ORAL ARGUMENT SCHEDULED FOR JANUARY 27, 2010 

No. 09-5342 

(consolidated with No. 08-5223) 

__________________

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

DAVID KEATING, EDWARD H. CRANE, III, FRED M. YOUNG, JR., 

BRAD RUSSO, AND SCOTT BURKHARDT, 

Plaintiffs-Appellants, 

 

v. 

 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

__________________

On Certified Questions from the United States 

District Court for the District of Columbia, 

Case No. 08-cv-00248 (JR) 

__________________

BRIEF OF AMICI CURIAE 

Alliance for Justice, Concerned Women for America Legislative Action 

Committee, FRC Action, The Commonwealth Foundation for Public 

Policy Alternatives, Mackinac Center for Public Policy, Caesar Rodney 

Institute, Kansas Policy Institute, FreedomWorks Foundation, 

The James Madison Institute, Public Interest Institute

Supporting Plaintiffs-Appellants

__________________ 

Heidi K. Abegg (DC Bar No. 463935) 

Alan P. Dye (DC Bar No. 215319) 

WEBSTER, CHAMBERLAIN & BEAN 

1747 Pennsylvania Avenue, NW, Suite 1000 

Washington, DC 20006 

Tel: (202) 785-9500 

Counsel for Amici Curiae 

Dated: November 16, 2009 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

 All parties appearing in this Court are listed in the Brief for 

Appellants David Keating, Fred M. Young, Jr., Edward H. Crane, III, Brad 

Russo, and Scott Burkhardt, as are references to the rulings and related 

cases. 

CORPORATE DISCLOSURE STATEMENT

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae Alliance for Justice states that it is a 

non-profit corporation, exempt from taxation under § 501(c)(3) of the 

Internal Revenue Code, it has no parent corporation, and is not a publicly 

held corporation that issues stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae The Concerned Women for America 

Legislative Action Committee states that it is a non-profit corporation 

exempt from taxation under § 501(c)(4) of the Internal Revenue Code, it has 

no parent corporation, and is not a publicly held corporation that issues 

stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae FRC Action states that it is a nonprofit corporation exempt from taxation under § 501(c)(4) of the Internal 

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Revenue Code, it has no parent corporation, and is not a publicly held 

corporation that issues stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae FreedomWorks Foundation states that 

it is a non-profit corporation exempt from taxation under § 501(c)(3) of the 

Internal Revenue Code, it has no parent corporation, and is not a publicly 

held corporation that issues stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae Caesar Rodney Institute states that it 

is a non-profit corporation exempt from taxation under § 501(c)(3) of the 

Internal Revenue Code, it has no parent corporation, and is not a publicly 

held corporation that issues stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae Commonwealth Foundation for 

Public Policy Alternatives states that it is a non-profit corporation exempt 

from taxation under § 501(c)(3) of the Internal Revenue Code, it has no 

parent corporation, and is not a publicly held corporation that issues stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae Mackinac Center for Public Policy 

states that it is a non-profit corporation exempt from taxation under § 

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501(c)(3) of the Internal Revenue Code, it has no parent corporation, and is 

not a publicly held corporation that issues stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae Kansas Policy Institute states that it is 

a non-profit corporation exempt from taxation under § 501(c)(3) of the 

Internal Revenue Code, it has no parent corporation, and is not a publicly 

held corporation that issues stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae The James Madison Institute states 

that it is a non-profit corporation exempt from taxation under § 501(c)(3) of 

the Internal Revenue Code, it has no parent corporation, and is not a publicly 

held corporation that issues stock. 

 Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 

D.C. Circuit Rule 26.1, amicus curiae Public Interest Institute states that it is 

a non-profit corporation exempt from taxation under § 501(c)(3) of the 

Internal Revenue Code, it has no parent corporation, and is not a publicly 

held corporation that issues stock. 

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TABLE OF CONTENTS

Page 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED 

CASES...........................................................................................i 

CORPORATE DISCLOSURE STATEMENT.........................................i 

TABLE OF 

CONTENTS......................................................................................iv 

TABLE OF AUTHORITIES........................................................vi 

STATUTES AND REGULATIONS.............................................xiii 

GLOSSARY........................................................................xiii 

INTEREST OF AMICI CURIAE...................................................1 

SUMMARY OF ARGUMENT.....................................................4 

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

I. The Burdens Of Political Committee Status On Core First 

Amendment Activity Are Real, Significant And Onerous 

And, Therefore, Demand A Compelling Government 

Interest To Justify Their Imposition.................................5 

A. The organizational burdens of PAC status make it 

difficult to find a willing, competent individual to serve 

as treasurer......................................................8 

B. The administrative burdens of PAC status.................11 

 1. Manpower and time commitment...................11 

 2. Recordkeeping burdens of PAC status.............13 

 3. Reporting burdens of PAC status...................14 

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C. FEC oversight burdens associated with PAC status......21 

II. The Trickle-Down Effect Of Requiring SpeechNow To 

Register As A Political Committee In The Absence Of 

Corruption.............................................................24 

CONCLUSION......................................................................32 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF FILING AND SERVICE 

ADDENDUM 

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TABLE OF AUTHORITIES

*Authorities upon which we chiefly rely are marked with asterisks 

Page(s) 

CASES 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003)...............................25 

*Buckley v. Valeo, 

424 U.S. 1 (1976)............................................................6,24 

FEC v. Akins, 

524 U.S. 11 (1998)..............................................................6 

FEC v. GOPAC, Inc., 

871 F. Supp. 1466 (D.D.C. 1994)............................................7 

*FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981)............................................7, 25 

*FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986)..................................................6, 7, 8, 24 

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007)............................................................6 

Sweezy v. New Hampshire, 

354 U.S. 234 (1957)..........................................................25 

STATUTES 

2 U.S.C. § 432.........................................................................7 

2 U.S.C. § 432(a)....................................................................7, 9 

2 U.S.C. § 432(b)(2)...................................................................7 

2 U.S.C. § 432(c).......................................................................7 

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2 U.S.C. § 432(d)......................................................................7 

2 U.S.C. § 433..........................................................................7 

2 U.S.C. § 433(a).......................................................................7 

2 U.S.C. § 433(b).......................................................................7 

2 U.S.C. § 433(c).......................................................................7 

2 U.S.C. § 433(d)(1)...................................................................7 

2 U.S.C. § 434.........................................................................7 

2 U.S.C. § 434(a)(4)(A)..............................................................8 

2 U.S.C. § 434(a)(4)(B)..............................................................8 

2 U.S.C. § 434(b)......................................................................8 

REGULATIONS 

11 C.F.R. § 104.18(a)(i).............................................................15 

11 C.F.R. § 104.18(a)(ii)............................................................15 

OTHER AUTHORITIES 

AFL-CIO Plaintiffs’ Opening Brief: Title II Issues at 12, McConnell v. FEC, 

540 U.S. 93 (2003)..............................................................30, 31 

Agency Policies and Procedures, 73 Fed. Reg. 74494, 74495 

(Dec. 8, 2008).........................................................................11 

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*Bipartisan Commission on the Political Reform Act of 1974, Overly 

Complex and Unduly Burdensome: The Critical Need to Simplify the 

Political Reform Act at 62 (last visited November 13, 2009) 

<http://www.fppc.ca.gov/pdf/McPherson.pdf> ...................11, 13, 18, 21 

Comment of Birkenstock and Cline in Response to SEC File #S7-18-09, 

Political Contributions by Certain Investment Advisers at 3 (Oct. 9, 2009) 

<http://www.sec.gov/comments/s7-18-09/s71809-227.pdf> ..................11 

Comment of Diane Valentino, Agency Procedures and Processes 

(Dec. 12, 2008) <http://www.fec.gov/law/policy/enforcement/2009 

/comments/comm29.pdf>...........................................................12 

Comment of Gloria Bram, Agency Procedures and Processes 

(Feb. 11, 2009) <http://www.fec.gov/law/policy/enforcement/2009

/comments/bram.pdf>......................................................14, 15, 16 

Comment of Jan Baran, FEC Agency Procedures (Jan. 5, 2009) 

<http://www.fec.gov/law/policy/enforcement/2009/comments

/comm33.pdf>........................................................................21 

Comment of Jason Eugene Call, Agency Procedures and Processes 

(Dec. 17, 2008) <http://www.fec.gov/law/policy/enforcement

/2009/comments/comm30.pdf>....................................................12 

Comment of Peter d’Errico, Agency Procedures and Processes 

(Dec. 19, 2009) <http://www.fec.gov/law/policy/enforcement

/2009/comments/comm14.pdf>....................................................15 

Committee Treasurers Brochure, <http://www.fec.gov/pages/brochures

/committee_treasurers_brochure.pdf>.............................................10 

