UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

THE REAL TRUTH ABOUT OBAMA, 

INC., 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION 

and UNITED STATES DEPARTMENT 

OF JUSTICE, 

 Defendants. 

) 

) 

) 

) 

) No. 3:08-cv-00483-JRS 

) 

) 

) 

) 

) 

) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY 

JUDGMENT AND OPPOSITION TO PLAINTIFF’S MOTION FOR 

PRELIMINARY INJUNCTION AND SUMMARY JUDGMENT 

Audra Hale-Maddox, Attorney, ahale-maddox@fec.gov 

VA Bar No. 46929 

Phillip Christopher Hughey, 

 Acting General Counsel, chughey@fec.gov 

David Kolker, Associate General Counsel, dkolker@fec.gov 

Harry Summers, Assistant General Counsel, 

 hsummers@fec.gov 

Claire Rajan, Attorney, crajan@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

October 18, 2010 

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 1 of 56
TABLE OF CONTENTS 

 Page 

I. BACKGROUND ...........................................................................................................2 

A. Material Facts As to Which There Is No Genuine Dispute ...............................2 

B. Statement of Genuine Issues Regarding RTAO’s 

Statement of Material Facts ...............................................................................5 

C. Legal Background ..............................................................................................8 

1. Express Advocacy ..................................................................................8 

2. Political Committees ............................................................................10 

3. Contributions in Response to Solicitations ..........................................11 

4. Campaign Financing and Reporting Requirements 

After BCRA .........................................................................................12 

5. Citizens United and the Changed Role of 11 C.F.R. § 100.22 ............14 

6. SpeechNow.org v. FEC ........................................................................15

D. Procedural History ...........................................................................................15 

II. ARGUMENT ...............................................................................................................18 

A. RTAO’s Request for a Preliminary Injunction Is Moot, and 

in Any Event, RTAO Has Again Failed to Meet Any of the 

Requirements for That Relief ..........................................................................18 

1. RTAO’s Request for Preliminary Relief Is Moot 

As to All Claims...................................................................................18 

2. A Preliminary Injunction Is an Extraordinary Remedy 

That Requires a Plaintiff to Meet a Heavy Burden ..............................21 

3. RTAO Fails To Demonstrate Irreparable Harm, 

Particularly Since It Does Not Even Allege Harm from 

the Disclosure Requirements That Are Now the Main 

Practical Effect of the Challenged Restrictions ..................................23 

4. The Balance of Harms and the Public Interest 

Weigh Strongly in Favor of the Commission ......................................27 

i 

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 2 of 56
B. Summary Judgment Should Be Entered for the Commission 

Because Its Regulation Defining Express Advocacy and Its 

PAC Status Analysis Are Constitutional ........................................................29 

 

1. Summary Judgment Standards .............................................................29 

2. Plaintiff’s Burden for Its Facial Challenges ........................................29 

3. Exacting Scrutiny Is the Appropriate Standard Here 

Because the Restrictions RTAO Challenges Impose 

No Direct Restraint on Speech .............................................................30 

4. The Commission’s Express Advocacy Regulation 

Is Constitutional ...................................................................................32 

5. The Commission’s Application of the “Major Purpose” Test in 

Determining PAC Status Is Constitutional .........................................39 

a. Based on RTAO’s Vague Intentions, Its Challenge 

Does Not Appear to Be Justiciable .........................................40 

b. The Commission’s PAC Status Analysis 

Is Not Reviewable Under the APA ..........................................41 

c. The Commission’s PAC Status Analysis Is Lawful ................41 

III. CONCLUSION ............................................................................................................45 

ii

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 3 of 56
TABLE OF AUTHORITIES 

Page 

Cases 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996), 

 vacated on other grounds, 524 U.S. 11 (1998) ...........................................................................43 

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ....................................................21 

Ashcroft v. ACLU, 542 U.S. 656 (2004) ........................................................................................23 

Bennett v. Spear, 520 U.S. 154 (1997) ..........................................................................................41 

Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87 (1982) .......................................25 

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

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..............................................................................29 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) .................24, 26 

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

 919 F.2d 148 (D.C. Cir. 1990) ..............................................................................................23, 24 

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) ..............................................22 

Church of Scientology of Cal. v. U.S., 506 U.S. 9 (1992) .......................................................18, 19 

Citizens United v. FEC, 558 U.S. __, 130 S. Ct. 876 (2010) ................................................. passim

Dan River, Inc. v. Icahn, 701 F.2d 278 (4th Cir. 1983) .................................................................24 

Davis v. FEC, 554 U.S. __, 128 S. Ct. 2759 (2008) ......................................................................40 

Doe v. Reed, 558 U.S. __, 130 S. Ct. 2811 (2010) ........................................................................26

Drewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993) .............................................................................29

Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................23 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) .............................................................6, 12, 25 

FEC v. Christian Action Network, Inc. 110 F.3d 1049 (4th Cir. 1997) .....................................9, 35 

FEC v. Franklin, 718 F. Supp. 1272 (E.D. Va. 1989), 

 summarily aff’d, 902 F.2d 3 (4th Cir. 1989) ......................................................................... 26-27 

iii

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FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ............................................................................35 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ................................................................43 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ..................................................................43 

FEC v. Mass. Citizens For Life, Inc., 479 U.S. 238 (1986) ............................................. 11, 41-42 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) .............................11, 25 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ..................................9, 13, 20, 23, 33, 34, 36 

Florida v. Jimeno, 500 U.S. 248 (1991) ........................................................................................34 

Friedman’s Inc. v. Dunlap, 290 F.3d 191 (4th Cir. 2002) .............................................................20 

 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) ...........................................................26, 44 

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ...................23 

Grayned v. City of Rockford, 408 U.S. 104 (1972) ......................................................................30

H

 2010 WL 3987316 (9th Cir. Oct. 12, 2010) ...............................

uman Life of Washington, Inc. v. Brumsickle, No. 09-35128, 

...................................... 31, 33-34

cumaa v. Ozmint, 507 F.3d 281 (4th Cir. 2007) .........................................................................19

dependence Party of Richmond Cnty. v. Graham, 413 F.3d 252 (2d Cir. 2005) ......................20 

ong Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684 

.......................20, 40 

cConnell v. FEC, 540 U.S. 93 (2003) ....................................................... 9, 13, 25, 30, 34-36, 42 

Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003) ..................................................................... 19-20 

Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ..............................................................................20 

Mills v. Green, 159 U.S. 651 (1895) ..............................................................................................19 

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) ............................. 37-38 

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ................................27 

In

In

L

 (9th Cir. 2010), cert. denied, No. 10-155, __ S. Ct. __, 2010 WL 3834471 

 (Oct. 4, 2010) .................................................................................................

M

iv

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 5 of 56
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) .......................................................................42 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ..................................38 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) .................................................................................44 

Purcell v. Gonzalez, 549 U.S. 1 (2006) ........................................................................................28 

Real Truth About Obama, Inc. v. FEC, No. 3:08-cv-483, 2008 WL 4416282 

 (E.D. Va. Sept. 24, 2008) ...................................................................... 2, 5, 16-17, 28, 32, 37, 41 

Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) ........ 2, 17, 21-22, 33, 37, 41 

Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir. 2010) .......................... 2, 17-18, 22 

Real Truth About Obama, Inc. v. FEC, 588 U.S. __, 130 S. Ct. 2371 (2010) .........................17, 21 

Renne v. Geary, 501 U.S. 312 (1991) ...........................................................................................39

Sampson v. Murray, 415 U.S. 61 (1974) ......................................................................................27 

Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002) ..................................................24

SEC v. Chenery Corp., 332 U.S. 194 (1947) ................................................................................42 

Sejman v. Warner-Lambert Co., Inc., 845 F.2d 66 (4th Cir. 1988) ..............................................22 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ........................................................................42

Smith v. Frye, 488 F.3d 263 (4th Cir. 2007) .................................................................................23 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .............................................15, 25, 26, 31 

Timmins v. Narricot Indus., 360 Fed. Appx. 419 (4th Cir. 2010) ................................................19 

Toms v. Allied Bond & Collection Agency, Inc., 179 F.3d 103 (4th Cir. 1999) ...........................20 

United States v. Aramony, 166 F.3d 655 (4th Cir. 1999) ..............................................................22 

United States v. Stevens, 130 S. Ct. 1577 (2010) ..........................................................................30 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ...................................................................19, 21 

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ..................30 

Virginia v. Hicks, 539 U.S. 113 (2003) .........................................................................................30 

v

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 6 of 56
Virginia Soc’y For Human Life, Inc. v. Caldwell, 152 F.3d 268 (4th Cir. 1998) .........................40 

Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) .................................35 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984) .........................................27 

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .................................................................27 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. __, 

 129 S. Ct. 365 (2008) ...........................................................................................17, 21, 23, 27, 28 

Wyatt v. Cole, 504 U.S. 158 (1992) ..............................................................................................34 

Statutes and Regulations 

Bipartisan Campaign Reform Act, Pub. L. No. 107-155, § 212(a), 116 Stat. 81 (2002) .............12 

Federal Election Campaign Act, 2 U.S.C. §§ 431-57 ......................................................................2 

FECA Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 

90 Stat. 475, 479 (1976) (codified at 2 U.S.C. § 431(17) ............................................................8 

2 U.S.C. § 431(4)(A) ......................................................................................................... 10-11, 15 

2 U.S.C. § 431(4)(B) .....................................................................................................................32 

2 U.S.C. § 431(8)(A)(i) .............................................................................................................8, 11 

2 U.S.C. § 431(9)(A)(i) ...................................................................................................................8 

2 U.S.C. § 431(22) ..........................................................................................................................7 

2 U.S.C. § 433 ...............................................................................................................................10 

2 U.S.C. § 434 ...............................................................................................................................10 

2 U.S.C. § 434(c)(l) .......................................................................................................................12 

2 U.S.C. § 434(c)(2)(C) ................................................................................................................12 

2 U.S.C. § 434(f)(1) ......................................................................................................................13 

2 U.S.C. § 434(f)(2) ......................................................................................................................13

2 U.S.C. § 434(f)(3) ..................................................................................................................3, 32 

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2 U.S.C. § 434(f)(3)(A)(i) .............................................................................................................13 

2 U.S.C. § 434(g)(1)(A) ................................................................................................................12 

2 U.S.C. § 434(g)(2)(A) ................................................................................................................12 

2 U.S.C. § 437c(b)(1) ..................................................................................................................2, 5 

2 U.S.C. § 437d(a)(7) ......................................................................................................................2 

2 U.S.C. § 437d(a)(8) ......................................................................................................................2 

2 U.S.C. § 437f ...............................................................................................................................2 

2 U.S.C. § 437g ...............................................................................................................................2 

2 U.S.C. § 437g(a) ..........................................................................................................................7 

2 U.S.C. § 437g(a)(1) ......................................................................................................................7 

2 U.S.C. § 437g(a)(2) ................................................................................................................7, 44 

2 U.S.C. § 437g(a)(4) ......................................................................................................................8 

2 U.S.C. § 437g(a)(6) ......................................................................................................................8 

2 U.S.C. § 437g(d) ..........................................................................................................................2 

2 U.S.C. § 441a(a)(1)(C) .........................................................................................................10, 25 

2 U.S.C. § 441a(a)(7) ....................................................................................................................25

2 U.S.C. § 441b ...................................................................................................................9, 14, 33

2 U.S.C. § 441b(b) ........................................................................................................................32 

2 U.S.C. § 441b(b)(2) ...................................................................................................................13 

5 U.S.C. § 704 ...............................................................................................................................41 

26 U.S.C. § 527 ..............................................................................................................................2 

26 U.S.C. § 527(a) ........................................................................................................................10 

26 U.S.C. § 527(e)(1) ....................................................................................................................10 

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11 C.F.R. § 100.22 ....................................................................................................................9, 30 

11 C.F.R. § 100.22(a) ......................................................................................................................9 

11 C.F.R. § 100.22(b) ........................................................................................................... passim

11 C.F.R. § 100.26 ..........................................................................................................................7 

11 C.F.R. § 100.27 ..........................................................................................................................7 

11 C.F.R. § 100.57 .............................................................................................................. 6, 15-18 

11 C.F.R. § 100.57(a) ....................................................................................................................12 

11 C.F.R. § 106.6(f) ........................................................................................................................6 

11 C.F.R. § 114.12(a) ....................................................................................................................13 

11 C.F.R. § 114.15 ............................................................................................................ 13, 15-18 

 

Administrative Materials 

Express Advocacy; Independent Expenditures; Corporate and Labor Organization 

 Expenditures, 60 Fed. Reg. 35,292 (July 6, 1995) ................................................................ 34-35

FEC Advisory Opinion 2010-09, 2010 WL 2960580 ...................................................................15 

FEC Advisory Opinion 2010-11, 2010 WL 2960582 .............................................................15, 25 

Funds Received in Response to Solicitations; Allocation of Expenses 

 by Separate Segregated Funds and Nonconnected Committees, 

 75 Fed. Reg. 13,223 (Mar. 19, 2010) ......................................................................................6, 12 

Matter Under Review 4867, Tribal Alliance for Sovereignty, Factual and Legal Analysis 

 (Dec. 11, 1998), http://eqs.sdrdc.com/eqsdocsMUR/0000428F.pdf. ..........................................44 

Matter Under Review 5440, The Media Fund, Conciliation Agreement (Nov. 15, 2007), 

 http://eqs.nictusa.com/eqsdocsMUR/00006691.pdf ....................................................................39 

Matters Under Review 5511, 5525, Swiftboat Veterans and POWs for Truth, Conciliation 

Agreement (Dec. 11, 2006), http://eqs.nictusa.com/eqsdocsMUR/00005900.pdf .....................39 

Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) ......................................... 11, 41-44 

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ix

Press Release, FEC Statement on the D.C. Circuit Court of Appeals Decision in 

 EMILY’s List v. FEC, 

 http://www.fec.gov/press/press2010/20100112EmilyList.shtml (Jan. 12, 2010) .......................12 

Press Release, FEC Statement on the Supreme Court’s Decision in Citizens United v. FEC, 

http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml (Feb. 5, 2010) .................14 

Miscellaneous 

Fed R. Civ. P. 26(b)(1) ....................................................................................................................4 

Fed R. Civ. P. 56(c) ......................................................................................................................29 

Local Rule 56(B) .............................................................................................................................2 

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 10 of 56
Plaintiff The Real Truth About Obama, Inc’s (“RTAO”) challenge to the Federal Election 

Commission (“Commission” or “FEC”) regulation defining “express advocacy” and the 

Commission’s approach to determining political committee status is even weaker today than it 

was when this Court denied a preliminary injunction in 2008. Intervening court decisions have 

not only mooted two of the prior claims in the case, but also narrowed the reach of the 

challenged regulation defining express advocacy: It no longer functions as part of a ban on 

speech, but instead helps implement disclosure requirements, which serve important government 

interests and face a lower level of scrutiny than direct restraints on speech. Even though Citizens 

United v. FEC, 558 U.S. __, 130 S. Ct. 876, 913 (2010), declared unconstitutional spending 

limits for independent express advocacy, the Supreme Court by an 8-1 vote upheld disclosure 

requirements that capture a far greater range of communications than “express advocacy.” 

Although RTAO still seeks a preliminary injunction for two advertisements that the 

group allegedly intended to run in 2008 about then-Senator Barack Obama, plaintiff has moved, 

with the Commission’s consent, for consolidation with the merits; the Court’s ability to rule now 

on the merits necessarily renders any request for preliminary relief moot. In any event, plaintiff 

cannot show irreparable harm based on its speculative claims about the effects of the 

Commission’s express advocacy regulation and its approach to analyzing whether an 

organization is a political committee (“PAC status analysis”). Thus, this Court should again 

deny RTAO’s request for a preliminary injunction, and because there are no material facts in 

dispute and RTAO’s remaining challenges lack merit, the Court should also grant summary 

judgment to the Commission. 

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Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 11 of 56
I. BACKGROUND 

A. Material Facts As to Which There Is No Genuine Dispute1

1. The Federal Election Commission is the independent agency of the United States 

government with exclusive civil jurisdiction to administer, interpret, and enforce the Federal 

Election Campaign Act, 2 U.S.C. §§ 431-57 (“FECA” or “Act”). The Commission is 

empowered to “formulate policy” with respect to the Act, 2 U.S.C. § 437c(b)(1); “to make, 

amend, and repeal such rules . . . as are necessary to carry out the provisions of [the] Act,” 

2 U.S.C. § 437d(a)(8); to issue advisory opinions construing the Act, 2 U.S.C. §§ 437d(a)(7), 

437f; and to civilly enforce the Act. 2 U.S.C. § 437g. 

2. The Department of Justice prosecutes criminal violations of the Act. 

See 2 U.S.C. § 437g(d). 

3. The Real Truth About Obama, Inc. (“RTAO”) is a nonprofit Virginia corporation. 

RTAO Material Facts as to Which There Is No Dispute ¶ 1 (Docket No. 126) (“RTAO Facts”). 

4. RTAO was incorporated on July 24, 2008, six days before it filed its complaint. 

RTAO v. FEC, No. 3:08-cv-483, 2008 WL 4416282, at *1 (E.D. Va. Sept. 24, 2008). 

5. RTAO is classified as a “527” organization with the Internal Revenue Service. 

RTAO Facts ¶ 4; see 26 U.S.C. § 527. 

6. RTAO’s Articles of Incorporation forbid RTAO from “expressly advocat[ing] the 

election or defeat of any clearly identified candidate for public office” or from making “any 

contribution to any candidate for public office.” RTAO Facts ¶ 7. 

 

1

 The Fourth Circuit’s opinion includes a factual summary of the case. The Commission 

states the relevant facts here for the purpose of its summary judgment motion, see Local Rule 

56(B), and notes that these facts are consistent with those found in the Fourth Circuit’s opinion. 

RTAO v. FEC, 575 F.3d 342, 345 (4th Cir. 2009); RTAO v. FEC, 607 F.3d 355 (4th Cir. 2010). 

