No. 13-8033 

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

In The United States Court of Appeals 

for the Tenth Circuit 

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

FREE SPEECH, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

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

On Appeal From United States District Court 

For The District Of Wyoming-Cheyenne (Judge Skavdahl) 

Case No.: 2:12-cv-00127-SWS 

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

SUPPLEMENTAL BRIEF AND ADDENDUM 

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

BENJAMIN T. BARR

10737 Hunting Ln. 

Rockville, MD 20850 

Telephone: 

 202-595-4671 

benjamin.barr 

 @gmail.com 

STEPHEN KLEIN

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Suite 201 

Cheyenne, WY 82001 

Telephone: 307-632-7020 

stephen.klein@wyliberty.org 

JACK SPEIGHT

4021 Snyder Ave. 

Cheyenne, WY 82001

Telephone: 

 307-635-1239 

jbspeight

 @gmail.com 

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

OR CALL COLLECT (402) 342-2831 

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I. INTRODUCTION

On October 3, 2012, the lower court denied Free Speech’s motion for preliminary

injunction in the present case, 3 App. 469, leading to the previous appeal. 3 App. 501. 

While the court considered Free Speech’s motion, the Federal Election Commission 

(FEC) filed a motion to dismiss, 4 App. 510, to which Free Speech responded one day

before the lower court’s ruling on its preliminary injunction request. 4 App. 529. Shortly 

after both parties completed briefing and the case was scheduled for oral argument in the 

previous appeal, the lower court granted the FEC’s motion to dismiss, 4 App. 559, and 

dismissed the case with prejudice on March 21, 2013. 4 App. 574. Free Speech 

appealed, 4 App. 575, and with the FEC filed a joint motion to substitute briefing and 

oral argument of its previous appeal with the current appeal. The Court granted this 

motion and ordered the parties to submit additional briefs reconciling any differences in 

the issues and procedural posture of this appeal. See Order, Free Speech v. FEC, 13-8033 

(10th Cir. Apr. 1, 2013).

Specific to the current procedural posture of this case is this Court’s de novo 

review of the lower court’s dismissal of this suit based on a failure to state a claim for 

which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). Because the 

lower court failed to apply the correct dismissal standards and applied incorrect 

constitutional standards, reversal is required.

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II. THE LOWER COURT APPLIED THE INCORRECT STANDARD OF REVIEW IN 

DISMISSING THIS SUIT

It is correct that to “survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)); see also 4 App. 562. However, a plaintiff’s burden 

at the pleading stage is relatively light. Cayman Exploration Corp. v. United Gas Pipe 

Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989) (Federal Rules of Civil Procedure “erect 

a powerful presumption against rejecting pleadings for failure to state a claim”). Federal 

Rule of Civil Procedure 8(a) requires a “short and plain statement of the claim showing 

that the pleader is entitled to relief.” Any factual allegations must be sufficiently definite 

to “raise a right to relief above the speculative level on the assumption that all of the 

complaint's allegations are true.” Twombly, 550 U.S. at 545.

Significantly, the lower court did not incorporate three important procedural 

safeguards when granting the dismissal below. When reviewing a motion to dismiss, the 

court must: (1) incorporate the “powerful presumption” against rejecting pleadings for 

failure to state a claim, (2) accept all allegations in the complaint as true, and (3) draw all 

reasonable inferences in favor of the nonmoving party. Cayman Exploration Corp., 878 

F.2d at 1359; Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009). 

As the Tenth Circuit has recognized, granting a “motion to dismiss is a harsh remedy 

which must be cautiously studied, not only to effectuate the spirit of the liberal rules of 

pleading but also to protect the interests of justice.” Duran v. Carris, 238 F.3d 1268, 

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1270 (10th Cir. 2001) (quoting Cottrell, Ltd. v. Biotrol Int’l, Inc., 191 F.3d 1248, 1251 

(10th Cir. 1999)). 

The lower court failed to apply these important safeguards to the case at hand, 

necessitating reversal by this Court. Instead, the district court largely cited the facts and 

legal conclusions of a sister circuit opinion, Real Truth About Abortion, Inc. v. FEC

(RTAA), 681 F.3d 544 (4th Cir. 2012), without examining the very different 

circumstances before it. While RTAA concerned similar legal principles, the appellant 

there did not exhaust its administrative remedies, did not attempt to clarify the scope of 

the FEC’s regulatory reach, and did not even reach the question of major purpose and 

political committee status as applied to RTAA due to an insufficiently developed record. 

Id. at 558 n.5. By transposing RTAA onto this suit, the lower court did not examine the 

detailed administrative record submitted by Free Speech or the contradictory enforcement 

and regulatory history of the FEC—both important sets of allegations supporting its 

claims beyond a level of simple plausibility. See, e.g., First Amd. Verified Compl., 1 

App. 74–75 (detailing Free Speech FEC advisory opinion impasse); id. at 78–80 

(describing particular burdens facing Free Speech); id. at 84–85 (detailing its proposed 

communications campaign); id. at 87–88 (illustrating contradictory and confusing 

regulatory standards through the FEC’s enforcement process); id. at 94–95 (describing 

vague political committee and major purpose standards); Plaintiff’s Memo. Opp. To 

Motion to Dismiss, 4 App. 536–38 (describing detailed differences between simple 

disclosure and political committee status); id. at 541–42 (detailing political committee 

burdens); id. at 549 (examining the specificity of Free Speech’s allegations).