FECFile User Manual for PACs & Party Committees, 

<http://www.fec.gov/elecfil/unauthorized_manual 

/entireUNAUTHmanual.pdf>......................................................16 

FEC Internal Controls and Political Committees 

<http://www.fec.gov/law/policy/guidance 

/internal_controls_polcmtes_07.pdf> ..............................................9 

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FEC, Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007).........27 

FEC Statement of Policy Regarding Treasurers Subject to Enforcement 

Proceedings, 70 Fed. Reg. 3 (Jan. 3, 2005) <http://www.fec.gov/law 

/policy/2004/notice2004-20.pdf>..................................................10 

http://eqs.nictusa.com/eqs/searcheqs..............................................14 

http://www.fec.gov/law/litigation_CCA_FEC_A.shtml........................28 

http://saos.nictusa.com/saos/searchao.............................................14 

Interview by Jim Lehrer of Laura Murphy and Randy Tate, 

Campaigns Under Scrutiny – Opposing Reform, NewsHour 

(Sept. 30, 1997) <www.pbs.org/newshour/campaign/september97/ 

hearing_9-30.html>................................................................8, 13 

*Jeffrey Milyo, Ph.D., Campaign Finance Red Tape: Strangling Free 

Speech& Political Debate, at 27, Institute for Justice 

(Oct. 2007; last visited Nov. 13, 2009) <www.ij.org /publications

/other/campaign-finance-red-tape.html>.................................17, 18, 19 

Robert Bauer, More Soft Money Hard Law (Feb. 1, 2007) 

<http://www.moresoftmoneyhardlaw.com/news.html?AID=920>............27 

Statement for the Record of Commissioner Smith, FEC MUR 4624 

(Nov. 6, 2001) < http://eqs.nictusa.com/eqsdocs /0000018E.pdf>............26 

Statement of Reasons of Commissioners Petersen, Hunter and McGahn II, 

FEC MURS 5957, 6031 <http://eqs.nictusa.com 

/eqsdocs/29044243959.pdf>.......................................................20 

Statement of Reasons of Commissioners Petersen, Hunter and McGahn II, 

FEC MUR 6005 <http://eqs.nictusa.com 

/eqsdocs/29044234461.pdf>...................................................20, 26 

Testimony of Hans von Spakovsky, FEC Public Hearing on Agency 

Practices and Procedures (Jan. 14, 2009) 

<http://www.fec.gov/law/policy/enforcement/2009

/01141509hearingtranscript.pdf>.................................................23 

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Testimony of James Bopp, Jr., FEC Public Hearing on Agency Practices 

and Procedures (Jan. 14, 2009) <http://www.fec.gov/law 

/policy/enforcement/2009/01141509hearingtranscript.pdf>...................22 

Testimony of James Bopp, Jr., Federal Election Commission Enforcement 

Procedures, Committee on House Administration, Oct. 16, 2003 

<http://www.campaignlegalcenter.org/attachments/941.pdf> .......28, 29, 30 

Testimony of Jan Baran, FEC Public Hearing on Agency Practices and 

Procedures (Jan. 14, 2009) 

<http://www.fec.gov/law/policy/enforcement/2009

/01141509hearingtranscript.pdf>..................................................25 

Testimony of Marc Elias, FEC Public Hearing on Agency Practices and 

Procedures (Jan. 14, 2009) <http://www.fec.gov/law 

/policy/enforcement/2009/01141509hearingtranscript.pdf>...............21, 22 

www.fec.gov/audits/audit_reports_auth.shtml..........................................14 

www.fec.gov/general /library.shtml................................................14 

www.fec.gov/law/cfr/cfr_2009.pdf................................................14 

www.fec.gov/law/cfr/ej_main.shtml..............................................14 

www.fec.gov/law/feca/feca.pdf....................................................14 

www.fec.gov/law/litigationalpha.shtml...........................................14 

www.fec.gov/law /litigationmajor.shtml..........................................14 

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STATUTES AND REGULATIONS

 All applicable statutes are contained in the Addendum for the Brief 

for Appellants SpeechNow.org, except for the following, which is contained 

in an Addendum attached to this Brief: 

11 CFR 104.18 

GLOSSARY 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

MUR Matter Under Review 

PAC Political Action Committee, a political committee as defined by 

2 U.S.C. § 431(4)(A). 

RAD Reports Analysis Division 

RFAI Request For Additional Information 

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INTEREST OF AMICI CURIAE1

 At issue in this case is whether the burdens of political committee 

status can be imposed on independent expenditure groups whose speech is 

non-corrupting. If these groups cannot be made to register as political 

committees, even though their “major purpose” is election-related, then nonprofits need not fear a burdensome investigation into their “major purpose” 

or the imposition of political committee status for their non-corrupting, nonelection-related speech. 

 Alliance for Justice (AFJ) is a national association of close to 100 

organizations dedicated to advancing justice and democracy. For 30 years, 

AFJ has been leaders in the fight for a more equitable society on behalf of a 

broad constituency of environmental, consumer, civil and women’s rights, 

children’s, senior citizens’ and other groups. AFJ is premised on the belief 

that all Americans have the right to secure justice in the courts and to have 

their voices heard when government makes decisions that affect their lives. 

AFJ educates nonprofits about the rules and requirements for engaging in 

advocacy and assists such groups in navigating the minefields associated 

with these rules. 

 

1 This brief is filed pursuant to the consent of all parties. No counsel for a 

party authored this brief in whole or in part, nor did any party or counsel to 

this case make a monetary contribution intended to fund the preparation or 

submission of this brief. 

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The Concerned Women for America Legislative Action Committee 

(CWALAC) is the legislative and advocacy arm of Concerned Women for 

America. CWALAC is committed to reversing the decline in moral values 

in our nation and encourages its members to speak out on public issues and 

hold their elected officials accountable for their public policy decisions. 

 FRC Action, the legislative action arm of the Family Research 

Council, was founded to educate the public and leaders about traditional 

American values and to promote the philosophy of the Founding Fathers 

concerning the nature of ordered liberty. FRC Action is dedicated to 

preserving and advancing the interests of family, faith and freedom in the 

political arena. 

 The Commonwealth Foundation for Public Policy Alternatives is an 

independent, non-profit research and educational institute that develops and 

advances public policies on the nation’s founding principles of limited 

constitutional government, economic freedom, and personal responsibility 

for one’s actions. 

The Mackinac Center for Public Policy is a nonpartisan research and 

education institute devoted to improving the quality of life for all Michigan 

citizens by promoting sound solutions to state and local policy questions. 

The Mackinac Center is broadening the debate on issues that have been 

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dominated by the belief that government intervention should be the standard 

solution. 

The Caesar Rodney Institute (CRI) is a research and education 

organization dedicated to the measured improvement in the quality of life, 

the degree of individual liberty, and opportunity for personal fulfillment for 

all Delawareans. CRI’s mission is to influence public policy by helping 

every Delawarean understand and put into practice the fundamentals of free 

society. 

The Kansas Policy Institute provides research and initiates reform in 

education, fiscal policy and health care, and is dedicated to the constitutional 

principles of limited government, which it believes is essential for individual 

freedom and prosperity to flourish. 

FreedomWorks Foundation is an educational organization whose 

mission is to educate Americans about individual freedom, free-market 

economics and limited government. 

The James Madison Institute is a research and educational 

organization, whose mission to keep citizens informed about their 

government is rooted in ideals such as individual liberty. 

Public Interest Institute promotes the importance of a free-enterprise 

economic system and limited government based upon individual freedom 

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and liberty. The Institute encourages citizens to become better informed 

about public policy issues and assists them in their search for information. 

Through education, amici promote respect for the rights of freedom of 

speech and of association. Amici have defended First Amendment rights in 

state and federal courts, and thus have a strong interest in whether citizens 

may associate and speak freely about the political process. They believe this 

case is an important opportunity for the Court to protect the First 

Amendment rights of all Americans. Further, these amici believe that their 

perspective on such issues may bring to the attention of the Court relevant 

matters not already brought to its attention by the parties, and that this brief 

may be of help to the Court. 

SUMMARY OF ARGUMENT 

 Being a political committee is burdensome. This is shown not just by 

the Supreme Court’s repeated recognition of the fact, but by the experiences 

of organizations forced to comply with the requirements of PAC status. In 

light of this, the Court should not impose PAC status on independent 

expenditure groups whose speech is non-corrupting, even though their major 

purpose is campaign-related. To hold otherwise is to force them to comply 

with burdensome requirements in the absence of a compelling justification. 