2

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 12 of 56
7. RTAO alleges that it developed two radio advertisements, entitled Change and 

Survivors. RTAO Facts ¶¶ 10-11. Change purports to provide “the real truth about Democrat 

Barack Obama’s position on abortion,” using an “Obama-like voice.” Id. ¶ 10. That voice 

states, in a first-person declaration, that Senator Obama wishes to provide federal funds for every 

abortion performed in the United States, to legalize partial-birth abortion, and to “give Planned 

Parenthood lots more money.” Id. Near the end of the ad, a woman’s voice asks: “Now you 

know the real truth about Obama’s position on abortion. Is this the change that you can believe 

in?” Id. 

8. Survivors states, inter alia, that Senator Obama “has been lying” about his voting 

history regarding abortion, thereby demonstrating “callousness” and “a lack of character and 

compassion that should give everyone pause.” RTAO Facts ¶ 11. 

9. RTAO allegedly intended to broadcast these two ads on the radio “in heartland 

states” during the thirty days preceding the Democratic National Convention (July 29, 2008 - 

August 28, 2008) and the sixty days preceding the 2008 general election (September 5, 2008 - 

November 4, 2008) — broadcast dates that would cause the ads to fall within the windows for 

“electioneering communications” under the Act. RTAO Facts ¶ 12; 2 U.S.C. § 434(f)(3). RTAO 

does not allege that it took any concrete steps towards creating or distributing the ads. 

10. RTAO alleges that it intended to raise more than $1,000 and to spend more than 

$1,000 to broadcast the ads. RTAO Facts ¶ 15. 

11. RTAO has not spent any money to broadcast these or similar ads. Plaintiff 

RTAO’s Discovery Responses, dated Nov. 13, 2008, at 5 (attached as Exhibit 1) (“RTAO 

Responses”). 

3

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12. RTAO has written one fundraising communication that it alleges it intends to use 

to raise money, RTAO Facts ¶ 14, but RTAO states that it has never sent such a communication 

to any potential contributor, RTAO Responses at 3-4. 

13. RTAO states that “no individual has been identified who has expressed an intent 

to donate to RTAO in the future.” RTAO Responses at 6. 

14. RTAO alleges that it is creating a website that will contain “accurate and truthful 

information about the public policy positions of Senator Obama,” RTAO Facts ¶ 9, but the 

website is not active. 

15. RTAO did not produce any evidence that any actual or potential donor to RTAO 

expressed a fear of intimidation, harassment, or threats if information about their identity or 

donation were to be disclosed. 

16. Plaintiff objected to document requests and interrogatories asking for the basis of 

any assertions that RTAO would be subjected to threats, harassment, or reprisals, asserting that 

the requests are “not ‘relevant to any party’s claim or defense’ as required by FRCP 26(b)(1),” 

Responses at 4, and “irrelevant and/or immaterial to any claim in plaintiff’s Amended complaint,” 

RTAO Second Set of Discovery Responses, dated Dec. 5, 2008, at 4 (attached as Exhibit 2). 

RTAO did not produce any evidence that RTAO would be subjected to intimidation, harassment, 

or threats if it were to comply with the FECA disclosure requirements at issue in this case. 

RTAO Responses at 4 (stating that RTAO has “No responsive documents” in response to a 

request for “[a]ny documents that evidence or reflect any alleged burdens on RTAO or persons 

associated with RTAO resulting from your compliance with the disclosure requirements at issue in 

this case, including any threats, harassment, or reprisal”).

4

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 14 of 56
17. RTAO did not produce any evidence that donors to any organizations with 

viewpoints similar to its own have suffered threats, harassment, or reprisals after information 

about their donations or activities was disclosed. 

B. Statement of Genuine Issues Regarding RTAO’s Statement of Material Facts

The Commission does not contest Nos. 1-2, 4, 7, and 9-15, in RTAO’s Statement of 

Material Facts as to Which There Is No Dispute. As to RTAO’s remaining alleged facts, the 

Commission’s responses are below. The Commission notes that the material disputed issues in 

this case are legal in nature. Therefore, there are no disputes as to any material facts, and no trial 

or evidentiary hearing is necessary. 

Response to RTAO Fact No. 3: The Commission objects to the statement that the 

Department of Justice “has control over all . . . civil suits in which the United States has an 

interest” because the Commission has “exclusive jurisdiction with respect to the civil 

enforcement” of federal campaign finance laws. 2 U.S.C. § 437c(b)(1). 

Response to RTAO Fact No. 5: The Commission objects because RTAO has not 

provided sufficient information to determine whether it is a “political committee” under FECA, 

and this lawsuit is not a proper vehicle for the Commission or the Court to make that 

determination. If RTAO spent more than $1,000 to run Survivors, it would satisfy the statutory 

threshold for political committee status because the ad contains express advocacy. See RTAO, 

2008 WL 4416282, at *7-8. 

Response to RTAO Fact No. 6: The Commission objects because RTAO has not 

provided sufficient information to determine whether RTAO satisfies the constitutional “major 

purpose” test that is required for political committee status. See infra pp. 40. 

5

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 15 of 56
Response to RTAO Fact No. 8: The Commission objects to the statement that 

RTAO could have a “reasonable belief” that it will be deemed a political committee based on its 

alleged “nature” and “planned activities,” which appear to be hypothetical and, in any event, 

RTAO has not provided sufficient information to conclude that it should be considered a political 

committee. 

Response to RTAO Fact No. 16: The Commission objects to the statements that 

RTAO is “chilled” and that it could “reasonably believe” it will be subjected to an FEC 

enforcement proceeding because RTAO has not provided sufficient information to conclude that 

its hypothetical activities would result in RTAO being considered a political committee or that 

the Commission would begin enforcement proceedings against it. 

Response to RTAO Fact No. 17: The Commission objects to this statement as 

contrary to the record and the law. The fundraising communication RTAO describes (RTAO 

Facts ¶ 14) would not have been a “solicitation” within the meaning of former 11 C.F.R. 

§ 100.57 (promulgated in 2004) because it does not indicate that funds received will be used to 

support or oppose Senator Obama’s candidacy. Accordingly, donations received would not have 

been “contributions” under the Act. Moreover, even if RTAO were a political committee, it 

would not be required to use “federal funds” to send its proposed fundraising communication. 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) (invalidating 11 C.F.R. § 106.6(f) 

(promulgated in 2004), which required costs for public communications that clearly identified a 

federal candidate to be financed with federal funds); Funds Received in Response to 

Solicitations; Allocation of Expenses by Separate Segregated Funds and Nonconnected 

Committees, 75 Fed. Reg. 13,223 (Mar. 19, 2010) (deleting section 106.6(f) pursuant to EMILY’s 

List). In any event, plaintiff failed to establish that RTAO’s proposed solicitation would be 

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considered a public communication (and therefore subject to former section 106.6(f)’s funding 

limitation) as RTAO did not provide any information regarding how the communication would 

be sent to potential donors. See 2 U.S.C. § 431(22); 11 C.F.R. §§ 100.26 and 100.27 (both 

promulgated in 2002) (defining public communication and exempting unpaid communications 

over the Internet from the definition).

Response to RTAO Fact No. 18: The Commission objects to the statement that 

RTAO has any “chill” as a result of the June 2008 Department of Justice letter to the president of 

Democracy 21 as not supported by the record.

Response to RTAO Fact No. 19: The Commission objects to the statement that 

RTAO could “reasonably believe” it will be subjected to an FEC enforcement proceeding 

because there is inadequate information to determine whether RTAO’s hypothetical activities 

could result in RTAO being considered a political committee. In addition, the Commission 

objects to this fact as speculative, hypothetical, and without foundation to the extent it suggests 

that plaintiff is at risk of a “burdensome and intrusive investigation,” an “enforcement action,” or 

civil penalties. If any complaint is filed against RTAO, the Commission is required to give 

RTAO notice, which RTAO does not claim to have received. See 2 U.S.C. § 437g(a)(1). Before 

the Commission may commence an investigation, at least four of the six Commissioners must 

find there is reason to believe a violation of the law has occurred. 2 U.S.C. § 437g(a)(2). 

Moreover, if plaintiff believes that an actual Commission investigation is burdensome or 

intrusive, there are many administrative and judicial avenues available to challenge the scope of 

that investigation. See generally 2 U.S.C. § 437g(a). The Commission does not have the 

authority to impose civil penalties. Rather, it may can encourage voluntary conciliation; if at 

least four Commissioners determine that there is probable cause to believe a violation has 

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occurred and conciliation fails, and if at least four Commissioners then vote to authorize a 

de novo civil action, a federal court may impose a penalty. See 2 U.S.C. §§ 437g(a)(4), 

437g(a)(6). 

Response to RTAO Fact No. 20: The Commission objects to this fact as vague, 

speculative, and ambiguous to the extent it refers to “ads materially similar to Change and 

Survivors.” To the extent this paragraph could be construed as a statement of fact rather than a 

conclusion of law, the Commission objects that it is not supported by the record in this case. 

C. Legal Background 

1. Express Advocacy 

In FECA, “contribution” is defined to include giving anything of value “for the purpose 

of influencing any election for Federal office.” 2 U.S.C. § 431(8)(A)(i). Similarly, 

“expenditure” is defined to include any payment of money made “for the purpose of influencing 

any election for Federal office.” 2 U.S.C. § 431(9)(A)(i). In Buckley v. Valeo, 424 U.S. 1, 41 

(1976), the Supreme Court reviewed FECA’s then-prohibition on expenditures by any person of 

more than $1,000 “relative to” a federal candidate. The Court found the provision 

unconstitutionally vague and so “construed [it] to apply only to expenditures for communications 

that in express terms advocate the election or defeat of a clearly identified candidate for federal 

office.” Id. at 44 (footnote omitted). Congress then defined “independent expenditure” to mean 

an independent communication “expressly advocating the election or defeat of a clearly 

identified candidate.” See FECA Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 

90 Stat. 475, 479 (1976) (codified at 2 U.S.C. § 431(17)). Corporations and labor organizations 

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were prohibited from making independent expenditures using their treasury funds. 2 U.S.C. 

§ 441b.2

 

In 1995, the Commission promulgated a regulatory definition of the term “expressly 

advocating.” 11 C.F.R. § 100.22. Part (a) of the regulatory definition encompasses 

communications that use phrases or campaign slogans “which in context can have no other 

reasonable meaning than to urge the election or defeat” of a candidate. 11 C.F.R. 

§ 100.22(a). Part (b) defines express advocacy as a communication that has an unambiguous 

“electoral portion” and that cannot reasonably be construed as anything other than an 

encouragement to elect or defeat a candidate. 11 C.F.R. § 100.22(b). Citing Buckley, some 

courts had held that a limited, “magic words” interpretation of “expressly advocating” was the 

outer constitutional boundary of Congress’s power to regulate campaign expenditures. See, e.g., 

FEC v. Christian Action Network, Inc. 110 F.3d 1049, 1052-55 (4th Cir. 1997) (“CAN”). In 

McConnell v. FEC, 540 U.S. 93 (2003), however, the Supreme Court explained that Buckley’s 

“express advocacy limitation . . . was the product of statutory interpretation rather than a 

constitutional command.” Id. at 191-92. This construction was imposed because of the 

vagueness of FECA’s original statutory text, not because the government’s power was in all 

cases circumscribed to regulating only a limited number of “magic words” of advocacy. 

Congress may regulate not only express advocacy, the Court held, but also the “functional 

equivalent of express advocacy.” Id. at 206.3

 See also FEC v. Wis. Right to Life, Inc., 551 U.S. 

449, 469-70 (2007) (“WRTL”). 

 

2

 The prohibition on corporate and union independent expenditures dates back to 1947. 

See Citizens United, 130 S. Ct. at 953 (Stevens, J., dissenting). 

3

 This part of the Court’s reasoning occurred in its analysis of “electioneering 

communications,” a newly defined term in the Bipartisan Campaign Reform Act of 2002. See 

infra pp. 12-13. The Court noted that the “new term . . . applies in both the disclosure and the 

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2. Political Committees 

Under FECA, any “committee, club, association, or other group of persons” that receives 

over $1,000 in contributions or makes over $1,000 in expenditures in a calendar year is a 

“political committee.” 2 U.S.C. § 431(4)(A). Political committees (commonly called “PACs”) 

must register with the Commission and file periodic reports for disclosure to the public of their 

receipts and disbursements, with limited exceptions for most transactions below $200. See

2 U.S.C. §§ 433, 434. No person may contribute more than $5,000 per calendar year to any one 

political committee, other than a political party committee. 2 U.S.C. § 441a(a)(1)(C). 

In Buckley, the Supreme Court held that defining political committee status “only in 

terms of amount of annual ‘contributions’ and ‘expenditures’” might result in overbroad 

application of FECA’s political committee requirements by reaching “groups engaged purely in 

issue discussion.” 424 U.S. at 79. The Court therefore concluded that the Act’s political 

committee provisions “need only encompass organizations that are under the control of a 

candidate or the major purpose of which is the nomination or election of a candidate.” Id. Under 

the statute as thus limited, a non-candidate-controlled entity must register as a political 

committee only if it crosses one of the $1,000 statutory thresholds and its “major purpose” is the 

nomination or election of federal candidates. 

The Commission received rulemaking petitions urging the agency to promulgate a 

regulation defining “political committee” to encompass all “527” groups, i.e., “political 

organizations” holding tax-exempt status under section 527 of the Internal Revenue Code, 

26 U.S.C. §§ 527(a) and (e)(1). After extensive public comment and hearings, in 2007 the 

 

expenditure contexts.” 540 U.S. at 190. As discussed infra pp. 14, Citizens United later 

overturned the portion of McConnell that had upheld the financing restrictions on electioneering 

communications, but reaffirmed the portion of McConnell that had required disclosure for such 

communications. 

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Commission published in the Federal Register an Explanation & Justification explaining the 

Commission’s decision not to promulgate a revised definition of “political committee,” but to 

continue its longstanding practice of determining each organization’s major purpose on a caseby-case basis. Political Committee Status, 72 Fed. Reg. 5595, 5596-97 (Feb. 7, 2007). The 

notice then discussed a number of prior administrative and civil matters in which the 

Commission or a court had analyzed a group’s major purpose; these descriptions cumulatively 

“provid[ed] considerable guidance to all organizations” regarding the criteria that are used to 

apply the “major purpose” test. See id. at 5595, 5605-5606. In addition, this notice explained 

that the Commission uses its regulatory definition of “express advocacy” to help determine 

whether an organization has made in excess of $1,000 in expenditures in any calendar year and 

thus satisfies one statutory criterion for political committee status under 2 U.S.C. § 431(4)(A). 

See 72 Fed. Reg. at 5604.

Since long before Citizens United, political committees have been able to make unlimited 

independent expenditures. See FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 

490-501 (1985) (“NCPAC”). Similarly, certain ideological non-profit corporations have long 

been able to make unlimited independent expenditures. FEC v. Mass. Citizens For Life, Inc., 

479 U.S. 238 (1986) (“MCFL”). 

3. Contributions in Response to Solicitations 

FECA does not provide specific criteria for determining whether a particular donation is 

made “for the purpose of influencing any election,” such that the donation would constitute a 

“contribution.” 2 U.S.C. § 431(8)(A)(i). By regulation, the Commission defined a 

“contribution” to include a “deposit of money . . . made by any person in response to any 

communication . . . if the communication indicates that any portion of the funds received will be 

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used to support or oppose the election of a clearly identified Federal candidate.” 11 C.F.R. 

§ 100.57(a). On September 18, 2009, the D.C. Circuit declared section 100.57 unlawful. 

EMILY’s List, 581 F.3d at 17-18. The Commission accordingly announced that the regulation 

“will not be enforced” and repealed the regulation effective April 18, 2010.4

 

4. Campaign Financing and Reporting Requirements After BCRA

The Act has long required that all independent expenditures above $250 must be timely 

reported to the Commission for disclosure to the public. 2 U.S.C. § 434(c)(l). Reports must also 

identify every person who contributed more than $200 “for the purpose of furthering an 

independent expenditure.” 2 U.S.C. § 434(c)(2)(C). In addition, the Act requires that persons 

making independent expenditures aggregating $1,000 or more after the 20th day, but more than 

24 hours, before an election file a report with the Commission within 24 hours. 2 U.S.C. 

§ 434(g)(1)(A). In 2002, Congress passed the Bipartisan Campaign Reform Act (“BCRA”), Pub. 

L. No. 107-155, § 212(a), 116 Stat. 81 (2002), which added a requirement that persons who 

make independent expenditures aggregating $10,000 or more up to and including the 20th day 

before an election file a report within 48 hours. 2 U.S.C. § 434(g)(2)(A). 

BCRA also introduced new financing and disclosure requirements for “electioneering 

communications.” The statute prohibited corporations (other than incorporated political 

committees) and unions from making any “direct or indirect payment . . . for any applicable 

electioneering communication,” which is defined in the context of a presidential election as a 

“broadcast, cable, or satellite communication” that (a) refers to a clearly identified presidential 

candidate, and (b) is made within sixty days before the general election or thirty days before a 

 

4

 See Press Release, FEC Statement on the D.C. Circuit Court of Appeals Decision in 

EMILY’s List v. FEC, http://www.fec.gov/press/press2010/20100112EmilyList.shtml (Jan. 12, 

2010); 75 Fed. Reg. at 13,223. 

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primary election or convention. 2 U.S.C. §§ 441b(b)(2), 434(f)(3)(A)(i); 11 C.F.R. § 114.12(a) 

(promulgated in 1976) (incorporated political committee are treated like political committees, not 

corporations). 

BCRA also required disclosure for “electioneering communications.” Every person who 

makes electioneering communications in an aggregate amount in excess of $10,000 during a 

calendar year shall file a disclosure statement within 24 hours. 2 U.S.C. § 434(f)(1). This report 

must include the amount of disbursement, identification of the person making the disbursement, 

names of any person sharing or exercising direction or control over the activities of such person, 

and the custodian of the accounts; the amount and recipient of each disbursement over $200; and 

the names and addresses of all contributors who gave more than $1,000 in a calendar year to the 

person making the disbursement. 2 U.S.C. § 434(f)(2).5

The Supreme Court initially upheld the constitutionality of the financing restriction for 

electioneering communications “to the extent that the issue ads . . . are the functional equivalent 

of express advocacy.” McConnell, 540 U.S. at 189-194, 203-208; WRTL, 551 U.S. at 465. The 

Chief Justice’s controlling opinion in WRTL defined “the functional equivalent of express 

advocacy” as a communication that is “susceptible of no reasonable interpretation other than as 

an appeal to vote for or against a specific candidate.” WRTL, 551 U.S. at 469-470. In 2007, the 

Commission codified this standard in a regulation. 11 C.F.R. § 114.15. 

