No. 11-1760 

 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

 

THE REAL TRUTH ABOUT OBAMA, Inc., 

Plaintiff-Appellant,

v. 

FEDERAL ELECTION COMMISSION, et al., 

Defendants-Appellees. 

 

On Appeal from the United States District Court for the 

Eastern District of Virginia 

 

BRIEF AMICI CURIAE FOR CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 IN SUPPORT OF DEFENDANTS-APPELLEES 

AND URGING AFFIRMANCE 

 

Fred Wertheimer 

DEMOCRACY 21 

2000 Massachusetts Avenue, N.W. 

Washington, D.C. 20036 

(202) 429-2008 

Donald J. Simon 

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP 

1425 K Street, N.W., Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Counsel for Amici Curiae

 

J. Gerald Hebert 

Tara Malloy 

Paul S. Ryan 

THE CAMPAIGN LEGAL CENTER

215 E Street, N.E. 

Washington, D.C. 20002 

(202) 736-2200 

Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT 

The Campaign Legal Center (CLC) is a nonprofit corporation, and is not a 

publicly held corporation or other publicly held entity. The CLC has no parent 

corporation and no publicly held corporation has any form of ownership interest 

in the CLC. The CLC is not aware of any publicly held corporation or other 

publicly held entity that has a direct financial interest in the outcome of the 

litigation. 

Democracy 21 is a nonprofit corporation, and is not a publicly held 

corporation or other publicly held entity. Democracy 21 has no parent 

corporation and no publicly held corporation has any form of ownership interest 

in Democracy 21. Democracy 21 is not aware of any publicly held corporation 

or other publicly held entity that has a direct financial interest in the outcome of 

the litigation. 

This case does not arise out of a bankruptcy proceeding. 

/s/ Tara Malloy 

Tara Malloy

THE CAMPAIGN LEGAL CENTER

215 E Street, N.E. 

Washington, D.C. 20002 

Dated: October 27, 2011 

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TABLE OF CONTENTS 

CORPORATE DISCLOSURE STATEMENT .................................................... ii 

TABLE OF AUTHORITIES ................................................................................ iv 

STATEMENT OF INTEREST .............................................................................. 1 

SUMMARY OF ARGUMENT .............................................................................. 1 

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

I. Strict Scrutiny Is Not Applicable to This Court’s Review of 11 

C.F.R. § 100.22(b) or the FEC’s “Major Purpose” Test. ..................... 5 

A. The Challenged Rules All Pertain to Disclosure, and Thus 

Are Subject Only to “Exacting Scrutiny.” ...................................... 5 

B. Section 100.22(b) Should Be Reviewed Under “Exacting 

Scrutiny.” ......................................................................................... 7

C. There Is No Basis for the Application of Strict Scrutiny to 

the Commission’s “Major Purpose” Policy. ................................... 8 

II. The Definition of “Expressly Advocating” at 11 C.F.R. § 

100.22(b) Is Constitutional. ................................................................... 14 

A. The Constitutionality of the Subpart (b) Definition of 

“Expressly Advocate” Was Confirmed in McConnell and 

WRTL. ............................................................................................ 15 

B. Citizens United Provides Further Support for the Subpart (b) 

Definition. ...................................................................................... 20 

III. The FEC’s “Major Purpose” Test Is Constitutional. ......................... 25 

CONCLUSION ...................................................................................................... 30 

CERTIFICATE OF COMPLIANCE ..................................................................... i 

CERTIFICATE OF SERVICE .............................................................................. ii

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TABLE OF AUTHORITIES 

Cases: 

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) ................... 10, 11

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

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

Davis v. FEC, 128 S. Ct. 2759 (2008) .................................................................... 10

Doe v. Reed, 130 S. Ct. 2811 (2010) ..................................................................... 3, 9

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

FEC v. Beaumont, 539 U.S. 146 (2003) ................................................................... 9 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ............................................... 16, 17

FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996) ................................................. 28

FEC v. Malenick, 310 F. Supp. 2d. 230 (D.D.C. 2004) .......................................... 28 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ............. 10, 11, 26, 27

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) ..................................... passim 

Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 

2010) ............................................................................................................ 12, 13, 22 

Iowa Right to Life Committee, Inc. v. Tooker, -- F. Supp. 2d ---, 2011 WL 

2649980 (S.D. Iowa June 29, 2011) ........................................................................ 13 

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

National Organization For Marriage v. McKee, -- F.3d ---, 2011 WL 

3505544 (1st Cir. 2011) .......................................................................................... 13

National Organization for Marriage v. Roberts, 753 F. Supp. 2d 1217 

(N.D. Fla. 2010) ...................................................................................................... 13

North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir. 2008) .................... 29 

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Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) ......... 3, 14, 27 

Real Truth About Obama, Inc. v. FEC, -- F. Supp. 2d ---, 2011 WL 

2457730 (E.D.Va. 2011) ........................................................... 3, 4, 7, 15, 19, 21, 24 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) .................................................. 28 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .................................... 6, 10 

Virginia Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) .......... 16, 17 

Yamada v. Kuramoto, 2010 WL 4603936 (D. Haw. Oct. 29, 2010) ...................... 13 

Statutes and Regulations: 

2 U.S.C. § 432 ................................................................................................. 5, 6, 12 

2 U.S.C. § 433 ................................................................................................. 5, 6, 12 

2 U.S.C. § 434(c) ................................................................................................... 5, 6 

2 U.S.C. § 434(f)(3) ................................................................................................ 18 

2 U.S.C. § 434(a)(4) ........................................................................................ 5, 6, 12 

2 U.S.C. § 441a(a)(5) .............................................................................................. 12 

2 U.S.C. § 441b ............................................................................................. 5, 11, 21

2 U.S.C. § 441b(a) ..................................................................................................... 6

2 U.S.C. § 441b(b) .................................................................................................. 12 

2 U.S.C. § 441b(b)(2) .............................................................................................. 18 

2 U.S.C. § 441b(b)(4) .............................................................................................. 12 

2 U.S.C. § 441d ......................................................................................................... 6 

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

11 C.F.R. § 100.57 ................................................................................................ 2, 5 

11 C.F.R. §§ 114.5-114.8 ........................................................................................ 12 

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11 C.F.R. § 114.15 .................................................................................... 2, 5, 23, 29 

Miscellaneous Resources: 

FEC Notice 2007-3, “Political Committee Status,” 72 Fed. Reg. 5595 

(Feb. 7, 2007) .......................................................................................................... 26 

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STATEMENT OF INTEREST 

Amici curiae Campaign Legal Center and Democracy 21 are non-partisan, 

non-profit organizations that work to strengthen the laws governing campaign 

finance and political disclosure. Amici have filed multiple briefs in the instant case 

at the district court and appellate court levels, and more broadly, have participated 

in several of Supreme Court cases underlying the claims herein, including 

McConnell v. FEC, 540 U.S. 93 (2003), and Citizens United v. FEC, 130 S. Ct. 