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III. FREE SPEECH V. FEC IS NOT REAL TRUTH ABOUT ABORTION V. FEC

Throughout this litigation, the court below swapped the facts and procedural 

posture of RTAA with Free Speech. These differences illustrate why this suit should 

survive the motion to dismiss.

The Real Truth About Abortion proposed to run two radio advertisements 

criticizing then-candidate Obama’s position on abortion during the 2008 election season. 

RTAA, 681 F.3d at 546–47. Although it provided a copy of its proposed advertisement 

scripts to the court, it did not seek administrative review of its advertisements or 

otherwise undergo the advisory opinion process that Free Speech used. Thus, the Fourth 

Circuit could only base its reasoning about the scope of the law and the FEC’s 

application of it on the record before it—one that was devoid of evidence of the 

Commission’s contradictory regulatory and enforcement process. This, then, would 

allow the Fourth Circuit to take the FEC’s allegations that its system was clear and 

comprehensible as true.

The Free Speech challenge enjoys a broader and more detailed record to support 

its claim concerning the invalidity of the challenged regulation, policies, and practices. 

See, e.g., First Amd. Verified Compl., 1 App. 78–79 (detailing political committee 

burdens); id. at 79 (describing reporting requirements for independent expenditures and 

electioneering communications and related confusion of how to report them under the 

regulatory system); id. at 83 (detailing political committee problems); id. at 85–89

(describing burdens and confusion over express advocacy speech standards); id. at 94–97

(explaining political committee and major purpose test regulatory uncertainties). This is 

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not a suit hypothesizing inconsistency and contradiction in the regulatory process of the 

FEC. This suit demonstrated, with abounding clarity and unfortunate length, just how 

burdensome the FEC’s system really is. With this detailed pleading, and taking all 

allegations as true, Free Speech has met its pleading burden.

The agency charged with enforcement and interpretation of the Federal Election 

Campaign Act (“FECA”) could not provide uniform guidance about how to comply with 

basic election law requirements when asked by Free Speech through the advisory opinion 

process. 2 App. 282–92. It could not determine whether five of Free Speech’s proposed 

advertisements were regulable, what constitutes solicitations, and whether Free Speech 

would be required to register and report as a political committee. Id. It could not provide 

guidance on basic questions of compliance and interpretation of the law. Id. Thus, 

unlike in RTAA, there should be no deference or presumption of clarity regarding the 

challenged provisions. Free Speech’s developed record, both through the advisory 

opinion process and as detailed in past enforcement and rulemaking processes, illustrates

the glaring constitutional and statutory deficiencies here..

The RTAA suit avoided any serious consideration of the FEC’s political committee 

standards and the major purpose test. This was because the “Commission has never 

claimed that Real Truth is a PAC. Real Truth also does not specifically identify any 

instances in which, in its opinion, the Commission incorrectly categorized an 

organization as a PAC.” RTAA, 681 F.3d at 558. Devoid of a record detailing the 

freewheeling nature of political committee status and the major purpose test at the FEC, 

the Fourth Circuit could not find a viable constitutional claim. Id. But that is not the case 

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here. See, e.g., 2 App. 282–92 (including contradictory FEC answers provided in the 

advisory opinion process); First Amd. Verified Compl., 1 App.85–89 (illustrating 

regulatory confusion over express advocacy standard); id. at 94–97 (demonstrating 

burdens and confusion related to political committee status and major purpose test). 

Unfortunately, the district court did not undertake a serious review of Free Speech’s 

claims and instead supplanted the reasoning of the RTAA court in this matter.

In response to Free Speech’s allegations, the FEC can only posit two defenses: (1) 

disclosure, of any sort, does not impose any significant burden and (2) even where there 

is regulatory confusion, just comply. The lower court accepted these arguments as true, 

negating the import of important First Amendment precedent, and evading the threshold 

question put before this Court: must the Commission’s regulatory authority have 

meaningful boundaries? Compliance at all times for any speech the FEC deems suspect 

cannot be a valid constitutional standard. See Ashcroft v. Free Speech Coalition, 535 

U.S. 234, 255 (2002) (government “may not suppress lawful speech as the means to 

suppress unlawful speech”).

Problematically, the lower court substituted the reasoning of the RTAA Court to 

the case at hand here. See Order Granting FEC’s Motion to Dismiss, 4 App. 566–58, 

570–72. It did not consider the weighty legal considerations of FEC v. Massachusetts 

Citizens for Life (MCFL), 479 U.S. 238 (1986), it did not distinguish Free Speech’s wellpled allegations concerning the scope of 11 C.F.R. § 100.22(b), the advisory opinion 

process, the contradictory political committee status process, or the regulatory and 

enforcement problems at the FEC. 

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To support a proper dismissal, the district court should have applied the Tenth 

Circuit’s “powerful presumption” against dismissal, accepted all allegations in the 

complaint as true, and drawn all reasonable inferences in favor of Free Speech. Cayman 

Exploration Corp., 878 F.2d at 1359; Dias, 567 F.3d at 1178. The lower court’s order 

granting dismissal gives but cursory attention to the detailed record submitted by Free 

Speech illustrating the constitutional and statutory deficiencies at hand. This failure to 

give even nominal attention and analysis to Free Speech’s claims, let alone drawing all 

reasonable inferences in favor of Free Speech, supports reversal here.

