No. 08-2257

United States Court of Appeals for the Fourth Circuit

____________

Holly Lynn Koerber and

Committee for Truth in Politics, Inc., Plaintiffs-Appellants

v.

Federal Election Commission, Defendant-Appellee

____________

Appeal from the United States District Court for the

Eastern District of North Carolina, Northern Division

____________

Reply Brief

____________

James Bopp, Jr.

Richard E. Coleson

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Appellants

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 1
Table of Contents

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

I. Standards: First Amendment Versions Are Required.. . . . . . . . . . . . . . . . . 1

II. CTP Has Likely Success on the Merits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Campaign-Finance Laws May Only Regulate UnambiguouslyCampaign-Related Activity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Disclosure Requirements Are Unconstitutional as Applied.. . . . 17

C. The FEC’s PAC-Enforcement Policy Is Unconstitutional and

Void.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

III. CTP Has Irreparable Harm... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

IV. The Balance of Harms and Public Interest Favor Appellants.. . . . . . . . . . 28

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

i

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Table of Authorities

Cases

Alaska Right to Life Committee v. Miles, 441 F.3d 773 (9th Cir. 2006). . . . . . . . 20

Bridges v. California, 314 U.S. 252 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Broward Coalition of Condominiums, Homeowners Ass’ns and Community

Orgs, Inc. v. Browning, No. 4:08-cv-445, 2008 WL 4791004 (N.D. Fla.

Oct. 29, 2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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

California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003). . . . . . . . 16

Christian Civic League of Maine v. FEC, No. 06-614, slip op. (D.D.C. Aug.

21, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Davis v. FEC, 128 S. Ct. 2759 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 19

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). . . 6, 7, 11, 15, 24, 26

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).. . . . . . . . . . . . . . 16

Giovani Carandola Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002).. . . . . . . . . . . . . . 1

Master Printers of America v. Donovan, 751 F.2d 700 (4th Cir. 1984). . . . . 18, 19

McConnell v. FEC, 540 U.S. 93 (2003). . . . . . . . . . . . . . . . . . . . . . . . . 7-12, 20, 24

National Association of Manufacturers v. Taylor, 549 F. Supp. 2d 68 (D.D.C.

2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

National Right to Work Legal Defense and Ed. Found’n, Inc. v. Herbert, 581

F. Supp. 2d 1132 (D. Utah 2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

North Carolina Right to Life Committee Fund for Independent Political Expenditures v. Leake, 524 F.3d 427 (4th Cir. 2008).. . . . . . . . . . . . . . . . . . . . 5, 6

ii

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

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

Republican Party of Minnesota v. White, 536 U.S. 765 (2002). . . . . . . . . . . . . . . 20

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) . . . . . . . . . . . . . . . . . . . . . . 11

WRTL v. FEC, No. 04-1260, slip op. (D.D.C. July 23, 2007). . . . . . . . . . . . . . . . 23

Constitutions, Statutes & Rules

2 U.S.C. § 441b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Other Authorities

Statement of Reasons of Chair Ellen L. Weintraub and Commissioners Scott E.

Thomas and Danny Lee McDonald, MURs 5024, 5154, 5146 (Council for

Responsible Gov’t) (Dec. 16, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statement of Reasons of Commissioners Cynthia L. Bauerly and Ellen L.

Weintraub, MUR 5541 (November Fund) (Dec. 19, 2008) . . . . . . . . . . . . . . 26

Statement of Reasons of Vice Chairman Matthew S. Pettersen and Cynthia L.

Bauerly and Commissioners Caroline C. Hunter and Donald F. McGahn

MUR 5541 (November Fund) (Dec. 22, 2008) . . . . . . . . . . . . . . . . . . 13-14, 27

iii

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Argument

1

I. Standards: First Amendment Versions Are Required.

Appellants established that First Amendment cases require speech-protective

standards. CTP-Br. Part I. The FEC’s responses illustrate the problems identified.

As to the appellate standard of review, the FEC tries to argue that Purcell v.

Gonzalez, 549 U.S. 1, 5 (2006), requires deference to district court discretion.

FEC-Br. 16. But Purcell addressed problems not at issue here and nowhere altered

the applicable rules that questions of law are reviewed de novo and mistakes of

law are per se abuses of discretion. See CTP-Br. 9.

As to preliminary-injunction standards, the FEC tries to alter the required analysis sequence. In Giovani Carandola Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002),

this Court established that where irreparable harm “is ‘inseparably linked to [a]

claim of violation of First Amendment rights,’” success on the merits must be resolved first, id. at 511 (citation omitted). The FEC claims that “CTP’s . . . alleged

harms are not inseparably linked to its First Amendment claims” and argues irreparable harm first. FEC-Br. 18, 24 n.7.

Appellants’ claims of harm are inseparably linked to their First Amendment

 Appellants object to judicial notice of the amount allegedly spent to broad1

cast CTP’s Ads and the purported locations. The truth of the facts alleged is unverified and they are immaterial and unnecessary for decision.

1

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claims. The Complaint relies on First Amendment claims. See, e.g., JA–19 (“the

Disclosure Requirements are unconstitutional under the First Amendment guarantees of free expression and association”). And North Carolina Right to Life v.

Leake, 525 F.3d 274 (4th Cir. 2008), on which Appellants rely for the controlling

analysis, CTP-Br. 20-32, anchors the unambiguously-campaign-related principle

firmly in the First Amendment:

The Buckley Court therefore recognized the need to cabin legislative author- [2]

ity over elections in a manner that sufficiently safeguards vital First Amendment freedoms. It did so by demarcating a boundary between regulable election-related activity and constitutionally protected political speech: after

Buckley, campaign finance laws may constitutionally regulate only those

actions that are “unambiguously related to the campaign of a particular . . .

candidate.”

Id. at 281 (citation omitted). As to the analysis sequence, if irreparable harm is 3

based on a First Amendment violation, the logical place to start is with the First

Amendment’s protections. See CTP-Br. 16 (“courts should expect from the FEC

good-faith arguments on the merits”).