 

5 FECA also requires political committees and other persons to include disclaimers in 

certain campaign-related communications. See generally 2 U.S.C. § 441d (requiring, inter alia, 

that persons who make disbursements to finance a public communication “expressly advocating 

the election or defeat of a clearly identified candidate, or solicit[ing] any contribution” include in 

their communication a statement whether the communication has been paid for or authorized by 

a candidate); see also McConnell, 540 U.S. at 230-31 (upholding disclaimer requirements for 

electioneering communications). RTAO has not directly challenged these requirements or 

alleged any harm from them. 

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5. Citizens United and the Changed Role of 11 C.F.R. § 100.22 

The Supreme Court subsequently held unconstitutional FECA’s restriction on corporate 

financing of independent expenditures, as well as BCRA’s electioneering communication 

financing restrictions. Citizens United, 130 S. Ct. at 913. The Commission has accordingly 

announced that it will no longer enforce the statutory or regulatory restrictions on the financing 

of electioneering communications.6 However, in Citizens United eight justices upheld BCRA’s 

disclosure requirements for electioneering communications, even if those communications are 

not the functional equivalent of express advocacy. 130 S. Ct. at 914-15. The Court stated: 

“Disclaimer and disclosure requirements may burden the ability to speak, but they ‘impose no 

ceiling on campaign-related activities.’” Id. at 914 (quoting Buckley, 424 U.S. at 64). The Court 

thus “subjected these requirements to ‘exacting scrutiny,’ which requires ‘a substantial relation’ 

between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id. 

(quoting Buckley, 424 U.S. at 64, 66). The Court also explained that disclosure is “less 

restrictive” than a limit on spending, and the public has an interest in knowing who is responsible 

for pre-election communications that speak about candidates, “[e]ven if the ads only pertain to a 

commercial transaction.” Id. at 915-16. 

Prior to Citizens United, the Commission’s regulatory definition of express advocacy 

helped implement the ban on corporate and union independent expenditures in 2 U.S.C. § 441b. 

However, because Citizens United found that ban unconstitutional, the definition of express 

advocacy in section 100.22(b) no longer operates as part of any limit on speech. It now 

functions only to help determine whether disclosure of independent expenditures is required and 

as part of the analysis in determining whether an organization is a political committee (i.e., 

 

6

 Press Release, FEC Statement on the Supreme Court’s Decision in Citizens United v. 

FEC, http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml (Feb. 5, 2010). 

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whether an organization has made more than $1,000 in “expenditures” under 2 U.S.C. 

§ 431(4)(A)). 

6. SpeechNow.org v. FEC 

Relying upon Citizens United, the District of Columbia Circuit recently held that a group 

that receives contributions only from individual persons and whose campaign-related activity 

consists only of independent expenditures may not be subject to the $5,000 limit on contributions 

received by political committees. SpeechNow.org v. FEC, 599 F.3d 686, 692-97 (D.C. Cir. 

2010) (en banc). Regarding disclosure and reporting, however, SpeechNow upheld the 

organizational and reporting requirements for political committees. Id. at 696-98. The court 

noted that the reporting required of political committees does not “impose much of an additional 

burden” compared with the reporting requirements for persons making independent 

expenditures. Id. at 697. 

After Citizens United and SpeechNow, a Commission advisory opinion determined that a 

political committee that makes only independent expenditures (i.e., no contributions or 

coordinated expenditures) may now solicit and accept unlimited contributions from individuals, 

political committees, corporations, and labor organizations. See FEC Advisory Opinion 2010-

11, 2010 WL 2960582 (July 22, 2010). In another advisory opinion, the Commission also 

determined that a corporation may establish, administer, and pay expenses for an independent 

expenditure political committee. See FEC Advisory Opinion 2010-09, 2010 WL 2960580 (July 

22, 2010). 

D. Procedural History 

On July 30, 2008, RTAO filed a complaint and a motion for a preliminary injunction 

challenging the Commission’s regulations at 11 C.F.R. §§ 100.22(b), 100.57, and 114.15, as well 

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as the Commission’s approach to determining political committee status, as unconstitutional on 

their face and as applied to Change. On August 20, RTAO filed a second motion for a 

preliminary injunction, which sought to enjoin the Commission’s enforcement of its regulations 

against Survivors. This Court denied those injunctions on September 11, 2008 (Docket # 65), 

and issued its Memorandum Opinion on September 24 (Docket # 77). RTAO, 2008 WL 

4416282, at *1. 

The Court held that RTAO failed to meet any of the requirements for preliminary 

injunctive relief. As to RTAO’s likelihood of success on the merits, the Court found that RTAO 

was unlikely to prevail on any of its claims. This Court held that the Commission’s definition of 

express advocacy, 11 C.F.R. § 100.22(b), is “virtually the same test stated by [the controlling 

opinion] of WRTL,” and therefore neither overbroad nor unconstitutionally vague. RTAO, 2008 

WL 4416282, at *11. This Court also rejected RTAO’s claims of overbreadth regarding the 

agency’s analysis of political committee status “[b]ecause the FEC . . . employs the same factors 

the Supreme Court has approved” for such analysis. Id. at *14. In addition, this Court held that 

RTAO failed to establish any irreparable harm warranting an injunction. Even if RTAO were 

deemed to be a political committee, the Court reasoned, the challenged regulations left RTAO 

“free to disseminate their message and make any expenditures they wish.” Id. at *16. The “only 

limitation” created by the regulations was FECA’s “constitutionally permitted restrictions” on 

individuals’ contributions to RTAO, which the Court held insufficient to constitute irreparable 

harm. Id. Finally, this Court held that the balance of harms and the public interest weighed in 

favor of denying injunctive relief, as the Commission would be harmed if it were enjoined from 

enforcing its presumptively valid regulations, and the public would be harmed if “the next two 

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months of election law and enforcement . . . bec[ame] a ‘wild west’ of electioneering 

communication and contributions without the challenged regulations in place.” Id. 

RTAO filed its notice of appeal as to this Court’s denial of injunctive relief on September 

12, 2008, and sought an injunction pending appeal, which this Court denied on September 30. 

RTAO moved the Fourth Circuit for an injunction pending appeal, as well as to expedite 

consideration of the appeal, which were both denied on October 1, 2008. On appeal, the Fourth 

Circuit applied the four-part preliminary injunction standard established in Winter v. Natural 

Res. Def. Council, Inc., 555 U.S. __, 129 S. Ct. 365 (2008). RTAO v. FEC, 575 F.3d 342, 347 

(4th Cir. 2009) (“Winter governs the issuance of preliminary injunctions not only in the Fourth 

Circuit, but in all federal courts.”). The Fourth Circuit affirmed this Court’s denial of injunctive 

relief, finding that plaintiff did not satisfy any of the four Winter factors. Id. at 347-52. RTAO 

filed a petition for rehearing en banc, which was denied. RTAO v. FEC, No. 08-1977 (4th Cir. 

Oct. 6, 2009). 

RTAO filed a petition for a writ of certiorari in December 2009. The Commission’s 

responsive brief, filed by the Solicitor General in March 2010, asked the Supreme Court to 

vacate the Fourth Circuit’s judgment with respect to the challenges to 11 C.F.R. §§ 100.57 and 

114.15, and to remand with instructions to dismiss those claims as moot, but to deny the petition 

in all other respects. Brief for the Respondents, RTAO v. FEC, 588 U.S. __, 130 S. Ct. 2371 

(2010) (No. 09-724), 2010 WL 1130084. In April 2010, the Supreme Court granted the petition, 

vacated the judgment, and remanded to the Fourth Circuit “for further consideration in light of 

[Citizens United] and the Solicitor General’s suggestion of mootness.” RTAO, 130 S. Ct. 2371. 

On June 8, 2010, the Fourth Circuit re-issued the first two parts of its original 2008 decision, 

which had articulated the facts and preliminary injunction standard. RTAO v. FEC, 607 F.3d 355 

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(4th Cir. 2010). The Fourth Circuit remanded the remaining issues to this Court. Id. RTAO 

filed a petition for rehearing en banc, which the Fourth Circuit denied on August 6, 2010. 

II. ARGUMENT 

A. RTAO’s Request for a Preliminary Injunction Is Moot, and in Any Event, 

RTAO Has Again Failed to Meet Any of the Requirements for That Relief 

1. RTAO’s Request for Preliminary Relief Is Moot As to All Claims 

As explained supra pp. 11-12, 14, two of RTAO’s original claims are now moot, since 

the Commission has repealed 11 C.F.R. § 100.57 and announced that it will not enforce its 

regulations prohibiting corporations and labor organizations from making independent 

expenditures and electioneering communications. RTAO itself states that it is no longer 

pursuing its claims against 11 C.F.R. §§ 100.57 and 114.15. (RTAO Br. at 3.) However, RTAO 

still seeks a preliminary injunction on its remaining two claims regarding the express advocacy 

definition at 11 C.F.R. § 100.22(b) and the Commission’s PAC status analysis. But these claims 

are also moot because no meaningful preliminary relief can now be provided and because 

consolidation with the merits necessarily renders a preliminary injunction superfluous. 

Moreover, RTAO’s alleged plans for future activity are too speculative to warrant injunctive 

relief. 

RTAO sought a preliminary injunction because it allegedly wanted to run two 

advertisements at particular times between July 29, 2008 and November 4, 2008. (RTAO Facts 

¶ 12.) The requested injunctive relief would have prevented the Commission from initiating any 

investigation into allegations that RTAO failed to adequately disclose its independent 

expenditures or to register as a political committee. But RTAO does not allege that it actually 

ran the advertisements, so there is nothing here for the Commission to investigate. “It has long 

been settled that a federal court has no authority ‘to give opinions upon moot questions or 

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abstract propositions, or to declare principles or rules of law which cannot affect the matter in 

issue in the case before it.’” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 

(1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Because the relief plaintiff seeks 

would have no practical effect, the Court lacks jurisdiction to consider the preliminary injunction 

request. 

The preliminary injunction request is also moot because RTAO has sought consolidation 

with the merits.7 Because the 2008 election has come and gone and there is no reason to delay a 

decision on the merits, no “preliminary” time remains. Since a preliminary injunction, by 

definition, lasts only until the merits of the case are resolved, any request for preliminary relief is 

now moot. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). See also Timmins v. Narricot 

Indus., 360 Fed. Appx. 419 (4th Cir. 2010) (when “the period for which the injunction was 

requested ended . . . so did any controversy on which to base Article III jurisdiction.”). Thus, 

granting a preliminary injunction now would have no practical effect — at this stage, plaintiff 

will receive either permanent relief or no relief. The mootness that will occur when this Court 

rules on the merits is similar to other situations in which the Court’s ability to provide relief 

ceases during the pendency of the litigation. See, e.g., Incumaa v. Ozmint, 507 F.3d 281, 286-89 

(4th Cir. 2007) (inmate’s First Amendment challenge to a maximum security prison policy was 

moot upon inmate’s release from maximum security facility); Mellen v. Bunting, 327 F.3d 355, 

364-65 (4th Cir. 2003) (students’ claims against school policies generally become moot upon 

graduation); Friedman’s Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (claims were moot 

 

7

 RTAO urges (Br. at 2) this Court to “first . . . grant [the] preliminary injunction . . . 

followed by a grant of summary judgment for RTAO.” The artificial staggering of decisions that 

RTAO requests runs contrary to the purpose of the consolidation it seeks — judicial efficiency 

— and in effect requests an advisory opinion regarding the law of preliminary injunctions. See

RTAO’s Motion to Consolidate (Docket No. 127). 

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where state court provided the relief sought); Toms v. Allied Bond & Collection Agency, Inc., 

179 F.3d 103, 106 (4th Cir. 1999) (settlement agreement rendered plaintiff’s interest in the case 

moot).

Moreover, the candidate about whom RTAO sought to advertise — then-Senator Obama 

— is not currently on the ballot anywhere. Thus, even RTAO’s claim for permanent relief is 

moot as to the Change and Survivor ads it had planned to run in 2008. Under the exception for 

mootness regarding disputes “capable of repetition, yet evading review,” RTAO can likely show 

that its claims for permanent relief remain justiciable if it plans to run similar advertisements in 

future elections. See WRTL, 551 U.S. at 461-464.

8

 But that doctrine has no application to 

RTAO’s continued insistence on preliminary relief. See Independence Party of Richmond Cnty. 

v. Graham, 413 F.3d 252, 256 (2d Cir. 2005) (“To apply the ‘capable of repetition yet evading 

review’ exception to otherwise moot appeals of preliminary injunctions would, moreover, 

impermissibly evade the ordinary rule . . . that appellate courts review only ‘final decisions’ of a 

lower court.”) Once the Court rules on the merits of RTAO’s challenges to section 100.22(b) 

and the Commission’s PAC status analysis, that decision will bind the parties as to any 

 

8

 RTAO’s allegation (RTAO Facts ¶ 20) that it intends to run materially similar ads “in the 

future” is too speculative and hypothetical to entitle plaintiff to the extraordinary remedy of a 

preliminary injunction. “A case is fit for judicial decision when the issues are purely legal and 

when the action in controversy is final and not dependent on future uncertainties.” Miller v. 

Brown, 462 F.3d 312, 319 (4th Cir. 2006). Moreover, RTAO has not alleged that any possible 

future ads would expressly advocate — indeed, its Articles of Incorporation state to the contrary, 

see RTAO Facts ¶ 7 — and thus RTAO has not established that its future ads would implicate 

section 100.22(b). Thus, it is not even clear that RTAO’s assertions about its potential future 

activities are sufficient to demonstrate standing under Article III for permanent relief. The Ninth 

Circuit recently found that a non-profit corporation lacked standing to challenge state campaign 

finance laws because its bylaws prohibited it from making contributions or independent 

expenditures. Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 

689 (9th Cir. 2010) (“The Chamber suggests that it may wish to make contributions or 

independent expenditures in the future, but this equivocal assertion is hardly sufficient to create a 

case or controversy.”), cert. denied, No. 10-155, __ S. Ct. __, 2010 WL 3834471 (Oct. 4, 2010). 

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materially similar ads RTAO may seek to broadcast in the future, thus eliminating any future 

need for “preliminary” relief. Thus, RTAO can offer no sound basis for any argument that its 

remaining claims will evade review — a necessary requirement to fall within the exception to the 

mootness doctrine. 

Finally, RTAO claims (Br. at 3) that these issues could not be moot or else the Supreme 

Court would not have granted certiorari and remanded for reconsideration. However, far from 

suggesting that any claims remain justiciable, the Court’s remand order specifically directs that 

mootness be considered, see RTAO, 130 S. Ct. at 2371, and it is well-settled that jurisdiction 

must exist at all stages of litigation, Arizonans for Official English v. Arizona, 520 U.S. 43, 67 

(1997).

2. A Preliminary Injunction Is an Extraordinary Remedy 

That Requires a Plaintiff to Meet a Heavy Burden 

 “A preliminary injunction is an extraordinary remedy never awarded as of right.” 

Winter, 129 S. Ct. at 376; RTAO, 575 F.3d at 345. “The purpose of a preliminary injunction is 

merely to preserve the relative positions of the parties until a trial on the merits can be held.” 

Camenisch, 451 U.S. at 395. “A plaintiff seeking a preliminary injunction must establish that he 

is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 

public interest.” Winter, 129 S. Ct. at 374. Plaintiff must make a “clear showing” that the 

extraordinary remedy is necessary; “only a possibility of irreparable harm” is not sufficient. Id. 

at 375-76 (internal quotation marks and citation omitted). 

The Fourth Circuit’s reissuance of its 2009 opinion in this action reaffirms that Winter is 

the appropriate and binding standard here. RTAO argued unsuccessfully in its initial and reply 

briefs before the Fourth Circuit that the appellate court should adopt RTAO’s “speech 

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protective” preliminary injunction standards.9

 Plaintiff sought rehearing en banc of the Fourth 

Circuit panel decision, which was denied. Upon remand from the Supreme Court, the Fourth 

Circuit re-issued Part II of its original decision, which set out the preliminary injunction 

standards from Winter. RTAO, 575 F.3d at 345. RTAO sought rehearing of that decision, which 

was also denied. Accordingly, the preliminary injunction standards are settled in this Circuit, 

and in this action as law of the case. “‘The doctrine [of the law of the case] posits that when a 

court decides upon a rule of law, that decision should continue to govern the same issues in 

subsequent stages in the same case.’” United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 

1999) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988)). 

“Clearly, courts could not perform their duties satisfactorily and efficiently . . . if a question once 

considered and decided . . . were to be litigated anew in the same case upon any and every 

subsequent appeal.” Sejman v. Warner-Lambert Co., Inc., 845 F.2d 66, 69 (4th Cir. 1988) 

(internal quotation marks and citation omitted). The Fourth Circuit has had four opportunities in 

this case to adopt some preliminary injunction standards other than those of Winter, and it has 

declined to do so every time. 

Even if the preliminary injunction standards were not so well-established, there is no 

merit to RTAO’s suggestion (Br. at 14-15, 26, 36) that because it has asserted First Amendment 

claims as to which the government bears a heightened burden of justifying the challenged 

regulations, RTAO cannot be required to demonstrate that the criteria for a preliminary 

injunction have been satisfied. The decision in Gonzales v. O Centro Espirita Beneficente Uniao 

do Vegetal, 546 U.S. 418 (2006), upon which plaintiff relies, does not alter the settled principle 

 

9

 Appellant’s Brief at 16-19, RTAO, 607 F.3d 342 (4th Cir. 2009) (No. 08-1977), 2008 WL 

4487289 and Reply Brief at 6-17, RTAO, 607 F.3d 342 (4th Cir. 2009) (No. 08-1977), 2008 WL 

4974076. 

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that a plaintiff who seeks a preliminary injunction must show that it is likely to suffer irreparable 

injury, that the balance of equities tips in its favor, and that an injunction is in the public interest. 

That principle applies regardless of the nature and source of the plaintiff’s substantive claims. 