IV. JUST WHAT IS “DISCLOSURE”?

Throughout this suit, the FEC has sought to conflate basic disclosure obligations 

with political committee obligations—two separate regulatory regimes. To be certain, 

this case is not about challenging basic disclosure requirements. When express advocacy 

speech or electioneering communications are properly recognized, courts have upheld 

disclosure. See, e.g., Citizens United v. FEC, 130 S.Ct. 876, 913–16 (2010). This case is 

about protecting Free Speech, and others not before this Court, from the imposition of 

political committee registration and reporting burdens based on agency fiat. See Mem. in 

Support of Motion for Preliminary Injunctive Relief, 1 App. 47–49.

In election law, “disclosure” is a term of art. As the MCFL Court explained, 

spending beyond $250 on independent expenditures “trigger the disclosure provisions of 

§ 434(c).” 479 U.S. at 262. This would also entail the requirement to “identify all 

contributors who annually provide in the aggregate $200 in funds intended to influence 

elections, [] specify all recipients of independent spending amounting to more than $200, 

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and [] identify all persons making contributions over $200.” Id. This disclosure regime 

achieves the government’s interest but goes no further in burdening speakers.

Beyond disclosure is a more burdensome set of regulations, known as political 

committee status, that are at issue here. This distinction is the truth of Buckley v. Valeo,

424 U.S. 1 (1976), MCFL, and Citizens United: the imposition of “more extensive 

requirements” and “more stringent restrictions” beyond disclosure act as a disincentive 

for citizens to engage in political speech. MCFL, 479 U.S. at 254–55. This causes 

injuries to First Amendment rights. But the court below repeatedly missed this important 

distinction, a matter of settled law, necessitating reversal here. See Order Granting FEC’s 

Motion to Dismiss, 4 App. 559–73 (referencing the Fourth Circuit’s RTAA holding and 

never analyzing or applying MCFL to the case at hand). 

Because of this confusion, the lower court applied a relaxed version of “exacting 

scrutiny” in reviewing the constitutional validity of the challenged provisions. 4 App. 

562–63. But where the “more extensive” and “more stringent” requirements of political 

committee status are at issue, as they are here, more stringent review should have been 

afforded.1 

V. EXACTING SCRUTINY IS EXACTING

One confusing component of the Supreme Court’s treatment of election law cases 

is its use of the “exacting scrutiny” standard. The MCFL Court described the standard as 

 

1 Notably, because the RTAA suit did not implicate burdensome political committee 

requirements, the Fourth Circuit may have been warranted in applying a lower standard 

of review. But where the record demonstrates the real threat of political committee status 

being applied, more rigorous review is warranted.

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requiring a “compelling state interest” and asked whether this interest in disclosure could 

be met “in a manner less restrictive than imposing the full panoply of regulations that 

accompany status as a political committee.” 479 U.S. at 262. In Davis v. FEC, the Court 

further explained that the “strength of the governmental interest must reflect the 

seriousness of the actual burden on First Amendment rights.” 554 U.S. at 724, 744

(2008). In application, if ordinary disclosure were at issue—the simple, easy to comply 

with type found in FEC Form 5, for example—then relatively lax review would be 

supported. See FEC Form 5, http://www.fec.gov/pdf/forms/fecfrm5.pdf. But where 

more onerous and burdensome requirements are at issue, especially when they are 

recognized as such as a matter of law, then more rigorous review is warranted. See 

Citizens United, 130 S.Ct. at 897 (affirming MCFL and noting the heavy burdens political 

committee status work against groups). Because the lower court did not incorporate the 

holdings of Davis and MCFL to provide sufficiently robust review, this supports reversal.

The lower court accepted the premise that the challenged provisions “implement 

only disclosure requirements”, necessitating lax review. See 4 App. 562. Instead of 

asking, as MCFL did, whether the government’s disclosure interest could be met “in a 

manner less restrictive” than imposing full political committee requirements, it simply 

asked the rather forgiving question of whether there was a “substantial relation” between 

the provisions and the government interest in disclosure. Id. at 563. Under this standard, 

the lower court reasoned that burdensome political committee requirements “become 

even more essential and necessary to enable informed choice in the political marketplace 

following Citizen United’s change to the political campaign landscape with the removal 

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of the limit on corporate expenditures.” Id. at 572. Whatever reform preferences about 

“informed choice” the district court might hold, MCFL, Citizens United, and Tenth 

Circuit precedent all demand more meaningful review. 

VI. CONCLUSION

For these reasons, the district court erred, and this Court should reverse its 

dismissal and instruct the lower court to reconsider these issues consistent with this 

Court’s guidance.

Dated: April 11, 2013.

Benjamin T. Barr

10737 Hunting Ln

Rockville, MD 20850

Telephone: 202-595-4671

benjamin.barr@gmail.com

Stephen R. Klein

WYOMING LIBERTY GROUP

1902 Thomes Ave, Suite 201

Cheyenne, WY 82001

Telephone: 307-632-7020

stephen.klein@wyliberty.org

Jack Speight

4021 Snyder Ave

Cheyenne, WY 82001

Telephone: 307-635-1239

jbspeight@gmail.com 

Attorneys for Free Speech

By: ____/s/____________

Benjamin T. Barr

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CERTIFICATE OF VIRUS PROTECTION

I certify that the digital version of the foregoing is an exact copy of what has been 

submitted to the Court in written form and e-mailed to counsel of record. There are no 

privacy redactions to be made. The digital submission has been scanned with the most 

recent version of Trend Micro PC, which daily scans for updates, and according to the 

program is virus free.