876 (2010). Amici thus have a demonstrated interest in the issues raised here. 

All parties have consented to amici’s participation in this case. 

SUMMARY OF ARGUMENT 

The Real Truth About Obama, Inc. (RTAO) was organized shortly before 

the 2008 election for the stated purpose of sponsoring broadcast ads and other 

public communications to criticize then-Senator Barack Obama, the Democratic 

Party presidential nominee. 

RTAO was free to spend as much money as it wished on such activities, 

provided that it did so independently of any candidate or political party. But 

fearing that it might qualify as a federal “political committee,” subject to 

contribution limits, source prohibitions and disclosure requirements under the 

Federal Election Campaign Act (FECA), RTAO brought this case to challenge 

several rules governing the FEC’s determination of federal political committee 

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status and its implementation of the “electioneering communications” funding 

restriction. See Am. Complaint (filed Oct. 16, 2008), Counts 1-4 (challenging 11 

C.F.R. §§ 100.22(b), 100.57, 114.15 and the FEC’s “major purpose” policy). 

However, since the initiation of this case, intervening judicial decisions, 

most notably, Citizens United, have radically reshaped the landscape of campaign

finance law. As a result, only RTAO’s challenge to § 100.22(b) and the FEC’s 

implementation of the “major purpose” test remain live. Furthermore, due to the 

recent judicial rulings, the “express advocacy” rule of § 100.22(b) and the FEC’s 

“major purpose” policy for political committee status presently affect RTAO only 

insofar as they trigger disclosure obligations if RTAO makes “independent 

expenditures” or if it is deemed a federal political committee. See Section I.A. 

infra. 

Thus, the question that remains is not whether RTAO can make expenditures 

for the speech it proposes, nor whether it must abide by contribution limits and 

source requirements, but rather whether it must provide comprehensive disclosure 

of its campaign advocacy to the American public. There is no support in either the 

federal campaign finance law or judicial precedent for RTAO’s attempt to evade 

its disclosure obligations under FECA. In 2010 alone, the Supreme Court twice

upheld, both times by 8-1 votes, laws requiring political disclosure, reiterating that 

such “transparency” “enables the electorate to make informed decisions and give 

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proper weight to different speakers and messages.” Citizens United, 130 S. Ct. at 

916; see also Doe v. Reed, 130 S. Ct. 2811 (2010) (upholding Washington state 

law authorizing disclosure of ballot referenda petitions). 

In line with this precedent, the district court below rejected RTAO’s 

challenges to § 100.22(b) and the Commission’s “major purpose” policy, and 

granted summary judgment to the defendants. RTAO v. FEC, -- F. Supp. 2d --, 

2011 WL 2457730 (E.D.Va. 2011). Indeed, this Court already determined in 

August 2009 that RTAO had not demonstrated a likelihood of success on the 

merits of its challenge to this rule and policy. RTAO v. FEC, 575 F.3d 342 (4th 

Cir. 2009) (vacated for consideration of mootness by 130 S. Ct. 2371 (2010)). 

Both the district court’s decision and this Court’s earlier decision are correct. 

First, as a threshold matter, there is no support for the application of strict 

scrutiny or, as RTAO now phrases it, “high” exacting scrutiny, to this Court’s 

review of either § 100.22(b) or the FEC’s “major purpose” policy. Appellant’s 

Brief (Sept. 19, 2011), at 17-18. The Supreme Court has made clear that 

disclosure laws are subject not to strict scrutiny, but rather only to “‘exacting 

scrutiny,’ which requires a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” Citizen United, 

130 S. Ct. at 914, quoting Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976) (internal 

citations omitted). 

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Second, RTAO’s contention that the FEC rule defining “express advocacy,” 

11 C.F.R. § 100.22(b), is overbroad and unconstitutionally vague is contrary to all 

recent Supreme Court precedent in this area. The Supreme Court has held in a 

series of cases that Congress may regulate communications that do not constitute 

“magic words” express advocacy, and that disclosure laws in particular may reach 

beyond even the “functional equivalent of express advocacy.” McConnell, 540 

U.S. at 190; FEC v. Wisconsin Right to Life, 551 U.S. 449, 469-70 (2007); Citizen 

United, 130 S. Ct. at 915. Furthermore, the subpart (b) test is not vague; to the 

contrary, as the district court highlighted, “§ 100.22(b) is consistent with 

Wisconsin Right to Life’s appeal-to-vote test.” 2011 WL 2457730, at *9. 

Finally, with regard to the FEC’s policy for implementing the “major 

purpose” test, RTAO provides no legal authority for its claim that the FEC 

impermissibly implements this test by making an inquiry into “vague and 

overbroad factors.” App. Br. at 55. The Supreme Court itself in Buckley created 

the “major purpose” test to narrow the statutory definition of “political 

committee,” see 424 U.S. at 79, but the Court in no way restricted the scope of the 

inquiry that the FEC may make in determining a group’s “major purpose.” 

For all these reasons, RTAO’s challenge has no merit and the district court’s 

decision should be affirmed. 

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ARGUMENT 

I. Strict Scrutiny Is Not Applicable to This Court’s Review of Section 

100.22(b) or the FEC’s “Major Purpose” Policy. 

A. The Challenged Rules All Pertain to Disclosure, and Thus Are 

Reviewed Under “Exacting Scrutiny.” 

 RTAO’s case has contracted greatly in scope, and now concerns only the 

federal disclosure requirements that are applicable to “independent expenditures” 

and that accompany federal political committee status. See 2 U.S.C. § 434(c) 

(“independent expenditure” reporting requirements); 2 U.S.C. §§ 432, 433, 

434(a)(4) (political committee disclosure requirements). As such, the case is 

governed not by strict scrutiny, but rather only by “‘exacting scrutiny,” i.e., the 

requirement that there be “a ‘relevant correlation’ or ‘substantial relation’ between 

the governmental interest and the information required to be disclosed.” Buckley, 

424 U.S. at 64 (internal footnotes omitted). 

 RTAO originally filed suit to challenge three FEC rules, 11 C.F.R. §§ 

114.15, 100.57 and 100.22(b), and the FEC’s policy for determining a group’s 

“major purpose,” which is a requirement for “political committee” status. See Am. 