See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (even when the plaintiff’s claim on the 

merits triggers strict scrutiny, the court “considers whether the plaintiff has shown irreparable 

injury” in considering preliminary injunctive relief); see generally Winter, 129 S. Ct. at 374.10

3. RTAO Fails To Demonstrate Irreparable Harm, Particularly Since It 

Does Not Even Allege Harm from the Disclosure Requirements That 

Are Now the Main Practical Effect of the Challenged Restrictions 

Even if RTAO’s request for preliminary relief were not moot, RTAO cannot meet its 

burden of demonstrating that it will suffer irreparable harm, just as it failed two years ago when 

this Court denied preliminary relief. RTAO’s mere allegation of harm under the First 

Amendment is insufficient. See Smith v. Frye, 488 F.3d 263, 271 (4th Cir. 2007) (allegation 

does not “necessarily, by itself, state a First Amendment claim under Elrod [v. Burns, 427 U.S. 

347 (1976) (plurality)]”).11 Indeed, RTAO’s allegations of harm are significantly weaker than 

they were two years ago because Citizens United has dramatically changed the scope and import 

of 11 C.F.R. § 100.22(b): RTAO repeatedly implies that this regulation and the Commission’s 

PAC status analysis ban or limit speech,12 but after Citizens United the definition of “express 

 

10 RTAO argues that “regardless of the burden, all ties and benefits of the doubt go to free 

speech” (Br. at 15, citing WRTL), but that decision’s statement that the “tie goes to the speaker, 

not the censor” was in reference to a ban on corporate speech. WRTL, 551 U.S. at 474. By 

contrast, after Citizens United, neither section 100.22(b) nor the “major purpose” test bars any 

entity from speaking or financing speech. See supra pp. 1, 14-15. 

11 See also Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of 

Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 1990) (mere allegation of First Amendment burden 

does not constitute irreparable injury). 

12 See, e.g., Br. at 34 (“would-be speakers . . . are unable to tell what is permitted. Speech is 

impermissibly chilled.”); Br. at 35 (The Commission “has insisted that if an issue is a campaign 

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advocacy” is no longer part of any restriction on corporate spending. (Even before Citizens 

United, status as a political committee did not involve any spending limits.) Thus, if RTAO 

wishes to spend money for express advocacy, it will have to report that spending but it can spend 

without limit. Likewise, even if RTAO were to make express advocacy expenditures over 

$1,000 and have as its major purpose the nomination or election of candidates, it would have to 

abide by the reporting and organizational requirements for political committees, but its spending 

on independent campaign advocacy would remain unlimited. 

To demonstrate harm, RTAO provides only conclusory allegations of chilled speech. It 

thus fails to make even a rudimentary showing of irreparable harm, let alone the “clear” and 

“strong” showing required. See Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 (4th Cir. 

2002); Dan River, Inc. v. Icahn, 701 F.2d 278, 284 (4th Cir. 1983). The presumption that 

irreparable harm occurs when a challenged regulation “directly limits speech,” Chaplaincy of 

Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006), does not apply here, 

because the challenged restrictions do not limit plaintiff’s speech at all. See Christian Knights, 

919 F.2d at 149-50 (Elrod applies only when “First Amendment rights were totally denied by the 

disputed Government action”). 

RTAO presents speculative scenarios about its fear of being considered a political 

committee (see RTAO Facts ¶¶ 16-20), but even if RTAO were required to abide by the rules for 

political committees, it would not suffer irreparable harm. As explained above, as a political 

committee, RTAO could pay for unlimited independent campaign advocacy, including express 

advocacy independent expenditures. NCPAC, 470 U.S. at 480. Regarding its ability to raise 

money, RTAO has not alleged that its fundraising would be irreparably harmed by abiding by the 

 

issue it is essentially foreclosed as a topic for non-campaign speakers, absent FECA 

compliance.”); Br. at 22-23 (claiming that strict scrutiny applies to this case). 

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$5,000 limit on contributions to political committees in 2 U.S.C. § 441a(a)(1)(C). And if RTAO 

pays only for independent speech as its Articles of Incorporation suggest, it may not be subject to 

the $5,000 contribution limit generally applicable to political committees. See SpeechNow, 599 

F.3d at 692-97; EMILY’s List, 581 F.3d at 9-12; Advisory Opinion 2010-11.13 

RTAO has failed even to allege any irreparable harm from the reporting requirements for 

political committees or for persons who make independent expenditures. Proof of harm from 

disclosure requirements would require evidence of burdensome reprisals against its members. 

Citizens United, 130 S. Ct. at 916 (disclosure “would be unconstitutional as applied to an 

organization if there were a reasonable probability that the group’s members would face threats, 

harassment, or reprisals if their names were disclosed”). Such harm has been demonstrated only 

in cases involving organizations, such as the NAACP and the Socialist Workers Party, whose 

members faced actual, documented danger at the relevant time. See Buckley, 424 U.S. at 69 

(noting that NAACP members faced “economic reprisal, loss of employment, threat of physical 

coercion, and other manifestations of public hostility”) (citation omitted); McConnell, 540 U.S. 

at 198-99 (noting that Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87, 100 

(1982), found a “reasonable probability” of “threats, harassment, and reprisals”); Citizens 

United, 130 S. Ct. at 916 (“Citizens United has been disclosing its donors for years and has 

identified no instance of harassment or retaliation”); Doe v. Reed, 558 U.S. __, 130 S. Ct. 2811, 

2821 (2010) (upholding disclosure of signatory information on referendum petitions because 

“only modest burdens attend the disclosure of a typical petition”). Moreover, the specific 

 

13 RTAO’s Articles of Incorporation state that it “shall not . . . make any contribution to any 

candidate for public office.” RTAO Facts ¶ 7. If RTAO makes no contributions and none of its 

expenditures are coordinated with candidates or political parties, then those disbursements would 

not impair the corporation’s ability to make unlimited independent expenditures. See 2 U.S.C. 

§ 441a(a)(7). 

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disclosure requirements for political committees have been upheld after Citizens United on the 

basis that they are not significantly more burdensome than independent expenditure disclosure, 

which RTAO has not challenged here. See SpeechNow, 599 F.3d at 697 (“the additional 

reporting requirements that the FEC would impose on SpeechNow if it were a political 

committee are minimal.”). 

RTAO also claims that it would suffer administrative burdens as a political committee, 

but these do not constitute irreparable harm. “Mere injuries, however substantial, in terms of 

money, time and energy necessarily expended in the absence of a stay are not enough. The 

possibility that adequate compensatory or other corrective relief will be available at a later date, 

in the ordinary course of litigation weighs heavily against a claim of irreparable harm.” 

Chaplaincy, 454 F.3d at 297-98. SpeechNow also upheld the Act’s political committee 

organizational requirements, explaining that they do not “impose much of an additional burden 

on SpeechNow,” 599 F.3d at 697. 

RTAO’s claim that it suffers a “chill” because it subjectively fears an FEC enforcement 

action also does not constitute irreparable harm. FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 

244 (1980) (expense and annoyance of agency proceedings do not constitute irreparable injury, 

but are part of social burden of living under government). See also FEC v. Franklin, 718 F. 

Supp. 1272, 1279 (E.D. Va. 1989) (“While all restraints on political activity present first 

amendment concerns, those concerns do not automatically override either the substantive 

requirements of the FECA or FEC investigation into allegations of possible FECA violations.”), 

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summarily aff’d, 902 F.2d 3 (4th Cir. 1989). RTAO’s amorphous fears are not imminent or 

otherwise sufficient to justify injunctive relief.14 

Since “[t]he basis of injunctive relief in the federal courts has always been irreparable 

harm,” Sampson v. Murray, 415 U.S. 61, 88 (1974) (internal quotes and citation omitted), 

RTAO’s failure on this point alone suffices to deny RTAO’s request for a preliminary injunction. 

4. The Balance of Harms and the Public Interest Weigh Strongly in 

Favor of the Commission 

Enjoining the Commission from enforcing its regulations would substantially injure the 

Commission and the public. “[A]ny time a State is enjoined by a court from effectuating statutes 

enacted by representatives of its people, it suffers . . . injury.” New Motor Vehicle Bd. of Cal. v. 

Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). A “presumption of 

constitutionality [] attaches to every Act of Congress,” and that presumption is “an equity to be 

considered in favor of [the government] in balancing hardships.” Walters v. Nat’l Ass’n of 

Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). “In exercising 

their sound discretion, courts of equity should pay particular regard for the public consequences 

in employing the extraordinary remedy of injunction.” Winter, 129 S. Ct. at 376-77 (quoting 

Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). 

As this Court recognized in denying a preliminary injunction in 2008, the FEC’s critical 

governmental functions and the associated public interests would have been harmed by enjoining 

the Commission — during the period immediately prior to the 2008 general election — from 

 

14 RTAO cites a two-year-old letter in which the Department of Justice states its intention to 

enforce campaign finance restrictions, as well as past FEC enforcement matters against some 

section 527 organizations, as proof of RTAO’s “chill.” RTAO Facts ¶ 18. However, such 

attenuated evidence of irreparable harm — consisting of DOJ’s dated general intentions and a 

small number of Commission enforcement actions that preceded Citizens United and SpeechNow 

— have no connection to RTAO and cannot justify preliminary injunctive relief. 

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enforcing the regulations RTAO challenges. RTAO, 2008 WL 4416282, at *16. The regulations 

implement longstanding disclosure requirements in federal elections and ensure that political 

committees disclose their receipts and disbursements to the public. These disclosure 

requirements serve compelling government interests in preventing actual and apparent 

corruption, educating the public, and facilitating the Commission’s enforcement of the law. 

Indeed, similar disclosure requirements were upheld in Citizens United based on the information 

interest alone. 130 S. Ct. at 915-16. 

As was the case when this Court originally denied RTAO preliminary relief, enjoining 

application of the challenged provisions would confuse political actors, deprive the public of 

important information, and severely undermine the public’s confidence in the federal campaign 

finance system. As the Supreme Court has noted, “[c]ourt orders affecting elections . . . can 

themselves result in voter confusion.” Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (vacating preelection preliminary injunction and noting that “the Court of Appeals was required to weigh, in 

addition to the harms attendant upon issuance or nonissuance of an injunction, considerations 

specific to election cases”).15 RTAO argues that the government “must prove . . . that the publicinterest would be served by denying the preliminary injunction,” Br. at 18 (emphasis in original), 

but that is incorrect, because “[a] plaintiff seeking a preliminary injunction must establish . . . 

that an injunction is in the public interest.” Winter, 129 S. Ct. at 374 (emphasis added). The 

 

15 In Winter, the Supreme Court stressed the importance of considering how a preliminary 

injunction might affect the public. In that case, the court of appeals had granted a preliminary 

injunction prohibiting critical and time-sensitive governmental activity “based only on a 

‘possibility’ of irreparable harm” to the plaintiffs. 129 S. Ct. at 375 (citations omitted). The 

Supreme Court reversed, emphasizing that courts “must consider the effect on each party of the 

granting or withholding of the requested relief” and “should pay particular regard for the public 

consequences in employing the extraordinary remedy of injunction.” Id. at 376-377 (citations 

omitted). 

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preliminary injunction RTAO requests is not in the public interest, and for that and the other 

reasons explained above, the Court should again deny that relief.16

B. Summary Judgment Should Be Entered for the Commission Because Its 

Regulation Defining Express Advocacy and Its PAC Status Analysis Are 

Constitutional 

 

 RTAO’s constitutional challenges have less merit now than they did when this Court and 

the Fourth Circuit found that RTAO was unlikely to succeed on the merits. Intervening court 

decisions, including Citizens United, mean that the challenged restrictions now operate mainly to 

implement disclosure requirements that serve important government interests and are subject to a 

lower level of scrutiny than direct restraints on speech. For these reasons and those discussed 

below, summary judgment should be entered for the Commission. 

1. Summary Judgment Standards 

Summary judgment is appropriate where “there is no genuine issue as to any material 

fact” and where “the moving party is entitled to judgment as a matter of law.” Fed R. Civ. P. 

56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Where no genuine issue of 

material fact exists, this Circuit has noted the affirmative obligation of the trial judge to prevent 

factually unsupported claims and defenses from proceeding to trial.” Drewitt v. Pratt, 999 F.2d 

774, 778-79 (4th Cir. 1993) (internal quotation marks and citations omitted).

2. Plaintiff’s Burden for Its Facial Challenges 

RTAO’s facial challenges include claims of both overbreadth and vagueness. In a First 

Amendment facial overbreadth challenge, a law may be invalidated only if “a substantial number 

of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate 

 

16 Because there is no longer any meaningful difference between RTAO’s likelihood of 

success on the merits for purposes of its request for preliminary relief and the actual merits for 

purposes of the Commission’s motion for summary judgment, we address the merits issues only 

once, in the section that follows. 

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sweep.” United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (internal quotation marks and 

citation omitted). RTAO carries the “heavy burden of proving” that the application of the 

challenged regulation and PAC status analysis “to protected speech is substantial, ‘not only in an 

absolute sense, but also relative to the scope of the law’s plainly legitimate applications.’” 

McConnell, 540 U.S. at 207 (quoting Virginia v. Hicks, 539 U.S. 113, 120 (2003)). “A court’s 

first task is to determine whether the enactment reaches a substantial amount of constitutionally 

protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 

494 (1982). RTAO also argues that the restrictions it challenges are unconstitutionally vague on 

their face, that is, that they fail to give “the person of ordinary intelligence a reasonable 

opportunity to know what is prohibited, so that he may act accordingly” and permit “arbitrary 

and discriminatory enforcement.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 

3. Exacting Scrutiny Is the Appropriate Standard Here Because the 

Restrictions RTAO Challenges Impose No Direct Restraint on Speech

RTAO does not challenge any ban or direct restraint on speech. The Commission’s 

regulation at 11 C.F.R. § 100.22 merely provides a definition of express advocacy. Since 

Citizens United declared unconstitutional limits on independent corporate campaign 

expenditures, the only remaining application of this provision is to the Act’s disclosure 

requirements and, indirectly, to the determination of whether an organization is a political 

committee. See supra pp. 1, 14. In addition, if an organization satisfies the criteria to be deemed 

a political committee, the consequences of that status include certain disclosure and 

organizational requirements and, for some political committees, limits on the contributions they 

can receive. See supra pp. 10-11, 15. Thus, neither of RTAO’s challenges implicate spending 

limits. 

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In evaluating the proper level of scrutiny, the Supreme Court has long distinguished the 

kind of disclosure, reporting, and administrative requirements involved here from limits on 

expenditures. Buckley, 424 U.S. at 64. “[D]isclosure requirements . . . do not prevent anyone 

from speaking.” Citizens United, 130 S. Ct. at 914 (internal quotation marks and citation 

omitted). Accordingly, the Court in Buckley adopted (424 U.S. at 64) a standard of review, 

“exacting scrutiny,” that is lower than the “strict scrutiny” this Court gives expenditure limits. 

Compare Citizens United, 130 S. Ct. at 898 (applying strict scrutiny to prohibitions on corporate 

independent expenditures), with id. at 914 (applying exacting scrutiny to the disclaimer and 

reporting requirements for electioneering communications). As the Court explained in Citizens 

United, “‘exacting scrutiny’. . . requires a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” Id. at 914 (quoting Buckley,

424 U.S. at 64, 66). Likewise, the Court has never subjected contribution limits to strict scrutiny. 

See, e.g., Citizens United, 130 S. Ct. at 909 (“Citizens United has not made direct contributions 

to candidates, and it has not suggested that the Court should reconsider whether contribution 

limits should be subjected to rigorous First Amendment scrutiny.”).17 See also SpeechNow, 599 

F.3d at 696 (applying “exacting scrutiny” and upholding the disclosure and organizational 

requirements for political committees); Human Life of Washington, Inc. v. Brumsickle, et al., No. 

09-35128, 2010 WL 3987316, at *11-12 (9th Cir. Oct. 12, 2010) (applying “exacting scrutiny” in 

 

17 In upholding contribution limits to candidates and political committees generally, the 

Supreme Court in Buckley explained why contribution limits are a more marginal restriction on 

speech than expenditure limitations are: They (1) “leave the contributor free” to participate in 

“any political association and to assist personally” in the association’s electoral efforts; (2) 

“permit associations and candidates to aggregate large sums of money to promote effective 

advocacy;” (3) “merely . . . require candidates and political committees to raise funds from a 

greater number of persons;” and (4) “compel people who would otherwise contribute amounts 

greater than the statutory limits to expend such funds on direct political expression.” 424 U.S. at 

22. 

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reliance upon Citizens United and other recent Supreme Court opinions). Therefore, RTAO is 

simply wrong to assert (Br. at 22-23) that strict scrutiny applies here. 

Contrary to RTAO’s claim (Br. at 23), Citizens United does not require strict scrutiny in 

reviewing the method for determining whether an entity is a political committee. Rather, 

Citizens United equated the requirement that a corporation create and maintain a separate 

segregated fund to finance independent expenditures (see 2 U.S.C. §§ 431(4)(B), 441b(b)) with a 

ban on speech. 130 S. Ct. at 898. Having done so, the Court then held that such a requirement 

could not be justified under strict scrutiny. Id. But no such ban on speech is present before this 

Court, and nothing in Citizens United addresses anything about the criteria or analysis used to 

determine whether an organization like RTAO is itself a political committee.18 

4. The Commission’s Express Advocacy Regulation Is Constitutional

Section 100.22(b) is constitutional because it is neither vague nor overbroad. As both 

this Court and the Fourth Circuit observed in evaluating RTAO’s request for a preliminary 

injunction, the section 100.22(b) standard is similar to the constitutional test for the “functional 

equivalent of express advocacy” that the Supreme Court applied in WRTL, at a time when section 

100.22(b) was still used partly to define the ban on corporate independent expenditures. RTAO, 

2008 WL 4416282, at *11; RTAO, 575 F.3d at 349. Now that section 100.22(b) is no longer 

used to implement a direct restraint on speech, the regulation’s constitutionality is even clearer. 

Indeed, Citizens United upheld a reporting requirement applicable to a much broader category of 

communications: all advertisements that meet the statutory definition of “electioneering 

communication” (2 U.S.C. § 434(f)(3)), even if they are not the functional equivalent of express 

advocacy. 

 

18 Although the Commission’s regulation and PAC status analysis that plaintiff challenges 

are not subject to strict scrutiny, they would satisfy even that heightened standard. 