____/s/____________

Stephen Klein

Dated: April 11, 2013

ADDENDUM (10TH CIR. R. 28.2(A))

1. District Court’s March 19, 2013 Order Granting Federal Election Commission’s 

Motion to Dismiss

2. District Court’s March 21, 2013 Judgment Dismissing Free Speech’s Case with 

Prejudice

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FILED 

U.S. QlST f~;c (COURT 

DIS i-F:~C T OF VIYUA ING 

~013 nAR 19 PfTI 3 53 

STEP 'L~N fi.~:RRIS , CL~t 

IN THE UNITED STATES DISTRICT ccf6j{fR 

FOR THE DISTRICT OF WYOMING 

FREE SPEECH, 

Plaintiff, 

vs. Case No. 12-CV-127-S 

FEDERAL ELECTION COMMISSION, 

Defendant. 

ORDER GRANTING FEDERAL ELECTION COMMISSION'S 

MOTION TO DISMISS 

This matter comes before the Court on Defendant Federal Election Commission's ("FEC" 

or"the Commission") Motion to Dismiss [Doc. 33]. The Court, having reviewed the parties' written 

submissions, being familiar with the case file by virtue of having previously heard argument and 

having addressed the likelihood of success on the merits of Plaintiffs claims in conjunction with 

Plaintiffs Motion for Preliminary Injunction (Doc. 19) and this Court's oral ruling denying same 

(Docs. 41 , 42 and 54), and considering itself otherwise fully advised in the premises of the motion, 

hereby FINDS and ORDERS as follows: 

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FACTUAL AND PROCEDURAL BACKGROUND 

PlaintiffFree Speech is an unincorporated nonprofit association formed on February 21 , 2012 

and is comprised of three Wyoming residents. Free Speech's stated mission is to promote and 

protect free speech, limited government, and constitutional accountability, and to advocate positions 

on various political issues including free speech, sensible environmental policy, gun rights, land 

rights, and control over personal health care. Its bylaws require that it operate independently of 

political candidates, committees, and political parties. (Am. Compl. ~~ 1 & 1 0; Am. Compl. Ex. A 

at Ex. 1.) On July 26, 2012, Plaintiff filed this lawsuit challenging certain FEC regulations that 

Plaintiff alleges abridge its First Amendment freedoms. Specifically, Plaintiff brings facial and as 

applied challenges against 11 C.F .R. § 1 00.22(b ), alleging its definition of "express advocacy" is 

unconstitutionally vague and overbroad and triggers burdensome registration and reporting 

requirements which act as the functional equivalent of a prior restraint on political speech. Plaintiff 

further challenges the constitutionality of the FEC's interpretation and enforcement process 

regarding political committee status, solicitation tests, the "major purpose" test, and express 

advocacy determinations. (Am. Compl. ~ 2.) 

On July 13, 2012, Free Speech filed a Motion for Preliminary Injunction (Doc. 19) seeking 

to enjoin the FEC from enforcing any of the challenged regulations or policies. This matter was fully 

briefed by the parties and amicus curiae and the Court heard oral argument on the motion on 

September 12, 2012. On October 3, 2012, this Court issued an oral ruling denying Plaintiffs motion 

for preliminary injunction. (Docs. 41, 42, and 54.) Plaintiff timely appealed on October 19, 2012, 

and Plaintiffs interlocutory appeal is currently pending before the Tenth Circuit Court of Appeals. 

Prior to the Court's oral ruling on Plaintiffs Motion for Preliminary Injunction, the FEC filed 

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a motion to dismiss Plaintiffs claims pursuant to Fed. R. Civ. P. 12(b)(6). This motion has been 

fully briefed and is ripe for a decision on the merits. 

"Ordinarily an interlocutory injunction appeal under 1292(a)(1) does not defeat the power 

of the trial court to proceed further with the case." 16 C. Wright, A. Miller, E. Cooper, Federal 

Practice and Procedure § 3921 .2 (hereinafter "Wright & Miller"). "Although the filing of a notice 

of appeal ordinarily divests the district court of jurisdiction, in an appeal from an order granting or 

denying a preliminary injunction, a district court may nevertheless proceed to determine the action 

on the merits." US. v. Price, 688 F.2d 204, 215 (3d Cir. 1982) (internal citation omitted). "The 

desirability of prompt trial-court action in injunction cases justifies trial-court consideration of issues 

that may be open in the court of appeals. A good illustration is provided by a motion to dismiss for 

failure to state a claim." Wright & Miller§ 3921.2. Although a court of appeals may determine 

whether a claim has been stated as part of the interlocutory appeal, a district court nonetheless retains 

jurisdiction to dismiss for failure to state a claim pending appeal. !d. This power is desirable "both 

in the interest of expeditious disposition and in the face of uncertainty as to the extent to which the 

court of appeals will exercise its power." !d. 