Complaint, Counts 1-4. Since initiation of RTAO suit, however, Citizens United

struck down the federal corporate spending restrictions, see 2 U.S.C. § 441b, thus 

mooting RTAO’s challenge to § 114.15, which implemented these restrictions. 

Similarly, RTAO’s challenge to § 100.57 has been mooted by EMILY’S List v. 

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FEC, 581 F.3d 1 (D.C. Cir. 2009), which found this rule unconstitutional, albeit on 

grounds not asserted by RTAO in this action. Therefore, only RTAO’s challenge 

to § 100.22(b)’s definition of “expressly advocate” and the FEC’s “major purpose” 

policy remain. 

The substantive requirements triggered by § 100.22(b) and the FEC’s policy 

have also been greatly narrowed by recent judicial decisions. The subpart (b) 

definition now affects RTAO only insofar as it would trigger the federal disclosure 

requirements applicable to independent expenditures, 2 U.S.C. § 434(c), or would 

inform FEC determinations of political committee status. Similarly, the FEC’s 

“major purpose” policy affects RTAO only insofar as it governs determinations of 

political committee status. Further, following SpeechNow.org v. FEC, 599 F.3d 

686 (D.C. Cir. 2010), federal political committees that make only independent 

expenditures are no longer subject to contribution limits, 2 U.S.C. § 441a(a), and 

source prohibitions, 2 U.S.C. § 441b(a), and now need to comply only with 

disclosure requirements, see 2 U.S.C. §§ 432, 433, 434(a)(4), 441d. Thus, for 

groups like RTAO making only independent expenditures, federal “PAC status” 

has lost much of its previous regulatory bite. 

In short, since RTAO’s case now concerns rules and policies that implement 

only disclosure requirements, the challenged rules are subject to exacting, not 

strict, scrutiny. 

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B. Section 100.22(b) Should Be Reviewed Under “Exacting Scrutiny.” 

Although RTAO does not dispute the legal developments chronicled above, 

it contended in the district court proceeding below that strict scrutiny applied to the 

review of its challenge to § 100.22(b). See 2011 WL 2457730, at *8. The district 

court rejected this theory, however, finding that “[s]ince it effectuates disclosure 

requirements, § 100.22(b) is subject to exacting scrutiny.” Id. 

Upon appeal, RTAO largely abandons its claim for strict scrutiny in 

connection to § 100.22(b),1

 but nevertheless again attempts to heighten the 

applicable standard of judicial review by asserting that this Court should apply a 

“high” version of exacting scrutiny. App. Br. at 18 (“[T]he burden is high and 

scrutiny is high, even if exacting scrutiny applies.”). But this hybrid standard of 

strict scrutiny and exacting scrutiny is pure invention. Citizens United made clear 

that the standard of review applicable to a disclosure requirement is exacting 

scrutiny, which simply requires “a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.’” Citizen United, 

130 S. Ct. at 914, quoting Buckley, 424 U.S. at 64, 66 (internal citations omitted). 

The Supreme Court in no way suggested the “exacting scrutiny” should be 

calibrated to a “higher” level whenever a party alleges that the disclosure law it is 

 

1

 See note 2 infra. 

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challenging is particularly “onerous.” App. Br. at 18. There is simply no support 

in the case law for multiple tiers of review within the standard of exacting scrutiny. 

C. There Is No Basis for the Application of Strict Scrutiny to the 

Commission’s “Major Purpose” Policy. 

 In a second attempt to heighten the standard of scrutiny applicable to this 

case, RTAO argues that the FEC’s “major purpose” policy can trigger “PAC 

status,” and that laws imposing PAC status require strict scrutiny.2

 App. Br. at 45-

46. But “PAC status,” in itself, is not a substantive regulation. Because the only 

substantive regulation triggered by “PAC status” in this case is disclosure, strict 

scrutiny is inappropriate. 

The Supreme Court applies varying standards of scrutiny depending on the 

nature of the regulation and the weight of the First Amendment burdens imposed 

by such regulation. Expenditure restrictions, as the most burdensome campaign 

finance regulations, are subject to strict scrutiny and reviewed for whether they are 

“narrowly tailored” to “further a compelling interest.” WRTL, 551 U.S. at 476; see 

also Buckley, 424 U.S. at 44-45. Contribution limits, by contrast, are deemed less 

burdensome of speech, and are constitutionally “valid” if they “satisfy the lesser 

 

2

 RTAO also asserts that § 100.22(b) can “trigger statutory PAC-status,” see

App. Br. at 18, but it is unclear whether RTAO wishes this Court to apply strict 

scrutiny or “high” exacting scrutiny to this rule. Insofar as RTAO is arguing that § 

100.22(b) must also be reviewed under strict scrutiny because it informs “PAC 

status” determinations, then its argument fails for the reasons set forth in Section 

I.C. supra. 

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demand of being closely drawn to match a sufficiently important interest.” 

McConnell, 540 U.S. at 136, quoting FEC v. Beaumont, 539 U.S. 146, 162 (2003) 

(internal quotations omitted). Disclosure requirements, the “least restrictive” 

campaign finance regulations, Buckley, 424 U.S at 68, are subject to “exacting 

scrutiny.” Indeed, the Supreme Court twice reaffirmed last year that “exacting 

scrutiny” applies to disclosure requirements in the spheres of campaign finance law 

and ballot referenda. See Citizens United, 130 S. Ct. at 914 (“The Court has 

subjected [disclosure] requirements to ‘exacting scrutiny,’....”); Reed, 130 S. Ct. at 

2818 (finding that disclosure law relating to ballot referenda petitions was subject 

only to “exacting scrutiny”). 

Pursuant to this analytical framework, if political committee status is 

connected to a restriction on expenditures, then the rules that lead to imposition of 

such status may require review under strict scrutiny. If, on the other hand, “PAC 

status” entails only registration and reporting requirements, then the provisions 

governing this status would be reviewed under only “exacting scrutiny.” 

This principle is well illustrated by the decision of the D.C. Circuit Court of 

Appeals in SpeechNow.org. There, the Court of Appeals reviewed both the 

contribution limits connected to federal political committee status, and the 

registration, reporting and organizational requirements connected to such status. It 

struck down the contribution limits as applied to “independent expenditure 

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committees” after reviewing such limits under the intermediate scrutiny 

appropriate for contribution limits. 599 F.3d at 692 (noting that contribution limits 

must be “closely drawn to serve a sufficiently important interest”) (citing Davis v. 

