UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

____________________________________ 

 )

SPEECHNOW.ORG, )

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 )

 Plaintiffs, ) 

 )

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 )

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

PLAINTIFFS’ REPLY IN SUPPORT OF 

MOTION FOR PRELIMINARY INJUNCTION

_______________________________________________________

Steven M. Simpson (DC Bar No. 462553) Stephen M. Hoersting* 

William H. Mellor (DC Bar No. 462072) Bradley A. Smith* 

Robert Gall (DC Bar No. 482476) Michael P. Darner* 

Paul M. Sherman (DC Bar No.978663) CENTER FOR COMPETITIVE POLITICS

INSTITUTE FOR JUSTICE 124 W. Street South, Suite 201 

901 N. Glebe Road, Suite 900 Alexandria, VA 22314 

Arlington, VA 22203 Tel: (703) 894-6800 

Tel: (703) 682-9320 Email: smhoer@aol.com, 

Email: wmellor@ij.org, ssimpson@ij.org, mdarner@campaignfreedom.org 

bgall@ij.org, psherman@ij.org BSmith@law.capital.edu 

Attorneys for Plaintiffs 

*Admitted Pro Hac Vice 

Dated: March 12, 2008

Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 1 of 32
TABLE OF CONTENTS

Page

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

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

ARGUMENT..................................................................................................................................5 

I. Plaintiffs Are Substantially Likely to Succeed on the Merits. ...................................5

A. SpeechNow.org is Not the Type Of Group That the Supreme 

Court Has Allowed to be Subjected to Contribution Limits....................................6

1. Contribution limits impose more than a marginal restriction 

on the First Amendment rights of SpeechNow.org and its 

supporters. ..............................................................................................................6

2. SpeechNow.org’s independence from candidates and groups that 

work with or have access to candidates distinguishes this case 

from those on which the FEC relies. ....................................................................9

B. The FEC Has Not Demonstrated an Interest Sufficient to Justify 

Limiting Contributions to SpeechNow.org Under Any Level of Scrutiny. ..........13 

1. Spending by independent groups and the possibility of gratitude by 

candidates is not corruption................................................................................13 

2. The Supreme Court’s concern with the “distorting effects of immense 

aggregations of wealth” cannot justify the application of contribution 

 limits to SpeechNow.org. .....................................................................................15

II. Plaintiffs Will Suffer Irreparable Harm Without an Injunction. ............................17

A. Plaintiffs’ Injuries are Actual and Certain..............................................................17

B. Plaintiffs’ Face Imminent Injury..............................................................................20

C. Plaintiffs’ Injury is Beyond Remediation. ...............................................................21

D. A Preliminary Injunction Will Prevent the Harm to Plaintiffs 

Caused by the Contribution Limits..........................................................................22 

III. An Injunction Will Not Substantially Injure the FEC and Will Advance the 

Public’s Interest. ...........................................................................................................23

Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 2 of 32
Page

CONCLUSION ............................................................................................................................24 

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TABLE OF AUTHORITIES

Cases Page(s)

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)...........................................15,16 

Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342 (2d Cir. 2003)......................................20

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

California Medical Assoc. v. FEC, 453 U.S. 182 (1981) .........................................................9,10 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006)........................20 

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 

919 F.2d 148 (D.D.C. 1990) .....................................................................................................19,20 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) .............................6,7,8,12 

Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990)................................................................23 

Columbia Hosp. for Women Found. v. Bank of Tokyo-Mitsubishi, 

15 F. Supp. 2d 1(D.D.C. 1997)......................................................................................................17 

Community-Service Broadcasting of Mid-America, Inc. v. FCC, 

593 F.2d 1102 (D.C. Cir. 1978).....................................................................................................21 

Donaldson v. United States Dep’t of Labor, 930 F.2d 339 (4th Cir. 1990)..............................22,23 

Edgar v. MITE, 457 U.S. 624 (1982).............................................................................................23 

Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................................17,19 

FEC v. Colorado Republican Campaign Committee, 533 U.S. 431 (2001)..................................10 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) .................................................12,16 

FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985)...................... passim

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007)............................................3,4,20,21 

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)....................................................14 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1998) .................................................................22 

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

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Page(s)

Mills v. Alabama, 384 U.S. 214 (1966) .........................................................................................24 

Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) ...............................................17 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) .................................................9 

NTEU v. United States, 927 F.2d 1235 (D.C. Cir. 1991)...............................................................19 

Ragin v. New York Times Co., 726 F. Supp. 953 (S.D.N.Y. 1989) ...............................................14 

Randall v. Sorrell, 126 S.Ct. 2479 (2006) ..................................................................................3,13 

Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974)..........................................22 

Sears Roebuck & Co. v. NLRB, 473 F.2d 91 (D.C. Cir. 1972)......................................................22 

Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998)..........................................................................23 

Veitch v. Danzig, 135 F.Supp.2d 32 (D.D.C. 2001) ......................................................................17 

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987).........................................................................19 

Wisconsin Right to Life, Inc. v. FEC, Civ. No. 04-1260, 

2004 WL 3622736 (D.D.C. Aug. 17, 2004) ..................................................................................20 

Wisconsin Right to Life, Inc. v. FEC, No. 04-1260, 

2006 WL 2666017 (D.D.C. Sept. 14, 2006)..................................................................................21 

Codes, Rules and Statutes

2 U.S.C. § 441a(a)(1)(C)................................................................................................................17 

 § 441a(a)(3).....................................................................................................................17 

11 CFR §114.5(b) .....................................................................................................................14,19 

26 U.S.C. § 527(c) .........................................................................................................................16 

D.C. Code § 29-971.06. .................................................................................................................15 

iv

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Page(s)

Publications

Richard Briffault, The 527 Problem...and the Buckley Problem, 

73 Geo. Wash. L. Rev. 1701 (2005) ..............................................................................................14 

Gregg D. Polsky, A Tax Lawyer’s Perspective on Section 527 Organizations, 

28 Cardozo L. Rev. 1773 (2007) ...................................................................................................16 

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INTRODUCTION

SpeechNow.org is a group of citizens who wish to spend their own money on their own 

speech. Its supporters wish to associate with SpeechNow.org because they share its views about 

First Amendment rights and how to protect those rights, and they want to pool their funds in 

order to amplify their voices beyond what any of them could achieve on their own. 