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 A holding that groups, which make only non-corrupting independent 

expenditures, cannot be forced to assume the burdens of PAC status has 

additional constitutional benefits. Non-profits engaging in non-corrupting 

grassroots advocacy would be similarly protected from imposition of these 

burdensome PAC requirements because the “major purpose” test becomes 

an irrelevant inquiry in the absence of corrupting speech. As a result, 

intrusive and burdensome government investigations into a non-corrupting 

organization’s “major purpose” becomes a thing of the past. 

ARGUMENT

 This case is important to non-profit organizations because there are 

very real and very burdensome consequences if political committee status is 

imposed. Campaign finance regulation has become so complex and 

confusing that ordinary citizens cannot understand it, and even experts 

struggle with it. Professionals must be hired before one speaks alone or with 

others to handle the heavy workload, help maneuver through the complex 

web of restrictions, and help avoid the imposition of penalties. Some citizen 

groups are chilled from speaking because they want to avoid the complexity 

altogether or because they cannot afford a team of specialists. These groups 

are associations of citizens who pose no threat of corrupting the political 

process. The Court should protect them from the Federal Election 

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Commission’s (FEC) constant expansion of efforts to regulate noncorrupting speech. 

I. The Burdens Of Political Committee Status On Core First 

Amendment Activity Are Real, Significant And Onerous And, 

Therefore, Demand A Compelling Government Interest To 

Justify Their Imposition. 

 In Buckley v. Valeo, 424 U.S. 1 (1976), the Court was concerned not 

only with the chilling effect of reporting and disclosure requirements on an 

organization’s contributors, but also with the potential burden of disclosure 

requirements on an association’s own speech. FEC v. Massachusetts 

Citizens for Life, 479 U.S. 238, 265-66 (1986) (O’Connor, J., concurring) 

(MCFL) (citing Buckley, 424 U.S. at 66-68, 74-82). Since Buckley, the 

Court has repeatedly recognized the burdens imposed by PAC status. 

“Detailed recordkeeping and disclosure obligations, along with the duty to 

appoint a treasurer and custodian of the records, impose administrative costs 

that many small entities may be unable to bear.” MCFL, 479 U.S. at 253; 

see also FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 477 n.9 (2007) 

(“PACs impose well-documented and onerous burdens, particularly on small 

nonprofits.”) (citing MCFL, 479 U.S. at 253-255 (plurality opinion)); FEC v. 

Akins, 524 U.S. 11, 14-15 (1998) (“[T]he Act imposes extensive 

recordkeeping and disclosure requirements upon groups that fall within the 

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Act’s definition of ‘political committee.’ Those groups must . . . file 

complex FEC reports. . . .”). 

This Court has also recognized that once an organization is found to 

be a political committee, “it must then submit to an elaborate panoply of 

FEC regulations requiring the filing of dozens of forms, the disclosing of 

various activities, and the limiting of the group’s freedom of political action 

to make expenditures or contributions.” FEC v. Machinists Non-Partisan 

Political League, 655 F.2d 380, 391-2 (D.C. Cir. 1981); see also FEC v. 

GOPAC, Inc., 871 F. Supp. 1466, 1469 (D.D.C. 1994) (quoting same). 

The MCFL Court recognized just the statutory burdens of PAC status: 

Under § 432, [a PAC] must appoint a treasurer, § 432(a); ensure that 

contributions are forwarded to the treasurer within 10 or 30 days of 

receipt, depending on the amount of contribution, § 432(b)(2); see that 

its treasurer keeps an account of every contribution regardless of 

amount, the name and address of any person who makes a 

contribution in excess of $50, all contributions received from political 

committees, and the name and address of any person to whom a 

disbursement is made regardless of amount, § 432(c); and preserve 

receipts for all disbursements over $200 and all records for three 

years, §§ 432(c), (d). Under § 433, [a PAC] must file a statement of 

organization containing its name, address, the name of its custodian of 

records, and its banks, safety deposit boxes, or other depositories, §§ 

433(a), (b); must report any change in the above information within 

10 days, § 433(c); and may dissolve only upon filing a written 

statement that it will no longer receive any contributions nor make 

disbursements, and that it has no outstanding debts or obligations, § 

433(d)(1). 

Under § 434, [a PAC] must file either monthly reports with the FEC 

or reports on the following schedule: quarterly reports during election 

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years, a pre-election report within 30 days after an election, and 

reports every 6 months during nonelection years, §§ 434(a)(4)(A), 

(B). These reports must contain information regarding the amount of 

cash on hand; the total amount of receipts, detailed by 10 different 

categories; the identification of each political committee and 

candidate’s authorized or affiliated committee making contributions, 

and any persons making loans, providing rebates, refunds, dividends, 

or interest or any other offset to operating expenditures in an 

aggregate amount over $200; the total amount of all disbursements, 

detailed by 12 different categories; the names of all authorized or 

affiliated committees to whom expenditures aggregating over $200 

have been made; persons to whom loan repayments or refunds have 

been made; the total sum of all contributions, operating expenses, 

outstanding debts and obligations, and the settlement terms of the 

retirement of any debt or obligation, § 434(b). 

MCFL, 479 U.S. at 253-54. 

 While the MCFL Court thoroughly recites the statutory burden of 

PAC status, the recitation does not fully demonstrate the effect of these 

burdens in practice. From creation to termination, operating a PAC is 

complex, time consuming, and fraught with opportunity for misstep. 

A. The organizational burdens of PAC status make it difficult 

to find a willing, competent individual to serve as treasurer. 

The complexity and burdens of organizing as a PAC preclude many 

organizations from even beginning. See MCFL, 479 U.S. at 255 n.8 (some 

“may not find it feasible to establish such a committee, and may therefore 

decide to forgo engaging in independent political speech”); see also

Interview by Jim Lehrer of Laura Murphy and Randy Tate, Campaigns 

Under Scrutiny – Opposing Reform, NewsHour (Sept. 30, 1997) 

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<www.pbs.org/newshour/campaign/september97/hearing_9-30.html> 

(“NewsHour”) (Laura Murphy, legislative director for the American Civil 

Liberties Union, stating that “not everybody who is a member of the ACLU 

would either support the creation of a PAC, or would they want to be 

members of a PAC.”).

One of the first things a PAC must do is name a treasurer. See 2 

U.S.C. 432(a) (“No contribution or expenditure shall be accepted or made by 

or on behalf of a political committee during any period in which the office of 

treasurer is vacant.”). The days of the volunteer treasurer are over for 

several reasons. It is often no easy task to find a qualified individual willing 

to take to serve in the position or to assume the legal liability of doing so. 

First, the complexity of the job has all but required committees to look 

for individuals with expertise in accounting. A nine-page guidance 

document published by the FEC on implementing internal controls by PACs 

is but one example of the specialized knowledge a treasurer needs. See FEC 

Internal Controls and Political Committees at 1, 2 

<http://www.fec.gov/law/policy/guidance/internal_controls_polcmtes_07.pd

f> (emphasis added) (“The responsibility of establishing the necessary 

control procedures falls to a political committee’s treasurer. . . . This guide 

should not be the only resource that is consulted. In addition to accounting 

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professionals, there are numerous resources that can be found on the 

Internet.”). Treasurers are expected to be up to date on the reporting and 

recordkeeping rules, maintain the checkbook, reconcile the bank account and 

reporting software used for recordkeeping, accept receipts, and make 

disbursements. 

Second, the treasurer also has the legal responsibility to ensure that 

best efforts are made to collect contributor information, and prepare and file 

reports (electronically if required). The FEC has confirmed that treasurers 

may be pursued by the Commission in their personal capacities and thus, be 

personally liable. FEC Statement of Policy Regarding Treasurers Subject to 

Enforcement Proceedings, 70 Fed. Reg. 3 (Jan. 3, 2005) 

<http://www.fec.gov/law/policy/2004/notice2004-20.pdf>. An FEC 

brochure specifically states that “[c]ommittee treasurers may be liable for 

civil monetary penalties if reports are not filed or are not filed on time.” 