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Under 11 C.F.R. § 100.22(b), the definition of “expressly advocating” includes a 

communication that 

[w]hen taken as a whole . . . could only be interpreted by a reasonable person 

as containing advocacy of the election or defeat of one or more clearly 

identified candidate(s) because — (1) The electoral portion of the 

communication is unmistakable, unambiguous, and suggestive of only one 

meaning; and (2) Reasonable minds could not differ as to whether it 

encourages actions to elect or defeat one or more clearly identified 

candidate(s) or encourages some other kind of action. 

Section 100.22(b) is consistent with the portion of WRTL that was not undermined by 

Citizens United. In WRTL, the Court narrowed McConnell’s upholding of BCRA’s restriction on 

corporate electioneering communications to those that are “the functional equivalent of express 

advocacy,” i.e., communications “susceptible of no reasonable interpretation other than as an 

appeal to vote for or against a specific candidate.” WRTL, 551 U.S. at 469-70. Although 

Citizens United struck down BCRA’s financing restrictions for such ads, it simultaneously 

upheld BCRA’s reporting and disclaimer requirements, not only for “functional equivalent” ads 

but for all ads that meet the statutory definition of “electioneering communication.” 130 S. Ct. at 

913-16. In particular, the Court explained: 

Citizens United claims that, in any event, the disclosure requirements in 

[BCRA] § 201 must be confined to speech that is the functional equivalent of 

express advocacy. The principal opinion in WRTL limited 2 U.S.C. § 441b’s 

restrictions on independent expenditures to express advocacy and its 

functional equivalent. 551 U.S., at 469-476 (opinion of Roberts, C.J.). 

Citizens United seeks to import a similar distinction into BCRA’s disclosure 

requirements. We reject this contention. 

Id. at 915. Because section 100.22(b) is consistent with Chief Justice Roberts’ description of the 

“functional equivalent of express advocacy,” and because Congress can constitutionally require 

disclosure for a broader class of electioneering communications than those that meet the 

“functional equivalent” test, section 100.22(b) is necessarily constitutional. See also Human 

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Life, 2010 WL 3987316, at *19 (relying on Citizens United’s distinction between financing and 

disclosure requirements to uphold disclosure of issue advocacy). 

Both section 100.22(b) and the “functional equivalent” test narrowly inquire into whether 

there is any reasonable way to interpret a communication as non-candidate-advocacy. Because 

the controlling opinion in WRTL explained that the “functional equivalent” test is not vague (see 

WRTL, 551 U.S. at 474 n.7), the test in section 100.22(b) also satisfies any vagueness concerns. 

In addition, both tests avoid vagueness concerns by refusing to consider the subjective intent of 

the speaker. Compare Express Advocacy; Independent Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. Reg. 35,292, 35,295 (July 6, 1995) (“[T]he subjective intent 

of the speaker is not a relevant consideration . . . .”) with WRTL, 551 U.S. at 472 (“To the extent 

th[e] evidence goes to WRTL’s subjective intent, it is again irrelevant.”).19 To the extent these 

standards differ, section 100.22(b) is even narrower than the WRTL test, as the regulation 

requires an “unambiguous” electoral portion, 11 C.F.R. § 100.22(b)(1), while WRTL looks to the 

“mention” of an election and similar indicia of express advocacy. 551 U.S. at 470. 

RTAO’s argument (Br. at 23-28) that the disclosure of express advocacy is 

constitutionally limited to a rigid interpretation of whether a communication contains “magic 

words” was laid to rest in McConnell and Citizens United. In McConnell, the plaintiffs 

challenging the constitutionality of BCRA argued that Buckley had characterized 

communications containing magic words as the outer constitutional boundary of Congress’s 

power to regulate in this area. See McConnell, 540 U.S. at 190-91 (discussing Buckley, 424 U.S. 

 

19 The regulation’s “reasonable person” test is like other objective constitutional tests. See, 

e.g., Wyatt v. Cole, 504 U.S. 158, 166 (1992) (qualified immunity depends upon a “wholly 

objective standard” based on whether a “reasonable person” would have known of clearly 

established rights) (citation omitted); Florida v. Jimeno, 500 U.S. 248, 251 (1991) (“[C]onsent 

under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical 

reasonable person have understood by the exchange between the officer and the suspect?”). 

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at 44 & n.52). Thus, the plaintiffs argued, BCRA was unconstitutional to the extent that it 

permitted regulation of communications that simply referred to federal candidates shortly before 

elections. See McConnell, 540 U.S. at 190-91. The Supreme Court rejected this argument, 

noting that Buckley had imposed the express advocacy requirement because of the vagueness of 

FECA’s original statutory text (“relative to” a candidate), not because the First Amendment 

required it in all circumstances. Id. at 191-92. Accordingly, McConnell held that Buckley’s

“express advocacy limitation . . . was the product of statutory interpretation rather than a 

constitutional command.” Id. 

As Justice Thomas noted in dissent, McConnell’s holding “overturned” all of the Courts 

of Appeals decisions — including the Fourth Circuit’s decision in CAN, 110 F.3d at 1049 — that 

had interpreted Buckley as limiting government regulation to a wooden magic-words 

interpretation. McConnell, 540 U.S. at 278 n.11 (Thomas, J., dissenting). Other cases adopting 

or relying on this interpretation of Buckley, such as Virginia Society for Human Life, Inc. v. FEC, 

263 F.3d 379 (4th Cir. 2001) (“VSHL”), were similarly revealed to be in error. See id. at 392 

(citing Buckley and CAN as support for magic words “limit”). WRTL’s adoption of a test based 

on a communication’s “reasonable” interpretation thus undermines VSHL’s holding that section 

100.22(b) is flawed because the regulation purportedly “shifts the focus of the express advocacy 

determination away from the words themselves to the overall impressions of the hypothetical, 

reasonable listener or viewer.” VSHL, 263 F.3d at 391. As Justice Thomas further noted, 

McConnell, 540 U.S. at 278 n.11, the only express advocacy decision that McConnell did not 

cast into doubt was FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) — the case from which the 

Commission derived the test codified at section 100.22(b). See 60 Fed. Reg. at 35,292-95 

(“[S]ection 100.22(b) . . . incorporate[s] . . . the Furgatch interpretation . . . .”). Thus, the claim 

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that the Constitution and Buckley prohibit regulation of non-magic words communications must 

fail, and the narrow test of section 100.22(b) is entirely consistent with McConnell’s analysis. 

Plaintiff nonetheless claims (Br. at 26-32), that McConnell and WRTL “affirmed that 

‘express advocacy’ requires the so-called ‘magic words.’” This argument distorts both cases. As 

discussed above, McConnell emphasized that the presence of magic words is not a constitutional 

requirement. McConnell, 540 U.S. at 191-92. And the portion of WRTL that RTAO cites 

affirmatively rejected the proposition, raised in Justice Scalia’s partial concurrence, that the only 

permissible test is a magic words test: 

Justice Scalia concludes that “[i]f a permissible test short of the magic-words 

test existed, Buckley would surely have adopted it.” We are not so sure. The 

question in Buckley was how a particular statutory provision could be 

construed to avoid vagueness concerns, not what the constitutional standard 

for clarity was in the abstract, divorced from specific statutory language. 

Buckley’s intermediate step of statutory construction on the way to its 

constitutional holding does not dictate a constitutional test. The Buckley

Court’s “express advocacy restriction was an endpoint of statutory 

interpretation, not a first principle of constitutional law.” 

WRTL, 551 U.S. at 474 n.7 (citations omitted). Thus, neither case stands for the proposition that 

the line between permissible and impermissible regulation must be drawn at magic words. 

Again, although Citizens United later found unconstitutional all financing restrictions on 

corporate independent expenditures — even those containing express advocacy — the decision 

upheld disclosure requirements for communications that were less obviously campaign-related 

than either “express advocacy” or the “functional equivalent of express advocacy.” 

RTAO also argues (Br. at 23-25) that section 100.22(b) violates the First Amendment 

because it allegedly regulates communications that are not “unambiguously campaign related.” 

This claim fails on the face of the regulation, which requires that “[t]he electoral portion of the 

communication [be] unmistakable, unambiguous, and suggestive of only one meaning,” which is 

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“advocacy of the election or defeat of one or more clearly identified candidate(s).” 11 C.F.R. 

§ 100.22(b) (emphasis added). Any communication that unambiguously encourages the defeat 

of a specific candidate is, by definition, unambiguously campaign related. Thus, even assuming 

arguendo that the Constitution limited disclosure to those communications that are 

unambiguously campaign related, section 100.22(b) would not extend beyond that limit. 

The plaintiff in Citizens United claimed that disclosure was only necessary for 

communications that were “the functional equivalent of express advocacy.” 130 S. Ct. at 915. 

Eight justices disagreed, finding that the interest of the public in knowing who was financing 

electioneering communications was alone sufficient to justify disclosure to the full extent of 

BCRA’s statutory definition, which includes communications that are not the functional 

equivalent of express advocacy. Id. at 915-16 (“the informational interest alone is sufficient to 

justify application of [the disclosure requirements] to these ads”). Moreover, in Citizens United, 

the Court found that Hillary: The Movie was the functional equivalent of express advocacy 

because, in part, “the film would be understood by most viewers as an extended criticism of 

Senator Clinton’s character and her fitness for the office of the Presidency.” 130 S. Ct. at 890. 

Thus, the Court applied the same “functional equivalent of express advocacy” test established in 

McConnell and WRTL. Of course, this Court and the Fourth Circuit earlier determined that 

section 100.22(b) is likely constitutional because it is so similar to the WRTL test. RTAO, 575 

F.3d at 349 (“By limiting its application to communications that yield no other interpretation but 

express advocacy as described by Wisconsin Right to Life, § 100.22(b) is likely constitutional.”); 

RTAO, 2008 WL 4416282, at *11.20

 

20 Plaintiff cites New Mexico Youth Organized v. Herrera, 611 F.3d 669, 676 (10th Cir. 

2010), as “recognizing the unambiguously-campaign-related requirement.” Br. at 25 n.22. But 

in that case, the Tenth Circuit found that there are two categories of unambiguously campaign 

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RTAO also relies upon North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 

2008), which invalidated a state statute defining non-magic words express advocacy. The 

definition at issue in Leake, however, was significantly broader and less precise than section 

100.22(b), including such “contextual factors” as “the timing of the communication in relation to 

the events of the day” and “the cost of the communication.” Leake, 525 F.3d at 298. As the 

Fourth Circuit noted, the state statute “swe[pt] far more broadly than WRTL’s ‘functional 

equivalent of express advocacy’ test.” Id. at 297. By contrast, section 100.22(b) is, if anything, 

narrower than the WRTL standard. In Leake, the Fourth Circuit concluded that “North Carolina 

remains free to adopt a definition of express advocacy consistent with the standards approved by 

McConnell and WRTL.” Id. at 301. As we have explained, section 100.22(b) is just such a 

standard. 

Finally, RTAO does not even allege that the disclosure requirements involved here 

present any particular burden as applied to the organization or its members. As explained supra

pp. 25, the Supreme Court has repeatedly made clear that an exception to otherwise valid 

disclosure provisions requires evidence of burdensome reprisals against an organization’s 

members. See Citizens United, 130 S. Ct. at 915 (requiring “a reasonable probability that the 

group’s members would face threats, harassment, or reprisals if their names were disclosed”). 

Because RTAO has made no effort to supply such evidence, it has failed to provide any reason 

why the disclosure requirements associated with the regulation and PAC status analysis it 

challenges are unconstitutional as applied to its activities. 

 

related speech: (1) “speech that expressly advocates or is the functional equivalent of express 

advocacy for the election or defeat of a specific candidate,” and (2) “all expenditures by political 

committees.” Herrera, 611 F.3d at 676. Thus, the court recognized that communications that 

met the WRTL “functional equivalent” test are campaign-related. Because the WRTL test is 

similar to section 100.22(b), RTAO’s reliance on this decision is misplaced. 

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In sum, even before Citizens United, section 100.22(b) was constitutional. Now that the 

regulation no longer helps define a ban on speech, and now that Citizens United has made clear 

that disclosure can be required for a wide range of communications that refer to federal 

candidates, it is even more clear that the challenged regulation is constitutional.21 

5. The Commission’s Application of the “Major Purpose” Test in 

Determining PAC Status Is Constitutional 

The Commission’s approach to determining whether an entity is a “political committee” 

is lawful. Based upon the facts presented and RTAO’s hypothetical activity, it is not clear that 

RTAO would be considered a political committee if it follows through on its intentions. 

RTAO’s facial challenge thus presents only an abstract inquiry that is not fit for judicial 

resolution. See Renne v. Geary, 501 U.S. 312, 323-24 (1991). Even if the Court determines that 

plaintiff has alleged a case or controversy within Article III, however, the Commission’s PAC 

status analysis is constitutional, consistent with the approach of the federal courts, and well 

within the Commission’s discretion. 

 

21 RTAO fails to identify any constitutional flaw in the actual cases in which the 

Commission has applied its express advocacy regulation in the past several years. The 

Commission has applied the regulation to communications characterizing presidential candidates 

as untrustworthy and unfit for the presidency. See, e.g., Matters Under Review (“MUR”) 5511, 

5525, Swiftboat Veterans and POWs for Truth, Conciliation Agreement ¶¶ 15-17, 25-27 (Dec. 

11, 2006); MUR 5440, The Media Fund, Conciliation Agreement ¶¶ 26-29 (Nov. 15, 2007) 

(documents from closed MURs are available at FEC Enforcement Query System, 

http://eqs.sdrdc.com/eqs/searcheqs). For example, the Commission found that television ads 

were express advocacy where they stated that “John Kerry fought and bled in the Vietnam War. 

He fought side by side with brothers who could not get out of the draft because they didn’t have 

a rich father like George W. Bush. . . . You better wake up before you get taken out.” Media 

Fund, Conciliation Agreement ¶¶ 28-29. Similarly, the Commission found to be express 

advocacy ads stating that Senator John Kerry “lacks the capacity to lead,” “cannot be trusted,” 

and “gave [aid] and comfort to the enemy.” Swiftboat Veterans, Conciliation Agreement ¶ 15. 

Although none of these ads would satisfy a wooden test of magic-words express advocacy, 

RTAO fails to demonstrate why it was unconstitutional for the Commission to find that they 

were campaign ads. 

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a. Based on RTAO’s Vague Intentions, Its Challenge Does 

Not Appear to Be Justiciable 

Even if RTAO were to act upon its stated intentions, it is not clear it would be a political 

committee. If RTAO spent at least $1,000 to run express advocacy advertisements like 

Survivors, then the organization would satisfy the “expenditure” part of the FECA statutory 

analysis for political committee status, but RTAO still might not satisfy the “major purpose” test 

established in Buckley. 424 U.S. at 79. RTAO does not allege what other activities it intends to 

do, but its Articles of Incorporation purportedly bar the group from making express advocacy 

communications and coordinated expenditures or contributions to candidates. (RTAO Facts ¶ 7.) 

When a plaintiff’s speech does not implicate the regulation it challenges, the plaintiff lacks 

standing under Article III of the Constitution. It is well-established that “[s]tanding is not 

dispensed in gross. Rather, a plaintiff must demonstrate standing for each claim he seeks to 

press and for each form of relief that is sought.” Davis v. FEC, 554 U.S. __, 128 S. Ct. 2759, 

2769 (2008) (internal quotation marks and citations omitted). Indeed, in Virginia Soc’y For 

Human Life, Inc. v. Caldwell, 152 F.3d 268 (4th Cir. 1998), the Fourth Circuit affirmed the lower 

court’s finding that because the challenged statute included narrowing language (“for the purpose 

of influencing the outcome of an election”) and the plaintiff only intended to conduct issue 

advocacy, plaintiff lacked standing to challenge the statute. See also Long Beach Chamber of 

Commerce, 603 F.3d at 689 (finding the Chamber lacked standing to challenge campaign finance 

regulations because the Chamber’s bylaws prevented it from making contributions or 

independent expenditures). Here, because RTAO has not shown it would be a political 

committee, and even claims (RTAO Facts ¶ 6) that it “does not meet the constitutionally required 

‘major purpose’ test,” RTAO has failed to demonstrate standing to challenge the Commission’s 

PAC status analysis. 

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b. The Commission’s PAC Status Analysis Is Not Reviewable 

Under the APA22

Under the APA, courts may hear challenges only to “final agency action.” 5 U.S.C. 

§ 704. Final agency action consummates the agency’s decision-making process and determines 

the rights and obligations of parties. Bennett v. Spear, 520 U.S. 154, 177-178 (1997). But the 

primary purpose of the Commission’s PAC status analysis that RTAO challenges was to explain 

why a broad regulation was not created; the Federal Register notice purports neither to establish 

a binding norm nor to decide any entity’s legal status. This explanation does not create a new 

regulation or change past policy. It simply provides guidance about political committee status 

and the major purpose test based on specific administrative and civil enforcement actions. See

72 Fed. Reg. at 5604. This guidance is not final agency action subject to APA review. 

c. The Commission’s PAC Status Analysis Is Lawful 

Even if reviewable, the Commission’s case-by-case approach to determining political 

committee status is constitutional, and nothing has undermined its validity since this Court and 

the Fourth Circuit concluded that RTAO was unlikely to succeed on the merits of this claim. 

RTAO, 575 F.3d at 350-51; RTAO, 2008 WL 4416282, at *14. As explained supra p. 10, in 

Buckley the Supreme Court established the “major purpose” test and limited the definition of 

“political committee” to organizations controlled by a candidate or whose major purpose is the 

nomination or election of a candidate. Buckley, 424 U.S. at 79. “Expenditures of candidates and 

of ‘political committees’ so construed can be assumed to fall within the core area sought to be 

addressed by Congress. They are, by definition, campaign related.” Id.; see also MCFL, 479 

 

22 The Commission recognizes that this Court previously rejected the Commission’s 

argument that its PAC status analysis is not final agency action, RTAO, 2008 WL 4416282, at *9, 

but we briefly raise the argument here to preserve it for appeal. 

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Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 51 of 56
U.S. at 252 n.6 (plaintiff is not a political committee because “its central organizational purpose 

is issue advocacy”); McConnell, 540 U.S. at 170 n.64. 