The FEC’s arguments further illustrate the need for a clear explication of First

Buckley v. Valeo, 424 U.S. 1 (1976). 2

 For Appellants’ Disclosure-Requirements challenge, there is only the claim

3

of a violation of First Amendment privacy and protection against compelled

speech. CTP-Br. 32-39. For the PAC-enforcement-policy challenge, Appellants

claim a violation of the First Amendment (on which Leake relied for the controlling analysis, 525 F.3d at 287-89) and that the policy is beyond statutory authority

under controlling constructions (on First Amendment grounds). CTP-Br. 39-46.

2

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Amendment protections in the preliminary injunction context, as set out in Part I

of Appellants’ Brief. The FEC nowhere acknowledges the constitutionally-mandated “freedom of speech” presumption, CTP-Br. 12, and tries to argue that this

isn’t a First Amendment case. See supra. It even cites National Association of

Manufacturers v. Taylor, 549 F. Supp. 2d 68 (D.D.C. 2008) (“NAM”)—which specifically recognizes that “in cases involving alleged burdens on core First Amendment rights, ‘the normal presumption of statutory validity is reversed and the statute is deemed invalid until stringently justified,’” id. at 72 n.3 (citations omitted),

FEC-Br. 17, which is the free speech presumption in operation—but refuses to

acknowledge the presumption.

The FEC argues that in First Amendment cases the relevant status quo is after

legislation is passed, not before (see CTP-Br. 12-13), and even argues that prohibiting the FEC from acting would not be a “prohibitory” injunction. FEC-Br. 16-17

& n.3. But given that primary allegiance is to the “freedom of speech” presumption, preliminary injunctions in cases involving expressive association cannot be

trumped by the “status quo” of new legislation. CTP-Br. 12-13. In fact, the same

NAM decision on which the FEC relies, supra, makes clear that the status quo it is

dealing with is the situation of a motion for an injunction pending appeal to the

same district court that had just “concluded that [the lobbyist disclosure provision]

3

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survives strict scrutiny, i.e., that it is stringently justified in light of compelling

government interests.” 549 F. Supp. 2d at 72-73 & n.3. Likewise, the in-chambers

opinions of individual Justices were in the context of denying injunctions pending

appeals. There is no such “status quo” here because the district court was dealing

with the issues initially under a preliminary injunction motion.

Although the Supreme Court clearly held that “‘the burdens at the preliminary

injunction stage track the burdens at trial,’” CTP-Br. 13 (citation omitted), the

FEC predictably disputes this. FEC-Br. 17, 18 n.4. The FEC doesn’t even mention

the controlling Supreme Court decision, instead merely citing the usual preliminary injunction standards. Id. This attempted evasion illustrates again the FEC’s

failure to simply join issue on the merits and to acknowledge the unique First

Amendment context. The FEC plainly had the burden here, and the district court’s

failure to make it meet its burden was an error of law.

II. CTP Has Likely Success on the Merits.

A. Campaign-Finance Laws May Only Regulate Unambiguously-CampaignRelated Activity.

This is a Fourth Circuit case, governed by the analysis in Leake, 525 F.3d 274,

yet the FEC argues that the unambiguously-campaign-related principle as a threshold burden is “novel” and “lacks precedential foundation.” FEC-Br. 37. It is

clearly not “novel” for eight reasons.

4

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First, it is not “novel” because Leake expressly relied on the unambiguouslycampaign-related principle as being a necessary foundation for all campaign finance regulation—“after Buckley, campaign finance laws may constitutionally

regulate only those actions that are ‘unambiguously related to the campaign of a

particular . . . candidate.’” 525 F.3d at 281 (citation omitted). And Leake expressly

applied this threshold principle to regulation of communications, id. at 281-83,

and to imposing political committee (“PAC”) status, id. at 287.

The FEC attempts to distinguish Leake (styling it “Leake II”) as not focusing

on “reporting requirements standing alone.” FEC-Br. 39 n.15. Any case can be

distinguished on such superficial grounds. But when a prior decision sets out a

constitutional analysis that is directly applicable, as here, the FEC has a duty to

show why that controlling analysis is inapplicable. It must show that when this 4

 The FEC would instead rely on North Carolina Right to Life Committee

4

Fund for Independent Political Expenditures v. Leake, 524 F.3d 427 (4th Cir.

2008) (“NCRL-FIPE”), FEC-Br. 39 n.15, but that case is properly distinguishable

on several bases. It has no overarching, applicable constitutional analysis about

where to draw speech-protective lines for issue advocacy and issue-advocacy

groups, and it concerns reporting by candidate committees and PACs, which are

“by definition, campaign related,” Buckley, 424 U.S. at 79, so that the unambiguously-campaign-related principle was not addressed. The only thing arguably applicable from NCRL-FIPE is its rejection of “exacting scrutiny” as “strict scrutiny,” but that was in the candidate/PAC reporting context. Id. at 439-40. Davis v.

FEC, 128 S. Ct. 2759, 2775 (2008), held that under “exacting scrutiny,” “the

strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Since reporting burdens bear more heavily on

continue...

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Court said that the “appeal to vote” test of FEC v. Wisconsin Right to Life, 127 S.

Ct. 2652, 2667 (2007) (“WRTL-II”), is the implementation of the unambiguouslycampaign-related principle in the electioneering-communication context, Leake,

525 F.3d at 283, that analysis somehow doesn’t apply to the electioneering communications at issue here. It must show that when this Court said that the unambiguously-campaign-related principle controls PAC status, id. at 287, and determining major purpose is “an empirical judgment as to whether an organization

primarily engages in regulable, election-related speech,” id., that analysis somehow doesn’t apply to PAC status is this case. The FEC’s argument, to the Court

that decided Leake, that the unambiguously-campaign-related principle is “novel”

fails to meet its burden.