Committee Treasurers Brochure, <http://www.fec.gov/pages/brochures 

/committee_treasurers_brochure.pdf>. Given all this, it is not hard to see 

why some organizations have difficulty finding an individual willing to 

serve as treasurer. As experts have noted, “The unintended consequence of 

[complicated laws] is that the price of admission into politics becomes too 

high. People do not want to become . . . treasurers because of the potential 

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liability.” Bipartisan Commission on the Political Reform Act of 1974, 

Overly Complex and Unduly Burdensome: The Critical Need to Simplify the 

Political Reform Act at 62 (last visited November 13, 2009) 

<http://www.fppc.ca.gov/pdf/McPherson.pdf> (“Bipartisan Commission”). 

B. The administrative burdens of PAC status.

1. Manpower and time commitment.

It is becoming a rarity to find a PAC that is able to successfully 

operate on a small administrative budget using a volunteer staff. The time 

commitment required, complex rules, fines for minor missteps, and 

continuous recordkeeping and reporting necessitate hiring a cadre of 

professionals. See Comment of Birkenstock and Cline in Response to SEC 

File #S7-18-09, Political Contributions by Certain Investment Advisers at 3 

(Oct. 9, 2009) < http://www.sec.gov/comments/s7-18-09/s71809-227.pdf> 

(“It is also common for candidates to have treasurers who work in finance or 

accounting and serve a particularly important role. . . .”). 

In January 2009, the FEC held a public hearing on its policies and 

procedures, and sought public comment. Agency Policies and Procedures, 

73 Fed. Reg. 74494, 74495 (Dec. 8, 2008). In response, the FEC received 

comments from several individuals highlighting the administrative burdens 

placed on these volunteer-driven PACs: 

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This whole system needs to be revised, the rules are mountainous.... 

As a local grassroots Democratic club, for us, the rules, regulations, 

paperwork, filings are so complex, and if something is missed, fines 

are issued... this makes it impossible for a group of volunteers to 

operate in a relatively small way in the process, without expensive, 

professional assistance from one of few professionals who understand 

it.... 

Comment of Diane Valentino, Agency Procedures and Processes (Dec. 12, 

2008) <http://www.fec.gov/law/policy/enforcement/2009 

/comments/comm29.pdf>. Another individual also noted the burdens which 

demand professional help: 

I have just started a political action committee. The record-keeping 

burden is simply unbearable! I believe this red tape has the effect of 

deterring grassroots participation in the political process. If I did not 

have hours to volunteer to the PAC, we just could not participate. 

This favors the large PACs that can hire professionals to run the PAC. 

Comment of Jason Eugene Call, Agency Procedures and Processes (Dec. 17, 

2008) <http://www.fec.gov/law/policy/enforcement/2009/comments 

/comm30.pdf>. 

 For some, the sheer amount of time required to operate a PAC dictates 

hiring professionals. Data entry and recordkeeping can be time consuming, 

especially if the PAC has a large number of donors. In addition to recording 

all receipts and all disbursements, a treasurer must file FEC reports, IRS 

returns, and state reports (e.g., corporate, tax, employment). 

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 Other individuals discover that to comply with the law’s reporting 

requirements, they need to hire attorneys, CPAs, and IT professionals, all of 

which cost money that a new PAC does not have. See NewsHour at ¶14 

(Randy Tate stating that “If you’ve ever set up a political action committee, 

you need several attorneys, a couple of CPA’s, piles of paper work, and it 

would have a chilling effect on everyday citizens trying to organize their 

neighborhood to have an impact on their local member of Congress.”); 

Bipartisan Commission at 62 (“Thus the regulations have injured grassroots 

democracy and have essentially professionalized politics so that you have to 

have lawyers and accountants on your campaign staff.”). 

2. Recordkeeping burdens of PAC status.

Treasurers must account for every penny that comes in, and every 

penny that goes out. They must ensure that contributions do not come from 

prohibited sources, and that they do not exceed contribution limits. 

Treasurers also must reconcile the PAC’s books, accounts, and reports. One 

mistake is enough to create discrepancies that are difficult to remedy and can 

lead to fines. 

Even for those with experience, recordkeeping imposes significant 

burdens: 

As a treasurer of a county party, and an accountant for the past 40 

years, I thought I was capable of handling the reporting and record 

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keeping requirements for a Congressional candidate. I was wrong and 

my efforts to learn were severely hampered by . . . the unwieldy 

reporting program. 

Comment of Gloria Bram, Agency Procedures and Processes (Feb. 11, 2009) 

<http://www.fec.gov/law/policy/enforcement/2009/comments/bram.pdf>. 

3. Reporting burdens of PAC status.

 The body of authority governing PAC reporting is confusing and 

complex. The Federal Election Campaign Act (FECA) is 244 pages, 

www.fec.gov/law/feca/feca.pdf, and there are 568 pages of regulations, 

www.fec.gov/law/cfr/cfr_2009.pdf. There have been over 1,770 advisory 

opinions issued since 1975, http://saos.nictusa.com/saos/searchao, over 1,200 

pages of explanations and justifications for regulations in the Federal Register, 

www.fec.gov/law/cfr/ej_main.shtml, and 379 court cases, including 13 “major 

cases,” www.fec.gov/law/litigationalpha.shtml and www.fec.gov/law 

/litigationmajor.shtml. 

There are reporting forms with instructions, www.fec.gov/general 

/library.shtml, campaign guides, www.fec.gov/general/library.shtml, and 24 

brochures, www.fec.gov/general/library.shtml. Other sources of information 

regarding the FEC’s enforcement of laws and regulations can be found in audit 

reports, www.fec.gov/audits/audit_reports_auth.shtml, and in over 6000 Matters 

under Review, http://eqs.nictusa.com/eqs/searcheqs. 

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 It is true that to assist PACs with compliance with these complex 

requirements, the law requires the FEC to provide resources and assistance. 

However, the FEC’s fulfillment of its statutory duty to provide such 

assistance does not sufficiently ameliorate the burdens placed upon PACs by 

the complexity of reporting. Indeed, the FEC’s guidance and assistance 

sometimes adds to the confusion. See Comment of Gloria Bram at ¶2 (“I 

was also hampered at times by the [FEC] employee’s poor communication 

skills. They knew the program, but hot [sic] how to best communicate in 

other areas.”). 

 For example, political committees that expect to receive or make 

contributions or expenditures in excess of $50,000 in a calendar year are 

required to file reports electronically with the FEC. 11 CFR § 104.18(a)(i) 

and (ii). Although the FEC provides free filing software, this does not lessen 

the burden placed on many PACs. As one commenter noted, “[t]he current 

software provided – FECFile – is clunky and confusing . . . . The free FEC 

software need not be as fully-featured as commercial packages available to 

campaigns, but it should be easy to use so that low-budget candidates and 

committees are able to file reports without recourse to prohibitively 

expensive applications. . . .” Comment of Peter d’Errico, Agency 

Procedures and Processes (Dec. 19, 2009) < http://www.fec.gov/law 

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/policy/enforcement/2009/comments/comm14.pdf>. Another commenter 

stated: 

The sample formats for transmitting data were poorly explained, the 

program was extremely convoluted and not user friendly. It shouldn’t 

require a Master’s degree in both Accounting and Systems Analysis to 

use it. And the experience required to use the program severely 

hampers the ability of new candidates with limited funds to run for 

public office. 

Comment of Gloria Bram at ¶3. 

The software is designed so that if certain mistakes are made, the 

treasurer will be unable to upload and file the report. If a treasurer needs 

assistance correcting these mistakes, he may consult the 351-page FECFile 

User Manual for PACs & Party Committees, < http://www.fec.gov 

/elecfil/unauthorized_manual/entireUNAUTHmanual.pdf>, or call a helpline 

to get an answer to questions arising out of use of the software. Id. at 2. 

However, if the treasurer has a question about the application of regulations 

to a specific reporting scenario, he must call either the Information Division 

or the Reports Analysis Division. This situation can put the treasurer in a 

delicate situation – he can’t upload the report because he has an error, yet he 

may be unable to get the necessary guidance he needs because the 

individuals in the Information Division and RAD are not very familiar with 

the FEC filing software, and the individuals on the FEC software helpline 

are usually not familiar with the FEC’s regulations. So while the treasurer is 

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receiving assistance from the FEC, the complexity of the software and 

reporting requirements limit its usefulness. 

The barrier to exercising the right to association due to being 

regulated as a PAC is demonstrated in an experiment conducted by Dr. 