FEC, 128 S. Ct. 2759, 2772 n.7 (2008)). By contrast, the Court of Appeals upheld 

the political committee disclosure requirements under a more relaxed standard, 

stating that “the government may point to any ‘sufficiently important’ 

governmental interest that bears a ‘substantial relation’” to the requirements.” Id. 

at 696. The appropriate standard of scrutiny thus turned on the nature of the 

substantive regulation associated with political committee status, not “PAC status” 

itself, as RTAO contends. And neither the contribution limits nor the disclosure 

requirements applicable to political committees were subjected to strict scrutiny. 

RTAO offers no legal authority to the contrary. The cases it cites in support 

of strict scrutiny either did not review political disclosure requirements, or those 

that did applied only “exacting scrutiny” to such disclosure. See App. Br. at 45, 

47-49, citing Citizens United, 130 S. Ct. at 896-98; Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652, 658 (1990) (overturned on other grounds); FEC v. 

Massachusetts Citizens for Life (MCFL), 479 U.S. 238, 263 (1986). Instead, the 

cited cases focused on the constitutionality of federal or state laws that prohibited 

corporate independent expenditures except through a strictly-regulated separate 

segregated fund (or “PAC”): 

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• Citizens United reviewed 2 U.S.C. § 441b, the federal restriction on the 

expenditure of corporate and union treasury funds for independent 

expenditures. 130 S. Ct. at 913. In its review of the federal electioneering 

communications disclosure requirements, however, the Supreme Court 

applied exacting scrutiny. Id. at 914. 

• Austin reviewed a Michigan law that prohibited corporations from using 

general treasury funds for independent expenditures in connection with state 

candidate elections. 494 U.S. at 654-55. 

• MCFL reviewed the federal corporate expenditure restriction, 2 U.S.C. § 

441b, as applied to an ideological not-for-profit corporation. 479 U.S. at 

241. 

Because the substantive laws challenged in these cases were expenditure 

restrictions, the most burdensome of campaign finance regulations, strict scrutiny 

was appropriate. Here, however, an expenditure restriction is not at issue, and the 

review of such restrictions in Citizens United, Austin and MCFL has no relevance 

to this action. 

 RTAO tries to bridge the obvious disparity between its cited cases and the 

instant matter by suggesting that all deal with “PAC-style burdens.” App. Br. at 

46. But its attempt to equate corporate expenditure bans with the federal political 

committee disclosure requirements is untenable. Citizens United, Austin and 

MCFL reviewed laws that prohibited corporate expenditures to influence an 

election and allowed corporate participation in elections only through a political 

committee that was “a separate association from the corporation.” Citizens United, 

130 S. Ct. at 897; see also 2 U.S.C. § 441b(b). Under federal law, corporate PACs 

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were subject to federal contribution limits, see 2 U.S.C. § 441a(a)(5), and could 

solicit these limited contributions only from the corporation’s restricted class of 

officers, executive and administrative employees, and shareholders. 2 U.S.C. § 

441b(b)(4); 11 C.F.R. §§ 114.5-114.8. The “PAC option” in these cases was thus 

a highly-regulated alternative to an absolute prohibition on corporate spending. In 

this case, by contrast, “PAC-style burdens” entail nothing more than registration, 

reporting and organizational requirements. 2 U.S.C. §§ 432, 433, 434(a)(4). 

RTAO’s facile attempt to label both expenditure restrictions and disclosure 

obligations as “PAC requirements” does not justify application of strict scrutiny to 

the regulations at issue here. 

Indeed, the Ninth Circuit Court of Appeals recently rejected a similar 

argument in Human Life of Washington, Inc. (HLW) v. Brumsickle, 624 F.3d 990, 

997-98 (9th Cir. 2010). There, HLW challenged Washington State’s disclosure 

law that required groups that supported or opposed candidates or ballot 

propositions to register as political committees and to satisfy detailed reporting and 

organizational requirements. 624 F.3d at 997-98. Although the challenged law 

thus “imposed PAC status,” in the words of RTAO, the Court of Appeals rejected 

HLW’s assertion that strict scrutiny applied. It noted that “confusion” had 

“emerged” in the Ninth Circuit regarding the scrutiny applicable to political 

disclosure laws because the Ninth Circuit had incorrectly interpreted the Supreme 

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Court’s MCFL decision as applying strict scrutiny to the federal political 

committee disclosure requirements. Id. at 1003-04. But, as the Court of Appeals 

noted, “recent Supreme Court decisions have eliminated the apparent confusion as 

to the standard of review applicable in disclosure cases.” Id. at 1005. The Ninth 

Circuit concluded that the decisions in Citizens United and Reed removed all doubt 

regarding the correct degree of scrutiny for PAC disclosure obligations by 

confirming that “a campaign finance disclosure requirement is constitutional if it 

survives exacting scrutiny, meaning that it is substantially related to a sufficiently 

important governmental interest.” Id. (emphasis added).3

 

 

3

 This has also been the approach of a number of courts that have heard 

challenges post-Citizens United to disclosure-related requirements accompanying 

state “political committee” status. National Organization For Marriage v. McKee, 

-- F.3d ---, 2011 WL 3505544, *14 (1st Cir. Aug. 11, 2011) (“Because Maine’s 

PAC laws do not prohibit, limit, or impose any onerous burdens on speech, but 

merely require the maintenance and disclosure of certain financial information, we 

reject NOM’s argument that strict scrutiny should apply.”); Iowa Right to Life 

Committee, Inc. v. Tooker, --- F. Supp. 2d ----, 2011 WL 2649980, *7 (S.D. Iowa 

June 29, 2011) (finding that Iowa disclosure requirements connected to 

“independent expenditure committees” were subject to exacting scrutiny); National 

Organization for Marriage v. Roberts, 753 F. Supp. 2d 1217, 1222 (N.D. Fla. 

2010) (finding that Florida disclosure requirements connected to “electioneering 

communications organizations” “would not prohibit [plaintiff] from engaging in its 

proposed speech” and were subject only to exacting scrutiny); Yamada v. 

Kuramoto, 2010 WL 4603936, *11 (D. Haw. Oct. 29, 2010) (finding that recent 

case law “leaves no doubt [that] exacting scrutiny applies” to Hawaii’s regulation 

of non-candidate committees). 