Second, the unambiguously-campaign-related principle is not “novel” because

it employs the very language of the unanimous Buckley Court establishing the lim-

 ...continue

4

issue-advocacy groups (CTP) than on PACs (NRLC-FIPE), see FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 254-55 (1986) (“MCFL”) (plurality opinion)

(“Detailed recordkeeping and disclosure obligations, along with the duty to appoint a treasurer and custodian of the records, impose administrative costs that

many small entities may be unable to bear. Furthermore, such duties require a far

more complex and formalized organization than many small groups could manage.”), the burden and scrutiny are higher here than in NCRL-FIPE. Moreover, the

level of scrutiny does not resolve this case, which instead revolves around the

threshold unambiguously-campaign-related principle that must be satisfied before

“exacting scrutiny” is applied.

6

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its of congressional authority to regulate campaign finance in the very context at

issue here, i.e., PAC status and non-PAC disclosure of expenditures for communications. 424 U.S. at 79-81. It describes a governing principle that the Court employed throughout Buckley, MCFL, McConnell v. FEC, 540 U.S. 93 (2003), and

WRTL-II. CTP-Br. 20-32.

Third, it is not “novel” because the campaign-finance “reform” community

(BCRA’s prime sponsors and their supporting organizations and counsel) that

pushed through the electioneering-communication laws expressly relied on it in

McConnell. They argued that the electioneering-communication definition was an

“adjustment of the definition of which advertising expenditures are campaign related.” Brief for Intervenor-Defendants Senator John McCain et al. at 57,

McConnell, 540 U.S. 93 (emphasis added) (“Reform Community Brief”) (available at http://supreme.lp.findlaw.com/supreme_court/briefs/02-1674/02-1674.mer.

int.cong.pdf). “Campaign related” meant unambiguously campaign related because

they argued that the electioneering-communication “[d]isclosure rules . . . ‘shed

the light of publicity on spending that is unambiguously campaign related but

would otherwise not be reported.’” Id. at 58 (quoting Buckley, 424 U.S. at 81).

They conceded the necessity of bright-line tests, arguing that the new “standards

for defining which ads will be treated as campaign-related squarely serves a com7

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pelling interest in using clear and objective lines to frame any rule that affects

speech.” Id. And they argued that the Court could permit regulation of electioneering communications in addition to express-advocacy communications based on

Buckley’s analytical “roadmap,” which they said had two principle concerns: (1)

eliminating vagueness and (2) assuring that restrictions are “‘directed precisely to

spending that is unambiguously related to the campaign of a particular federal

candidate.’” Id. at 62.

This was argued in McConnell by Democracy 21 and the Campaign Legal

Center, and by Democracy 21’s Fred Wertheimer, on behalf of BCRA’s prime

sponsors, see Reform Community Brief at inside cover (listing these three as counsel), who now argue that the unambiguously-campaign-related principle, on which

they expressly relied in McConnell, “has no legal basis” and that “[t]he ‘unambiguously campaign related’ language appeared in Buckley not as some sort of foundational test for the constitutionality of all campaign finance laws, but rather as an

aside in the court’s discussion . . . .” Brief Amici Curiae for Campaign Legal Center and Democracy 21 at 5. They can’t have it both ways.

Fourth, that the analysis is not “novel” and that the reform community’s former argument was correct is confirmed by the fact that McConnell simply adopted

its analysis, permitting the Court to approve regulation of “electioneering commu8

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nications” in addition to regulable express advocacy. See CTP-Br. 28. McConnell

5

expressly said that the twin governing principles that gave rise to the express-advocacy test were “avoid[ing] problems of vagueness and overbreadth.” 540 U.S. at

192. And it said that this particular “overbreadth” principle was “‘[t]o insure that

the reach’ of the disclosure requirement was ‘not impermissibly broad,’” for which

proposition it cited the very portion of Buckley to which the campaign reform

community had pointed for the unambiguously-campaign-related principle. Id. at

191 (quoting Buckley, 424 U.S. at 80).

The Buckley portion to which McConnell pointed for its analysis said that the

concern was that “the relation of the information sought to the purposes of the

Act may be too remote.” Buckley, 424 U.S. at 80. So “[t]o insure that the reach [6]

of [the expenditure disclosure provision] [wa]s not impermissibly broad,” the nonvague, non-overbroad, express-advocacy construction was employed. Id. “This

reading [wa]s directed precisely to that spending that is unambiguously related to

the campaign of a particular federal candidate.” Id. That this statement was no

mere “aside” in Buckley is clear from the facts that (a) it concludes the analytical

explanation of fixing the overbreadth problem and (b) the analysis was re-

 The district court was wrong in holding that this analysis was “made and re5

jected . . . in McConnell.” JA–34-35. It was made and accepted.

 The purpose of the Act was “to regulate elections,” Buckley, 424 U.S. at 13,

6

so only unambiguously-campaign-related activity is regulable.

9

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peated—the expenditure disclosure provision

as construed, bears a sufficient relationship to a substantial governmental

interest. . . . As narrowed, . . . [it] does not reach all partisan discussion for it

only requires disclosure of those expenditures that expressly advocate a particular election result. . . . It goes beyond the general disclosure requirements

to shed the light of publicity on spending that is unambiguously campaign

related.”

Id. at 81 (emphasis added).

Fifth, the analysis is not “novel” because WRTL-II employed it. McConnell

held that the electioneering-communication definition was not vague, 540 U.S. at

194, and it facially upheld it, recognizing that it might be overbroad in certain applications: “we assume that the interests that justify the regulation of campaign

speech might not apply to the regulation of genuine issue ads,” id. at 206 n.88.