In addressing this matter now, this Court is mindful of the issues that have been presented 

on appeal as well as the current stage of the appellate litigation. This case presents purely legal 

questions that have been fully briefed and argued to this Court. Because this Court's substantive 

analysis of the constitutional issues addressed in the pending motion to dismiss is identical to that 

set forth in the Court's ruling denying Plaintiffs preliminary injunction motion, the Court deems it 

appropriate to address Plaintiffs claims on the merits. Therefore, for the reasons set forth on the 

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record during the Court's oral ruling, and for the reasons set forth more fully below, the Court will 

grant Defendant's motion to dismiss for failure to state a claim. 

STANDARD OF REVIEW 

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 

as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged." !d. at 678 (quoting Twombly, 550 

U.S. at 556). "In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the 

complaint itself, but also attached exhibits, and documents incorporated into the complaint by 

reference." Smith v. United States, 561 F.3d 1090, 1098 (lOth Cir. 2009). 

DISCUSSION 

A. Standard of Review- Exacting Scrutiny 

At the outset, this Court addresses Plaintiffs contention that this Court should apply strict 

scrutiny to the regulations and policies at issue. Plaintiff challenges, on an as-applied and facial 

basis, the FEC's definition of"express advocating," see 101 C.F.R. § 100.22(b), the FEC's policy 

for determining political committee status, and the FEC's policy for determining when donations 

given in response to solicitations will be deemed "contributions." At their core, however, these 

challenged rules and policies implement only disclosure requirements. See 2 U.S.C. § 434(c) 

(reporting requirements for "independent expenditures"); 2 U.S.C. § 432, 433, 434(a)(4) (political 

reporting and organization requirements). The question before this Court, therefore, is not whether 

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Plaintiff can make expenditures for the speech it proposes or raise money without limitation, but 

simply whether it must provide disclosure of its electoral advocacy. 

"Disclaimer and disclosure requirements may burden the ability to speak, but they impose 

no ceiling on campaign-related activities, and do not prevent anyone from speaking." Citizens 

United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 914 (2010) (internal citations and quotation marks 

omitted). Accordingly, the Supreme Court has subjected those requirements to "exacting scrutiny'' 

which requires "a substantial relation between the disclosure requirement and a sufficiently 

important governmental interest." !d.; see also Real Truth About Abortion (RT AA) v. FEC, 681 F .3d 

544, 549 (4th Cir. 2010) ("[A]n intermediate level of scrutiny known as 'exacting scrutiny' is the 

appropriate standard to apply in reviewing provisions that impose disclosure requirements, such as 

the regulation and policy."); New Mexico Youth Organizedv. Herrera, 611 F.3d 669,676 (lOth Cir. 

201 0) ("The regulations at issue here require disclosure, thus distinguishing them from regulations 

that limit the amount of speech a group may undertake .... As such, the regulations must pass 

'exacting scrutiny."'). Accordingly, the Court applies exacting scruting to determine whether the 

regulations and policies at issue are constitutional. 

B. Express Advocacy -11 C.F.R. § 100.22(b) 

Plaintiffs first challenge involves the FEC's definition of express advocacy codified at 11 

C.F.R. § 100.22. This regulation is used to define what constitutes an "independent expenditure" 

under2 U.S.C. § 431(17), which in tum, determines whether disclosures are required under2 U.S.C. 

§ 434(c). 1 See RTAA, 681 F.3d at 548. 

1 An "independent expenditure" is defined as "an expenditure ... expressly advocating 

the election or defeat of a clearly identified candidate" and not made by or in coordination with a 

candidate or political party or committee. 2 U.S.C. § 431(17) (emphasis added). A person or 

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Regulation 100.22 sets forth a two-part definition of the term "expressly advocating." 

Subsection (a) of the regulation defines "expressly advocating" consistent with the Supreme Court's 

decision in Buckley v. Valeo, 424 U.S. 1, 44, 96 S.Ct. 612 (1976), and includes communications 

using words or phrases "which in context can have no other reasonable meaning than to urge the 

election or defeat of one or more clearly identified candidate(s )". 11 C.F .R. § 1 00.22( a). In Buckley, 

the Supreme Court addressed the constitutionality of an expenditure limit which provided that"[ n ]o 

person may make any expenditure ... relative to a clearly identified candidate during a calendar year 

which, when added to all other expenditures made by such person during the year advocating the 

election or defeat of such candidate, exceeds $1000." Buckley, 424 U.S. at 39. Troubled by the 

vagueness of the phrase "relative to a clearly identified candidate," the Supreme Court construed the 

phrase "relative to" to "apply only to expenditures for communications that in express terms 

advocate the election or defeat of a clearly identified candidate for federal office." !d. at 44 

(emphasis added). The Court explained in a footnote that "[t]his construction would restrict the 

application of [the spending limit] to communications containing express words of advocacy of 

election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 

'vote against,' 'defeat,' 'reject."' !d. at 44 n.52. Consistent with this guidance, subsection (a) of the 

FEC's definition of "expressly advocating" later codified these types of "magic words" to signal 

express advocacy.2 

organization- other than a political committee - that finances independent expenditures 

aggregating more than $250 during a calendar year must file with the FEC a disclosure report 

that identifies, inter alia, the date and amount of each expenditure and anyone who contributed 

over $200 to further it. See 2 U.S.C. § 434(c); 11 C.F.R. § 109.10(e) (emphasis added). 