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This Court should follow the clear guidance of Buckley, Citizens United and 

Reed and apply exacting scrutiny to the challenged rule and “major purpose” 

policy. 

II. The Definition of “Expressly Advocating” at Section 100.22(b) Is 

Constitutional. 

RTAO claims that the so-called “subpart (b)” definition of express advocacy 

is unconstitutionally vague and overbroad because “express advocacy requires 

magic words.” App. Br. at 23. However, this stance flies in the face of all recent 

Supreme Court precedent, which has uniformly rejected the notion that “magic 

words” represent the outermost boundary of constitutional regulation. McConnell, 

540 U.S. at 193; WRTL, 551 U.S. at 474 n.7. And as this Court’s 2009 ruling 

found, the WRTL decision further confirmed the validity of § 100.22(b) by 

articulating a test for the “functional equivalent of express advocacy” that is 

“facially consistent” with subpart (b). RTAO, 575 F.3d at 349. 

The Supreme Court’s subsequent decision in Citizens United in no way 

alters this analysis. Citizens United did not require a “magic words” construction 

of “express advocacy,” nor did it question the WRTL test for the “functional 

equivalent of express advocacy.” Indeed, if anything, Citizen United cast further 

doubt on the “magic words” test by finding that a communication need not 

constitute express advocacy – or even the functional equivalent of express 

advocacy – to be regulable under the federal “electioneering communications” 

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15 

disclosure requirements. 130 S. Ct. at 915. Accordingly, the district court below 

rejected RTAO’s challenge to the subpart (b) definition, finding that “Citizens 

United does not change the Court’s analysis of § 100.22(b).” 2011 WL 2457730, 

at *11. This holding should be affirmed. 

A. The Constitutionality of the Subpart (b) Definition of “Expressly 

Advocate” Was Confirmed in McConnell and WRTL. 

 The debate over the role and scope of the “express advocacy” standard dates 

back to FECA’s enactment. An expenditure limit originally included in FECA 

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 $1,000.” Buckley, 424 U.S. at 39. The Buckley Court 

was troubled by the vagueness of the phrase “relative to a clearly identified 

candidate,” and consequently construed the “relative to” phrase to “apply only to 

expenditures for communications that in express terms advocate the election or 

defeat of a clearly identified candidate for federal office.” Id. at 44 (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.’” Id. at 44 

n.52. These phrases became known as the “magic words” of express advocacy. 

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More than a decade after Buckley, the Ninth Circuit in FEC v. Furgatch, 807 

F.2d 857 (9th Cir. 1987), concluded that, “[S]peech need not include any of the 

words listed in Buckley to be express advocacy under the Act, but it must, when 

read as a whole, and with limited reference to external events, be susceptible of no 

other reasonable interpretation but as an exhortation to vote for or against a 

specific candidate.” Id. at 864 (emphasis added). 

In 1995, the FEC codified this Furgatch test in subpart (b) of its regulation 

defining “expressly advocating.” Section 100.22(b) of the FEC’s regulations 

provides that “expressly advocating” means 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. § 100.22(b) (emphasis added). 

This Circuit in 2001 ruled that this subpart (b) standard “goes too far” 

because “it shifts the determination of what is express advocacy away from the 

words in and of themselves to the unpredictability of audience interpretation.” 

Virginia Society for Human Life v. FEC, 263 F.3d 379, 392 (4th Cir. 2001) 

(internal quotations omitted). Responding to the FEC’s warning that invalidating 

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subpart (b) would allow a flood of union and corporate money to enter federal 

elections, this Court said its decision was grounded in Supreme Court precedent: 

“If change is to come, it must come from an imaginative Congress or from further 

review by the Supreme Court.” Id. 

And that is exactly what has happened. The Supreme Court has rendered 

such “further review,” and its decisions in McConnell and WRTL have effectively 

“overturned” this Circuit’s ruling in Virginia Society. Both McConnell and WRTL 

confirm that the First Amendment does not limit the scope of campaign finance 

regulation to “magic words,” and thus strongly support the constitutionality of 

subpart (b).4

 First, in McConnell, the Supreme Court explained that Buckley’s “magic 

words” express advocacy test was merely an “endpoint of statutory interpretation, 

not a first principle of constitutional law.” 540 U.S. at 190. The Court reached 

this conclusion in its review of Title II of the Bipartisan Campaign Reform Act of 

2002 (BCRA), which prohibited the use of corporate or union treasury funds to pay 

for an “electioneering communication” – defined as any broadcast ad that refers to 

a clearly identified federal candidate, is targeted to the candidate’s electorate and is 

 

4

 Given these sweeping developments in the governing case law, it is 

inexplicable that RTAO devotes three pages of its brief citing lower court cases 

that predate McConnell and WRTL and that have been superseded by these 

Supreme Court decisions. App. Br. at 26-28 (citing, e.g., Virginia Society, 263 

F.3d at 392). 

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aired within 30 days of a primary or 60 days of a general election. 2 U.S.C. §§ 

434(f)(3), 441b(b)(2). These provisions were challenged on grounds that they 

regulated “‘communications’ that do not meet Buckley’s [magic words] definition 

of express advocacy.” 540 U.S. at 190. The Court rejected this assertion, 

however, making clear that “the express advocacy limitation ... was the product of 

statutory interpretation rather than a constitutional command.” Id. at 191-92. The 

Court concluded that “the unmistakable lesson from the record in this litigation ... 

is that Buckley’s magic-words requirement is functionally meaningless[,]” and “has 

not aided the legislative effort to combat real or apparent corruption.” Id. at 193-

94 (emphasis added). Accordingly, the Court upheld BCRA’s “electioneering 

communication” provisions against a facial challenge. 

In WRTL, the Court re-visited Title II of BCRA in the context of an asapplied challenge regarding three broadcast ads that WRTL sought to air. Chief 

Justice Roberts, writing the controlling opinion for the Court, interpreted 

McConnell as upholding the Title II funding restrictions only insofar as 

“electioneering communications” contained either express advocacy or “the 

functional equivalent of express advocacy.” 551 U.S. at 469-70. As to the latter 

category, “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.” Id. (emphasis added). 

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Applying this test, the Court held that WRTL’s ads were not the functional 

equivalent of express advocacy and accordingly were exempt from the funding 

restriction. Id. at 476. 