SpeechNow.org will operate completely independently of candidates, political parties,

corporations, unions and any other entity the Supreme Court and federal law have indicated 

might raise concerns about the corruption of candidates or its appearance. The steps 

SpeechNow.org has taken to ensure its independence from these entities were not devised solely 

by SpeechNow.org itself; they are dictated by federal law. SpeechNow.org will simply follow 

the steps detailed by Congress and by the FEC for groups that wish to make expenditures 

independent of candidates and entities related to candidates and thus free of any taint of 

corruption. If SpeechNow.org cannot achieve independence in this manner, then it is not 

possible for any group or individual to become independent of candidates or groups that create 

concerns about corruption. 

These basic facts—SpeechNow.org’s nature as a group of individuals associating for a 

common speech-related purpose and its independence from any entity that could create concerns

about corruption—make this case factually distinct from any case on which the FEC relies and, 

indeed, from any case in which the Supreme Court has upheld contribution limits. 

SpeechNow.org can create no more concerns about corruption or its appearance than an 

individual making the same independent expenditures on the same advertisements. Indeed, the 

FEC admits as much by arguing that Fred Young, one of SpeechNow.org’s potential supporters, 

could simply spend his own money on the exact same advertisements free of any limits on the 

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funds he chooses to devote to those advertisements. See FEC’s Memorandum in Opposition to 

Motion for Preliminary Injunction (“FEC’s Opp. Mem.”) at 34. 

This is a key point in this case and one that the FEC and amici—in their combined 80 

pages of briefing—fail to address. If Fred Young spending roughly the same amount of money 

on exactly the same advertisements raises no concerns about corruption, then how can 

SpeechNow.org raise any concerns about corruption by doing precisely the same thing?

The only answer the FEC can give is that Fred Young is not a group. When Fred Young 

spends his money directly on advertisements, he is making an “expenditure” under the law, 

rather than a “contribution.” Fred Young would devote his own money to advertisements, rather 

than the money of those who agree with him, and thus he is not a “political committee.” Fred 

Young may thus operate free of any limits on the funds he can devote to his advertisements. 

However, if Fred Young decides to help fund the same advertisements by joining with others and 

donating money to SpeechNow.org, suddenly he may only spend $5000. 

But this approach not only strips the right of association out of the First Amendment, it 

treats the campaign finance laws—and the terms “contribution,” “expenditure” and “political

committee”—as constitutionally-sacrosanct “magic words” that apply regardless of context, 

regardless of the nature of the First Amendment rights involved, and regardless of any legitimate 

concerns about corruption. The FEC thus approaches this case in much the same manner that its 

general counsel approached SpeechNow.org’s advisory opinion request. It applies statutory 

terms to facts, and then discusses a number of decisions that have interpreted those statutory 

terms in entirely different circumstances. The FEC points out that the Supreme Court in Buckley 

v. Valeo concluded that contributions to candidates and campaign organizations conveyed only 

“the undifferentiated symbolic act of contributing,” 424 U.S. 1, 21 (1976), ignoring the fact that 

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the Court in other cases has concluded that contributions to groups like SpeechNow.org convey 

much more than that and must be protected as exercises of the fundamental right of association 

as well as the right to free speech. Likewise, the FEC points out that the Court has repeatedly 

upheld contribution limits, ignoring the fact that it has done so for contributions to candidates or 

groups that can act as conduits to candidates, that work closely with candidates, or that can be 

said to provide “access” to candidates—that is, groups that raise the specter of actual or 

perceived corruption. But the Supreme Court has never held that the mere possibility that a 

candidate will feel gratitude toward a group that spends money on political speech is enough to 

justify contribution limits, nor has it held that contribution limits of any type are necessarily 

constitutional, as the FEC implies. 

In short, context matters. Just last term, the Supreme Court held in FEC v. Wisconsin 

Right to Life, Inc. (“WRTL II”) that the electioneering communications ban could not be applied 

to a group that did not raise the concerns for which the ban was passed, despite the fact that the 

Court upheld the law on its face a scant four years before. See 127 S.Ct. 2652 (2007). In 

Randall v. Sorrell, the Court struck down limits on contributions made directly to candidates 

despite the fact that it has repeatedly upheld contribution limits through the years. See 126 S.Ct. 

2479 (2006). The Court made clear in both cases that the government has an obligation, not 

simply to demonstrate that restrictions on speech serve some hypothetical purpose, but that they 

further legitimate state interests as applied in a given set of circumstances. 

Seeming to understand that it lacks any coherent argument that SpeechNow.org raises 

real concerns about corruption, the FEC offers a version of “corporate form” corruption that 

eliminates the key factor that has justified special limits on corporations—the corporate form. In 

the FEC’s view, SpeechNow.org, an unincorporated association, raises the same concerns as a 

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for-profit corporation, because it allegedly enjoys the same state-created benefits. But this 

argument ignores the campaign finance laws, themselves, which single out corporations for 

special treatment, not unincorporated associations. Moreover, under the FEC’s new version of 

corporate form corruption, virtually any entity that is legally distinct from the individuals who 

comprise and operate it would be subject to limits on its speech. The special limits that apply to 

corporations are based on attributes unique to corporations and find justification in at least a 

century’s worth of law and jurisprudence. There are no grounds for applying the same approach 

to unincorporated associations that accept no corporate or union funds. 

The FEC accuses Plaintiffs of taking a crabbed view of corruption, but this betrays the 

FEC’s singular focus on the possibility of corruption to the exclusion of all competing 

constitutional values. In WRTL II, the Supreme Court made clear that the First Amendment 

cannot be swept aside by ever more attenuated concerns with preventing the possibility, not of 

corruption itself, but of efforts to circumvent provisions that were put in place to prevent the 

possibility of corruption. Such a “prophylaxis-upon-prophylaxis” approach is inconsistent with 

the First Amendment. See 127 S.Ct. at 2672. The possibility of “circumvention” is not the same

thing as the reality or appearance of corruption, and there is a limit to how far this rationale can 

be stretched. See id. That limit must be a group, like SpeechNow.org, that is completely 

independent of candidates and the entities that are connected to them; otherwise, the very notion 

of “independent” expenditures is an illusion. In short, Plaintiffs’ position should be viewed, not 

as a crabbed view of corruption, but as an appropriately vigorous view of First Amendment 

rights. To paraphrase the Supreme Court in WRTL II, the First Amendment demands nothing 

less. See 127 S.Ct. at 2674. 