Milyo. In 2007, 255 subjects attempted to comply with disclosure laws from 

3 states regulating ballot issue committees. Jeffrey Milyo, Ph.D., Campaign 

Finance Red Tape: Strangling Free Speech& Political Debate, at 27, 

Institute for Justice (Oct. 2007; last visited Nov. 13, 2009) < www.ij.org 

/publications/other/campaign-finance-red-tape.html> (“Milyo”). The 

difficulties of complying with reporting and disclosure laws was evident: 

not one subject completed all of the tasks correctly. Id. at 8. This is 

problematic because for “even a very small group with just a few 

contributors and expenditures, missing one filing deadline might generate 

hundreds of thousands of dollars in fines, or more.” Id. at 3. Almost 89% of 

the participants agreed that when the specter of fines and punishment for 

incorrect compliance was raised, many people would be deterred from 

engaging in independent political activity altogether. Id. at 14-16. Or, their 

participation in the political process was delayed for years. Id. at 18. A 

comment from one participant, a woman who served as a campaign treasurer 

for a political committee, is especially noteworthy: 

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Even with [my] limited experience I found this exercise to be 

complicated and mentally challenging. I took nearly the alloted [sic] 

amount of time to complete the forms and still made two major errors. 

The burdensome paper work and fines imposed for errors in reporting 

proved to be a hurdle that prevented the formation of our PAC . . . for 

a number of years. 

Id. 

 In another reporting experiment, California’s Bipartisan Commission 

found that even participants with backgrounds in campaigns could not 

generate a form without making multiple mistakes, even with using a fairly 

simple set of mock campaign data. Bipartisan Commission at 69. Those 

without a campaign background spent up to 3 hours completing the forms; 

some gave up in frustration. Id. Both those with campaign experience and 

those without it felt uncomfortable and uncertain about some of the 

responses on their prepared reports. Id. 

 What these two experiments show is that the PAC reporting 

requirements are so complex, that even those with accounting and campaign 

backgrounds have difficulty complying. Complex reporting is a burden in 

and of itself, but it also creates other burdens – administrative fines and 

investigations from simple errors, and deterrence of participation in the 

political process. 

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 The subjects in Dr. Milyo’s experiment had little doubt that the 

burdens of PAC compliance, especially when combined with the threat of 

severe penalties, would chill participation: 

Subjects were sincerely frustrated in their attempts to complete the 

disclosure forms – and believed these difficulties would deter political 

activity. . . . About two-thirds of respondents agreed that the 

disclosure requirements would deter many people from engaging in 

independent political activity. That figure rose to 85% to 89% when 

the specter of fines and punishment for incorrect compliance was 

raised. 

Milyo at 14-16. After the experiment, subjects were given the opportunity 

to comment. By a ratio of more than 20 to one, the comments were 

negative, and included: 

 “A lawyer would have a hard time wading through this disclosure 

 mess and we read legal jargon all the time.” 

 “Good Lord! I would never volunteer to do this for any committee.” 

 “Worse than the IRS!” 

 “Seriously, a person needs a lawyer to do this correctly.” 

 “This is horrible!” 

“This was awful. I feel bad for anyone who encounters these forms in 

real life.” 

Id. at 17. 

 Two recent FEC enforcement actions demonstrate the complexities of 

reporting and the threat of fines from technical violations. They provide 

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real-life examples of how the FEC’s procedures and processes burden 

participants, particularly the inexperienced, and how “being subjected to 

such treatment leads many to swear off future involvement in the federal 

election process.” Statement of Reasons of Commissioners Petersen, Hunter 

and McGahn II, FEC MURS 5957, 6031 at 1 <http://eqs.nictusa.com 

/eqsdocs/29044243959.pdf>. 

The FEC’s own commissioners have noted the wide-spread problem 

of burdensome requirements that deter participation. “We have been struck 

by the number of committees, including separate segregated funds of 

corporations, that seek to terminate after encountering the regulatory 

burdens associated with ‘political committee’ status the court noted in 

GOPAC.” Statement of Reasons of Commissioners Petersen, Hunter and 

McGahn II, FEC MUR 6005 at 4 n.10 <http://eqs.nictusa.com 

/eqsdocs/29044234461.pdf> (“MUR 6005) (citing five committees). This 

was reaffirmed in the California study: 

Nothing discourages the citizenry from participating in the political 

process more quickly or completely than a political system that is 

permitted to become unduly complex and incomprehensible. If the 

rules of the game are too difficult or complicated for the average 

citizen to readily understand them, the citizens are naturally repelled 

by that complexity. The average citizen may then rationally choose to 

opt out of the process rather than attempt to maneuver through the 

difficulties and expense of obtaining the necessary legal or technical 

assistance. Such complexity then runs counter to the purpose of 

government to encourage public participation. 

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See Bipartisan Commission at 34. 

C. FEC oversight burdens associated with PAC status.

The burdens on a PAC do not end with the filing of its reports. After 

a report is filed with the FEC, it is reviewed by a Reports Analyst in the 

Reports Analysis Division (RAD) assigned to the PAC. If the analyst 

believes there is an error, however slight (e.g., misspelling of a PAC name), 

the PAC will usually receive a “request for additional information” 

(“RFAI”). The PAC is required to respond to the RFAI, and in some cases, 

is required to amend the report. RFAI’s themselves can create substantial 

burdens for small and large PACs alike. See Comment of Jan Baran, FEC 

Agency Procedures at 10 (Jan. 5, 2009) < http://www.fec.gov/law/policy

/enforcement/2009/comments/comm33.pdf> (“These RFAIs are redundant 

and impose significant burdens on the recipients.”). 

If there is no response to the RFAI, or if it is believed to be 

inadequate, the FEC may audit the PAC. One practitioner described the 

impact of the audit process on a PAC as potentially “catastrophic.” 

Testimony of Marc Elias, FEC Public Hearing on Agency Practices and 

Procedures at 26 (Jan. 14, 2009) <http://www.fec.gov/law 

/policy/enforcement/2009/01141509hearingtranscript.pdf>. Mr. Elias went 

on to explain: 

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The FEC – an FEC audit, for those of you who are not here and have 

never been through it, is equivalent to those life audits that the IRS did 

and drew so much criticism for. It is not “let us come in and spend a 

few weeks talking to you and looking at some records.” It is “give us 

every piece of paper that the committee has ever generated over a 

cycle.” 

We will look at every check. We will look at every disbursement. 

We will look at every invitation. We will question everything and 

anything you have done during the course of this election cycle. It is 

extremely burdensome. 

*** 

So these are sweeping, sweeping audits that go on for a long period of 

time. 

Id.; see also Testimony of James Bopp, Jr., FEC Public Hearing on Agency 

Practices and Procedures at 11 (Jan. 14, 2009) <http://www.fec.gov/law 

/policy/enforcement/2009/01141509hearingtranscript.pdf> (“If they were – 

and if audited to the degree that I have seen on some occasions, wanting to 

see every check of every donor over the last X number of years, which is 

often hundreds of thousands, that a – that the rules have becomes so difficult 

and complex and the time frames so narrow and demanding that an 

organization that wants to conduct its activity in an efficient and costeffective manner cannot comply, and that the cost of compliance is nearly 

prohibitive. So I think what the audit process has shown. . . it has 

demonstrated that the complexity of the record keeping and reporting 

requirements have reached the point where very few entities can ever be 

expected to pass a real thorough audit.”); Testimony of Elias at 38 (“It’s not 

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clear to me why in the context of an audit where I think most people again 

would be shocked, most people who have not been through it would be 

shocked to know how legally intensive these become.”). 

Completely responding to an RFAI does not always end the matter. 

In addition to an audit, RAD may refer apparent violations of the FECA to 

the FEC’s Office of General Counsel for investigation. By law, the FEC is 

required to resolve complaints through this investigative and enforcement 

process called Matter Under Review (“MUR”). Should the MUR process 

fail to resolve the matter, the parties have the option to pursue the matter in 

court. Unfortunately, once a complaint is filed or a MUR is opened, it is 

extremely difficult for those being investigated to have a frivolous complaint 

dismissed before they incur a great deal of time, resources and attorneys’ 

fees. See Testimony of Hans von Spakovsky, FEC Public Hearing on 

Agency Practices and Procedures at 29 (Jan. 14, 2009) <http://www.fec.gov 

/law/policy/enforcement/2009/01141509hearingtranscript.pdf>. 

It is obvious from the foregoing discussion that the Government’s 

designation of PAC status on citizen groups is extremely burdensome on the 

exercise of core First Amendment freedoms. As a result, the Government 

must demonstrate a compelling interest to justify this burden. See MCFL, 

479 U.S. at 256 (“When a statutory provision burdens First Amendment 

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rights, it must be justified by a compelling state interest.”). However, the 

Government’s compelling interest in deterring corruption is not implicated 

by independent expenditure groups and other similarly-situated citizen 

groups. 