As the district court noted, WRTL’s “appeal-to-vote test” is “consistent” with 

the FEC’s subpart (b) standard for express advocacy. RTAO, 2011 WL 2457730 at 

*9. Under WRTL, an ad constitutes the functional equivalent of express advocacy 

if it is “susceptible of no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate”; under subpart (b), an ad constitutes express 

advocacy if “[r]easonable minds could not differ as to whether it encourages 

actions to elect or defeat one or more clearly identified candidate(s).” There is no 

legal or practical difference between these tests. 

Furthermore, Chief Justice Roberts in WRTL specifically responded to 

Justice Scalia’s contention that the “functional equivalent” test was 

unconstitutionally vague because it did not incorporate a “magic words” standard. 

551 U.S. at 474 n.7. The Chief Justice explained that the “magic words” 

formulation of express advocacy used in Buckley was not “the constitutional 

standard for clarity ... in the abstract, divorced from specific statutory language,” 

and that the Buckley “magic words” standard was a matter of statutory construction 

and “does not dictate a constitutional test.” Id. 

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Finally, contrary to RTAO’s claims, WRTL in no way suggested that its 

“appeal-to-vote” test would be rendered vague or overbroad were it to be applied 

outside the definition of “electioneering communications.” App. Br. at 34-35. 

First, as discussed above, Chief Justice Roberts specifically addressed and rejected

concerns that his test was vague, finding that it meets “the imperative for clarity in 

this area.” 551 U.S. at 474 n.7. And indeed, if the test is not vague within the preelection period regulated by Title II, as the controlling opinion holds, it is not 

vague outside that time frame either, for the time frame would only circumscribe 

the effect of vagueness, not cure it. RTAO certainly provides no reason why the 

“appeal to vote” test is sufficiently clear to “provide people of ordinary intelligence 

a reasonable opportunity to understand what conduct it prohibits” within the 30- or 

60-day pre-election windows established by Title II, but would suddenly become 

unworkable and vague 61 days before an election. Hill v. Colorado, 530 U.S. 703, 

732 (2000). 

B. Citizens United Provides Further Support for the Subpart (b) 

Definition. 

Citizens United did not break with the reasoning of McConnell and WRTL

with respect to the scope of regulable speech. There, the Supreme Court again 

reviewed the corporate funding restriction of Title II of BCRA, and in a 5-4 

opinion, struck down the federal prohibition on corporate expenditures in its 

entirety, see 2 U.S.C. § 441b. 130 S. Ct. at 913. But because the Court ruled 

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broadly that all corporate expenditures, including expenditures for express 

advocacy, are protected by the First Amendment, the Court had no reason to 

consider – or to narrow – the scope of “express advocacy.” Nor did the Court 

question the validity of the WRTL test for “the functional equivalent of express 

advocacy.” To the contrary, the Supreme Court actually applied WRTL’s “appeal 

to vote” test to the communications at issue in Citizens United to determine 

whether they would be prohibited by 2 U.S.C. § 441b; only because it found they 

would be prohibited, did the Court then proceed on to consider the constitutionality 

of that prohibition.5

 See RTAO, 2011 WL 2457730, at *11 (noting that the Court 

“applied the appeal-to-vote test in Citizens United”) (emphasis added). 

 Indeed, far from requiring a “magic words” standard for “express advocacy” 

or “expenditure,” the Supreme Court in Citizens United instead consigned this 

standard to further irrelevance. In an 8-1 opinion, the Court upheld the federal 

disclaimer and disclosure requirements applicable to all “electioneering 

 

5

 The Supreme Court applied the WRTL test to Citizens United’s film, 

Hillary: The Movie, to determine how broadly the Court would have to rule in 

order to decide the case. Had Hillary not met WRTL’s test for the “functional 

equivalent of express advocacy,” then the film would not have been prohibited by 

2 U.S.C. § 441b, and the case could have been resolved on these “narrower 

grounds.” 130 S.Ct. at 888. The Court ultimately found that “under the standard 

stated in McConnell and further elaborated in WRTL, the film qualifies as the 

functional equivalent of express advocacy,” id. at 890, and thereby considered 

itself bound to consider the broader question of “whether Austin should be 

overruled.” Id. at 888. The fact that the Citizens United Court applied the WRTL

test without difficulty, however, belies RTAO’s argument that this test is 

unconstitutionally vague or unworkable. 

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communications.” Id. 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.” Id. at 915. Otherwise 

expressed, the Supreme Court not only rejected the “magic words” standard when 

delineating the constitutionally permissible scope of disclosure, but also found that 

disclosure could extend beyond speech that was the “functional equivalent of 

express advocacy.” Id. See also Human Life, 624 F.3d at 1016 (“Given the 

Court’s analysis in Citizens United, and its holding that the government may 

impose disclosure requirements on speech, the position that disclosure 

requirements cannot constitutionally reach issue advocacy is unsupportable.”). 

The Citizens United decision thus directly contradicts RTAO’s argument that the 

subpart (b) definition is overbroad with respect to disclosure. 

 Nevertheless, RTAO maintains that the Citizen United Court implicitly 

rejected the subpart (b) definition of express advocacy by finding that “express 

advocacy” was limited to “magic words.” This is flatly incorrect. The only 

support RTAO offers for its theory is a footnote by the dissent, which by 

definition, is not a holding of the majority. See App. Br. at 23, citing Citizens 

United, 130 S. Ct. at 935 n.8 (Stevens, J.) (“If there was ever any significant 

uncertainty about what counts as the functional equivalent of express advocacy, 

there has been little doubt about what counts as express advocacy since the ‘magic 

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words’ test of Buckley v. Valeo....”). Furthermore, the dissenters did not limit

express advocacy to “magic words,” but merely observed that express advocacy 

has long been understood to include “magic words” speech. Hence, even if the 

dissent was the opinion of the majority, it still would not support RTAO’s 

argument that the subpart (b) definition is overbroad with respect to disclosure. 

 Also unavailing is RTAO’s claim that the skepticism expressed by Citizen 

United regarding 11 C.F.R. § 114.15 should be interpreted as an indirect critique of 

§ 100.22(b). RTAO’s only proffered reason for such an interpretation is its belief 

that both rules follow the same “subjective, balancing, speech chilling, FECempowering, ad-hoc, we-know-it-when-we-see-it approach.” App. Br. at 38. 

