environmental 

Policy” advertisement to be express advocacy because it did not include enough 

language discussing legislation to satisfy three commissioners) with AO Draft C, 2 

App. 249 (interpreting the same advertisement to be issue advocacy because it 

discusses harmful effects of legislation on ranching and could be interpreted in 

many reasonable ways); AO Draft B, 2 App. 204–06 (interpreting the “Gun 

Control” advertisement to be express advocacy because it comments on the 

qualifications of a candidate for federal office and mentions a particular time of 

year) with AO Draft C, 2 App. 252–53 (interpreting the same advertisement to be 

issue advocacy because the call to action is focused on state, not federal, 

candidates). But while the FEC cannot anticipate the standards it applies to 

determining regulated speech under Section 100.22(b), it demands that Free 

Speech, and speakers nationwide, do so. 

The FEC argues that Free Speech’s references to the Commission’s 

confusing and contradictory enforcement examples demonstrates just how 

“narrow” Section 100.22(b) really is, since none of the matters involved findings 

of a violation of the FECA. FEC Br. at 38. What the Commission fails to 

understand is that First Amendment case law plainly recognizes that the mere 

existence of unwieldy regulatory standards chills, and injures, speakers, and being 

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forced to undergone lengthy FEC investigations for years just to be proven 

innocent hardly cures these constitutional deficiencies. See, e.g., MUR 5977

(American Leadership Project) Certification (FEC 2009), available at

http://eqs.nictusa.com/eqsdocsMUR/29044231595.pdf (one year enforcement 

process leading to no violations); MUR 5831 (Softer Voices) Certification (FEC 

2010), available at http://eqs.nictusa.com/eqsdocsMUR/10044282476.pdf (four 

year enforcement process leading to no violations); MUR 5842 (Economic 

Freedom Fund) Certification (FEC 2009), available at

http://eqs.nictusa.com/eqsdocsMUR/10044282476.pdf (two year enforcement 

process leading to no violations).

 Enduring this process is a constitutional harm, and it is triggered by the 

vagueness and overbreadth of Section 100.22(b). That the lower court did not 

recognize these constitutional and statutory fault lines is an abuse of its discretion.

b. The Major Purpose Test Still Protects Against Burdensome PAC 

Requirements

The FEC asserts that “disclosure requirements for PACs are constitutional 

because they ‘directly serve substantial governmental interests[.]’” FEC Br. at 41 

(citing Buckley, 424 U.S. at 68). Aside from the informational interest, the FEC 

cites the enforcement interest, to help “‘expose violations of other campaign 

finance restrictions, such as those barring contributions from foreign corporations 

or individuals.’” Id. (citing SpeechNow.org v. FEC, 599 F.3d 686, 698 (D.C. Cir. 

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2010)). Ironically, this interest only furthers Free Speech’s argument that PAC 

status is burdensome and must be avoidable with bright-line standards. Although 

Free Speech will not target foreign corporations or individuals to sponsor its issue 

advocacy, it would gladly accept contributions from either in order to further its 

message. Absent clear standards for express advocacy and solicitations, this is 

another risk for Free Speech. See 2 U.S.C. § 441e (prohibiting foreign nationals 

from making independent expenditures or electioneering communications and 

soliciting contributions for the same). 

The FEC refuses to differentiate disclosure from PAC status. FEC Br. at 42. 

It relies on court decisions that conflated the two regimes yet reiterate Citizens 

United’s reasoning that “disclosure is a less restrictive alternative to more 

comprehensive regulations of speech.” 130 S.Ct. at 915; see, e.g., SpeechNow, 599 

F.3d at 696; Real Truth About Abortion v. FEC (RTAA), 681 F.3d 544, 551 (4th 

Cir. 2012); Center for Individual Freedom v. Madigan, 697 F.3d 464, 477 (7th Cir. 

2012); Nat’l Organization for Marriage v. McKee, 649 F.3d 34, 55 (1st Cir. 2011). 

But however many times the FEC argues it, and however many lower courts accept 

it, this is nonetheless an erroneous application of Citizens United. The case upheld 

disclosure for electioneering communications that, whether advocating for a 

candidate or not, require only a single filing with the FEC when undertaken by an 

association or individual. See Free Speech Br. at 20. PAC status was not at issue 

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in Citizens United, but the Supreme Court’s discussion of disclosure repeatedly 

cites to MCFL, which makes it abundantly clear that PAC status is, in fact, a more 

comprehensive regulation of speech than disclosure. See Free Speech Br. at 20–

24, 38–41. PAC status is burdensome as a matter of law. 