2 See 11 C.F.R. § 100.22(a) (defining "expressly advocating" to mean any communication 

that "[u]ses phrases such as 'vote for the President,' 're-elect your Congressman,' 'support the 

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Subsection (b) of the regulation, on the other hand, "defines 'expressly advocating' more 

contextually, without using the 'magic words."' RTAA, 681 F.3d at 550. This subsection, which is 

the subject of Plaintiffs constitutional challenge, defines "expressly advocating" to include any 

communication that: 

When taken as a whole and with limited reference to external events, such as the 

proximity to the election, 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. 

11 C.F .R. § 1 00.22(b ). 

Plaintiff argues that part (b) of the FEC' s definition of expressly advocating "goes beyond 

any proper construction of express advocacy and offers no clear guidelines for speakers to tailor their 

constitutionally protected conduct and speech," and "fail[s] to limit its application to expenditures 

for communications that in 'express terms' advocate the election or defeat of a clearly identified 

candidate for federal office." (Am. Compl. ~~ 74-75.) In this regard, Plaintiff appears to suggest that 

"express advocacy'' cannot permissibly extend beyond the "magic words" acknowledged in Buckley 

and codified in subsection (a). However, this position is foreclosed by several recent Supreme Court 

Democratic nominee,' 'cast your ballot for the Republican challenger for U.S. Senate in 

Georgia,' 'Smith for Congress,' 'Bill McKay in 94,' 'vote Pro-Life' or 'vote Pro-Choice' 

accompanied by a listing of clearly identified candidates described as Pro-Life or Pro-Choice, 

'vote against Old Hickory,' 'defeat' accompanied by a picture of one or more candidate(s), 

'reject the incumbent,' or communications of campaign slogan(s) or individual word(s), which in 

context can have no other reasonable meaning than to urge the election or defeat of one or more 

clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc. which say 

'Nixon's the One,' 'Carter '76,' 'Reagan/Bush' or 'Mondale! "'). 

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decisions which have upheld the FEC's approach to defining express advocacy not only in terms of 

Buckley's "magic words" as recognized in subsection (a), but also their "functional equivalent," as 

provided in subsection (b). RTAA, 681 F.3d at 550. 

In McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court considered a facial 

overbreadth challenge to Title II of the Bipartisan Campaign Reform Act of2002 ("BCRA") which 

included a provision defining express advocacy for purposes of electioneering communications. In 

rejecting the facial challenge, the Supreme Court noted "that Buckley's narrow construction of the 

FECA to require express advocacy was a function of the vagueness of the statutory definition of 

"expenditure,' not an absolute First Amendment imperative." RTAA, 681 F.3d at 550 (citing 

McConnell, 540 U.S. at 191-92). Accordingly, the Supreme Court inMcConnellheld that "Congress 

could permissibly regulate not only communications containing the 'magic words' of Buckley, but 

also communications that were 'the functional equivalent' of express advocacy." !d. (citing 

McConnell, 540 U.S. at 193). 

In FEC v. Wisconsin Right to Life, Inc. (WRTL), 551 U.S. 449 (2007), the Supreme Court 

adopted a test for the "functional equivalent of express advocacy" which is consistent with the 

language set forth in section 110.22(b). See WRTL, 551 U.S. at 474 n.7; RTAA, 681 F.3d at 552. 

The controlling opinion in WRTL clarified that "a court should find that an ad is the functional 

equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific candidate." WRTL, 551 U.S. at 460-470 

(emphasis added). This functional equivalent test closely correlates to the test set forth in subsection 

(b), which provides that a communication is express advocacy if it "could only be interpreted by a 

reasonable person as containing advocacy of the election or defeat of one or more clearly identified 

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candidate(s)." 11 C.F.R. § 100.22(b). Indeed, as the Fourth Circuit has noted, although the language 

ofSection 110.22(b) does not exactly mirror WRTL's functional equivalent test, the test set forth in 

Section 110.22(b) is "likely narrower ... since it requires a communication to have an 'electoral 

portion' that is 'unmistakeable' and 'unambiguous."' RTAA, 681 F.3d at 552. 

Finally, the Supreme Court's recent decision in Citizens United reaffirmed the 

constitutionality of the WRTL test and provided further support for the FEC's use of the functional 

equivalent test to define express advocacy. In Citizens United, the Court applied the WRTL 

functional equivalent test to determine whether the communication at issue would be prohibited by 

the corporate funding restrictions set forth in Title II of the BCRA, ultimately concluding that 

"[ u ]nder the standard stated in McConnell and further elaborated in WRTL, the film qualifies as the 

functional equivalent of express advocacy." Citizens United, 130 S.Ct. at 890. In that opinion, the 

Supreme Court upheld federal disclaimer and disclosure requirements applicable to all 

"electioneering communications." !d. at 914. In so holding, the Court "reject[ed] Citizens United's 

contention that the disclosure requirements must be limited to speech that is the functional equivalent 

of express advocacy." !d. at 915. In other words, in addressing the permissible scope of disclosure 

requirements, the Supreme Court not only rejected the "magic words" standard urged by Plaintiff 

but also found that disclosure requirements could extend beyond speech that is the "functional 

equivalent of express advocacy'' to address even ads that "only pertain to a commercial transaction." 

!d. at 916. Thus, "Citizens United ... supports the [FEC's] use of a functional equivalent test in 

defining 'express advocacy.' ... If mandatory disclosure requirements are permissible when applied 

to ads that merely mention a federal candidate, then applying the same burden to ads that go further 

and are the functional equivalent of express advocacy cannot automatically be impermissible." 