WRTL-II referenced this McConnell statement that this type of overbreadth was

left unresolved, 127 S. Ct. at 2659. It then narrowed the scope of “electioneering

communication,” consistent with the unambiguously-campaign-related principle,

by creating the appeal-to-vote test to distinguish speech that is unambiguously

campaign related from speech that is not (and so not regulable), id. at 2667. So 7

WRTL-II’s recognition that McConnell had only facially upheld the

7

electioneering-communication scope and WRTL-II’s narrowing of that scope consistent with the unambiguously-campaign-related principle precludes the FEC’s

reliance on McConnell’s facial-consideration language. FEC-Br. 29 (requirements

upheld “because they did not suppress speech” and interests apply to “entire range

of communications”). If the cited language had already decided as-applied chalcontinue...

10

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while, WRTL-II plainly did not decide the disclosure issue in this case (Appellants

have never argued that it did, although the district court, the FEC, and Amici try to

create such a straw man), the analysis of WRTL-II controls this case, just as

Buckley’s analysis controlled the MCFL decision. Although Buckley did not decide the precise issue in MCFL, MCFL “agree[d] with appellee that this rationale

requires a similar construction of the more intrusive provision that directly regulates independent spending. . . . [and] h[e]ld that an expenditure must constitute

‘express advocacy’ in order to be subject to the prohibition of [2 U.S.C.] § 441b.”

MCFL, 479 U.S. at 249. So McConnell and WRTL-II are consistent with the first 8

principles that campaign-finance regulations may not be vague and must reach

 ...continue

7

lenges, such as the present one, WRTL-II could not have recognized that

McConnell left open the electioneering-communication scope and then narrowed

it. In Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) (“WRTL-I”), the Court

unanimously rejected the notion that McConnell’s facial decision concerning electioneering communications in any way precluded as-applied challenges. Moreover, a test upholding any disclosure so long as it does not “suppress speech”

would allow government to impose draconian disclosure requirements without any

First Amendment protection, which is not the law.

MCFL specifically noted that Buckley had applied the express-advocacy con8

text in the expenditure disclosure context “to distinguish discussion of issues and

candidates from more pointed exhortations to vote for particular persons,” 479

U.S. at 249, and held that the same construction was required in the prohibition

context, id. The same principle applies here, where WRTL-II construed “electioneering communication” in the prohibition context and now the same construction

(of the identical statutory language) must be uniformly employed in the expenditure disclosure context.

11

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only speech that is unambiguously campaign related.9

Sixth, the unambiguously-campaign-related principle is not “novel” because it

has been expressly recognized by FEC Commissioners. In their Statement of Reasons (Dec. 16, 2003) in Matters Under Review (“MURs”) 5024, 5154, and 5146 

(available through www.fec.gov), Chair Weintraub and Commissioners Thomas

and McDonald noted that Buckley expressed concern about reporting provisions

“that might be applied broadly to communications discussing public issues which

also happened to be campaign issues,” and so imposed the express-advocacy construction. Id. at 2. “[T]he Buckley Court explained the purpose of the express advocacy standard,” they declared, “was to limit application of the . . . reporting provision to ‘spending that is unambiguously related to the campaign of a particular

 The FEC argues that “appellants’ counsel . . . noted in rulemaking com9

ments” that McConnell had broader support for electioneering-communication

disclosure than it did for the prohibition, FEC-Br. 30, which is irrelevant because

disclosure follows the scope given the electioneering-communication definition.

Now that WRTL-II has narrowed the scope of “electioneering communication” in a

manner that must be followed in the disclosure context, any support for such disclosure follows that narrowed scope, which excludes WRTL-II-ads.

The FEC argues that “the WRTL plaintiff explicitly disavowed any challenge

to the disclosure provisions . . . ,” FEC-Br. 31, which is irrelevant because that

argument was made before WRTL-II decided the case by narrowing the scope of

regulable electioneering communications. There were other ways in which the

Court could have decided the case, but once WRTL-II narrowed the scope of

“electioneering communication” using the unambiguously-campaign-related principle, the necessity of applying that narrowed scope consistently in the disclosure

context followed.

12

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federal candidate.’” Id. (emphasis in Statement) (quoting Buckley, 424 U.S. at 81).

The Commissioners also quoted 424 U.S. at 82, noting that “[u]nder an express

advocacy standard, the reporting requirements would ‘shed the light of publicity

on spending that is unambiguously campaign related . . . .’” Statement at 2 (emphasis in Statement). And a January 22, 2009 Statement of Reasons in MUR 5541

(November Fund) by Vice Chair Petersen and Commissioners Hunter and

McGahn spoke of the need to “fully incorporate important principles in recent judicial decisions,” including WRTL-II “and the Fourth Circuit’s persuasive decision

in . . . Leake. Id. at 2 (citations omitted). The OGC may not properly deem 10

“novel” an analysis that members of its governing body have recognized.

Seventh, the analysis is not “novel” because other courts have recently recognized the unambiguously-campaign-related principle as a required threshold that

government must meet to enact campaign-finance regulations. See National Right

to Work Legal Defense and Ed. Found’n, Inc. v. Herbert, 581 F. Supp. 2d 1132

(D. Utah 2008) (recognizing unambiguously-campaign-related principle as threshold requirement in the ballot-initiative context); Broward Coalition of Condomini-

 This “November-Fund Statement” in its entirety merits the Court’s attention

10

because it is a jurisprudential statement reflecting a constitutional analysis consistent with Leake and Appellants, but contrary to the arguments advanced here by

the FEC Office of General Counsel (“OGC”). It takes a properly speech-protective

approach throughout, including extensive discussions of protected issue advocacy

and a PAC-status analysis consistent with that set out in Leake and by Appellants.

13

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ums, Homeowners Ass’ns and Community Orgs, Inc. v. Browning, No. 4:08-cv445, 2008 WL 4791004, at *6 (N.D. Fla. Oct. 29, 2008) (recognizing principle as

threshold requirement).