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ARGUMENT

Plaintiffs request narrow relief in this motion. Although this lawsuit challenges both 

contribution limits as they apply to SpeechNow.org and its supporters as well as the registration, 

administrative and reporting requirements for PACs, in this motion Plaintiffs seek to 

preliminarily enjoin only the contribution limits. However, the FEC and amici in their briefs 

address all of the Plaintiffs’ challenges in this case. Because Plaintiffs are not seeking to enjoin 

the PAC registration, administrative and reporting requirements in this motion, they will confine 

their reply to arguments concerning the contribution limits. 

I. Plaintiffs Are Substantially Likely to Succeed on the Merits. 

Plaintiffs’ challenge relies on two crucial differences between SpeechNow.org and other 

groups that the Supreme Court has concluded can be subjected to contribution limits. First, as a 

group of individuals joining together to speak collectively about a topic of importance to each of 

them, SpeechNow.org’s supporters convey much more than the “undifferentiated, symbolic act 

of contributing” with their donations. Cf. Buckley, 424 U.S. at 21. Their donations are an 

exercise of both their rights to associate with one another for a common speech purpose and their 

rights to free speech. Second, SpeechNow.org is entirely independent of candidates, parties and 

any other groups that make contributions to candidates, work with candidates, or that could 

provide access to candidates. As a result, SpeechNow.org cannot present any threat of 

corruption or its appearance that would justify limiting its contributions. 

The FEC ignores these points entirely and focuses on cases that involved either groups 

whose contributors were conveying only the symbolic expression of support for a candidate or 

groups that raised more pressing concerns about corruption or its appearance because of their 

involvement with candidates. The FEC’s position simply cannot be squared with Citizens 

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Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981), and FEC v. National 

Conservative Political Action Comm, 470 U.S. 480 (1985) (“NCPAC”); nor is it consistent with 

constitutional protections for independent expenditures. By contrast, the Plaintiffs’ position can 

be squared with the Supreme Court’s campaign finance decisions by recognizing that 

SpeechNow.org is not the type of organization that raises any concerns about corruption or its 

appearance.

In short, the FEC’s position relies entirely on the notion that there is a rigid distinction

between contributions and expenditures, regardless of the entity that accepts or spends those 

funds. In the FEC’s view, limits on contributions can never involve a serious restraint on First 

Amendment rights regardless of the group to which they apply; and contribution limits always 

serve some interest in combating corruption, again, regardless of the group to which they apply. 

But this is not the approach the Supreme Court has taken, as Plaintiffs demonstrate below. 

While Plaintiffs believe that the contribution limits that apply to SpeechNow.org and its 

supporters should receive strict scrutiny, under any level of scrutiny, the FEC cannot 

demonstrate that SpeechNow.org raises any concerns about corruption that have ever justified 

contribution limits before. 

A. SpeechNow.org is Not the Type Of Group That the Supreme Court Has 

Allowed to be Subjected to Contribution Limits. 

1. Contribution limits impose more than a marginal restriction on the 

First Amendment rights of SpeechNow.org and its supporters. 

The FEC relies on Buckley for the proposition that contribution limits impose only 

“marginal restriction[s]” on the First Amendment rights of contributors, but it ignores the proper 

context in which the Court’s approach to contribution limits applies. See FEC’s Opp. Mem. at 9. 

In this section of Buckley the Court was referring to limits on contributions to “candidates and 

campaign organizations.” 424 U.S. at 21. According to the Court, such contributions serve only 

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as a “general expression of support for the candidate and his views” but do not “communicate the 

underlying basis for the support.” Id. As a result, contributions to candidates and campaign 

organizations express only “the undifferentiated, symbolic act of contributing,” which is not 

diminished by limits on such contributions. Id. Under this view, the contributor is engaging 

only in speech by proxy because it is the candidate who is speaking, not the contributor. Id. 

As Plaintiffs demonstrated in their opening brief, the Court itself has made clear on two 

occasions that this speech-by-proxy argument does not apply where, as here, supporters of a 

group agree with its message and wish to add their voices to that message and speak collectively 

through the group. See NCPAC, 470 U.S. at 495 (stating that “the contributors obviously like the 

message they are hearing” and “want to add their voices to that message; otherwise, they would 

not part with their money”); Citizens Against Rent Control, 454 U.S. at 298 (“Contributions by 

individuals to support concerted action by a committee advocating a position on a ballot measure 

is beyond question a very significant form of political expression.”). See also Plaintiffs’ 

Opening Brief at 16-17. 

It is no answer to say, as the FEC does, that Citizens Against Rent Control involved a 

ballot issue election that raised no concerns about corruption. See FEC’s Opp. Mem. at 13. 

While true, this point went solely to the state’s alleged interest in limiting the group’s 

contributions; it was irrelevant to the separate conclusion that the contribution limits imposed a 

serious burden on both the contributors’ and the group’s rights to free speech and association. 

The Court made this clear at two points in the decision—first, when it stated that the contribution 

limits directly affected the right of association by imposing a limit on groups while allowing 

individuals to spend as much as they desired on their speech; and second, when it recognized that 

a limit on the group’s contributions necessarily operated to limit its expenditures. See Citizens 

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Against Rent Control, 454 U.S. at 296, 299-300. The question of whether the government could 

demonstrate an interest sufficient to justify the burden on rights to speech and association was 

entirely separate and did not impact the Court’s conclusion that the contribution limits burdened 

those rights in the first place. 

Nor can the FEC avoid the Court’s rejection of the speech-by-proxy argument in NCPAC. 

The FEC ignores entirely the relevant discussion in NCPAC, focusing instead on the fact that the 

law at issue involved limits on expenditures, rather than contributions. See FEC’s Opp. Mem. at 

10-11. However, in NCPAC, the FEC defended the expenditure limit by claiming that 

contributions to the committees “do not constitute individual speech, but merely ‘speech by 

proxy.’” 470 U.S. at 494. In rejecting this argument, the Court provided two independent 

rationales. First, as the FEC notes, the Court recognized that the limits at issue in the case 

operated on expenditures, rather than contributions. Id. at 493-95. Second, the Court noted that 

the contributors were doing more than engaging in speech by proxy. They were “add[ing] their 

voices” to the group’s message and thereby speaking collectively. Id. at 495. As the Court 

concluded the point, “[t]o say that their collective action in pooling their resources to amplify 

their voices is not entitled to full First Amendment protection would subordinate the voices of 

those of modest means as opposed to those sufficiently wealthy to be able to buy expensive 

media ads with their own resources.” Id. at 495. Indeed, under the FEC’s approach, that is 

precisely what the contribution limits would achieve. The FEC proposes that instead of 

SpeechNow.org producing and broadcasting its ads, Fred Young should simply do so alone. See

FEC’s Opp. Mem. at 34. But this would only subordinate the voices of other SpeechNow.org 

supporters to Fred Young’s voice. In effect, the FEC’s position seems to be that those of modest 

means have no cause to complain as long as they can find a rich person who has decided to 

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express the same views. But this position denigrates the right of association and would 

accomplish exactly what the Supreme Court criticized in NCPAC. 