When confronted with rulemaking petitions asking that the Commission classify nearly 

all section 527 organizations as political committees, the Commission decided, exercising its 

discretion, to continue its longstanding practice of implementing the “major purpose” test on a 

case-by-case basis instead of by rulemaking. See 72 Fed. Reg. 5595. See also, e.g., SEC v. 

Chenery Corp., 332 U.S. 194, 203 (1947) (“[T]he choice made between proceeding by general 

rule or by individual . . . litigation is one that lies primarily in the informed discretion of the 

administrative agency.”); NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-95 (1974) (relying 

upon Chenery in leaving up to the Board whether to proceed by rulemaking or adjudication). 

The Commission’s decision to take this approach was upheld in Shays v. FEC, 511 F. Supp. 2d 

19 (D.D.C. 2007). RTAO’s claim appears to focus (Br. at 39-40) on this explanation of the 

major purpose test, but the approach the Commission outlined there is not unconstitutionally 

vague or overbroad. 

The assessment of an organization’s major purpose is inherently comparative and 

necessarily requires an understanding of an organization’s overall activities. In its enforcement 

decisions, the Commission considers a variety of factors — most of which courts have endorsed 

or RTAO does not challenge — to determine whether an organization’s major purpose is the 

election or defeat of a candidate.23 Those factors include an organization’s public statements, 

 

23 The Commission generally considers the major purpose test after first determining that an 

organization has either spent more than $1,000 in expenditures or raised more than $1,000 in 

contributions. See 72 Fed. Reg. at 5603-04. The only court to address this approach has 

criticized the Commission for determining whether communicative expenditures contain express 

advocacy before evaluating the major purpose of an organization; the court believed that the 

express advocacy analysis is unnecessary for groups whose major purpose is known to be 

campaign related. Shays, 511 F. Supp. 2d at 26-27. Although the Commission disagrees with 

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representations made in government filings, statements made to potential donors, internal 

governing documents, and the proportionate amount of spending on election-related activity. See

72 Fed. Reg. at 5605. RTAO contends (Br. at 36-37) that only an organization’s “organic” 

documents and “unambiguously campaign related” expenditures are relevant to determine major 

purpose, but there is no support for such an unduly cramped application of the Buckley test. 

To the contrary, courts have endorsed the evaluation of public statements and an 

organization’s spending and contributions to determine its major purpose. See, e.g., FEC v. 

Malenick, 310 F. Supp. 2d 230, 234-37 (D.D.C. 2004) (court considered organization’s 

statements in brochures and “fax alerts” sent to potential and actual contributors, as well as its 

spending influencing federal elections); FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 

1996) (“The organization’s purpose may be evidenced by its public statements of its purpose or 

by other means, such as its expenditures in cash or in kind to or for the benefit of a particular 

candidate or candidates.”). Courts also consider non-public statements in evaluating an 

organization’s major purpose. See Malenick, 310 F. Supp. 2d at 235 (letter from president to 

organization’s primary contributor); GOPAC, 915 F. Supp. at 864, 866 (description of 

organization’s meetings attended by national leaders; reference to organization’s “Political 

Strategy Campaign Plan and Budget”). 

In numerous administrative enforcement proceedings and advisory opinions, the 

Commission has examined these factors and others to determine whether organizations satisfy 

the major purpose test. See 72 Fed. Reg. at 5605-06. RTAO does not allege that any of these 

 

that court’s criticism, it recognizes that its own interpretation may tend to limit the number of 

organizations that qualify as political committees. RTAO ignores the conservative aspect of the 

Commission’s approach. Cf. Akins v. FEC, 101 F.3d 731, 741-42 (D.C. Cir. 1996) (en banc), 

vacated on other grounds, 524 U.S. 11 (1998) (D.C. Circuit would not have applied major 

purpose test at all if organization made more than $1,000 in contributions, as opposed to 

independent expenditures). 

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Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 53 of 56
specific analyses came to the wrong conclusion. And, contrary to RTAO’s assumption (Br. 

at 40), the Commission can discern a group’s “major purpose” without conducting a “broadranging, intrusive, and burdensome investigation.” Sources such as the group’s public 

statements, fundraising appeals, disclosure reports, charters, or bylaws usually provide the 

relevant facts. See 72 Fed. Reg. at 5601, 5605 (describing sources the Commission considers in 

its “major purpose” analysis). For example, before even opening an investigation in one matter, 

the FEC concluded that one organization should not be considered a “political committee” based 

on the group’s public description of its purpose and the group’s scanty record of contributions. 

MUR 4867, Tribal Alliance for Sovereignty, Factual and Legal Analysis at 12 (Dec. 11, 1998). 

Thus, RTAO’s claims about Commission enforcement actions are exaggerated and 

unsubstantiated.24 

As explained supra pp. 30-32, Citizens United does not create a new requirement that the 

Commission’s PAC status analysis be subject to strict scrutiny, and nothing in the decision 

addressed the major purpose test or other criteria for political committee status. If the decision 

has any relevance to this part of RTAO’s challenge, it strengthens the Commission’s argument 

by emphasizing the importance of disclosure even for disbursements that are not the functional 

equivalent of express advocacy. RTAO suggests briefly (Br. at 40-41) that the Commission’s 

PAC status analysis is flawed because it is supposedly “ad hoc” and evaluates an organization’s 

 

24 For example, RTAO makes the unsubstantiated claim (Br. at 40) that the existence of an 

administrative complaint filed with the FEC “can shut down an organization.” But Congress 

established the Commission’s balanced enforcement mechanisms decades ago, providing 

specific “procedures purposely designed to ensure fairness not only to complainants but also to 

respondents.” Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). The Commission does not 

investigate potential violations of the Act until at least four of its members have voted to find 

“reason to believe” that the law has been violated. See 2 U.S.C. § 437g(a)(2). RTAO’s 

argument would sacrifice proper law enforcement to speculative and generalized fear. See 

Standard Oil, 449 U.S. at 244 (expense and annoyance of agency proceedings do not constitute 

irreparable injury, but are part of social burden of living under government). 

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45

overall activities. But agencies have wide latitude to develop the law on a case-by-case basis 

rather than through regulation, and it is the Supreme Court’s own “major purpose” test that 

necessarily asks how an organization’s campaign activities compare to its overall mission. The 

Commission’s approach is thus fully consistent with governing precedent, and RTAO’s 

challenge to the Commission’s enforcement methodology lacks merit. 

III. CONCLUSION 

For the foregoing reasons, plaintiff’s motion for a preliminary injunction should be 

denied and this Court should enter summary judgment in favor of the Commission. 

Respectfully submitted, 

 /s/ 

Audra Hale-Maddox, Attorney, ahale-maddox@fec.gov 

VA Bar No. 46929 

Phillip Christopher Hughey, Acting General Counsel, chughey@fec.gov 

David Kolker, Associate General Counsel, dkolker@fec.gov 

Harry Summers, Assistant General Counsel, hsummers@fec.gov 

Claire Rajan, Attorney, crajan@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

October 18, 2010

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 55 of 56
CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of October, 2010, I will electronically file the 

foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification 

of such filing (NEF) to the following: 

Michael Boos, michael.boos@gte.net 

Attorney & Counselor at Law 

4101 Chain Bridge Road, Suite 313 

Fairfax, VA 22030 

James Bopp, Jr., jboppjr@aol.com 

Barry Alan Bostrom, bbostrom@bopplaw.com 

Kaylan Phillips, kphillips@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Bopp, Coleson and Bostrom 

1 South 6th St. 

Terre Haute, IN 47807-3510 

John Richard Griffiths, john.griffiths@usdoj.gov 

United States Department of Justice 

Civil Division, Federal Programs Branch 

Post Office Box 883 

Washington, DC 20044 

Debra Jean Prillaman, debra.prillaman@usdoj.gov 

Office Of The U.S. Attorney 

600 East Main Street, Suite 1800 

Richmond, VA 23219 

Respectfully submitted, 

 /s/ 

Audra Hale-Maddox 

VA Bar No. 46929 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

ahale-maddox@fec.gov 

Case 3:08-cv-00483-JRS Document 136 Filed 10/18/10 Page 56 of 56
United States District Court

Eastern District of Virginia

Richmond Division

The Real Truth About Obama, Inc.

Plaintiff,

v.

Federal Election Commission and

United States Department of Justice,

Defendants.

Case No. 3:08-cv-00483-JRS

Plaintiff RTAO’s Discovery Responses

Pursuant to Federal Rules of Civil Procedure 33, 34, and 36, The Real Truth About

Obama, Inc. (“RTAO”) makes the following discovery responses.

General Objections to “Definitions”

1. RTAO objects to the extremely broad and vague definition of “RTAO” as including a

wide range of non-official persons, including volunteers and consultants over whom RTAO

exercises no control. RTAO objects to the concept of “unpaid” “employees” as

incomprehensible. RTAO objects to the phrase “or persons otherwise working on behalf of” as

being incomprehensibly vague and so apparently overbroad as to encompass persons across the

nation who support RTAO and its ideological causes.

2. RTAO objects to the extremely broad and vague definition of “you” and “your,” which

when coupled with the definition of “RTAO” reaches far beyond anything relevant to RTAO or

any claims or defenses in this case. For example, “you” includes the “entity to whom these

requests are directed, i.e., “RTAO,” which is defined to include an officer of RTAO, so that

“you” includes “any person controlled by” any officer of RTAO, and all entities of which such an

RTAO’s Discovery Responses 1

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 1 of 28
officer is “an officer, director, partner or otherwise [has] control or [has] the ability to control.”

So for example, if an RTAO officer or volunteer was also an officer in their church or a

community organization, this overbroad definition would seek information about these irrelevant

entities. RTAO will not provide information that is not directly related to RTAO.

Requests for Documents

General Objections

1. RTAO objects to the Requests to the extent that: (a) they purport to call for the

production of documents that contain privileged attorney-client communications; (b) constitute

attorney work product; (c) disclose the mental impressions, conclusions, opinions, or legal

theories of any attorneys or other representatives of RTAO; (d) were prepared in anticipation of

litigation; or (e) are otherwise protected from disclosure under applicable privileges, immunities,

laws, or rules.

2. RTAO objects to the Requests to the extent that they are vague, not limited in scope,

unreasonably broad and burdensome, or beyond the scope of either category of permissible

discovery under Fed. R. Civ. P. 26(b)(1). See Fed. R. Civ. P. 26(b)(1) advisory committee’s note

(2000).

3. RTAO objects to the instructions accompanying the Requests to the extent that they

purport to impose obligations beyond those imposed by the Federal Rules of Civil Procedure or

local rules.

4. RTAO objects to requests for information the benefit of which is outweighed by its

lack of importance in resolving the issues at stake in this case. See Fed. R. Civ. P. 26(b)(2)(i)

(discovery cannot be “unreasonably cumulative or duplicative, or . . . obtainable from some other

source . . . .” and is limited if the burden or expense of the proposed discovery outweighs its

RTAO’s Discovery Responses 2

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 2 of 28
likely benefit, taking into account . . .[inter alia] the importance of the proposed discovery in

resolving the issues.” Id. at (iii).

5. By responding to these Requests, RTAO does not concede that any of the documents

requested are relevant to a claim or defense or the subject matter of this action or are admissible

at the trial thereof or that any person identified in the responses has documents relevant to this

action. RTAO reserves any and all objections as to competency, relevance, materiality, privilege,

admissibility, or any other grounds on which an objection may be made. RTAO expressly

reserves the right to object to further discovery into the subject matter of these Requests. Any

response to a Request that inadvertently discloses privileged documents is not intended to and

shall not be deemed or construed to constitute a waiver of any privilege or right of Plaintiff.

Insofar as a response to a Request may be deemed to be a waiver of any privilege or right, such

waiver shall be deemed to be a waiver limited to that particular response only.

6. Subject to and without waiving any of the foregoing General Objections, which are

hereby incorporated into each response given below, RTAO responds to the individual Requests

as follows:

Responses

1. An example of each request for donation, whether made by RTAO itself or by any

other person on behalf of RTAO, including any that you “fear” (Am. Compl. ¶ 25) would be

deemed a “solicitation” under 11 C.F.R. § 100.57.

Response: No responsive documents. RTAO included in its Amended Verified

Complaint (“AVC”) the script of a solicitation letter it developed to distribute and alleged its

intention to develop and distribute materially similar solicitation letters in the future. AVC ¶¶ 20,

27. However, the complaint stated that absent the requested judicial relief it would not distribute

RTAO’s Discovery Responses 3

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 3 of 28
the letter. AVC ¶¶ 21-23. And because RTAO has not yet received the judicial relief it seeks it

has not developed any additional solicitation letters. Barry Bostrom is capable of providing

testimony concerning this response, which was drafted by counsel for RTAO.

2. Any documents that evidence or reflect any alleged burdens on RTAO or persons

associated with RTAO resulting from your compliance with the disclosure requirements at issue

in this case, including any threats, harassment, or reprisals.

Response: No responsive documents.

3. Any documents concerning RTAO’s solicitations, receipts, disbursements, purpose, or

activities that support your contention that RTAO fears it could be deemed a political committee

under the political committee analysis challenged by RTAO in this case.

Response: No responsive documents. As set out in the complaint, RTAO alleged that if it

undertook the activities set out therein it feared it would be deemed a political committee. RTAO

is chilled from undertaking its activities absent judicial relief, which it has not yet received. Barry

Bostrom is capable of providing testimony concerning this response, which was drafted by

counsel for RTAO.

4. Any documents relevant to RTAO’s spending, including, but not limited to, budgets or

records of disbursements, that indicate RTAO’s major purpose.

Response: RTAO produces its Articles of Incorporation (Exhibit A) and Bylaws (Exhibit

B). Barry Bostrom is capable of providing testimony concerning this response, which was drafted

by counsel for RTAO.

5. Any documents that support your allegation that RTAO would be harmed by using

“federal funds” to send its “fundraising communications.” (Am. Compl. ¶ 23).

RTAO’s Discovery Responses 4

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 4 of 28
Response: RTAO produces check copies (with personal donor information redacted)

from two unsolicited donations it has received in the amount of $10,000.00 and $5,000.00.

Exhibits C & D. Barry Bostrom is capable of providing testimony concerning this response,

which was drafted by counsel for RTAO.

6. All scripts or transcripts of advertisements that RTAO has broadcast or plans to

broadcast, including final versions of the advertisement script provided in RTAO’s amended

complaint. If there is no script or transcript that post-dates the amended complaint, so indicate.

Response: There are no scripts that post-date those included in the Amended Verified

Complaint, and RTAO has not broadcast any other advertisements. Barry Bostrom is capable of

providing testimony concerning this response, which was drafted by counsel for RTAO.

Requests for Admission

1. All documents produced by RTAO in this litigation or produced in response to these

discovery requests are true and accurate copies of documents in the possession of RTAO that

were made or received by the authors or recipients stated on the documents at approximately the

date indicated on the documents.

Response: Admit, except where otherwise indicated. Barry Bostrom is capable of

providing testimony concerning this response, which was drafted by counsel for RTAO.

2. RTAO has received no donations.

Response: Deny. RTAO has received two unsolicited donations. See Exhibits C & D.

Barry Bostrom is capable of providing testimony concerning this response, which was drafted by

counsel for RTAO.

3. RTAO has made no requests for donations.

RTAO’s Discovery Responses 5

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 5 of 28
Response: Admit. Barry Bostrom is capable of providing testimony concerning this

response, which was drafted by counsel for RTAO.

4. RTAO has not identified any individuals who intend to donate to RTAO.

Response: Admit, to the extent that no individual has been identified who has expressed

an intent to donate to RTAO in the future. RTAO has received donations. Barry Bostrom is

capable of providing testimony concerning this response, which was drafted by counsel for

RTAO.

5. RTAO has not identified any individuals who intend to donate in excess of $5,000 in a

calendar year to RTAO. 

Response: Admit, to the extent that no individual has been identified who has expressed

an intent to donate to RTAO in the future. RTAO has received a donation in excess of $5,000.

See Exhibit C. Barry Bostrom is capable of providing testimony concerning this response, which

was drafted by counsel for RTAO.

6. RTAO has not identified any RTAO donor or potential donor who claims a reasonable

probability exists that the contributor would be subject to threats, reprisals, or harassment if

RTAO were to comply with the disclosure requirements at issue in this case.

Response: RTAO admits that it has identified two donors who might have been subject

to threats, reprisals, or harassment if RTAO had been permitted to air its advertisements. Barry

Bostrom is capable of providing testimony concerning this response, which was drafted by

counsel for RTAO.

7. No reasonable probability exists that RTAO will be subject to threats, reprisals, or

harassment if it engages in its planned speech and complies with the disclosure requirements at

issue in this case.

RTAO’s Discovery Responses 6

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 6 of 28
Objection: RTAO objects because this request asks for speculation. RTAO further

objects that, as the FEC is employing the argument on which this request is based, the request is

not “relevant to any party’s claim or defense” as required by FRCP 26(b)(1) because RTAO does

not, and has not, sought protection from any and all disclosure based on threats, harassment, or

reprisal of the sort found to be sufficient to exclude an organization from disclosure under cases

involving certain ethnic and ideological groups. See Buckley v. Valeo, 424 U.S. 1, 64-74 (1976)

(discussing cases). See also McConnell v. FEC, 540 U.S. 93, 197-99 (2003) (discussing cases

and Buckley). Rather, RTAO relies on the Supreme Court’s recognition that compelled disclosure

alone is a burden that the government must specially justify: “[W]e have repeatedly found that

compelled disclosure, in itself, can seriously infringe on privacy of association and belief

guaranteed by the First Amendment.” Buckley, 424 U.S. at 64. RTAO relies on the Court’s

recognition that “invasion of privacy of belief may be as great when the information sought

concerns the giving and spending of money as when it concerns the joining of organizations.” Id.

at 66. And RTAO relies on the Court’s recognition that there are two cognizable burdens, in

addition to the inherent invasion of privacy. First, the Court recognized that a deterred

contribution is a cognizable harm: “It is undoubtedly true that public disclosure of contributions

to candidates and political parties will deter some individuals who otherwise might contribute.”