Eighth, it is not “novel,” upon even a moment’s serious reflection, because our

Constitution provides the federal government with only limited powers. These include the authority to regulate elections but not the authority to regulate speech

beyond that very limited scope. So there is a need to “cabin” federal authority as to

campaign-finance regulation, and this Court recognized that Buckley cabined government authority with the unambiguously-campaign-related principle. Leake, 525

F.3d at 281. The November-Fund Statement indicates that at least three Commissioners understand the need for cabining:

Self-serving effortsto unilaterally expand the Commission’s jurisdiction and

reach so as to generate issues that will create new test cases is not something

that an agency is generally required to do nor isit appropriate unlessrequired.

This is particularly so given the large number of cases challenging broad

areas of the Commission’s jurisdiction and regulation which are already in

litigation.” 

Id. at 18 (citations and footnote omitted) (collecting cases, including this one).

The FEC argues that disclosure as to “issue” speech has been upheld, citing

disclosure in the ballot-initiative and lobbying contexts. FEC-Br. 36-37, 40-42.

14

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 18
These arguments have already been addressed. CTP-Br. 29-32. As shown, they

11

support, rather than vitiate, the unambiguously-campaign-related principle because

in each context the regulable activity must be unambiguously related to the government authority under which the disclosure is authorized. So the Federal Election Commission, applying the Federal Election Campaign Act, as amended by the

Bipartisan Campaign Reform Act, under the “constitutional power of Congress to

regulate federal elections,” Buckley, 424 U.S. at 13 (emphasis added), may only

regulate unambiguously-campaign-related activities. It’s authority to regulate elections does not permit it to regulate lobbying, or trade, or even criticism of public

officials who happen to be candidates. The Supreme Court has held, specifically in

the election-campaign expenditure disclosure context, that government authority

extends only to regulating “spending that is unambiguously related to the campaign of a particular federal candidate.” Id. at 80.12

 The FEC argues that MCFL required reporting of MCFL’s “independent ex11

penditures” even though MCFL was not prohibited from making them (as an

MCFL-corporation). FEC-Br. 44. This proves rather than disproves the unambiguously-campaign-related principle because “independent expenditures” are express

advocacy, which is entirely consistent with Buckley, 424 U.S. at 80-81 (expressadvocacy construction to limit disclosure to “unambiguously campaign related”

communications to avoid overbreadth).

 Amici argue that Appellants’ argument that disclosure as to ballot-initiative 12

advocacy must reach only First Amendment activity that is unambiguously related

to the ballot-initiative campaign (so as to reach express advocacy for or against

the initiative, but not mere discussion of issues related to the initiative), see CTPcontinue...

15

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In sum, first principles govern the constitutional analysis here. First, the people are the true sovereigns and the First Amendments prohibits abridging their

core political speech and association, so “freedom of speech” is the constitutional

presumption and the government bears a heavy burden (including in the preliminary injunction context) to justify abridgement. Second, any campaign-finance

regulation must not be vague, under a strict standard for clarity, to avoid chilling

speech. Third, any campaign-finance regulation must reach only First Amendment

activity that is unambiguously campaign related. Fourth, the unambiguously-

 ...continue

12

Br. 30-31, concedes that disclosure can “apply to speech about issues, not candidates,” and so “unravels CTP’s entire argument.” AC-Br. 22. Amici are wrong.

CTP’s counsel did, in fact, argue in California Pro-Life Council v. Getman,

328 F.3d 1088 (9th Cir. 2003), that no regulation of ballot-initiatives should be

permitted because issue-advocacy was involved. The Ninth Circuit rejected that

argument, although it has not been ruled on in other circuits.

But the applicable analysis here is that even where disclosure is required in the

initiative context, government may only regulate express-advocacy communications, id. at 1098, i.e., those that meet the unambiguously-campaign-related principle. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), noted that

“[r]eferenda are held on issues, not candidates for public office,” id. at 790, but

overturned a prohibition on bank and corporate “contributions” or “expenditures”

“for the purpose of . . . influencing or affecting the vote on any question.” “Contributions” to a referendum campaign would clearly be unambiguously campaign

related, and Buckley gave “for the purpose of influencing” an express-advocacy

construction to conform to the unambiguously-campaign-related principle in the

expenditure disclosure context, 424 U.S. at 80, so the same principle would apply

to that language here. Only such “contributions” and “expenditures” would be subject to any disclosure suggested. Bellotti, 435 U.S. at 792 n.32.

16

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 20
campaign-related principle is implemented by recognized tests, including the

express-advocacy test (for regulable “independent expenditures”), the major-purpose test (for imposing PAC status), and the appeal-to-vote test (for regulable

“electioneering communications”). Fifth, where a campaign-finance law (or reg13

ulation or policy) is not vague and is unambiguously campaign related, the government must still prove that it is supported by adequate interests (depending on

the level of scrutiny). Sixth, the government must then prove that its regulation is

sufficiently tailored under the applicable standard of review. Applying these principles, all recognized by this Court, readily resolves this appeal for Appellants.

B. The Disclosure Requirements Are Unconstitutional as Applied.

Since (1) Buckley expressly mandated that disclosure cannot be required as to

spending that is not “unambiguously related to the campaign of a particular federal

candidate,” id. at 80, and (2) Leake recognized that (a) meeting the unambiguously-campaign-related principle is a threshold requirement and (b) WRTL-II’s

appeal-to-vote test determines which electioneering communications are unambiguously campaign related, 525 F.3d at 283, the Reporting Requirement and Dis

14

 This answers Amici’s mistaken notion that Appellants equate the unambigu13

ously-campaign-related principle to express advocacy and that the principle

“means whatever CTP wants it to mean.” AC-Br. 6.

 Specifically, this Court held, id. (emphasis added), that 14

continue...

17

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 21
claimer Requirement are unconstitutional as applied to all WRTL-II-ads, including

CTP’s Ads.

15

The analysis as to the Disclosure Requirements is conclusively resolved by the

preceding paragraph. There is no need for further analysis, but some further responses will be made to FEC arguments.