In Buckley, the Supreme Court upheld contribution limits in part because they remedied 

the problem of large campaign contributions, while “leaving persons free to engage in 

independent political expression.” Buckley, 424 U.S. at 28. As the Court explained, the limits 

“do not undermine to any material degree the potential for robust and effective discussion of 

candidates and campaign issues by individual citizens, associations, the institutional press, 

candidates, and political parties.” Id. at 29. SpeechNow.org is such an avenue of “independent 

political expression” and imposing contribution limits on it will undermine effective discussion 

of candidates by individuals and associations. 

2. SpeechNow.org’s independence from candidates and groups that 

work with or have access to candidates distinguishes this case from 

those on which the FEC relies. 

The FEC claims that the Supreme Court has made clear that groups making only 

independent expenditures can be subjected to contribution limits, but it never produces a case 

that actually supports this proposition. Buckley involved limits on contributions made directly to 

candidates or campaign organizations, but the Court never said or implied in that case that 

contribution limits could constitutionally be applied to groups that make only independent 

expenditures. See 424 U.S. at 28-29. Nixon v. Shrink Missouri Government PAC involved limits 

on contributions to state candidates under state law and was a straightforward application of 

Buckley’s holding on contribution limits. See 528 U.S. 377, 391 (2000). California Medical 

Assoc. v. FEC (“CalMed”) involved limits on a multicandidate committee that made both

independent expenditures and contributions directly to candidates. See 453 U.S. 182, 203 (1981) 

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(Blackmun, J., concurring in part and concurring in the judgment).1

 FEC v. Colorado 

Republican Campaign Committee involved limits on a political party’s expenditures made in 

coordination with its candidates. The Court upheld these limits because of the danger that 

unlimited coordinated party expenditures would function as “disguised contributions” that might 

be made to the party as “a quid pro quo for improper commitments from the candidate.” 533 

U.S. 431, 446 (2001) (quoting Buckley, 424 U.S. at 47). McConnell v. FEC involved limits on 

soft money donations made to political party committees and limits on electioneering 

communications financed by funds from corporate treasuries and unions. 540 U.S. 93, 132 

(2003). The Court upheld most of these provisions on the basis of an extensive record 

demonstrating that candidates and parties were offering access to candidates in exchange for soft 

money donations to political party committees. See id. at 153-54. 

Each of these cases involved limits on contributions directly to candidates or to groups 

that could be used to funnel money to candidates or that worked closely with candidates and 

could provide access to them. All of these groups are distinctly different from SpeechNow.org, 

which is independent of candidates and any entities that present concerns about corruption or its 

appearance. 

The FEC attempts to avoid this fact by arguing that the Supreme Court has upheld limits 

on contributions to groups connected to candidates even where those contributions were 

earmarked for independent expenditures or for administrative expenses, rather than candidate 

contributions. See FEC’s Opp. Mem. at 17. But the FEC provides the response to this argument 

 

1 Whether or not Justice Blackmun’s view that contribution limits could not be applied to groups that made only

independent expenditures is dicta, the fact remains that Justice Blackmun concurred only in the plurality’s 

conclusion that the limits were constitutional as applied to multicandidate committees that make contributions

directly to candidates. See id. at 202-03. As a result, CalMed stands only for the proposition that contribution limits 

are constitutional as applied to multicandidate committees because they present the possibility of circumvention of 

limits on contributions to candidates. SpeechNow.org presents no such concerns. 

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in its own brief: money is fungible. Id. at 16. Thus, money given to a group that regularly 

works with candidates and can provide access to them could conceivably find its way to the 

candidates or could benefit them by freeing up funds to be used more directly to benefit the 

candidate. At the very least, money going to groups such as these could create the perception of 

corruption because the public recognizes that such groups are tied to candidates and political 

parties. 

The Supreme Court made this point explicitly in McConnell, where it relied on the fact 

that “‘[t]here is no meaningful distinction between the national party committees and the public 

officials who control them’” in upholding BCRA’s soft money restrictions. See 540 U.S. at 155 

(internal citations omitted). In short, it was the nature of the organizations at issue in that case—

state and federal party committees—and their close connections with each other and with 

candidates that led the Court to uphold the soft money restrictions. See id. The Court did not 

conclude, as the FEC and amici claim, that independent expenditures as such raise concerns 

about corruption or that contributions to any group can be limited regardless of how they will be 

spent. As the Court itself stated, “[g]iven this close connection and alignment of interests, large 

soft-money contributions to national parties are likely to create actual or apparent indebtedness 

on the part of federal officeholders, regardless of how those funds are ultimately used.” Id. 

(emphasis added).2

 Thus, read in its proper context, the long quote from McConnell on which 

the FEC relies does not support its broad claims. See FEC’s Opp. Mem. at 15. It is simply 

another example of the Supreme Court’s conclusion that the close connection between federal 

and state party committees and their close connection with candidates raise unique concerns 

about corruption. As a result, the effect of the soft money restrictions on funds used by those 

 

2

 Amici claim that this same passage supports their argument, but they are able to make that claim only by

misquoting the passage and taking it completely out of context. See Brief of Amici at 15-16. 

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entities for noncoordinated expenditures was not a bar to those restrictions. McConnell, 540 U.S. 

at 152 n.48. 

But this point in no way supports the FEC’s argument that contributions to 

SpeechNow.org create concerns about corruption or its appearance, because there are no similar 

“close connections” between SpeechNow.org and candidates or party committees. Thus, there is 

no possibility that money donated to SpeechNow.org will find its way to candidates or party 

committees or that SpeechNow.org will somehow “sell” access to candidates. In fact, the 

Supreme Court addressed the concern that its holding in McConnell could apply to groups like 

SpeechNow.org when it made clear that its conclusion turned on the “close relationship of 

federal officeholders and candidates to their parties” and thus would not apply to entities that 

lacked such a relationship. See 540 U.S. at 156 n.51. 