Id. at 68. Second, the Court recognized, as a separate type of harm, the sort of claim on which the

present interrogatory focuses: “In some instances, disclosure may even expose contributors to

harassment or retaliation.” Id. So to the extent that the FEC’s effort is to show that RTAO does

not fit within a socially disfavored ethnic or ideological group that is entirely exempt from

disclosure, this request is irrelevant to any claim that RTAO is making and RTAO is not required

to respond.

RTAO’s Discovery Responses 7

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 7 of 28
Response: RTAO denies that there is no such probability. Barry Bostrom is capable of

providing testimony concerning this response, which was drafted by counsel for RTAO.

8. No reasonable probability exists that persons associated with RTAO will be subject to

threats, reprisals, or harassment if RTAO engages in its planned speech and complies with

disclosure requirements at issue in this case.

Objection: RTAO incorporates by reference its objection to Request for Admission # 7.

Response: RTAO denies that there is no such probability. Barry Bostrom is capable of

providing testimony concerning this response, which was drafted by counsel for RTAO.

9. RTAO has not identified any similarly situated organizations or groups that have

demonstrated a reasonable probability of threats, reprisals, or harassment as a result of engaging

in speech similar to that in which RTAO intends to engage and complying with the disclosure

requirements at issue in this case.

Objection: RTAO incorporates by reference its objection to Request for Admission # 7. 

Response: RTAO admits that it has not identified any similarly situated organizations or

groups. Barry Bostrom is capable of providing testimony concerning this response, which was

drafted by counsel for RTAO.

10. RTAO has not entered into any contracts to run its advertisements, create a website,

or engage in fundraising.

Response: Admit. Barry Bostrom is capable of providing testimony concerning this

response, which was drafted by counsel for RTAO.

RTAO’s Discovery Responses 8

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 8 of 28
Interrogatories

General Objections

1. RTAO objects to the Interrogatories to the extent that: (a) they purport to call for the

disclosure of information that contains privileged attorney-client communications; (b) constitute

attorney work product; (c) disclose the mental impressions, conclusions, opinions, or legal

theories of any attorneys or other representatives of RTAO; (d) were prepared in anticipation of

litigation; or (e) are otherwise protected from disclosure under applicable privileges, immunities,

laws, or rules.

2. RTAO objects to the Interrogatories to the extent that they are vague, not limited in

scope, unreasonably broad and burdensome, beyond the scope of permissible discovery, and seek

information not relevant to the subject matter of this action.

3. RTAO objects to the Interrogatories to the extent that they seek information concerning

the plans, programs, and activities of RTAO, its members, officers, and associated entities that

are protected from compelled public disclosure by the First Amendment rights of free speech and

association. RTAO further objects to the Interrogatories to the extent that the information

provided may be used by defendants for purposes other than in connection with this litigation.

4. RTAO objects to the instructions accompanying the Interrogatories to the extent that

they purport to impose obligations beyond those imposed by the Federal Rules of Civil

Procedure, local rules, or any Order issued by this Court.

5. RTAO objects to each Interrogatory to the extent that it seeks information that is

neither relevant to the parties’ claims or defenses in the pending action nor reasonably calculated

to lead to the discovery of admissible evidence. By responding to these Interrogatories, RTAO

does not concede that any of the information requested is relevant to this action or admissible at

RTAO’s Discovery Responses 9

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 9 of 28
the trial thereof or that any person identified in the responses has information relevant to this

action. RTAO reserves any and all objections as to competency, relevance, materiality, privilege,

admissibility, or any other grounds on which an objection may be made. RTAO expressly

reserves the right to object to further discovery into the subject matter of these Interrogatories.

Any response to an Interrogatory that inadvertently discloses privileged documents is not

intended to and shall not be deemed or construed to constitute a waiver of any privilege or right

of RTAO. Insofar as a response to an Interrogatory may be deemed to be a waiver of any

privilege or right, such waiver shall be deemed to be a waiver limited to that particular response

only.

Subject to and without waiving any of the foregoing General Objections, which are

hereby incorporated into each response given below, RTAO (a) objects to the individual

Interrogatories and (b) makes the required good faith attempt to fulfill its duty to provide all

responsive information readily available to it without undue labor and expense as follows:

Specific Objections and Responses

1. Describe the factual basis for any belief you have that any donor or potential donor

would be subjected to threats, harassment, or reprisals if that person is publically identified by

RTAO as having made a donation to RTAO as a result of its compliance with the disclosure

requirements challenged in this case.

Objection: RTAO incorporates by reference its objection to Request for Admission # 7. 

Response: There is no responsive information to disclose.

2. Describe in detail the factual basis for your allegation (Am. Compl. ¶ 11) that RTAO is

not a political committee and does not meet the “major purpose” test.

RTAO’s Discovery Responses 10

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 10 of 28
Response: RTAO has made no expenditures or contributions and has not solicited any

contributions. In fact, because it has not received the requested judicial relief, RTAO has made

no disbursements whatsoever. So RTAO has not met the $1,000 trigger requirement to qualify as

a “political committee.” See 2 U.S.C. § 431; 11 C.F.R. § 100.5. Furthermore, RTAO’s Bylaws

(Exhibit B) expressly forbid it from making any disbursements to expressly advocate the election

or defeat of any clearly identified candidate or making contributions to any candidate. And

RTAO’s central organizational purpose is not nominating, electing or defeating any federal

candidate. So RTAO does not, and cannot, have the major purpose of nominating or electing any

candidate for federal office. But RTAO fears that under the FEC’s overbroad regulations and

enforcement policy challenged in this case, the FEC may deem it a PAC. Barry Bostrom is

capable of providing testimony concerning this response, which was drafted by counsel for

RTAO.

3. Identify all instances in which RTAO contends the Commission’s policy regarding

political committee status challenged in this case has operated to reach organizations that RTAO

believes were not political committees.

Objection: RTAO objects to this interrogatory as being unduly burdensome as it would

require RTAO to research and review numerous MUR’s and settlement agreements. 

Response: RTAO submits that anytime the FEC has determined an entity to be a political

committee based on the overbroad provisions at 11 C.F.R §§ 100.22(b) and 100.57, or by

reference to other activities of an organization that are not unambiguously campaign related, it

has operated to reach organizations not properly treated as political committees.

4. Identify all instances in which RTAO contends the Commission’s policy regarding

political committee status challenged in this case has operated to unlawfully chill any person’s

RTAO’s Discovery Responses 11

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 11 of 28
First Amendment rights, speech, or activities.

Objection: RTAO objects that this interrogatory is unduly burdensome and impossible to

answer as chilled speech, by definition, does not fact occur. So RTAO cannot know how many

speakers have been chilled from speaking by the vague and overbroad laws at issue in this case. 

Response: RTAO has been chilled from speaking by the vague and overbroad laws

regarding political committee status challenged in this case. And the very existence of the vague

and overbroad laws at issue chills speech. See North Carolina Right to Life v. Bartlett, 168 F.3d

705, 710 (4th Cir. 1999), cert. denied, 528 U.S. 1153 (2000). While it is impossible to know how

many entities have forgone their First Amendment rights because of the laws challenged here, it

is safe to assume that many speakers have done so.

5. Describe in detail the factual basis for your allegation that RTAO would be harmed by

using “federal funds” to send its “fundraising communications.” (Am. Compl. ¶ 23).

Objection: RTAO objects that, as the FEC is employing the argument on which this

request is based, the request is not “relevant to any party’s claim or defense” as required by

FRCP 26(b)(1), because compliance with “PAC style” regulations is a per se burden on the First

Amendment rights of organizations. FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986)

(“MCFL”). So it is not relevant whether RTAO makes a factual showing of specific burdens it

would experience from complying with the burdensome regulations accompanying political

committee status, including source and amount limits on donations. 

Response: RTAO has already received a donation of $10,000. If it were subject to

regulation as a political committee RTAO would be forced to return half of this donation. And

had RTAO been permitted to send its fundraising letter it is highly likely that RTAO would have

received many additional donations over and above the $5,000 limit for contributions to political

RTAO’s Discovery Responses 12

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 12 of 28
committee, which donations RTAO would be forced to refuse. So being limited to “federal

funds” would greatly burden RTAO’s ability to send fundraising communications and participate

in other activities relevant to its mission. Barry Bostrom is capable of providing testimony

concerning this response, which was drafted by counsel for RTAO.

6. Identify each person (other than counsel) who participated in, or provided documents

or information for, the preparation of your responses to these discovery requests. With respect to

each such person, identify the specific request, and state whether the person participated in

preparing the response, or provided documents, or information.

Response: As requested in the “Instructions,” RTAO included such information with its

individual responses.

7. For any requests for admission in these requests that you deny in whole or in part,

explain in full, your reasons for the denial.

Response: An explanation is included in the individual responses to the requests for

admission.

RTAO’s Discovery Responses 13

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 13 of 28
Verification

I declare under penalty of perjury that the foregoing answers to the FEC’s interrogatories

are true and correct. Executed on November 13, 2008.

/s/ Barry A. Bostrom 

Barry A. Bostrom

The Real Truth About Obama, Inc.

James Bopp, Jr.,* jboppjr@aol.com

Richard E. Coleson,* rcoleson@bopplaw.com

Barry A. Bostrom,* bbostrom@bopplaw.com

Clayton J. Callen,* ccallen@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *admitted pro hac vice

Lead Counsel for Plaintiff

Respectfully submitted,

/s/

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Local Counsel for Plaintiff

RTAO’s Discovery Responses 14

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 14 of 28
I no Ilv. r u..J fI::'UOOOC.

ARTICLES OF INCORPORATION

OF

THE REAL TRUTH ABOUT OBAMA

r. UJ

The undersigned, being a natural person of the age of 2] years or more, acting as the

incorporator of a corporation, does hereby adopt the following Articles oflncorporation for such

corporation pursuant to Chapter 10 of Title 13.1 ofthe Code of Virginia, states as follows:

FIRST: The name ofthe corporation is:

THE REAL TRUTH ABOUT DRAMA

SECOND: The period of duration is perpetual.

TIDRD: The purposes and powers ofthis corporation shall be:

Section One: The specific and primary purposesfor which this corporation is formed

and for which itshall be exclusively administered and operated are to receive, administer and expend

funds in connection with the following:

]. To provide accurate and truthful information about the public policy positions of

Senator Barack Obama;

2. To engage innon-partisan voter education, registration and get out the voter activities

in conjunction with federal elections;

3. To engage in any activities related to federal elections that are authorized by and are

consistent with Section 527 ofthe Internal Revenue Code except that the corporation shall not:

(a) expressly advocate the election or defeat of any clearly identified candidate

for public office, or

(b) make any contribution to any candidate for public office; and

4. To engage in any and all Ia-wful activities incidental to the foregoing purposes except

as restricted herein.

ARTICLES OF INCORPORATION

THE REAL TRUTH ABOUT DBAMA Page -1-

Exhibit A

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 15 of 28
Section Two: In order to accomplish the foregoing purposes, this corporation shall

also have the power to:

1- sue and be sued;

2. make contracts;

3. receive property by devise or bequest, subject to the laws regulating the transfer of

property by will, and otherwise acquire and hold all property, rea] or personal. including shares of

stock, bonds and securities of other corporations;

4. act as trustee under any trust whose objects are related to the principal objects

ofthe corporation. and to receive, hold, administer and expend funds and property subject to such

trust;

5. convey. exchange, lease, mortgage, encumber, transfer upon trust Or otherwise

dispose of all property, real or personal;

6. borrowmoney, contract debts and issue bonds, notes, and debentures, and secure the

payment of any perfonnancc ofits obligations; and

7. do all other acts necessary Or expedient for the administration ofthe affairs

and attainment ofthe purposes ofthe corporation; provided, however, that this corporation shalJ not,

except to an insubstantial degree, engage in any activities or exercise any powers that are not in

furtherance ofthe primary purposes oftrus corporation. .

FOURTH: The corporation is to have no members.

FIFTH: The business of the corporation shall be carried On through its Board of

Directors. The election of new directors shall be by the initial Board of Directors- Successors to

outgoing directors shall be elected by the Board ofDirectors.

SIXTH: The plivate property ofthe incorporators, directors, and officers shall not be

subject to the payment ofcorporate debts to any extent whatever; in furtherance and not in limitation

ofthe powers conferred by statute, the corporation is expressly authorized to carry on its business

and to hold annual or special meetings ofits Board of Directors in any ofthe states, territories or

possessions ofthe United States, or the District ofColumbia.

SEVENTH: No part ofthe net income ofthe corporation shall inure to the benefit ofor be

distributable to its trustees. officers, or other private persons, except that the corporation shall be

authorized and empowered to pay reasonable compensation for services actually rendered and to

make payments and distributions in furtherance of the purposes and objects set forth in Article

ARTICLES OF INCORPORATION

THE REAL TRUTH ABOUT OBAMA Page -2-

Exhibit A

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 16 of 28
44UI I:lVI IVvlL..VVUU'- II Uv

THIRD hereof. Notwithstanding any other provision of these Articles, the corporation shall not

conduct or canyon any activities not permitted to be conducted or carried on by an organization

exempt under Section 527 ofthe Intel11a] Revenue Code of 1986, or corresponding provisions ofany

subsequent federal tax laws.

EIGHTH: Upon the dissolution ofthe corporation or the windmg up ofits affairs, the

assets ofllie corporation shall be distributed exclusively for purposes described in Section 527 of

the Internal Revenue Code or to organizations which are then exempt from Federal Tax under

Section 527 ofthe Internal Revenue Code of 1986, or corresponding provisions of any subsequent

federal tax laws. .

NINTH: The name of its initial registered agent is James K. Disney; he is a resident

of Virginia and is an initial director ofthe corporation.

TENTH: The address of its initial registered office is 4515 Forest Hill Ave., Apt.. I,

Richmond, VA 23225. The registered office is physically located in the City ofRichmond.

ELEVENTH: The corporation reserves the right to amend, change or repeal any provision

contained in these Articles ofIncorporation or to merge 01' consolidate this corporation with any

other nonprofit corporation in the manner now or hereafter prescribed by statute, provided, however,

that any such action shall be calculated exclusively to carry out the objects and purposes for which

the corporation is formed, and all rights herein conferred or granted shall be subject to this

reservation.

TWELFTH: The number ofdirectors constituting the initial Board ofDirectors is four (4),

but the number of directors may be increased or decreased in the manner set forth in the Bylaws,

provided that the number shall not be less than three (3). The name and address, including street and

number, ofthe persons who are to serve as initial directors are:

NAME

Kevin Allen

James K. Disney

Laura Echevarria

Dan Magan, Sr.

ADDRESS

300 I Emerald Chase Dr.

Oakhill, VA 20171

4515 Forest Hill Ave., Apt 1

Richmond, VA 23225

4514 Garfield C0urt

Fredericksburg, VA 22408

518 Buck Mountain Road

Earlysville, VA 22936

ARTICLES OF INCORPORATION

THE REAL TRUTH ABOUT OBAMA Page ~3-

Exhibit A

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 17 of 28
is:

• I VV

THIRTEENTH: The name and address, including street and number, ofthe incorporator

NAME

Kevin Allen

ADDRESS

3001 Emerald Chase 'Dr.

Oakhill, VA 20171

Signature

ARTICLES OF INCORPORATION

THE REAL TRUTH ABOUT OBAMA Page -4-

Exhibit A

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 18 of 28
STATE CORPORATION COMMISSION

CRjcfimond, Jury 24, 2008

crfiis is to certify tfiat tfie certificate ofincorporation of

THE REAL TRUTH ABOUT OBAMA

was tfiis day issuedandadmitted to recordin tfiis office and tfiat

tfie said corporation is autfiorized to transact its 6usiness su6ject

to aCCVirginia Caws appCica6Ce to tfie corporation andits 6usiness.

Pffective date.' Jury 24, 2008

State Corporation Commission

jlttest.·

---~O--ion----

CIS0306

Exhibit A

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 19 of 28
BYLAWS OF

THE REAL TRUTH ABOUT OBAMA

ARTICLE I

Purpose

Sect. 1. Name

The name ofthe Corporation shall be THE REAL TRUTH ABOUT OBAMA.

Sect. 2. Purpose

The specific and primary purposes for which this corporation is formed and for which it

shall be exclusively administered and operated are to receive, administer and expend funds in

connection with the following:

1. To provide accurate and truthful information about the public policy positions of

Senator Barack Obama;

2. To engage in non-partisan voter education, registration and get out the voter

activities in conjunction with federal elections;

3. To engage in any activities related to federal elections that are authorized by and

are consistent with Section 527 ofthe Internal Revenue Code except that the corporation shall

not:

(a) expressly advocate the election or defeat of any clearly identified candidate

for public office, or

(b) make any contribution to any candidate for public office; and

4. To engage in any and all lawful activities incidental to the foregoing purposes

except as restricted herein.

Sect. 3. Annual Meeting

The annual meeting ofthe Corporation shall be in January of each year.

Sect. 4. Fiscal Year

The fiscal year ofthe Corporation shall be January 1 to December 31.

Exhibit B

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 20 of 28
ARTICLE II

Members

Sect. 1. Members

The Corporation shall have no members.

ARTICLEID

Board ofDirectors

Sect. 1. Powers ofthe Board ofDirectors

Except as otherwise required by law, as provided in the Articles ofIncorporation and

these Bylaws, all details ofthe operation and management ofthe Corporation and its affairs and

property are vested with the members to the Board ofDirectors.

Sect. 2. Membership ofBoard of Directors

The Board ofDirectors shall initially consist offour members who shall serve until the

first annual meeting, or until a successor has been duly elected and qualified. The members of

the Board shall be selected pursuant to Section 3. The Board may expand the number of

members ofthe Board by resolution, but in no case will the number ofmembers be less than

three.

Sect. 3. Selection ofmembers ofthe Board ofDirectors

The members ofthe Board ofDirectors shall be selected at the annual meeting. The

initial members ofthe Board ofDirectors specified in the Articles ofIncorporation shall serve

until the first annual meeting ofthe Board. At subsequent annual meetings, Directors shall be

elected for three year terms. The Board ofDirectors shall fill any vacancy, for the unexpired

portion ofa Director's term, at any duly called meeting ofthe Board ofDirectors.