As to “exacting scrutiny,” the government has no interest (compelling, substantial, or important) in regulating expenditures for communications that are not

unambiguously campaign related. So regulating WRTL-II-ads is unconstitutional

under any level of scrutiny. Appellants have already addressed the fact that “exacting scrutiny” is a high, i.e., strict, level of scrutiny in this context, and the Disclosure Requirements as applied fail this scrutiny. CTP-Br. 32-39. The FEC argues, FEC-Br. 35, that exacting scrutiny is determined by Master Printers of

America v. Donovan, 751 F.2d 700 (4th Cir. 1984), which said that there must be a

“‘relevant correlation’ or ‘substantial relation’ between the governmental interest

 ...continue

14

The Supreme Court has identified two categories of communication as being unambiguously campaign related. . . . Second, . . . an “electioneering

communication” that “is susceptible of no reasonable interpretation other

than as an appeal to vote for or against a specific candidate.” 

 The FEC concedes that CTP’s Ads are not express advocacy and are WRTL- 15

II-ads. FEC-Br. 19-20. In fact, the FEC concedes that the Ads fit the “safe harbor”

in the FEC regulations, FEC-Br. 20, taking them far from the edge of what might

be considered unambiguously campaign related.

18

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and the information sought through disclosure,” id. at 704 (quoting Buckley, 424

U.S. at 64). Donovan correctly identified the substantial-relation test that Buckley

said was “also” required in addition to “exacting scrutiny,” 424 U.S. at 64 (emphasis added), and in the relevant non-PAC, expenditure-disclosure context Buckley

expressly interpreted this requirement as mandating the unambiguously-campaignrelated principle. See id. at 80-81. So it is a requirement in addition to, not the

16

same as, “exacting scrutiny.” The more developed recognition of the unambiguously-campaign-related principle and implementing tests in Leake supersedes and

refines the earlier analysis.

Appellants have established that none of the interests recognized in Buckley as

supporting disclosure apply to WRTL-II-ads. CTP-Br. 36-39. The FEC seeks recognition of another interest, i.e., “determining which ECs are exempt under

WRTL[-II].” FEC-Br. 45. But the determination of whether electioneering communications are exempt from regulation is based on WRTL-II’s appeal-to-vote test,

which is the implementation of the unambiguously-campaign-related principle, as

Leake expressly recognized, 525 F.3d at 283. The whole premise of the unambiguDavis held (even in the candidate reporting context) that the Supreme Court

16

has “closely scrutinized disclosure requirements,” requiring both “a relevant correlation or substantial relation between the governmental interest and the information required to be disclosed, and . . . exacting scrutiny.” 128 S. Ct. at 2775 (citations and internal quotation marks omitted) (emphasis added). 

19

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 23
ously-campaign-related principle is that communications beyond that threshold are

not regulable, so the FEC has no interest in regulating them at all. Moreover, the

notion that citizens must report otherwise unregulable speech just so the FEC can

assure itself that it is unregulable is antithetical to the First Amendment’s presumed “freedom of speech.” The argument is nonsensical in any event because the

content of the ads is not reported to the FEC, so the Reporting Requirement is not

tailored to the asserted interest and its underinclusiveness vitiates the asserted interest. See Republican Party of Minnesota v. White, 536 U.S. 765, 766 (2002)

(“[T]he Court need not decide whether achieving ‘impartiality’ (or its appearance)

in the sense of openmindedness is a compelling state interest because, as a means

of pursuing this interest, the announce clause is so woefully underinclusive that

the Court does not believe it was adopted for that purpose.”). The FEC’s reliance

here on a questionable Ninth Circuit case, not the controlling Leake decision,

17

presages this argument’s doom.

Amici argue that the Disclosure Requirements serve an informational interest

Alaska Right to Life Committee v. Miles, 441 F.3d 773 (9th Cir. 2006), up17

held the imposition of PAC-style burdens on an MCFL-corporation. It purported to

apply strict scrutiny, but scrutiny was not strict. It was a post-McConnell decision

(when some courts read McConnell as granting carte blanche to government

speech regulation) that is of questionable vitality in the wake of WRTL-II’s reaffirmation of high First Amendment protection for issue advocacy and issue-advocacy

groups. It has no precedential or persuasive value here.

20

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because “pure” issue-advocacy electioneering communications are but a subset of

all WRTL-II-ads, while WRTL-II-ads “will often contain a mix of issue advocacy

and electioneering.” AC-Br. 23. In support, Amici cite the dissolving-distinction

problem. The argument fails because WRTL-II-ads are determined on the basis of

WRTL-II’s appeal-to-vote test, 127 S. Ct. at 2667, which is the implementation of

the unambiguously-campaign-related principle, as this Court has recognized, and

government is simply foreclosed from regulating the unregulable in an effort to

capture “mixed” ads within the protected class.

Moreover, the dissolving-distinction problem cuts against Amici, not in their

favor. WRTL-II specifically identified the dissolving-distinction problem, 127 S.

Ct. at 2659, 2669, that Buckley had first recognized, see CTP-Br. 26-27, and reaffirmed that the problem requires protection of speech with the appeal-to-vote test,

127 S. Ct. at 2667, not regulation of speech. So WRTL-II drew no line between

18

“pure” and “mixed” “issue advocacy,” drawing the line instead at the “appeal to

vote” test and referring to all speech protected by that line as “issue advocacy,” id.

at 2667, and “political speech,” id. at 2672. Amici have already lost this argument

WRTL-II noted that the FEC and intervenors (represented by present Amici) 18

argued that WRTL’s ads were more electioneering than pure issue advocacy but

said that their arguments only illustrated the dissolving-distinction problem, which

“[u]nder the test set forth above,” i.e., the appeal-to-vote test, requires their protection, not regulation.127 S. Ct. at 2669.