II. The Trickle-Down Effect Of Requiring SpeechNow To Register 

As A Political Committee In The Absence of Corruption. 

 The Buckley Court held that the First Amendment prohibits an 

organization from being required to bear the burdens of PAC status unless 

the organization is under the control of a candidate or the major purpose of 

the organization is the nomination or election of a candidate. 424 U.S. at 79. 

In so doing, the Court was protecting citizen groups that only occasionally or 

incidentally engage in express advocacy of a candidate from suffering the 

onerous burdens imposed upon PACs. Id. 

 Likewise, this Court should protect citizen groups from the full 

panoply of PAC burdens if their speech is noncorrupting, regardless of their 

major purpose. Such a holding would serve two important purposes. First, 

as explained above, it would avoid the imposition of PAC burdens on 

organizations engaging in non-corrupting speech. Second, it would declare 

the “major purpose” test irrelevant whenever non-corrupting speech is at 

issue. This would provide organizations a ready defense to intrusive and 

burdensome investigations, which themselves may violate the First 

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Amendment. See Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) 

(“Merely to summon a witness and compel him, against his will, to disclose 

the nature of his past expressions and associations is a measure of 

governmental interference in these matters.”); see also AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) (quoting Machinists, 655 F.2d at 387) 

(“Unique among federal administrative agencies, the Federal Election 

Commission has as its sole purpose the regulation of core constitutionally 

protect activity – ‘the behavior of individuals and groups only insofar as 

they act, speak and associate for political purposes.’”). 

 Currently, non-profit organizations are subjected to onerous 

investigations into what their true “major purpose” is, regardless of the fact 

that their protected issue advocacy poses no threat of corruption. Even if a 

non-profit organization’s communication does not contain express advocacy, 

or its functional equivalent, if anyone wants to silence the organization’s 

speech, it need only employ a weapon in the political arsenal – an FEC 

complaint. See Testimony of Jan Baran, FEC Public Hearing on Agency 

Practices and Procedures at 6 (Jan. 14, 2009) 

<http://www.fec.gov/law/policy/enforcement/2009/01141509hearingtranscri

pt.pdf> (“I think it’s a serious problem. I think that there is with some 

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regularity, and I think Bob Bauer even suggested that complaints get filed in 

the heat of a campaign in order to grab a headline.”). 

There are many examples from which to choose, but a recent 

complaint highlights this danger well. The American Leadership Project 

(ALP), a § 527 organization, ran ads in Ohio calling on Senator Clinton to 

“keep on fighting” for certain issues. MUR 6005 at 2. On April 30, 2008, 

counsel for Obama for America filed a complaint against the organization, 

alleging that it violated the FECA by failing to register as a political 

committee. On February 25, 2009, the Commission voted to take no further 

action and closed the case. However, the complaint fulfilled its purpose – it 

tied ALP up in the FEC’s enforcement process until well after the 

convention. See Statement for the Record of Commissioner Smith, FEC 

MUR 4624 at 2 (Nov. 6, 2001) < http://eqs.nictusa.com/eqsdocs 

/0000018E.pdf> (“These complaints are usually filed as much to harass, 

annoy, chill, and dissuade their opponents from speaking as to vindicate any 

public interest in preventing ‘corruption or the appearance of corruption.’”). 

One practitioner correctly points out the fear that non-profits face: 

“All unregistered organizations of whatever kind that are seen to influence 

elections – or that are suspected of this activity – will undergo extensive 

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examination.” Robert Bauer, More Soft Money Hard Law at ¶9 (Feb. 1, 

2007) < http://www.moresoftmoneyhardlaw.com/news.html?AID=920>. 

 These complaints lead to investigations, which are costly and chilling. 

The FEC embarks on what it terms “an extensive examination of the 

organization,” to determine its major purpose. FEC, Political Committee 

Status, 72 Fed. Reg. 5595, 5606 (Feb. 7, 2007). The similarities between the 

extensive major purpose examinations and the FEC’s investigations into 

coordinated communications allow us to clearly see the burdens of allowing 

major purpose investigations to continue absent corrupting speech. 

During the 1990s, the FEC lost sight of the express advocacy standard 

in enforcing coordinated communications regulations. The absence of a 

formal bright-line content standard led to fruitless investigations that caused 

exactly the result the Buckley Court sought to avoid – the restriction of First 

Amendment freedoms. Without a bright-line standard, individuals accused 

of illicit coordination lacked the benefit of a ready and inexpensive defense 

to an FEC investigation. Instead, they endured highly intrusive and 

expensive investigations to determine whether vague standards had been 

satisfied. 

 The most well-known example is the Christian Coalition 

investigation. In 1992, the Democratic National Committee filed a 

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complaint alleging that the Coalition and various candidate committees 

violated FECA through alleged coordinated activities. See

http://www.fec.gov/law/litigation_CCA_FEC_A.shtml. The investigation 

and subsequent enforcement action spanned over six years. The FEC took 

81 separate depositions of 48 different individuals, including past and 

present Coalition employees, staff from political parties and campaigns, and 

a former U.S. President and Vice President. Testimony of James Bopp, Jr., 

Federal Election Commission Enforcement Procedures, Committee on 

House Administration, Oct. 16, 2003 at 16 < 

http://www.campaignlegalcenter.org/attachments/941.pdf>. The FEC 

conducted a large amount of paper discovery, requiring the Coalition to 

search millions of pages of documents in its offices and warehouse, in order 

to produce over 100,000 pages. Id. Third parties were subpoenaed, 

including the Coalition’s accountants, fundraising and direct mail vendors. 

Id. 

 All in all, the investigation was exceedingly burdensome, costing the 

Coalition hundreds of thousands of dollars in attorneys’ fees and countless 

lost hours of work by employees. Id. at 17. For the Coalition, the 

“procedure was the punishment.” Id. 

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 During the course of the investigation, the FEC engaged in intrusive 

inquiry into personal religious beliefs and associations. Id. One shocking 

example of how far FEC attorneys may pry during investigations occurred 

during the deposition of Oliver North: 

 Q: (reading from a letter from Oliver North to Pat Robertson) “’Betsy 

and I thank you for your kind regards and prayers.’ The next paragraph is, 

‘Please give our love to Dede. . . .’ Who is Dede?” 

 A: “That is Mrs. Robertson.” 

 Q: “What did you mean in paragraph 2, about thanking –you and 

your wife thanking Pat Robertson for kind regards?” 

 A: “Last time I checked in America, prayers were still legal. I am 

sure that Pat had said he was praying for my family and me in some 

correspondence or phone call.” 

 Q: “Would that be something that Pat Robertson was doing for you?” 

 A: “I hope a lot of people were praying for me, Holly.” 

 Q: “But you knew that Pat Robertson was?” 

 A: “Well, apparently at that time I was reflecting something that Pat 

had either, as I said, had told me or conveyed to me in some fashion, and it 

is my habit to thank people for things like that.” 

 Q: “During the time that you knew Pat Robertson, was it your 

impression that he had – he was praying for you?” 

 O: “I object. There is no allegation that praying creates a violation of 

the Federal Election Campaign Act and there is no such allegation in the 

complaint. This is completely irrelevant and intrusive on the religious 

beliefs of this witness.” 

 O: “It is a very strange line of questioning. You have got to be 

kidding, really. What are you thinking of, to ask questions like that? I 

mean, really. I have been to some strange depositions, but I don’t think I 

have ever had anybody inquire into somebody’s prayers. I think that is 

really outrageous. And if you want to ask some questions regarding political 

activities, please do and then we can get over this very quickly. But if you 

want to ask about somebody’s religious activities, that is outrageous.” 

 Q: “I am allowed to make-“ 

 O: “We are allowed not to answer and if you think the Commission is 

going to permit you to go forward with a question about somebody’s 

prayers, I just don’t believe that. I just don’t for a moment believe that. I 

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find that the most outrageous line of questioning. I am going to instruct my 

witness not to answer.” 

 Q: “On what grounds?” 

 O: “We are not going to let you inquire about people’s religious 

beliefs or activities, period. If you want to ask about someone’s prayersJeez, I don’t know what we are thinking of. . . .” 

 Q: “Will you take that, at the first break, take it up- we will do 

whatever we have to do.” 

 O: “You do whatever you think you have to do to get them to answer 

questions about what people are praying about.” 

 Q: “I did not ask Mr. North what people were praying about I am 

allowed to inquire about the relationship between-“ 

 O: “Absolutely, but you have asked the question repeatedly. . . .” 