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RTAA, 681 F.3d at 551-52 (emphasis original). As a result, Citizens United directly contradicts 

Plaintiffs argument that the definition of express advocacy set forth in subsection (b) is overly broad 

with respect to disclosure requirements. 

In addition to its overbreadth argument, Plaintiff urges that section 1 00.22(b) is 

impermissibly vague based on the fact that the FEC did not "issue a conclusive opinion" as to 

whether some of Plaintiffs proposed ads constituted express advocacy in the advisory opinion 

process. However, as the Fourth Circuit has noted, "cases that fall close to the line will inevitably 

arise when applying § 100.22(b)." RTAA, 681 F.3d at 554. "This kind of difficulty is simply 

inherent in any kind of standards-based test." !d.; see also National Organization for Marriage, Inc. 

v. Sec. of State of Fla., 753 F.Supp.2d 1217, 1221 (N.D. Fla. 2010) ("The fact that 'it may be 

difficult in some cases to determine whether these clear requirements have been met' does not mean 

that the statute is void for vagueness.") (quoting United States v. · Williams, 553 U.S. 285, 306, 128 

S.Ct. 1830 (2008)). 

C. The "Solicitation" Standard 

Plaintiff also challenges the constitutionality of the "solicitation" standard used by the FEC 

as vague and overbroad, arguing that it lacks clarity and guidance sufficient to enable interested 

persons to tailor their activities in compliance with the law. The FECA defines "contribution" to 

include "any gift, subscription, loan, advance, or deposit of money or anything of value made by any 

person for the purpose of influencing any election for Federal office." 2 U.S.C. § 431 (8)(A)(i). It 

further requires "any person" who "solicits any contribution through any broadcasting station, 

newspaper, magazine, outdoor advertising facility, mailing, or any other type of general public 

political advertising" to include a specified disclaimer in the solicitation. !d. § 441d(a); see 11 

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C.P.R.§ 110.11(a)(3). Thus, the FECA requires disclaimers for communications that "solicit[] any 

contribution," 2 U.S.C. § 441d(a), but it does not define when a request for donations constitutes a 

"solicitation." 

The standard applied by the FEC for determining whether a request for funds "solicits" a 

"contribution" under the FECA was set forth by the Second Circuit in FEC v. Survival Education 

Fund, Inc., 65 F .3d 285, 295 (2d Cir. 1995) ("SEF'). Under that standard, disclosure is required "if 

[a communication] contains solicitations clearly indicating that the contributions will be targeted to 

the election or defeat of a clearly identified candidate for federal office." !d. This solicitation 

standard does not interfere with Plaintiffs ability to raise funds to support its advocacy. Plaintiff 

is free to spend unlimited funds on its solicitations and to solicit unlimited funds for its express 

advocacy. Any "solicitations" of"contributions" simply trigger disclosure requirements, and those 

disclosure requirements are substantially related to the government's interest in requiring disclosure. 

As the Second Circuit recognized in SEF, disclosure requirements for solicitations "serve[] 

important First Amendment values." !d. at 296. "Potential contributors are entitled to know that 

they are supporting independent critics of a candidate and not a group that may be in league with that 

candidate's opponent." !d. The disclosure requirement is thus "a reasonable and minimally 

restrictive method of ensuring open electoral competition that does not unduly trench upon 

defendants' First Amendment rights." !d. (internal quotation marks and citation omitted). As the 

Supreme Court explained in Citizens United, disclosures serve important interests even in the 

context of electioneering communications that need not be targeted to the election or defeat of a 

federal candidate. Such disclaimers "insure that the voters are fully informed about the person or 

group who is speaking." Citizens United, 130 S.Ct. 915 (citations omitted). "At the very least, the 

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disclaimers avoid confusion by making clear that the ads are not funded by a candidate or political 

party." !d. 

Plaintiffs vagueness argument appears to be premised upon the fact that the advisory opinion 

issued to Plaintiff by the FEC concluded that two of Plaintiffs donation requests would not be 

solicitations under the Act, while the Commission could not approve a response regarding the 

remaining two donation requests. (Am. Compl., Ex. G.) However, as noted above, "[t]he fact that 

'it may be difficult in some cases to determine whether these clear requirements have been met' does 

not mean that the statute is void for vagueness." National Organization for Marriage, Inc., 753 

F.Supp.2d at 1221 (quoting Williams, 553 U.S. at 306); see also RTAA, 681 F.3d at 554. 

Plaintiff fails to establish any constitutional deficiency in the FEC' s approach to determining 

whether a communication is a "solicitation" for "contributions." Plaintiffs claim relating to the 

solicitation standard is insufficient as a matter of law and must be dismissed. 

C Political Committee Status- The "Major Purpose" Test 

Finally, Plaintiff challenges the FEC's policy of determining political committee status on 

a case-by-case basis. Under the FEC's approach, "the Commission first considers a group's political 

activities, such as spending on a particular electoral or issue-advocacy campaign, and then it 

evaluates an organization's 'major purpose,' as revealed by that group's public statements, 

fundraising appeals, government filings, and organizational documents." RTAA, 681 F.3d at 555 

(internal citations omitted). 

A "political committee" is defined by the FECA as any "committee, club, association or other 

group of persons" that makes more than $1,000 in political expenditures or receives more than 

$1,000 in contributions during a calendar year. 2 U.S.C. § 431 ( 4)(A). "Expenditures" and 

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"contributions" are defined to encompass any spending or fundraising "for the purpose of influencing 

any election for Federal office." 2 U.S.C. §§ 431(8)(A)(i), 431(9)(A)(i). However, in Buckley v. 