21

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 25
and cannot now redraw the line because WRTL-II expressly rejected “a prophylaxis-upon-prophylaxis approach to regulating expression” and reaffirmed that

“‘[t]he Government may not suppress lawful speech as the means to suppress unlawful speech,’” id. (citation omitted). And as a factual matter, the FEC concedes 19

that CTP’s Ads fit the FEC’s “safe harbor,” FEC-Br. 20, and so are far from any

pure/mixed borderline, even if such a borderline were analytically cognizable.

After conceding that the Ads fit the FEC’s own safe harbor, the FEC argues

that they are regulable because they are “highly critical” of the candidate. FEC-Br.

42-43. But the FEC lost this argument in WRTL-II itself, which drew the regulable

line at an “appeal to vote,” 127 S. Ct. at 2667, not criticism, and it was the dissenters who argued that WRTL’s ads were regulable because they were critical of a

candidate. 127 S. Ct. at 2698-99. Moreover, the FEC and Intervenors (BCRA 20

 Moreover, the FEC’s Exhibit, by which the FEC claims to show where

19

CTP’s Ads were broadcast and how much they cost, belies the FEC’s claim that

without the Disclosure Requirements complainants and the FEC “would have difficulty knowing when ECs are being broadcast . . . .” FEC-Br. 45.

 In fact, WRTL-II was decided in response to the FEC’s and Intervenors’ ar- 20

gument that criticism was the real indicator of the wrong intent that made an electioneering communication subject to prohibition and to WRTL’s extended argumentation that criticism of public officials is at the core, not the periphery, of First

Amendment protection, see Brief for Appellee at 1-5, WRTL-II, 127 S. Ct. 2652,

which included the following quote about criticism from WRTL:

This struggle of the government to silence the people continues here as

BCRA sponsors, Intervenors herein, defend the “electioneering communicacontinue...

22

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 26
prime sponsors Sen. McCain et al.) in two post-WRTL-II cases agreed to a stipulated judgment conceding that the ads at issue were protected political speech under WRTL-II’s test, although they contained criticism. See WRTL v. FEC, No. 04-

1260, slip op. at 1 (D.D.C. July 23, 2007); Christian Civic League of Maine v.

FEC, No. 06-614, slip op. at 1-2 (D.D.C. Aug. 21, 2007). Consequently, there is

now no question that ads stating a candidate’s position and criticizing or praising

the candidate for that position may be fully protected political speech.

The FEC’s analysis of CTP’s Ads in light of the dissolving-distinction problem, FEC-Br. 42-43, reveals its flawed understanding of (or resistance to) WRTLII’s required analysis of issue advocacy. After noting that CTP’s Ads (like

WRTL’s ads) criticized a candidate and were run near an election, the FEC argues

that there may well be “[v]oters who perceive a connection between ads like these

 ...continue

20

tion” prohibition by declaring that quashing criticism isthe true intent behind

the provision and thus argue that broadcast ads are sham, not genuine, if the

ads (a) “took a critical stance regarding a candidate’s position on an issue”

and (b) “referred to the candidate by name.”. . . Intervenors’ Brief is replete

with complaints about Senators being criticized for their positions on a current legislative matter. . . . So is the FEC’s Brief. . . . 

Id. at 5 (citations omitted). WRTL-II rejected the FEC’s notion then, as this Court

must do now, that if citizens criticize public officials then the government may

restrict their speech. Such pre-Revolutionary British and European thought was

rejected in this Republic with the First Amendment. See Bridges v. California, 314

U.S. 252 (1941) (tracing American rejection of British speech laws that punished

criticism of officials).

23

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 27
and an upcoming election” (who might want disclosure). This is an “effect” argument, i.e., that one should look at the possible “effect” of an ad to determine

whether it is regulable. But intent-and-effect tests were forbidden in Buckley and

WRTL-II. See WRTL-II, 127 S. Ct. at 2665 (“Buckley had already rejected an intent-and-effect test for distinguishing between discussions of issues and candidates.”), 2669 n.7 (“there can be no free-ranging intent-and-effect test”). Under

WRTL-II’s application of the unambiguously-campaign-related principle, regulable

electioneering communications are distinguished by whether they contain language that constitutes an “appeal to vote,” id. at 2667, not on what the effect might

be on a hearer.

21

The FEC argues that certain other courts have rejected the unambiguouslycampaign-related principle as a controlling analysis, FEC-Br. 32, but some have

recognized it, see supra, and especially so did this Court in Leake, which is the

only controlling decision, other than the cited Supreme Court cases that established this first principle. Under the analysis of Buckley, MCFL, McConnell,

WRTL-II, and Leake, the government may not compel disclosure as to unregulable

 In an obscurely-worded paragraph, Amici seem to argue that any election- 21

eering communication (because it names a candidate near an election) may be interpreted as an appeal “to vote for or against a candidate, [and so] it is likely to

have an effect on a federal election, even if it is susceptible to another interpretation as well.” AC-Br. 24. This not only turns WRTL-II’s appeal-to-vote test on its

head, it also violates WRTL-II’s prohibition on intent-and-effect tests.

24

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 28
WRTL-II-ads, so Appellants have likely success on the merits.

C. The FEC’s PAC-Enforcement Policy Is Unconstitutional and Void.22, 23

The FEC argues that CTP may lack standing to challenge the FEC’s PAC-enforcement policy. FEC-Br. 49. But as set out in Appellants’ opening brief, the FEC

has launched investigations without initial evidence that the $1,000 trigger in

“contributions” or “expenditures” has been met. CTP-Br. 45-46. And the problem

with the FEC’s vague and overbroad (for failing the unambiguously-campaignrelated principle) enforcement policy is knowing what will establish PAC status.