Sect. 4. Meetings ofthe Board ofDirectors

The Board ofDirectors shall meet annually in January and at such other regular Board

meetings as determined by the Board at the initial meeting ofthe Board and at any subsequent

annual meeting. In addition, a special meeting ofthe Board may be called by two members of

the Board ofDirectors, or by the Chairman ofthe Board, upon ten days notice. A quorum shall

constitute a majority ofthe Directors. \

2

Exhibit B

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 21 of 28
Sect. 5. Telephone Meetings

Any or all directors may participate in a meeting ofthe Board ofDirectors by use of

conference telephone or similar communication equipment by means ofwhich all persons

participating in the meeting may simultaneously hear each other during the meeting, and

participation in such meeting shall constitute presence in person at such a meeting.

Sect. 6. Action Without a Meeting

Any action required or permitted to be taken at a meeting ofthe Board ofDirectors may

be taken without a meeting, upon the written consent of all ofthe directors. The action must be

evidenced by the written consent of each director to the taking of action without a meeting which

written consent shall also indicate the director's vote on the action. Action taken under this

section may be treated as a meeting ofthe Board ofDirectors and shall have the same effect as

action taken at a meeting. The written consents provided for in this section shall be included in

the minutes ofthe meeting at which the action under this section is taken. Any action taken under

this section shall be effective when the last director signs the consent, unless the consent

specifies a different effective date.

Sect. 7. Removal of a Member ofthe Board ofDirectors

A member ofthe Board ofDirectors may be removed by majority vote ofthe Board of

Directors, with or without cause, at any regular or special meeting ofthe Board, provided that

written notice ofthe proposed removal is mailed to the Director at least ten days prior to the

meeting at which the removal will be proposed.

ARTICLE IV

Officers

Sect. 1. Officers ofthe Corporation

The Officers ofthe Corporation shall be the Chairman, Vice Chairman, and SecretaryTreasurer. The Officers shall be members ofthe Board.

Sect. 2. Powers ofOfficers

The duties ofthe Officers shall be as follows:

(a) The Chairman shall preside at all meetings ofthe Board ofDirectors, shall appoint

committees, shall direct the day to day activities ofthe Corporation in conformance with the

Articles ofIncorporation, Bylaws and resolutions ofthe Board ofDirectors, and shall perfonn all

other duties incident to this office.

3

Exhibit B

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 22 of 28
(b) The Vice Chairman shall assume all the duties ofthe ChaiIman in the event ofhis

absence or disability and perform such other functions as assigned by the Chairman.

(c) The Secretary-Treasurer shall keep an accurate record ofthe proceedings ofthe

meetings ofthe Board ofDirectors, shall receive and safely keep all funds ofthe Corporation,

shall make approved disbursements, and shall maintain an accurate accounting of all fmancial

transactions.

Sect. 3. Election ofOfficers

The Board ofDirectors shall elect the Officers at the annual meeting. Officers shall serve

two year terms, or until a successor has been duly elected and qualified.

Sect. 4. Removal ofOfficers

An Officer may be removed by majority vote ofthe Board ofDirectors, with or without

cause, at any regular or special meeting ofthe Board, provided that written notice ofthe proposed

removal is mailed to the officer at least ten days prior to the meeting at which the removal will be

proposed.

ARTICLE V

Indemnification

Sect. 1. General

The Corporation shall indemnify any person serving as an officer or director ofthe

Corporation from and against any claim, costs or liability asserted against him or her as a result

of his or her service as an officer or director, in accordance with the tenns, conditions and

procedures and to the fullest extent permitted by law, as may be in effect from time to time.

Sect. 2. Insurance

The Corporation shall have the power to purchase and maintain insurance on behalf of

any person who is or was a director, officer, employee, or agent ofthe Corporation, or who,

while a director, officer, employee or agent ofthe Corporation, is or was serving at the request of

the Corporation as a director, officer, partner, trustee, employee or agent of another corporation,

partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability

asserted against him or incurred by him in any such capacity or arising from his status as such,

whether or not the Corporation would 'have the power to indemnify him against such liability

under the provisions ofthis Article.

4

Exhibit B

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 23 of 28
ARTICLE VI

Provisions for Regulation

and Conduct ofthe Affairs ofComoration

Sect. 1. Prohibition ofDistribution to Private Persons

No part ofthe net earnings ofthe Corporation shall inure to the benefit of, or be

distributed to, its members, Directors, Officers, or other private persons, except that the

Corporation shall be authorized and empowered to pay reasonable compensation for services

rendered and to make payments and distributions in furtherance ofthe purposes set forth in

Article II hereof.

Sect. 2. Prohibition ofActivities not Permitted by Exempt Organizations

Notwithstanding any other provision ofthese Articles, the Corporation shall not carry on

any other activities not permitted to be carried on by a Corporation exempt from Federal Income

Tax under Section 527 ofthe Internal Revenue Code of 1986 (or the corresponding provision of

any future United States Internal Revenue Law).

Sect. 3. Distribution ofProperty Upon the VoluntaIy or Involuntary Dissolution ofthe

Corporation

Upon the voluntary or involuntary dissolution ofthe Corporation the Board ofDirectors,

shall, after paying or making provision for payment of all ofthe liabilities ofthe Corporation,

dispose of all assets ofthe Corporation exclusively for the purposes ofthe Corporation in such

manner, or to such organization or organizations organized and operated exclusively for purposes

as shall at the time qualify as an exempt organization or organizations under Section 527 ofthe

Internal Revenue Code of 1986 (or the corresponding provision of any future United States

Internal Revenue Law), as the Board ofDirectors shall determine. Any such assets not so

disposed ofshall be disposed ofby a Court ofcompetent jurisdiction in the county in which the

principle office ofthe corporation is then located, exclusively for such purposes or to such

organization or organizations, as said Court shall determine, which organization organized and

operated exclusively for such purposes.

Sect. 4. Conduct ofActivities

The activities ofthe Corporation shall be exclusively determined by the Board, Officers,

employees and agents ofthe Corporation, including the decision to conduct activities in a

specific Congressional District and the particular activities that are conducted therein.

Furthermore, the activities ofthe Corporation shall not be made in consultation or in

coordination with members ofthe Republican House leadership, any other members ofor

candidates for Congress, the National Republican Congressional Committee, the National

Republican Senatorial Committee, the Republican National Committee, any presidential

5

Exhibit B

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 24 of 28
staff or agents. Finally, none ofthe funds raised at a fundraising event with the assistance of a

member ofCongre:-s shall be used in that member's Congressional district during that election

cycle.

Sect. 5. Limitation on Contribution

The Corporation shall only accept contributions where the source ofwhich is a citizen of

the United States.

ARTICLE VIJ

Amendments to the Bylaws

Sect. 1. Amendment~ to the Bylaws

The Bylaws may be amended, by a majority vote, at any duly called meeting of the Board

of Directors. Written notice ofthe proposed amendment shall be mailed to the members ten days

before the meeting at which the amendment is to be proposed.

ARTICLE VlIl

Rules of Procedure

Sect. 1. Rules of Procedure

Robert's Rules of Order. Newly Revised, shall be the parliamentaTY authority for all

matters not covered by the Articles of Incorporation, Bylaws or resolutions of the Membel's and

Board of Director:;.

THE ABOVE BYLAWS WERE ADOPTED THIS 29th DAY OF JULY, 2008.

~,_ (j~1L:::..--_ Kevin Allen, Chairm~n

Jamef\ K. Disney, Secretary-Treasurer

6

Exhibit B

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 25 of 28
candidate and campaign committee, any other political party, any other political party committee,

or any oftheir staff or agents. Finally, none ofthe funds raised at a fundraising event with the

assistance of a member ofCongress shall be used in that member's Congressional district during

that election cycle.

Sect. 5. Limitation on Contribution

The Corporation shall only accept contributions where the source ofwhich is a citizen of

the United States.

ARTICLE VII

Amendments to the Bylaws

Sect. 1. Amendments to the Bylaws

The Bylaws may be amended, by a majority vote, at any duly called meeting ofthe Board

ofDirectors. Written notice ofthe proposed amendment shall be mailed to the members ten days

before the meeting at which the amendment is to be proposed.

ARTICLEvrn

Rules ofProcedure

Sect. 1. Rules ofProcedure

Robert's Rules ofOrder. Newly Revised, shall be the parliamentary authority for all

matters not covered by the Articles ofIncorporation, Bylaws orresolutions ofthe Members and

Board ofDirectors.

THE ABOVE BYIAWS WERE ADOPTED THIS _ DAY OF JULY, 2008.

Chairman

6

Exhibit B

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 26 of 28
I

o!

___......~iii-·...:~

Exhibit C

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 27 of 28
Vanguard-Tax-Exempt

Money Marllet Fund 1458

DATE Ita. )G, LDC 8

PAY TO THE ORDER OF THE i2cAl.- Tk'u, 1.\ AI5<Jc.r;- 084""'" I $ S; CClo. <::!

,..

NOTVALJD FOR LESS THAN 1250.00

. #'

hr/'i 1!J<:Jr.·'J4.v() DOLLARS t?J i'::?_"='

Payable Through

Wachovia Bank, National Association

Wilmington, DE 19803

FOR _

Exhibit D 

Case 3:08-cv-00483-JRS Document 136-1 Filed 10/18/10 Page 28 of 28
United States District Court

Eastern District of Virginia

Richmond Division

The Real Truth About Obama, Inc.

Plaintiff,

v.

Federal Election Commission and

United States Department of Justice,

Defendants.

Case No. 3:08-cv-00483-JRS

Plaintiff RTAO’s Discovery Responses

Pursuant to Federal Rules of Civil Procedure 33, 34, and 36, The Real Truth About

Obama, Inc. (“RTAO”) makes the following discovery responses.

General Objections to “Definitions”

1. RTAO objects to the extremely broad and vague definition of “RTAO” as including a

wide range of non-official persons, including volunteers and consultants over whom RTAO

exercises no control. RTAO objects to the concept of “unpaid” “employees” as

incomprehensible. RTAO objects to the phrase “or persons otherwise working on behalf of” as

being incomprehensibly vague and so apparently overbroad as to encompass persons across the

nation who support RTAO and its ideological causes.

2. RTAO objects to the extremely broad and vague definition of “you” and “your,” which

when coupled with the definition of “RTAO” reaches far beyond anything relevant to RTAO or

any claims or defenses in this case. For example, “you” includes the “entity to whom these

requests are directed, i.e., “RTAO,” which is defined to include an officer of RTAO, so that

“you” includes “any person controlled by” any officer of RTAO, and all entities of which such an

RTAO’s Discovery Responses 2d 1

Case 3:08-cv-00483-JRS Document 136-2 Filed 10/18/10 Page 1 of 7
officer is “an officer, director, partner or otherwise [has] control or [has] the ability to control.”

So for example, if an RTAO officer or volunteer was also an officer in their church or a

community organization, this overbroad definition would seek information about these irrelevant

entities. RTAO will not provide information that is not directly related to RTAO.

Interrogatories

General Objections

1. RTAO objects to the Interrogatories to the extent that: (a) they purport to call for the

disclosure of information that contains privileged attorney-client communications; (b) constitute

attorney work product; (c) disclose the mental impressions, conclusions, opinions, or legal

theories of any attorneys or other representatives of RTAO; (d) were prepared in anticipation of

litigation; or (e) are otherwise protected from disclosure under applicable privileges, immunities,

laws, or rules.

2. RTAO objects to the Interrogatories to the extent that they are vague, not limited in

scope, unreasonably broad and burdensome, beyond the scope of permissible discovery, and seek

information not relevant to the subject matter of this action.

3. RTAO objects to the Interrogatories to the extent that they seek information concerning

the plans, programs, and activities of RTAO, its members, officers, and associated entities that

are protected from compelled public disclosure by the First Amendment rights of free speech and

association. RTAO further objects to the Interrogatories to the extent that the information

provided may be used by defendants for purposes other than in connection with this litigation.

4. RTAO objects to the instructions accompanying the Interrogatories to the extent that

they purport to impose obligations beyond those imposed by the Federal Rules of Civil

Procedure, local rules, or any Order issued by this Court.

RTAO’s Discovery Responses 2d 2

Case 3:08-cv-00483-JRS Document 136-2 Filed 10/18/10 Page 2 of 7
5. RTAO objects to each Interrogatory to the extent that it seeks information that is

neither relevant to the parties’ claims or defenses in the pending action nor reasonably calculated

to lead to the discovery of admissible evidence. By responding to these Interrogatories, RTAO

does not concede that any of the information requested is relevant to this action or admissible at

the trial thereof or that any person identified in the responses has information relevant to this

action. RTAO reserves any and all objections as to competency, relevance, materiality, privilege,

admissibility, or any other grounds on which an objection may be made. RTAO expressly

reserves the right to object to further discovery into the subject matter of these Interrogatories.

Any response to an Interrogatory that inadvertently discloses privileged documents is not

intended to and shall not be deemed or construed to constitute a waiver of any privilege or right

of RTAO. Insofar as a response to an Interrogatory may be deemed to be a waiver of any

privilege or right, such waiver shall be deemed to be a waiver limited to that particular response

only.

Subject to and without waiving any of the foregoing General Objections, which are

hereby incorporated into each response given below, RTAO (a) objects to the individual

Interrogatories and (b) makes the required good faith attempt to fulfill its duty to provide all

responsive information readily available to it without undue labor and expense as follows:

Specific Objections and Responses

8. Regarding your Response to the Commission’s Request for Admission No. 7, describe

in detail the bases for your statement that a probability exists that RTAO will be subject to

threats, reprisals, or harassment if it engages in its planned speech and complies with the

disclosure requirements at issue in this case, including a specific estimate of the magnitude of

that alleged probability.

RTAO’s Discovery Responses 2d 3

Case 3:08-cv-00483-JRS Document 136-2 Filed 10/18/10 Page 3 of 7
Objection: RTAO incorporates by reference its objections to Request for Admission # 7.

This Interrogatory is irrelevant and/or immaterial to any claim stated in Plaintiff’s amended

complaint.

9. Describe all activities RTAO has engaged in or plans to engage in that further the

purpose stated in RTAO’s Articles of Incorporation Article 1, Section 1.3, and Bylaws Article I,

Section 2.3 (“any activities related to federal elections that are authorized by and are consistent

with Section 527 of the Internal Revenue Code”).

Response: RTAO set out in its Amended Verified Complaint activities it intended to

engage in. And RTAO stated its intent to engage in materially similar activities in the future if it

receives the requested judicial relief, which it has not yet received. So RTAO has not undertaken

its activities and has not planned other materially similar activities. Barry Bostrom is capable of

providing testimony concerning this response, which was drafted by counsel for RTAO.

Verification

I declare under penalty of perjury that the foregoing answers to the FEC’s interrogatories

are true and correct. Executed on December 5, 2008.

/s/ Barry A. Bostrom 

Barry A. Bostrom

The Real Truth About Obama, Inc.

Requests for Documents

General Objections

1. RTAO objects to the Requests to the extent that: (a) they purport to call for the

production of documents that contain privileged attorney-client communications; (b) constitute

attorney work product; (c) disclose the mental impressions, conclusions, opinions, or legal

RTAO’s Discovery Responses 2d 4

Case 3:08-cv-00483-JRS Document 136-2 Filed 10/18/10 Page 4 of 7
theories of any attorneys or other representatives of RTAO; (d) were prepared in anticipation of

litigation; or (e) are otherwise protected from disclosure under applicable privileges, immunities,

laws, or rules.

2. RTAO objects to the Requests to the extent that they are vague, not limited in scope,

unreasonably broad and burdensome, or beyond the scope of either category of permissible

discovery under Fed. R. Civ. P. 26(b)(1). See Fed. R. Civ. P. 26(b)(1) advisory committee’s note

(2000).

3. RTAO objects to the instructions accompanying the Requests to the extent that they

purport to impose obligations beyond those imposed by the Federal Rules of Civil Procedure or

local rules.

4. RTAO objects to requests for information the benefit of which is outweighed by its

lack of importance in resolving the issues at stake in this case. See Fed. R. Civ. P. 26(b)(2)(i)

(discovery cannot be “unreasonably cumulative or duplicative, or . . . obtainable from some other

source . . . .” and is limited if the burden or expense of the proposed discovery outweighs its

likely benefit, taking into account . . .[inter alia] the importance of the proposed discovery in

resolving the issues.” Id. at (iii).

5. By responding to these Requests, RTAO does not concede that any of the documents

requested are relevant to a claim or defense or the subject matter of this action or are admissible

at the trial thereof or that any person identified in the responses has documents relevant to this

action. RTAO reserves any and all objections as to competency, relevance, materiality, privilege,

admissibility, or any other grounds on which an objection may be made. RTAO expressly

reserves the right to object to further discovery into the subject matter of these Requests. Any

response to a Request that inadvertently discloses privileged documents is not intended to and

RTAO’s Discovery Responses 2d 5

Case 3:08-cv-00483-JRS Document 136-2 Filed 10/18/10 Page 5 of 7
shall not be deemed or construed to constitute a waiver of any privilege or right of Plaintiff.

Insofar as a response to a Request may be deemed to be a waiver of any privilege or right, such

waiver shall be deemed to be a waiver limited to that particular response only.

6. Subject to and without waiving any of the foregoing General Objections, which are

hereby incorporated into each response given below, RTAO responds to the individual Requests

as follows:

Responses

7. Provide copies of any and all documents that evidence the bases for the probability you

allege that RTAO will be subject to threats, reprisals, or harassment as described in your

Responses to the Commission’s Request for Admission No. 7 and Interrogatory No. 8.

Response: No responsive documents.

8. Provide copies of any and all documents that evidence the activities you describe in

your Response to the Commission’s Interrogatory No. 9.

Response: No responsive documents.

RTAO’s Discovery Responses 2d 6

Case 3:08-cv-00483-JRS Document 136-2 Filed 10/18/10 Page 6 of 7
James Bopp, Jr.,* jboppjr@aol.com

Richard E. Coleson,* rcoleson@bopplaw.com

Barry A. Bostrom,* bbostrom@bopplaw.com

Clayton J. Callen,* ccallen@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *admitted pro hac vice

Lead Counsel for Plaintiff

Respectfully submitted,

/s/

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Local Counsel for Plaintiff

RTAO’s Discovery Responses 2d 7

Case 3:08-cv-00483-JRS Document 136-2 Filed 10/18/10 Page 7 of 7