First, it goes without saying that a judicial critique of one agency rule does not in 

any way suggest a critique of all agency rules. Subpart (b) does not remotely 

resemble § 114.15. Instead, as this court has found, subpart (b) is almost identical 

to the WRTL Court’s “appeal-to-vote” test. If the WRTL test, as stated by the 

Supreme Court, is not “subjective,” “speech-chilling” or “ad hoc,” then neither is 

the subpart (b) definition. Further, even insofar as subpart (b) definition includes 

“contextual factors,” see App. Br. at 40, the WRTL Court made clear that courts 

“need not ignore basic background information that may be necessary to put an ad 

in context – such as whether an ad describes a legislative issue that is either 

currently the subject of legislative scrutiny or likely to be the subject of such 

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scrutiny in the near future[.]” 551 U.S. at 474 (internal quotations omitted). In 

keeping with this directive, consideration of context is permitted, but greatly 

limited, under the subpart (b) test (“with limited reference to external events”). As 

the district court below concluded, “100.22(b)’s reference to ‘external events’ does 

not broaden the provision beyond Chief Justice Roberts’s test.” 2011 WL 

2457730, at *9 

 In short, since Virginia Society was decided, new Supreme Court case law – 

including McConnell, WRTL and Citizens United, has in effect overruled this 

Court’s decision. McConnell made clear that the “magic words” standard was 

“functionally meaningless.” 540 U.S. at 190. WRTL made clear that express 

advocacy is not limited to magic words – but may also include communications 

that can only be interpreted to appeal to vote for or against a candidate. Finally, 

Citizens United declared that for the purposes of disclosure, regulation can extend 

even beyond communications that meet the WRTL “appeal-to-vote” test. All three 

cases thus strongly support the constitutionality of subpart (b), and indeed suggest 

that disclosure-related regulation may sweep yet more broadly. 

This Court was thus correct in denying RTAO preliminary relief on this 

claim in 2009, and the district court was correct in granting defendant-appellees 

summary judgment. If the WRTL test is constitutional – and Citizen United only 

further supports its validity – then so too is the virtually identical subpart (b) test. 

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III. The FEC’s “Major Purpose” Policy Is Constitutional.

RTAO also challenges the FEC’s implementation of the “major purpose” 

test for “political committee” status. In particular, RTAO claims that the FEC’s 

application of the major purpose test is unconstitutional because it is based on “ad 

hoc, case-by-case, analysis of vague and impermissible factors.” App. Br. at 56. 

The district was correct in rejecting RTAO’s objections, and this Court should 

affirm this decision. 

The so-called “major purpose” test was first articulated by the Supreme 

Court in Buckley in its analysis of FECA’s disclosure requirements. 424 U.S. at 

78-81. FECA established disclosure requirements both for individuals and for 

“political committees,” prompting the Court to address constitutional concerns that 

the statutory definition of the term “political committee” was overbroad and, to the 

extent it incorporated the definition of “expenditure,” vague as well. The Court 

feared that because the term “expenditure” potentially “encompass[ed] both issue 

discussion and advocacy of a political result,” the “political committee” definition 

(which relies on the definition of “expenditure”) might “reach groups engaged 

purely in issue discussion.” Id. at 79. 

The Buckley Court resolved these concerns by narrowing the definition of 

“political committee” to only “encompass organizations that are under the control 

of a candidate or the major purpose of which is the nomination or election of a 

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candidate.” Id. (emphasis added). For such “major purpose” groups, the Court had 

no vagueness concern about the statutory definition of “expenditure” because, the 

Court held, “expenditures” by such groups “are, by definition, campaign related.” 

Id. (emphasis added). 

In MCFL, the Court expressed the “major purpose” test in slightly different 

terms, describing political committees as “those groups whose primary objective is 

to influence political campaigns.” 479 U.S. at 262 (emphasis added). The Court in

McConnell restated the “major purpose” test for political committee status as 

articulated by Buckley. 540 U.S. at 170 n.64. 

 RTAO argues that the FEC’s implementation of the “major purpose” test, as 

set forth in its most recent statement on the question, see FEC Notice 2007-3, 

“Political Committee Status,” 72 Fed. Reg. 5595 (Feb. 7, 2007), represents an 

impermissible inquiry into “various vague and overbroad factors.” App. Br. at 55. 

It asserts that the FEC, in implementing the “major purpose” test, instead may 

make only two inquiries. First, RTAO claims that the FEC can examine whether a 

group’s express advocacy expenditures constitute a majority of its total 

disbursements. Id. at 51. Alternatively, RTAO states that the FEC can examine a 

group’s “organic documents” – but only those documents – to determine if they 

contain an “express intention” to operate as a political committee. Id. at 52. 

According to RTAO, the FEC may make no other inquiry. 

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 But these are limitations that RTAO simply makes up. It cites MCFL as 

support, see id. at 51-52, but this case contained no such restrictions on 

determinations of major purpose. 479 U.S. at 262.6

 The test set forth in Supreme 

Court precedent is whether a group’s “major purpose” or “primary objective” is 

“the nomination or election of a candidate” or “campaign activity” or “to influence 

political campaigns.” Buckley, 424 U.S. at 78-81; MCFL, 479 U.S. at 262. The 

Court has not limited the scope of the FEC’s inquiry into a group’s major purpose 

along the lines suggested by RTAO. As this Court found in its 2009 decision, 

“The approach taken by the Federal Election Commission in this regulation, 

however, appears simply to be adopted from Supreme Court jurisprudence that 

takes a fact-intensive approach to determining the major purpose of a particular 

organization’s contributions.” RTAO, 575 F.3d at 351. 

 

6

 RTAO also cites Colorado Right to Life Committee v. Coffman, 498 F.3d 

1137 (10th Cir. 2007), in support of its argument, but this case actually undercuts 

RTAO’s position. App. Br. at 52-53. The Coffman Court stated that the “major 

purpose” determination should focus on “(1) examination of the organization’s 

central organizational purpose; or (2) comparison of the organization’s 

independent spending with overall spending to determine whether the 

preponderance of expenditures are for express advocacy or contributions to 

candidates.” 498 F.3d at 1152. The Court thus did not limit the inquiry in the 

manner RTAO suggests, but rather allowed the FEC to conduct an assessment of 

the “organization’s central organizational purpose,” without limiting what 

documents or activities would be relevant to this assessment. Certainly, the Court 

did not suggest that only the organization’s “organic documents” could be 

reviewed under this prong. 

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Further, a federal district court in Washington, D.C. recently approved the 

FEC’s “fact intensive approach” to this major purpose determination. Shays v. 