 Q: “I have been asking you a series of questions about your 

relationship with Pat Robertson, the Christian Coalition. . . . It is relevant to 

this inquiry what relationship you had with Pat Robertson and I have asked 

you whether Pat Robertson had indicated to you that he was praying for 

you.” 

 O: “If that is a question, I will further object. . . .” 

 Q: “Was Pat Robertson praying for you in 1991?” 

 O: “Same objection.” 

 A: “I hope so. I hope he still is.” 

Id. at 18-19. 

 The AFL-CIO was also the subject of a complaint filed by a political 

party alleging coordination with the Democratic Party and candidates. 

Although the AFL-CIO was absolved of formal liability, “the intrusion and 

expense of responding to the FEC’s investigation was punishment enough.” 

AFL-CIO Plaintiffs’ Opening Brief: Title II Issues at 12, McConnell v. FEC, 

540 U.S. 93 (2003). More than 150 individuals and entities were joined in 

the case or subpoenaed as third party witnesses. Id. at 13. The 55,000 pages 

of documents, subpoenaed over the course of three years, comprised 

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“’extraordinarily sensitive political information that would not be available 

in the absence of an investigation of complaints filed with the FEC,’ 

including ‘plans and strategies for winning elections, materials detailing 

political and associational activities, and personal information concerning 

hundreds of employees, volunteers and members of’ the AFL-CIO. . . .” Id. 

(citation omitted). A similar far-ranging investigation was conducted by the 

FEC into the 1996 advertising communications of business groups. Id. at 13 

n.13. 

Investigations similar to those described above are possible today, 

with the “major purpose” test replacing coordination as the vehicle for them. 

These burdens arising out of these investigations clearly demonstrate that the 

“major purpose” test should not be permitted to be used as a political 

weapon to silence opponents. Rather, it is a shield against registration by 

organizations that show some potential for corruption. If this Court holds 

that independent expenditure groups do not trigger political committee 

registration no matter what their major purpose, then the major purpose test 

can be discarded if only non-corrupting speech is involved. Consequently, 

non-profit organizations avoid a burdensome investigation into their major 

purpose if their only speech is similarly non-corrupting. 

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32

If non-corrupting speech makes the major purpose inquiry irrelevant, 

non-profits would have a ready-made affirmative defense to stop a major 

purpose investigation in its tracks. A politically-motivated complaint could 

be disposed of quickly before an investigation could become burdensome 

and intrusive. An organization would need only show that the complainedof communication was constitutionally protected speech that posed no threat 

of corruption, and the investigation would end there. 

Until the application of the major purpose test is limited to corrupting 

speech, a non-profit can engage in all the constitutionally protected, noncorrupting speech it wishes, but the threat of political committee status, and 

the intrusive investigation that precedes it, is always there. 

CONCLUSION 

 For the foregoing reasons, the Court should find that the onerous 

burdens of political committee status cannot be constitutionally imposed on 

organizations whose speech is non-corrupting, regardless of their “major 

purpose.” 

Case: 09-5342 Document: 1215951 Filed: 11/16/2009 Page: 44
Respectfully submitted, 

 /s/ Heidi K. Abegg 

 Heidi K. Abegg (DC Bar No. 463935) 

 Alan P. Dye (DC Bar No. 215319) 

 WEBSTER, CHAMBERLAIN & BEAN

 1747 Pennsylvania Ave, NW 

 Suite 1000 

 Washington, DC 20006 

 (202) 785-9500 

 Email: habegg@wc-b.com, adye@wc-b.com

 Attorneys for Amici Curiae

Case: 09-5342 Document: 1215951 Filed: 11/16/2009 Page: 45
CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal Rules 

of Appellate Procedure 29(d) and 32(a)(2) because this brief contains 6,999 

words, excluding the parts of the brief exempted by Fed. R. App. P. 

32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(5) and the type-style requirements of Federal 

Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in 

a proportionally spaced typeface using Microsoft Word in 14-point Times 

New Roman font. 

 /s/ Heidi K. Abegg 

 Heidi K. Abegg 

 Counsel for Amici Curiae

Case: 09-5342 Document: 1215951 Filed: 11/16/2009 Page: 46
CERTIFICATE OF SERVICE 

 I hereby certify that on this 16th day of November, 2009, I caused this 

Brief of Amici Curiae to be filed electronically with the Clerk of the Court 

using the CM/ECF System and sent via the ECF electronic notification 

system to all CM/ECF registered counsel of record. 

I further certify that on this 16th day of November, 2009, I filed with 

the Clerk’s Office of the United States Court of Appeals for the District of 

Columbia Circuit, via hand delivery, the required number of copies of this 

Brief of Amici Curiae, and further certify that I served, via First Class U.S. 

Mail, postage prepaid, the required number of said Brief to the following: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

Counsel for Appellee

William H. Mellor Stephen M. Hoersting 

Steven M. Simpson Bradley A. Smith 

Robert W. Gall CENTER FOR COMPETITIVE POLITICS 

Robert P. Frommer 124 West Street South, Suite 201 

Paul M. Sherman Alexandria, VA 22314 

INSTITUTE FOR JUSTICE 

901 North Glebe Road, Suite 900 Counsel for Appellants

Arlington, VA 22203 

Counsel for Appellants

 /s/ Heidi K. Abegg 

 Heidi K. Abegg 

 Counsel for Amici Curiae

Case: 09-5342 Document: 1215951 Filed: 11/16/2009 Page: 47
ORAL ARGUMENT SCHEDULED FOR JANUARY 27, 2010 

No. 09-5342 

(consolidated with No. 08-5223) 

__________________

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

DAVID KEATING, EDWARD H. CRANE, III, FRED M. YOUNG, JR., 

BRAD RUSSO, AND SCOTT BURKHARDT, 

Plaintiffs-Appellants, 

 

v. 

 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

__________________

On Certified Questions from the United States 

District Court for the District of Columbia, 

Case No. 08-cv-00248 (JR) 

__________________

ADDENDUM 

__________________ 

Heidi K. Abegg (DC Bar No. 463935) 

Alan P. Dye (DC Bar No. 215319) 

WEBSTER, CHAMBERLAIN & BEAN 

1747 Pennsylvania Avenue, NW, Suite 1000 

Washington, DC 20006 

Tel: (202) 785-9500 

Counsel for Amici Curiae 

Dated: November 16, 2009 

Case: 09-5342 Document: 1215951 Filed: 11/16/2009 Page: 48
§ 104.18 

accordance with 11 CFR 106.7 shall report each disbursement from its Federal account for allocable expenses. or 

each payment from an allocation account for such activity. In the report 

covering the period in which the disbursement occurred. the State. district. or local committee shall state 

the full name and address of each individual or vendor to which the disbursement was made. the date. amount. and 

purpose of each such disbursement. and 

the amounts allocated to Federal and 

non-Federal portions of the allocable 

activity. If the disbursement includes 

payment for the allocable costs of more than one activity. the State. district. or local party committee must 

itemize the disbursement. showing the 

amounts designated for payments of 

particular categories of activity as described in 11 CFR 106.7. The State. district. or local party committee must 

also report the total amount paid that 

calendar year to date for each category 

of allocable activity. 

(ii) A State. district. or local committee of a political party that pays allocable expenses from a Federal account and a Levin account in accordance with 11 CFR 300.33 shall report 

disbursements from those accounts according to the requirements of 11 CFR 

300.36. 

(4) Rocordkeeping. The treasurer of a 

State. district. or local party com­ mittee must retain all documents supporting the committee's allocations of 

expenditures and disbursements for the 

costs and activities cited at paragraph 

(b) of this section. in accordance with 

11 CFR 104.14. 

[67 FR 49114. July 29. 2002] 

§ 104.18 Electronic ruing of reports (2 

U.S.C. 432(d) and 434{a)(1l». 

(a) Mandatory. (1) Political committees and other persons required to file 

reports with the Commission. as provided in 11 CFR Parts 105 and 107. must 

file reports in an electronic format 

that meets the requirements of this 

section if­

(1) The political committee or other 

person has received contributions or 

has reason to expect to receive con· 

tributions aggregating in excess of 

$50.000 in any calendar year; or 

11 CFR Ch. I (1-1-04 Edition) 

(ii) The political committee or other 

person has made expenditures or has 

reason to expect to make expenditures 

aggregating in excess of $50.000 in any 

calendar year. 

(2) Once any political committee or 

other person described in paragraph 

(a) (1) of this section exceeds or has rea· 

son to expect to exceed the appropriate 

threshold. the political committee or person must file electronically all subsequent reports covering financial ac­ tivity for the remainder of the calendar 

year. All electronically filed reports 

must pass the Commission's validation 

program in accordance with paragraph 

(e) of this section. Reports filed on 

paper do not satisfY a political com· 

mittee's or other person's filing obligations. 