Valeo, the Supreme Court concluded that defining political committees only in terms of expenditures 

and contributions "could be interpreted to reach groups engaged purely in issue discussion." Buckley, 

424 U.S. at 79. "Accordingly, the Court limited the applicability ofFECA's PAC requirements to 

organizations controlled by a candidate or whose 'major purpose' is the nomination or election of 

candidates." RTAA, 681 F.3d at 555 (citing Buckley, 424 U.S. at 79). "Thus the major purpose test 

serves as an additional hurdle to establishing political committee status. Not only must the 

organization have raised or spent $1 ,000 in contributions or expenditures, but it must additionally 

have the major purpose of engaging in Federal campaign activity." See Political Committee Status, 

72 Fed. Reg. 5595, 5601 (Feb. 7, 2007). 

As the Fourth Circuit has observed, "[a]lthough Buckley did create the major purpose test, 

it did not mandate a particular methodology for determining an organization's major purpose. And 

thus the Commission was free to administer FECA political committee regulations either through 

categorical rules or through individualized adjudications." RTAA, 681 F.3d at 556. The FEC opted 

for the latter approach, explaining that "[a]pplying the major purpose doctrine ... requires the 

flexibility of a case-by-case analysis of an organization's conduct that is incompatible with a onesize-fits-all rule." 72 Fed. Reg. at 5601. "The determination of whether the election or defeat of 

federal candidates for office is the major purpose of an organization, and not simply a major purpose, 

is inherently a comparative task, and in most instances it will require weighing the importance of 

some of a group's activities against others." See RTAA, 681 F.3d at 556 (emphasis original). 

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"The necessity of a contextual inquiry is supported by judicial decisions applying the major 

purpose test, which have used the same fact-intensive analysis that the Commission has adopted." 

!d. at 556-57. This Court agrees with the assessment of the Fourth Circuit in RTAA: 

[T]he Commission, in its policy, adopted a sensible approach to determining whether 

an organization qualifies for PAC status. And more importantly, the Commission's 

multi-factor major-purpose test is consistent with Supreme Court precedent and does 

not unlawfully deter protected speech. 

!d. at 558. Plaintiffs constitutional challenge to that policy is therefore unavailing. 

CONCLUSION 

The FEC disclaimer requirements at issue are necessary to provide the electorate with 

information and to insure that the voters are fully informed about the person or group who is 

speaking. Citizens United, 130 S. Ct. at 915. Moreover, the disclosure requirements provide the 

transparency that "enables the electorate to make informed decisions and give proper weight to 

different speakers and messages." !d. at 917. The FEC's functional equivalent and major purpose 

tests are essential components to narrowly, but effectively identifying those entities, ads and 

solicitations that fall within the FEC's reporting, disclaimer, and disclosure requirements. These 

disclaimer and disclosure requirements become even more essential and necessary to enable 

informed choice in the political marketplace following Citizen United's change to the political 

campaign landscape with the removal of the limit on corporate expenditures. For all of the reasons 

set forth above, and as previously set forth in this Court's oral ruling denying Plaintiffs Motion for 

Preliminary Injunction, Plaintiffs Complaint fails to state a claim upon which relief may be granted. 

It is therefore ORDERED that Defendant Federal Election Commission's Motion to Dismiss [Doc. 

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33] is GRANTED. Plaintiffs Complaint is DISMISSED WITH PREJUDICE. No costs and fees 

are awarded. 

fi. 

Dated this _Lj_ day of March, 2013. 

~Skavdahl 

/Z~~ United States District Judge 

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United States District Court 

-------- For The District of Wyoming --------

FREE SPEECH, 

Plaintiff, 

v. Case No. 12-CV-127-S 

FEDERAL ELECTION COMMISSION, 

Defendant. 

JUDGMENT IN A CIVIL CASE 

This action came before the Court on the motion of Defendant for an Order to 

Dismiss. The issues have been considered and a decision has been rendered . 

IT IS HEREBY ORDERED AND ADJUDGED that the Defendant's Motion to 

Dismiss is GRANTED. Plaintiff's Complaint is DISMISSED WITH PREJUDICE. No cost 

or fees are awarded. Stephan Harris 

Date March 21 , 2013 Clerk 

(By) Deputy Clerk 

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CERTIFICATE OF SERVICE

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

or e-mail this 11th day of April, 2013 to:

Anthony Herman

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

aherman@fec.gov

Erin Chlopak

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

echlopak@fec.gov

Kevin Deeley

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

kdeeley@fec.gov

Lisa Stevenson

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

lstevenson@fec.gov

Nicholas Vassallo

United States Attorney’s Office

District of Wyoming

P.O. Box. 668

Cheyenne, WY 82003-0668

(307) 772-2124

nick.vassallo@usdoj.gov

Larry Jones

Counsel for Amici Curiae

Simpson Kepler & Edwards, LLC

1135 14th St

Cody, WY 82414

(307) 527-7891

ljones@skelaw.com

J. Gerald Hebert

Counsel for Amici Curiae

215 E Street, NE

Washington, D.C. 20002

(202) 736-2200

ghebert@campaignlegalcenter.org

____/s/____________

Stephen Klein

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