FEC, 511 F. Supp. 2d 19, 29 (D.D.C. 2007). There, the plaintiff sought a judicial 

determination requiring the FEC to issue a regulation governing when “527 

organizations” (like RTAO) would be deemed political committees. The FEC 

defended its decision to not adopt a regulation but, instead, to make political 

committee status determinations through enforcement actions, arguing that the 

major purpose doctrine “requires the flexibility of a case-by-case analysis of an 

organization’s conduct,” including “sufficiently extensive spending on federal 

campaign activity,” “the content of [a group’s] public statements,” “internal 

statements of the organization,” “all manner of the organization’s spending” and 

“the organization’s fundraising appeals.” Id. The district court approved the 

FEC’s approach, noting that “Buckley established the major purpose test, but did 

not describe its application in any fashion.” Id. See also FEC v. Malenick, 310 F. 

Supp. 2d. 230, 234 (D.D.C. 2004), quoting FEC v. GOPAC, 917 F. Supp. 851, 859 

(D.D.C. 1996) (“An organization’s purpose may be evidenced by its public 

statements of its purpose or by other means, such as its expenditures in cash or in 

kind to or for the benefit of a particular candidate or candidates.”). 

RTAO’s invocation of the Citizens United decision does not save its 

argument. Citizens United did not address the determination of political committee 

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29 

status, much less the FEC’s methodology for assessing a group’s “major purpose.” 

It has no application here. Indeed, RTAO does not really attempt to argue 

otherwise. It simply alleges that the Supreme Court criticized the FEC’s rule 

implementing WRTL, see 11 C.F.R. § 114.15, and implies this court should be 

similarly critical of the FEC’s “major purpose” policy. App. Br. at 49-50. But, as 

explained in Section II supra, this is not a legal argument; it is a non sequitur, and 

should be dismissed as such. 

Nor does North Carolina Right to Life (NCRL) v. Leake, 525 F.3d 274 (4th 

Cir. 2008) provide support for RTAO’s position. In NCRL, this Court described 

the “major purpose” test as an inquiry into whether an organization has the major 

purpose “of supporting or opposing a candidate” and said that political committee 

status is “only proper if an organization primarily engages in election-related 

speech.” 525 F.3d at 288 (emphasis added). The Court further said that the test is 

to be implemented by examining, inter alia, whether “the organization spends the 

majority of its money on supporting or opposing candidates.” Id. at 289 (emphasis 

added). None of these formulations states or implies the kind of “narrow majorpurpose test” that RTAO advocates. 

 In short, the Supreme Court in Buckley added the “major purpose” test as a 

gloss to narrow statutory definition of “political committee.” But neither the 

Supreme Court nor any lower court has constricted the scope of the “major 

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30 

purpose” inquiry as narrowly as RTAO proposes. This Court should therefore 

affirm the district court decision – and its own earlier decision – to reject RTAO’s 

challenge to the FEC’s “major purpose” policy. 

CONCLUSION 

For the foregoing reasons, this Court should affirm the district court’s 

decision below. 

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31 

Respectfully submitted, 

J. Gerald Hebert 

/s/ Tara Malloy 

Tara Malloy 

Paul S. Ryan 

THE CAMPAIGN LEGAL CENTER

215 E Street, N.E. 

Washington, D.C. 20002 

(202) 736-2200 

 

Fred Wertheimer 

DEMOCRACY 21 

2000 Massachusetts Avenue, N.W. 

Washington, D.C. 20036 

(202) 355-9600 

Donald J. Simon 

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Counsel for Amici Curiae

 

Dated: October 27, 2011 

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i 

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 6959 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

 This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft 

Office Word 2007 in Times New Roman 14 point font. 

/s/ Tara Malloy 

Tara Malloy 

THE CAMPAIGN LEGAL CENTER

215 E Street, NE 

Washington, D.C. 20002 

Dated: October 27, 2011 

Appeal: 11-1760 Document: 26-1 Date Filed: 10/27/2011 Page: 38 of 40
ii 

CERTIFICATE OF SERVICE

I certify that on October 27, 2011, I electronically filed a copy of the 

foregoing document using the CM/ECF system, which will then send a 

notification of such filing on the following counsel of record at the listed e-mail 

addresses: 

James Bopp, Jr., 

 jboppjr@aol.com 

Richard Eugene Coleson, 

 rcoleson@bopplaw.com 

Kaylan Lytle Phillips, 

 kphillips@bopplaw.com 

BOPP, COLESON AND BOSTROM 

1 South 6th St. 

Terre Haute, IN 47807-3510 

Michael Boos, 

 michael.boos@gte.net 

Attorney & Counselor at Law 

4101 Chain Bridge Road, Suite 313 

Fairfax, VA 22030 

Counsel for Plaintiff-Appellant 

David Kolker, 

 dkolker@fec.gov 

Harry J. Summers, 

 hsummers@fec.gov 

Adav Noti, 

 anoti@fec.gov 

FEDERAL ELECTION 

COMMISSION 

999 E Street, NW 

Washington, DC 20463-0000 

Neil H. MacBride, 

 usavae.alx.ecf.nar@usdoj.gov 

OFFICE OF THE UNITED STATES 

ATTORNEY 

2100 Jamieson Avenue 

Alexandria, VA 22314-5194 

Debra J. Prillaman, 

 debra.prillaman@usdoj.gov 

OFFICE OF THE UNITED STATES 

ATTORNEY 

Suite 1800 

Main Street Center 

600 E. Main Street 

Richmond, VA 23219-0000 

Appeal: 11-1760 Document: 26-1 Date Filed: 10/27/2011 Page: 39 of 40
iii 

Michael S. Raab, 

 michael.raab@usdoj.gov 

Daniel Tenny, 

 daniel.tenny@usdoj.gov 

U.S. DEPARTMENT OF JUSTICE 

950 Pennsylvania Avenue, NW 

Washington, DC 20530-0001 

Counsel for Defendants-Appellees

I further certify that courtesy copies of the brief were sent to the above 

counsel on October 27, 2011 via email (where email addresses were available 

and known). 

I also caused the original and seven true and correct printed copies to be 

filed with the Clerk by mailing them via First Class mail, postage prepaid, to the 

following address: 

Patricia S. Connor, Clerk 

U.S. Court of Appeals for the Fourth Circuit 

1100 East Main Street, Suite 501 

Richmond, Virginia 23219-3517 

/s/ Tara Malloy 

Tara Malloy

THE CAMPAIGN LEGAL CENTER

215 E Street, NE 

Washington, D.C. 20002 

Dated: October 27, 2011 

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