The fact is, the Supreme Court has never squarely addressed the question at the heart of 

this case—whether groups that make only independent expenditures in candidate elections can 

be subject to contribution limits.3

 What the Court has held is that independent expenditures 

receive the highest protections under the First Amendment, see NCPAC, 470 U.S. at 493-96; that 

individuals may make unlimited independent expenditures, see Buckley, 424 U.S. at 45-51; that 

groups whose members pool their funds solely to make independent expenditures exercise 

fundamental rights to free speech and association, see NCPAC, 470 U.S. at 495; that limits on 

contributions to such groups severely burden their rights to speech and association and limit the 

quantity of their speech, see Citizens Against Rent Control, 454 U.S. 295-96; and that 

 

3

 The FEC claims that FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), supports its argument

because SpeechNow.org has a “major purpose” of “campaign activity.” FEC’s Opp. Mem. at 17-18. But MCFL’s 

discussion of “major purpose” had nothing to do with whether groups with a major purpose can constitutionally be 

subjected to contribution limits. The passage on which the FEC relies occurred in a discussion of disclosure 

obligations where the Court was addressing the FEC’s claim that the Court’s decision would lead to “massive 

undisclosed political spending by similar entities” to MCFL. See 479 U.S. 238, 262 (1986) (emphasis added). In

any event, the Court’s discussion of major purpose in MCFL is dicta and cannot be read to mean that every group 

with a “major purpose” can necessarily be subjected to contribution limits. 

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contribution limits must always be justified by real concerns about corruption, see Randall, 126 

S.Ct. at 2491. See also McConnell, 540 U.S. 185 n.72 (stating that the government must show 

“concrete evidence” that a particular type of transaction is corrupting or gives rise to the 

appearance of corruption). Together, these principles lead inexorably to the conclusion that the 

contribution limits that apply to SpeechNow.org and its supporters are unconstitutional. 

B. The FEC Has Not Demonstrated an Interest Sufficient to Justify Limiting 

Contributions to SpeechNow.org Under Any Level of Scrutiny.

Unable to demonstrate that SpeechNow.org creates any legitimate concerns about 

corruption, the FEC and amici manufacture two new versions of corruption that allegedly apply 

to SpeechNow.org. First, they claim that the expenditure of large amounts of money by 

independent groups constitutes corruption because candidates might feel gratitude for those 

expenditures. Second, they claim that corporate-form corruption applies to groups that do not 

use the corporate form. These arguments are baseless. 

1. Spending by independent groups and the possibility of gratitude by 

candidates is not corruption. 

As the Supreme Court stated in NCPAC, there is a “fundamental difference between 

money spent to advertise one’s views independently of the candidate’s campaign and money 

contributed to the candidate to be spent on his campaign.” 470 U.S. at 497. Even with the 

developments in campaign finance jurisprudence in the years since that case was decided, there 

is still a fundamental difference between money given to groups involved with candidates and 

that have access to them, and money given to independent groups that make only independent 

expenditures. In NCPAC, the FEC made precisely the argument it makes here—large 

independent expenditures may tempt candidates to play favorites with those who make the 

expenditures. The Supreme Court’s response applies equally here: 

13

Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 19 of 32
[P]recisely what the ‘corruption’ may consist of, we are never told with assurance. 

The fact that candidates and elected officials may alter or reaffirm their own 

positions on issues in response to political messages paid for by the PACs can 

hardly be called corruption, for one of the essential features of democracy is the 

presentation to the electorate of varying points of view. 

Id. at 498. If groups coordinate with candidates, that is one thing. But spending money on 

independent speech, according to the Court, is simply not corruption. Id. Indeed, the FEC itself 

seems to recognize this when it claims that the contribution limits cannot harm SpeechNow.org 

because Fred Young can simply pay for the exact same ads and suffer no limits on his 

independent expenditures at all. See FEC’s Opp. Mem. at 34. But if Fred Young’s expenditures 

do not constitute corruption, then neither do SpeechNow.org’s expenditures on the exact same

ads.4

As one leading commenter put it, “the Supreme Court has never said that benefit to the 

candidate, with the inference that the candidate will be grateful for the benefit and will be 

tempted to provide favors accordingly, is enough to support regulation of campaign money. 

McConnell clearly held that benefit (even benefit followed by gratitude and temptation) is not 

sufficient to justify a campaign restriction.” Richard Briffault, The 527 Problem...and the 

Buckley Problem, 73 Geo. Wash. L. Rev. 949, 988 (2005). See also McConnell, 540 U.S. at 

156-157 n.51 (“Congress could not regulate financial contributions to political talk show hosts or 

newspaper editors on the sole basis that their activities conferred a benefit on the candidate.”) 

(emphasis in original).5

 

 

4

 Amici’s dubious assertion the Plaintiffs will have the opportunity for “de facto coordination” ignores the fact that, 

under its bylaws, SpeechNow.org must comply with the anti-coordination rules in 11 C.F.R. § 109.21. See Decl. of 

David Keating, Ex. E, Art. X. Amici’s dissatisfaction with these provisions is not a sufficient reason to limit 

contributions to SpeechNow.org. Like any individual making independent expenditures, SpeechNow.org will 

comply with the law defining independence. 5

 That the independent groups addressed were members of the institutional press is of no constitutional significance 

because “‘the liberty of the press is no greater and no less’ than the liberty of every citizen of the Republic.” First 

National Bank of Boston v. Bellotti, 435 U.S. 765, 802 (1978) (Burger, C.J., concurring). See also Ragin v. New

York Times Co., 726 F. Supp. 953, 962 n.1 (S.D.N.Y. 1989) (same). 

14

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2. The Supreme Court’s concern with the “distorting effects of immense 

aggregations of wealth” cannot justify the application of contribution 

limits to SpeechNow.org. 

The FEC’s argument about the “distorting effects of immense aggregations of wealth” 

completely ignores the fact that the Supreme Court relied on that justification in cases involving 

statutes that singled out corporations for special limitations. See Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652, 658-60 (1990); FEC v. Beaumont, 539 U.S. 146, 152-56 (2003). But 

Congress has not seen fit to single out unincorporated associations for special treatment under 

the campaign finance laws, so there is no occasion for this Court to consider whether such 

treatment might be constitutional on the same basis on which the Supreme Court has upheld 

limitations on corporations. The FEC is, in essence, asking this Court to pass judgment on a 

statutory provision that does not exist. 