(3) Have Reason to Expect to Exceed. 

(1) A political committee or other 

person shall have reason to expect to 

exceed the threshold stated in paragraph (a)(1) of this section for two calendar years following the calendar year 

in which the political committee or 

other person exceeds the threshold un· 

less­

(A) The committee is an authorized 

committee, and has $50,000 or less in 

nets debts outstanding on January 1 of 

the year following the general election. 

and anticipates terminating prior to 

January 1 of the next election year; 

and 

(B) The candidate has not qualified 

as a candidate for the next election and 

does not intend to become a candidate 

for federal office in the next election. 

(ii) New political committees or other persons with no history of campaign finance activity shall have rea· son to expect to exceed the threshold 

stated in paragraph (a)(l) of this section within the calendar year if­

(A) It receives contributions or 

makes expenditures that exceed one 

quarter of the threshold amount in the 

first calendar quarter of the calendar 

year: or 

(B) It receives contributions or 

makes expenditures that exceed one· 

half of the threshold amount in the 

first half of the calendar year. 

(b) Voluntary. A political committee or other person who files reports with 

the CommiSSion. as provided in 11 CFR 

part 105, and who is not required to file 

122 


Case: 09-5342 Document: 1215951 Filed: 11/16/2009 Page: 49
Federal Election Commission 

electronically under paragraph (a) of 

this section, may choose to file its re­ ports in an electronic format that 

meets the requirements of this section. 

If a political committee or other per­ son chooses to file its reports electronically, all electronically filed reports 

must pass the Commission's validation 

program in accordance with paragraph 

(e) of this section. The committee or 

other person must continue to file in 

an electronic format all reports cov­ ering financial activity for that calendar year, unless the Commission determines that extraordinary and un­ foreseeable circumstances have made it 

impracticable for the political committee or other person to continue filing electronically. 

(c) Definition of report. For purposes 

of this section, report means any statement, designation or report required by 

the Act to be filed with the Commission. 

(d) Format specifications. Reports filed 

electronically shall conform to the 

technical specifications described in 

the Federal Election Commission's 

Electronic Filing Specifications Requirements. The data contained in the 

computerized magnetic media provided 

to the Commission shall be organized 

in the order specified by the Electronic 

Filing Specifications Requirements. 

(e) Acceptance of reports filed in electronic format; validation program. (1) 

Each political committee or other person who submits an electronic report 

shall check the report against the 

Commission's validation program before it is submitted, to ensure that the 

files submitted meet the Commission's 

format specifications and can be read 

by the Commission's computer system. 

Each report submitted in an electronic 

format under this section shall also be 

checked upon receipt against the Commission's validation program. The 

Commission's validation program and 

the Electronic Filing Specification Requirement are available on request and 

at no charge. 

(2) A report that does not pass the 

validation program will not be accepted by the Commission and will not be 

considered filed. If a political committee or other person submits a report that does not pass the validation 

program, the Commission will notifY 

§ 104,18 

the political committee or other person that the report has not been accepted. 

(f) Amended reports. If a political com­ mittee or other person files an amendment to a report that was filed electronically, the political committee or 

other person shall also submit the 

amendment in an electronic format. 

The political committee or other person shall submit a complete version of 

the report as amended, rather than just 

those portions of the report that are being amended. In addition, amendments must be filed in accordance with 

the Electronic Filing Specification Requirements. 

(g) Signature reqUirements, The political committee's treasurer, or any 

other person having the responsibility 

to file a designation, report or statement under this subchapter, shall 

verify the report in one of the following ways; by submitting a signed 

certification on paper that is submitted with the computerized media; 

or by submitting a digitized copy of the 

.signed certification as a separate file 

in the electronic submission. Each 

verification submitted under this section shall certify that the treasurer or 

other Signatory has examined the report or statement and, to the best of 

the signatory's knowledge and belief, it 

is true, correct and complete. Any 

verification under this section shall be 

treated for all purposes (including penalties for perjury) in the same manner 

as a verification by signature on a report submitted in a paper format. 

(h) Schedules and forms with special re­ qUirements. (1) The following are schedules and forms that reqUire the filing 

of additional documents and that have 

special signature requirements: 

(i) SchedUles C-l and C-P-1, Loans 

and Lines of Credit From Lending Institutions (see 11 CFR 104.3(d»; and 

(Ii) Form 8, Debt Settlement Plan 

(see 11 CFR 116.7(e)). 

(l) If a person files a report electronically by submitting a diskette to the 

Commission and is required to file any 

of the schedules or forms listed in paragraph (h) (1) of this section, the person 

shall file a paper copy of the required 

schedule or form with the electronic 

submission, or a digitized version as a 

123 


Case: 09-5342 Document: 1215951 Filed: 11/16/2009 Page: 50
§ 104.19 

separate file in the electronic submission. by the close of business on the 

prescribed filing date. 

(3) If a person files a report electronically by uploading the data to the 

Commission's electronic filing system 

and is required to file any schedules or forms listed in paragraph (h) (1) of this 

section, the person shall file a paper 

copy or a digitized version of the required schedule or form by the close of 

business on the prescribed filing date. 

(i) Preservation ofreports. For any report filed in electronic format under 

this section, the treasurer or other person required to file any report under 

the Act shall retain a machine-readable copy of the report as the copy preserved under 11 CFR 104.14(b)(2). In addition, the treasurer or other person 

required to file any report under the 

Act shall retain the original signed 

version of any documents submitted in 

a digitized format under paragraphs (g) 

and (h) of this section. 

[65 FR 38423, June 21, 2000, as amended at 67 

FR 12840, Mar. 20. 2002) 

§ 104.19 Special reporting requirements for principal campaign com­ mittees of candidates for election to 

the United States Senate or United 

States House ofRepresentatives. 

(a) Scope. The principal campaign 

committees of candidates for elections 

to the office of United States Senator, 

or Representative in, or Delegate or 

Resident Commissioner to, the Congress must file reports required under 

this section with the Commission. 

(b) Timing and contents of reports. (1) 

By July 15 of the year preceding the 

year in which the general election for 

the office sought is held, each principal 

campaign committee shall fHe a report 

that includes the following information: 

(i) The gross receipts, as defined in 11 

CFR 400.8, of all of the candidate's authorized committees that may be expended in connection with the primary 

election as determined as of June 30 of 

that year including contributions to 

the candidate or any of the candidate's 

authorized committees received by 

June 30 of that year that have been 

made or designated for the primary 

election under 11 CFR 1l0.1(b)(2) or re11 CFR Ch. I (1-1-04 Edition) 

designated for the primary election 

under 11 CFR 1l0.l(b)(5); 

(ii) The gross receipts, as defined in 

11 CFR 400.8, of all of the candidate's 

authorized committees that may be ex­ pended in connection with the general 

election that have been received by 

June 30 of that year including contributions to the candidate or any of 

the candidate's authorized committees 

received by June 30 of that year that 

have been designated under 11 CFR 

1l0,1(b)(2) for the general election or 

redesignated for the general election 

under 11 CFR 1l0.l(b)(5); 

(iii) The aggregate amount of contributions from the personal funds of 

the candidate to any of the candidate's 

authorized committees received by 

June 30 of that year that have been 

made or designated for the primary 

election under 11 CFR 1l0.1(b)(2) or redesignated for the primary election 

under 11 CFR 1l0.1(b)(5); 

(iv) The aggregate amount of contributions from the personal funds of 

the candidate to any of the candidate's 

authorized committees received by 

June 30 of that year that have been 

designated under II CFR 1l0.I(b)(2) for 

the general election or redesignated for 

the general election under 11 CFR 

1l0.l(b)(5); 

(v) The aggregate amount described 

in paragraph (b)(I)(i) of this section 

minus the aggregate amount described 

in paragraph (b)(1)(iii) of this section; 

and 

(vi) The aggregate amount described 

in paragraph (b) (1) (li) of this section 

minus the aggregate amount described 

in paragraph (b) (1) (iv) of this section. 

(2) By January 31 of the year in 

which the general election for the office sought is held, each principal cam­ paign committee shall file a report 

that includes the following information: 

(i) The gross receipts, as defined in 11 

CFR 400.8, of all of the candidate's authorized committees that may be expended in connection with the primary 

election as determined as of December 

31 of the year preceding the year in 

which that general election is held including contributions to the candidate or any of the candidate's authorized 

committees received by December 31 of 

the year preceding the year in which 

124 

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