The FEC further argues that PACs do not “‘impose much of an additional 

burden’ in comparison with the reporting requirements for independent 

expenditures and electioneering communications. . . .” FEC Br. at 44. They rely 

on SpeechNow, but neglect to mention that SpeechNow “conceded that ‘the 

reporting is not really going to impose an additional burden’” on its organization. 

599 F.3d at 697 (emphasis added). Free Speech will suffer heavy burdens under a 

complicated reporting regime against three individuals simply wishing to speak.

SpeechNow was also a PAC by its own design with the major purpose of electing 

candidates, id. at 689, while Free Speech seeks to speak about issues and is only a 

PAC by FEC edict. See, e.g., FEC Br. at 44 (“[In SpeechNow the] D.C. Circuit 

upheld PAC reporting requirements as applied to independent-expenditure-only 

groups like Free Speech” (emphasis added)). The FEC then cites the impressive 

figure that 2,670 PACs have registered since Citizens United. FEC Br. at 44. This 

does nothing to contradict the burdens of PAC status. Tellingly, the FEC offers 

anything but the laws themselves to support its argument, since they reveal a great 

divide between disclosure and PAC status. Compare 2 U.S.C. § 434(f)(2) (singleAppellate Case: 12-8078 Document: 01019006753 Date Filed: 02/22/2013 Page: 30 
25

report disclosure requirements for electioneering communications) and 2 U.S.C. 

§434(c) (single-report disclosure requirements for independent expenditures) with

2 U.S.C. §§ 434(a)(4), (b) (extensive, ongoing reporting requirements for PACs); 

see also Free Speech Br. at 39–41. 

The FEC continues to argue that Citizens United and MCFL only held that 

PACs are burdensome alternatives that cannot alleviate a ban on corporate or union 

speech, but are simultaneously not burdensome when they are imposed upon 

groups that could otherwise speak unencumbered by such a comprehensive 

regulatory morass. FEC Br. at 43. The FEC goes even further and offers a citation 

to the recent Madigan decision, which allows PAC status to be imposed upon nonPACs under Illinois law. Id. at 41–42 (citing Madigan, 679 F.3d at 490). This is 

the inevitable conclusion of the FEC’s argument: if PAC status is indeed just 

disclosure and is not burdensome, then there is no need for the major purpose test 

and any and all groups that engage in any sort of political activity may be required 

to register and report. But since the major purpose test has been re-affirmed by 

this Court since Citizens United, it follows that it serves to assuage at least some 

burden on associational freedoms and speech, and thus it must be understandable 

so that groups may avoid the legal burdens of being forced to register and report as

a PAC. See New Mexico Youth Organized v. Herrera, 611 F.3d 669, 679 (10th 

Cir. 2010).

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The major purpose test remains an important function for protecting issue 

advocacy organizations from the FEC’s reach. Although the FEC claims that its 

Choose-Your-Own-Adventure-style approach to the test is “the law of this Court,” 

FEC Br. at 49, this Court has never addressed the test in a manner similar to this 

case. Nor have the other courts the FEC relies upon. In Shays v. FEC, an APA 

challenge, the plaintiffs and the court warned of First Amendment problems related 

to a case-by-case, undefined major purpose test. 511 F.Supp.2d 19, 30 (D.D.C. 

2007) (“Plaintiffs contend that the agency’s approach . . . is vulnerable to attacks 

under the First Amendment or Due Process. These are also concerns expressed by 

the Court in 2006”). RTAA offered nothing in the way of an as-applied challenge, 

since the organization did not engage with the FEC prior to its suit. 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”). Although Free Speech’s counsel incorrectly 

cited the venue of the GOPAC decision in its opening brief, its principles remain 

persuasive. 917 F.Supp. 851, 861 (D.D.C. 1996) (“Confining the definition of 

‘political committee’ to an organization whose major purpose is the election of a 

particular federal candidate or candidates provides an appropriate ‘bright-line’ rule; 

attempting to determine what is an ‘issue advocacy’ group versus an ‘electoral 

politics’ group—as the Commission proposes—does not”). Free Speech brings an 

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27

extensive, contradictory record of FEC material that is made all the more 

confusing—and thus chilling—by the arguments of the FEC’s attorneys. Compare

2 App. 214–19 with 2 App. 266–78. This record establishes the facial vagueness 

and overbreath of the major purpose test, and the lower court committed an abuse 

of discretion in failing to examine these points.