In any event, the Supreme Court’s conclusion that limits on corporate expenditures can 

be justified because their immense aggregations of wealth can “distort” the electoral process has 

no application here. The Supreme Court relied on this rationale in Austin because special statecreated advantages allow corporations to amass fortunes that bear no relation to public support 

for their political ideas. See 494 U.S. 652, 659-60 (1990). As an unincorporated association, 

SpeechNow.org does not enjoy the same advantages. It does not have perpetual life, it does not 

have shareholders at all, and, contrary to the FEC’s claim, it does not enjoy “limited liability.” 

The District of Columbia Uniform Unincorporated Nonprofit Associations Act simply states that 

members are not liable for the actions of the association “merely” because they are members. 

See D.C. Code § 29-971.06 (2008). In other words, their liability depends on their actions, not 

their status as members of the association alone. The only quality that SpeechNow.org shares 

with corporations is that it is a separate legal entity that can act in its own name. But that is true 

15

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of any entity that is legally separate from the individuals who comprise it, and thus the FEC’s 

argument would apply to any legal entity as well. 

Like the non-profit at issue in MCFL, but unlike corporations, SpeechNow.org’s sole 

purpose is political speech, it has no shareholders, and it is independent of the influence of 

business corporations. See Austin, 494 U.S. at 661-664.6

 In short, SpeechNow.org is a voluntary 

political association whose donations reflect support for its ideas; it is not a business firm. Id. 

Nor does the fact that SpeechNow.org is a “527” justify the contribution limits. Most, if 

not all, political, candidate, and party committees are 527s, yet the Supreme Court has never held 

that that justifies limits on their contributions. Moreover, the fact that SpeechNow.org, as a 527, 

will not be taxed on its donations is not “favorable treatment in the accumulation and distribution 

of its assets” as the FEC claims; it is simply the logical application of the tax code to a nonprofit. Non-profits like SpeechNow.org are not taxed on their donations because those donations

are already taxed when they are earned by the donor. See Gregg D. Polsky, A Tax Lawyer’s 

Perspective on Section 527 Organizations, 28 Cardozo L. Rev. 1773, 1785-86 (2007). If 

SpeechNow.org earns interest or investment income on these donations, it will be taxed on those 

earnings. See 26 U.S.C. § 527(c). In short, SpeechNow.org is treated no better than the 

individuals who donate to it. Its donations are taxed when they are earned by the donor and 

SpeechNow.org is taxed on any income it earns on those donations, but that money is not taxed 

twice, as the FEC seems to think it should be. See Polsky, supra, at 1786. 

In sum, if the FEC’s position were correct, the Supreme Court’s decision in MCFL would 

no longer be good law. The organization in MCFL was a corporation and a non-profit that 

enjoyed even more alleged state-created benefits than does SpeechNow.org. 

 

6

 Although the corporation at issue in Austin was a nonprofit, it was funded by for profit corporations and it engaged 

in other business and nonpolitical activities. See 494 U.S. at 662-63 (“We are persuaded that the Chamber’s

members are more similar to shareholders of a business corporation than to the member of MCFL.”). 

16

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II. Plaintiffs Will Suffer Irreparable Harm Without an Injunction. 

Unless Plaintiffs receive a preliminary injunction, SpeechNow.org will not be able to 

accept the contributions pledged by the individual Plaintiffs. That is because contributions by 

individual Plaintiffs of over $5,000 in a calendar year are illegal under 2 U.S.C. § 441a(a)(1)(C) 

and Fred Young’s pledged contribution of $110,000 is illegal under 2 U.S.C. § 441a(a)(3). 

Without the contributions pledged by the individual Plaintiffs, SpeechNow.org will not be able 

to produce and run its political advertisements against Representative Dan Burton and Senator 

Mary Landrieu. This is an actual and certain injury both to Plaintiffs’ rights to free speech and 

their rights of association. Acting separately, none of the Plaintiffs, including Fred Young, can 

fund both sets of advertisements. Nor can they produce and run other political advertisements 

against other candidates for office who favor restrictions on free speech. Furthermore, the 

window of time in which SpeechNow.org and its supporters need to speak narrows with each 

passing day because they wish to run advertisements in primaries. Representative Burton’s 

primary is on May 6th—less than two months away. Thus, Plaintiffs will unquestionably suffer 

irreparable harm without an injunction. “The loss of First Amendment freedoms, for even 

minimal periods of time, unquestionably constitutes irreparable harm.” Elrod v. Burns, 427 U.S. 

347, 373 (1976) (plurality opinion).7

A. Plaintiffs’ Injuries are Actual and Certain. 

 Plaintiffs face an actual and certain injury because they cannot—without breaking the 

law—produce and run their political advertisements if they do not receive a preliminary 

 

7

 The FEC cites Veitch v. Danzig, 135 F.Supp. 2d 32 (D.D.C. 2001), for the proposition that where, as here, a 

preliminary injunction would “alter the status quo,” Plaintiffs’ face a higher burden. But, as Veitch and other cases

from this Circuit make clear, only mandatory—not prohibitive—injunctions “alter the status quo” and thus face a 

higher burden. See, e.g., Veitch, 135 F. Supp. 2d at 35; Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30, 36 

(D.D.C. 2000); Columbia Hosp. for Women Found. v. Bank of Tokyo-Mitsubishi, 15 F. Supp. 2d 1, 4 (D.D.C. 1997). 

Plaintiffs seek a prohibitive injunction that restrains the FEC from enforcing contribution limits against it; it does not 

seek to require the FEC to take affirmative action. 

17

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injunction. The FEC argues that there is no injury because Fred Young can break away from the 

rest of the Plaintiffs and fund the advertisements by himself. But this argument ignores that Fred 

Young cannot fund all of the advertising that SpeechNow.org wishes to undertake. More 

importantly, this approach destroys the village in order to save it—the FEC is essentially arguing 

that Plaintiffs can avoid injury to their rights of free speech and association if they will simply 

sacrifice those rights. But if Fred Young is forced to disassociate from SpeechNow.org and its 

supporters, he loses the ability to associate with others with the time, knowledge, and experience 

to write, produce and broadcast ads to which he would like to add his voice. At the same time, 

the other individual Plaintiffs will lose their ability to amplify their voices by associating with 

Fred Young. Cf. NCPAC, 470 U.S. at 495 (stating that preventing individuals from associating 

for the purpose of making independent expenditures would “subordinate the voices of those of 

modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads”). 

The FEC also argues that Plaintiffs can avoid injury if they raise money under the 

contribution limits and then use that money to fund advertisements. But this argument ignores 

the limitations that contribution limits impose on the speech and association rights of groups like 

SpeechNow.org. If the argument were correct, contribution limits could never be enjoined, 

because the government will always be able to claim that groups can speak even under the limits. 