See CTP-Br. 41-45. Clearly, the FEC is resisting the formulation for the majorpurpose test that this Court set out in Leake— “Buckley’s articulation of the permissible scope of political committee regulation is best understood as an empirical

judgment as to whether an organization primarily engages in regulable, election-related speech,” 525 F.3d at 287—in favor of an ad hoc test lacking the requi-

 Strict scrutiny unquestionably applies to the imposition of PAC status, see

22

CTP-Br. 39 n.25, which is uncontested. The FEC attempts to interpret Appellants’

“overbreadth” claim into a no-set-of-circumstances test or a First Amendment

substantial-overbreadth test, FEC-Br. 52, but Appellants challenge the policy as

“impermissibly broad,” Buckley, 424 U.S. at 80, for violating the unambiguouslycampaign-related principle by using an invalid major-purpose test. The FEC has

the burden of proof on this threshold burden, not Appellants (as Appellants would

for a First Amendment substantial-overbreadth challenge).

 The FEC argues that its enforcement policy is nonreviewable, FEC-Br. 50- 23

51, which the district court rightly rejected. JA–12-14.

25

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 29
site bright lines for First Amendment protection.24

And despite the problems with a PAC-enforcement policy that would investigate major purpose before any statutory “contribution” or “expenditure” trigger

was proven, there remained support on the FEC as recently as December 19, 2008,

for pursuing the targets of MUR 5541 (November Fund et al.) under just such an

approach. In that MUR, three Commissioners voted to approve a conciliation

agreement based on this very approach to imposing PAC-status, and two of them

published a statement of reasons defending the November Fund investigation,

which they acknowledged “spanned several years and uncovered thousands of

pages of documents.” Statement of Reasons of Commissioners Cynthia L. Bauerly

and Ellen L. Weintraub at 2, MUR 5541 (November Fund) (Dec. 19, 2008) (all

MUR documents available through www.fec.gov). The threat remains.

 Amici attempt to evade Leake’s clear statement of how to determine major 24

purpose by ignoring it and citing less-specific statements from Leake. AC-Br. 30.

As always, more-specific formulations must govern less-specific ones. Amici also

argue that disclosure of all electioneering communications is necessary to permit

determining of major purpose. AC-Br. 25. But under the Leake formula for establishing “major purpose,” only “regulable, election-related speech” may be considered, so unregulable electioneering communications must clearly be excluded for

purposes of determining PAC status. Moreover, the only expenditure that may be

employed to determine PAC status are express-advocacy “independent expenditures,” see MCFL, 479 U.S. at 262, and BCRA did not place “electioneering communications” within the independent-expenditure definition, so no electioneering

communication may be used to determine major purpose.

26

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III. CTP Has Irreparable Harm.

The reason why the FEC insisted on doing the irreparable-harm analysis out of

the mandated order is because it was attempting to isolate it from the merits analysis. But once the foundational merits analysis is established, it is clear that government may not regulate the unregulable, i.e., that which is not unambiguously campaign related under a recognized implementing test. If government has no constitutional authority to launch an investigation or initiate an enforcement proceeding,

then doing so is a clear and irreparable constitutional harm. The First and Fifth

Amendments protect Appellants from any investigation or enforcement action

lacking a constitutional foundation.25

In the November-Fund Statement (see supra at 13), three of the six FEC Commissioners made clear their view that “an unwarranted multi-year investigation

. . . was both burdensome and intrusive.” Id. at 19. “Such enforcement can, and

does, chill the free speech of citizens exercising their free rights,” they concluded.

 The FEC argues that the only recognized protection from disclosure is in the 25

situation of a reasonable likelihood of reprisals. FEC-Br. 46. But that protection

only applies where the government actually has authority to investigate and enforce. The FEC argues that there is no irreparable harm because CTP’s speech was

not chilled. FEC-Br. 47. There is a general chill on speech where there are vague

and overbroad regulations of speech, as here, because most would-be speakers

would be chilled from proceeding with their speech. But the alleged harm here as

to CTP is not a chill, but an imminent risk of an unconstitutional investigation and

enforcement action, which the FEC has not eschewed and awaits only FEC action.

27

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 31
Id. As to PAC-status, they state that under the theory used in that MUR, which

sought to determine major-purpose before any $1,000 trigger amount in “contributions” or “expenditures” was established, 

any organization that dared criticize a federal candidate, even if it scrupulously avoided engaging in express advocacy, would be vulnerable to an

intrusive and time and resource-consuming investigation into (1) the private

communicationsthe organization’s officials may have hade about its purpose

or (2) what the organization’s donors might have been thinking when giving

their money. The chilling effect this approach would have upon political

speech is painfully obvious, and we do not see how it passes muster under the

First Amendment.

Id. at 17 n.78. 

These three Commissioners also note that “[s]imply because one court has upheld the Commission’s ‘case-by-case’ approach in an action to compel the promulgation of regulations because the Commission was able to, after a few tries, justify

its decision for purposes of the Administrative Procedures Act, does not mean it is

not vulnerable to attacks under the First Amendment or Due Process Clause.” Id.

at 17, n.80.

IV. The Balance of Harms and Public Interest Favor Appellants.

Once the likelihood of success on the merits is resolved in Appellants’ favor,

the balance of harms tips in favor of Appellants, see CTP-Br. 55-56, as does the

public interest, see CTP-Br. 56-57.

28

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 32
Conclusion

The preliminary-injunction denial should be reversed.

Respectfully submitted,

James Bopp, Jr.

Richard E. Coleson

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

29

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 33
No. 08-2257 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

Caption: Koerber and Committee for Truth in Politics v. FEC 

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a) 

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(s) James Bopp, Jr. 

Attorney for Koerber and Committee for Truth in Politics 

Dated: May 1, 2009 

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 34
Certificate of Service

I hereby certify that on May 1, 2009, I electronically filed the foregoing with

the Clerk of Court using the CM/ECF System, which will send notice of such filing to the following registered CM/ECF users:

David Kolker

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FEDERAL ELECTION COMMISSION

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Counsel for Defendant-Appellee

 /s/ James Bopp, Jr.

James Bopp, Jr. 

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Appellants

Case: 08-2257 Document: 26 Date Filed: 05/01/2009 Page: 35