The FEC does not address Free Speech’s as-applied challenge, which lays 

out the FEC’s pick-and-choose approach to relevant factors under the major 

purpose test. See Free Speech Br. at 47–52. The FEC simply cannot defend 

factors that only arise when they favor regulation. The major purpose test is 

facially vague and overbroad, and as applied to Free Speech.

V. Free Speech has Demonstrated Irreparable Harm 

It is black letter law that alleged violations of First Amendment rights are 

considered irreparable injuries for purpose of a preliminary injunction. See Elrod 

v. Burns, 427 U.S. 347, 373 (1976); see also 11A CHARLES A. WRIGHT, ARTHUR R.

MILLER AND MARY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.1 at 161 

(2d ed. 1995) (when an “alleged deprivation of a constitutional right is involved, 

most courts hold that no further showing of irreparable injury is necessary”). The 

Tenth Circuit has routinely held that deprivations of speech rights automatically 

constitute irreparable injuries. See, e.g., Pacific Frontier v. Pleasant Grove City, 

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28

414 F.3d 1221, 1235–36 (10th Cir. 2005); Utah Licensed Beverage Ass’n v. 

Leavitt, 256 F.3d 1061, 1076 (10th Cir. 2001). And so it is true here. 

The FEC argues that Free Speech must make a showing of “reasonable 

probability” that its members will be harassed or threatened to satisfy the 

irreparable injury prong of this analysis, but its arguments are misplaced. FEC Br.

at 57. The Commission attempts to paint Free Speech’s challenge as one against 

all disclosure and cites case law involving parties seeking wholesale exemption 

from disclosure laws. This is not the case here, making the referenced standards 

inapposite to the case at hand. Free Speech, as it has routinely pled, is not 

challenging disclosure, but the imposition of vague and shifting regulatory 

standards that give rise to the application of PAC burdens. Thus, the well-settled 

body of case law from Elrod forward governs here and establishes an assumed 

irreparable injury. 

VI. Balance of Harms

In its balance of harms argument, the FEC’s attorneys conclude yet again, 

with no backing from a majority of the agency’s commissioners, that Free Speech 

is a PAC. FEC Br. at 58–59. Now well past the November 2012 election cycle, 

and nearly one year since it filed its advisory opinion request, 2 App. 102, Free 

Speech remains silenced, and thus harmed. Absent a posture paralleling the 

FCC—that is, that understandable laws lead to less regulatory capture—the FEC 

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29

will suffer no harm from preliminary injunctive relief for Free Speech. See Free 

Speech Br. 57–58.

VII. Conclusion

Free Speech renews its request for relief as stated in its opening brief. 

Dated: February 22, 2013.

Benjamin T. Barr

10737 Hunting Ln

Rockville, MD 20850

Telephone: 202-595-4671

benjamin.barr@gmail.com

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: February 22, 2013

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B).

Excluding the table of contents and table of authorities, as directed by Rule 

32(a)(7)(B)(iii), I certify to the best of my belief and knowledge that this brief 

contains 6,991 words as calculated by Microsoft Word.

This brief 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: February 22, 2013

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CERTIFICATE OF SERVICE

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

filing or e-mail this 22nd day of February, 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

Lisa Stevenson

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

lstevenson@fec.gov

Nicholas Vassallo

U.S. Attorney's Office

District of Wyoming

P.O. Box 668

Cheyenne, WY 82003-0668

(307) 772-2124 

nick.vassallo@usdoj.gov

David Kolker

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

dkolker@fec.gov

Larry Jones

Counsel for Amici Curiae

Simpson Kepler & Edwards, LLC

1135 14th St

Cody, WY 82414

(307) 527-7891

ljones@skelaw.com

J. Gerald Herbert

Counsel for Amici Curiae

Campaign Legal Center

215 E Street NE

Washington, DC 20002

(202) 736-2200

gherbert@campaignlegalcenter.org

____/s/____________

Stephen Klein

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