Furthermore, the argument ignores the importance of seed-funding to SpeechNow.org, not only 

to be able to run its ads, but to be able to engage in effective fundraising thereafter. See Keating 

Decl. at ¶ 27; Crane Decl. at ¶ 8. Only after it has used that funding to run its initial 

advertisements against Burton and Landrieu will SpeechNow.org be able to undertake successful

fund-raising on a larger scale that includes smaller donations.8

 See Keating Decl at ¶ 27; Crane 

 

8

 Notably, SpeechNow.org, as a group of individuals, does not get the start-up benefits afforded to corporate or 

union PACs. “Corporations, labor organizations, membership organizations, cooperatives, or corporations without

18

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Decl. at ¶ 8. Accepting small donations now that add up to over $1000—the trigger for political 

committee status—would require David Keating to spend his time complying with burdensome 

regulations that apply to PACs, but would provide no assurance that SpeechNow.org would ever 

be able to do what is was formed to do—produce and broadcast advertisements in time to affect 

elections that are rapidly approaching. 

The FEC also argues that Plaintiffs have not suffered irreparable harm because they have

not shown that their injury is actual and certain under Elrod. Plaintiffs are not simply resting on 

mere allegations of harm, however, and there is nothing speculative or hypothetical about the 

injury they face. The contributions clearly bar donations to SpeechNow.org in excess of those 

limits. Thus, as a direct result of the contribution limits, SpeechNow.org cannot gather the funds 

necessary to produce and run its political advertisements. It is “clear therefore that First 

Amendment interests [are] either threatened or in fact being impaired at the time relief [is being] 

sought.” Elrod, 427 U.S. at 373 (plurality opinion). 

The cases on which the FEC relies are inapposite. In NTEU v. United States, 927 F.2d 

1253 (D.C. Cir. 1991), the court upheld the denial of a preliminary injunction against a ban on 

honoraria for executive branch employees, because the plaintiffs failed to show that they would 

“cease speaking or writing.” See id. at 1255-56. Here, the law itself prohibits Plaintiffs from

exercising their rights to speech and association by pooling their contributions, so the prohibition 

on their rights is not at all uncertain or contingent. In Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 

1987), the plaintiff could not receive an injunction on a First Amendment claim because, unlike 

Plaintiffs in this case, he could do nothing more than allege a violation of his First Amendment 

rights. See id. at 576-77 n. 76. In Christian Knights of the Ku Klux Klan Invisible Empire, Inc. 

 capital stock may use general treasury monies, including monies obtained in commercial transactions and dues 

monies or membership fees, for the establishment, administration, and solicitation of contributions to its separate 

segregated fund.” 11 CFR § 114.5(b) (emphasis added).

19

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v. District of Columbia, 919 F.2d 148 (D.C. Cir. 1990), the court assumed that denying the Klan 

the ability to march would have caused it irreparable harm; the court simply held that it was not 

impermissible under Elrod for the route to be modified slightly under normal permitting 

procedures. See id. at 149. Finally, the FEC’s reliance on Wisconsin Right to Life, Inc. v. FEC, 

Civ. No. 04-1260, 2004 WL 3622736 (D.D.C. Aug. 17, 2004), is misplaced because the court 

based its conclusion that there was no irreparable harm on the fact that WRTL could pay for its 

ads using a separate segregated account. See id. at * 4. But the Supreme Court later rejected this 

argument, meaning that the premise of the lower court’s finding of no irreparable harm was 

simply wrong. See WRTL II, 127 S.Ct. at 2671-2672 n.9. 

Moreover, Plaintiffs’ First Amendment rights are being impaired by statutory 

contribution limits that clearly and directly limit Plaintiffs’ speech and association. As the D.C. 

Circuit acknowledged in Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 

(D.C. Cir. 2006), “where a plaintiff alleges injury from a rule or regulation that directly limits 

speech, the irreparable nature of the harm may be presumed.” (emphasis added) (quoting Bronx 

Household of Faith v. Bd. of Educ., 331 F.3d 342, 349-50 (2d Cir. 2003). 

B. Plaintiffs Face Imminent Injury. 

The FEC argues that Plaintiffs do not face imminent injury because their injury is 

hypothetical—that is, it relies upon the completion of a civil investigation that may not be 

completed for some time. However, if Plaintiffs were to run their advertisements with the 

pledged contributions, they would, as the FEC clearly acknowledges, be in direct violation of the 

contribution law. Thus, for the reasons described in the previous section, the harm to Plaintiffs’ 

First Amendment rights is obvious and irreparable. That the FEC’s investigation may take a few 

months does not diminish the fact that, right now, Plaintiffs cannot run their political 

20

Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 26 of 32
advertisements without violating the law. There is, in other words, no question here about how 

the statute might be interpreted or whether the possibility of being found in violation of the law 

might chill speech. See Community-Service Broadcasting of Mid-America, Inc. v. FCC, 593 

F.2d 1102, 1116 (D.C. Cir. 1978) (en banc) (stating that court’s ultimate concern in seeking to 

identify the chilling effect of a statute is not with what government officials will actually do, but 

with how reasonable speakers will perceive the regulation). 

Furthermore, the FEC has cited nothing to support the claim that a plaintiff cannot 

demonstrate irreparable harm if it may take time for an agency to proceed with its investigation 

and prosecution. Wisconsin Right to Life, Inc. v. FEC, No. 04-1260, 2006 WL 2666017 (D.D.C. 

Sept. 14, 2006), which the FEC cites in support of its argument, does not stand for that 

proposition. In that case, the district court simply noted, in concluding that the harm to the FEC 

would be outweighed by the harm suffered to WRTL, that an investigation would probably not 

conclude until after WRTL’s ad was aired. See id. at *5. The court did not say that the length of 

an investigation precluded a finding of irreparable harm. In any event, given that the district 

court’s denial of an injunction rested on several assumptions—for example, that WRTL could 

use media other than broadcast outlets and could alter its advertisements—that were explicitly 

rejected in the Supreme Court’s decision in the case, the case does not support the FEC’s 

argument that SpeechNow.org is not harmed. See WRTL II, 127 S.Ct. at 2671-2672 n.9. 

C. Plaintiffs’ Injury is Beyond Remediation. 

In arguing that Plaintiffs’ harm is not beyond remediation, the FEC ignores Plaintiffs’ 

real injury—not being able to produce and run their political advertisements—which is an injury 

to First Amendment rights, the loss of which necessarily constitutes irreparable harm. Thus, the 

trio of cases on which the FEC relies for the proposition that responding to an administrative 

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Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 27 of 32
enforcement proceeding does not constitute irreparable harm—none of which involve the First 

Amendment—are inapposite. See Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 

(1974); FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980); Sears Roebuck & Co. v. NLRB, 

473 F.2d 91, 93 (D.C. Cir. 1972). 

As noted earlier, Plaintiffs’ injury increases as the elections in which it wants to run ads 

approach because SpeechNow.org must begin broadcasting its ads sufficiently in advance to 

have an impact. See Keating Decl. at ¶ 28. Once its window of opportunity passes, 

SpeechNow.org has forever lost the chance to impact those elections. To say that Plaintiffs’ 

injury is not beyond remediation is absurd. 

D. A Preliminary Injunction Will Prevent the Harm to Plaintiffs Caused by the 

Contribution Limits. 

The FEC claims that if Plaintiffs are granted a preliminary injunction but later lose this 

case, the FEC may still, under the so-called “retroactivity doctrine,” pursue civil enforcement 

against SpeechNow.org and its donors. FEC’s Opp. Mem. at 39-41. But the FEC does not cite a 

single case in which a previously-enjoined government actor has later pursued an enforcement 

action against the party that sought the injunction. Instead, it bases its argument on quotes taken 

out of context from easily distinguishable cases. For example, Donaldson v. United States 

Department of Labor, 930 F.2d 339 (4th Cir. 1991), involved farm owners who had obtained a 

preliminary injunction against the Department of Labor requiring the Department to approve 

wages offered to migrant farm workers. After that injunction was dissolved, the workers sued 

the owners in a separate suit, and the court held that the earlier injunction against the Department 

did not prevent the subsequent suit by the workers. See id. at 346. In short, Donaldson involved 

suits by entirely different parties involving different claims than those originally enjoined. See 

22

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id. at 344. It does not support the FEC’s claim that it could later prosecute Plaintiffs for actions 

taken under an injunction designed to prevent precisely that type of prosecution. 

The FEC also relies heavily on dicta from Justice Stevens’s concurring opinion in Edgar 

v. MITE, 457 U.S. 624 (1982), but the FEC mischaracterizes his argument, which was confined 

to the power of federal judges to immunize parties from subsequent state prosecution. As Justice 

Stevens noted, “federal courts are courts of limited jurisdiction. . . . There simply is no 

constitutional or statutory authority that permits a federal judge to grant dispensation from a 

valid state law.” Id. at 653 (emphases added). See also id. at 647 (stating that “there is no 

federal rule of law that would require the state courts to absolve MITE from liability”). The 

FEC’s reliance on Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998), which relied on MITE, is 

misplaced for the same reason. Id. at 527. 

None of these cases support the FEC’s unique claim that a federal court’s preliminary 

injunction does not immunize a party from a future federal prosecution by the very agency 

enjoined for precisely the conduct that the injunction purported to allow that party to undertake. 

This is perhaps why the D.C. Circuit has stated that it is “obvious” that “no federalism concerns 

would prevent an immunizing effect” for a plaintiff who acts under the protection of a federal 

judgment or injunction. Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990).9

 

9

The FEC also claims that an injunction would be ineffective because SpeechNow.org has not joined the Attorney 

General as a defendant. FEC’s Opp. Mem. at 41 n.24. Even assuming that the Attorney General would charge

SpeechNow.org with a knowing and willful violation for relying in good faith on a preliminary injunction, it is 

questionable whether the Attorney General could do so, because reliance on a preliminary injunction “would raise a 

serious question whether [a party] had the state of mind necessary for a violation.” Clarke, 915 F.2d at 701. In any 

event, having by that time already made a sufficient showing to obtain a preliminary injunction against the FEC, 

there would be little obstacle to SpeechNow.org obtaining a similar injunction against the Attorney General. 

23

Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 29 of 32
III. An Injunction Will Not Substantially Injure the FEC and Will Advance the Public’s 

Interest. 

The FEC argues that it and the public will be harmed because the limits on contributions 

to political committees have been on the books for over thirty years, the limits on contributions 

to candidates have been upheld, and the FEC has an interest in enforcing those limits. The first 

two points are irrelevant. This is an as-applied challenge involving issues that the Supreme 

Court has not yet squarely addressed. The third point rests on the false assumption, rebutted 

above, that SpeechNow.org raises the specter of corruption or its appearance. 

The FEC also argues that an injunction will harm the public because of its interest in 

seeing the campaign finance laws enforced, but this ignores the impact of those laws in this case 

on fundamental rights to free speech and association. More important than enforcement of the 

campaign finance laws against groups that pose no concerns about corruption is the public’s 

interest in a vigorous and open marketplace of ideas: “[T]here is practically universal agreement 

that a major purpose of [the First] Amendment was to protect the free discussion of 

governmental affairs . . . includ[ing] discussion of candidates.” Mills v. Alabama, 384 U.S. 214, 

218 (1966). 

CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that their motion for preliminary 

injunction be granted. 

Dated: March 12, 2008. 

Respectfully submitted, 

/s/Steven M. Simpson

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Paul M. Sherman (DC Bar No.978663) 

24

Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 30 of 32
INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org

Stephen M. Hoersting* 

Bradley A. Smith* 

Michael Darner* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: smhoer@aol.com, BSmith@law.capital.edu 

Attorneys for Plaintiffs

 

 *Admitted Pro Hac Vice

25

Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 31 of 32
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 12th Day of March, 2008, a true and correct copy of 

the PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY 

INJUNCTION was electronically filed using the court’s ECF system and sent via the ECF 

electronic notification system to the following counsel of record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W.

Washington, DC 20463 

And I hereby certify that I have mailed by United States Postal Service the document to the 

following non-CM/ECF participants: 

Donald J. Simon 

SONOSKY, CHAMBERS, SACHSE

ENDERSON & PERRY, LLP 

1425 K Street, N.W.

Washington, DC 20005 

Fred Wertheimer 

DEMOCRACY 21 

1878 I Street, N.W.

Suite 500 

Washington, DC 20005 

Counsel for Amicus Curiae Democracy 21 

J. Gerald Hebert 

Paul S. Ryan 

THE CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., N.W.

Suite 650 

Washington, DC 20036 

Counsel for Amicus Curiae Campaign Legal Center 

 /s/ Steven M. Simpson

Case 1:08-cv-00248-JR Document 20 Filed 03/12/2008 Page 32 of 32