United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2013 Decided August 5, 2014 

No. 13-5008 

STOP THIS INSANITY INC EMPLOYEE LEADERSHIP FUND, ET 

AL., 

APPELLANTS

v. 

FEDERAL ELECTION COMMISSION, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:12-cv-01140) 

Tara A. Brennan argued the cause for appellants. With 

her on the briefs were Tillman J. Breckenridge, Patricia E. 

Roberts, and Dan Backer. 

Erin Chlopak, Attorney, Federal Election Commission, 

argued the cause for appellee. With her on the brief were 

Anthony Herman, General Counsel, Kevin Deeley, Acting 

Associate General Counsel, and Steve Hajjar, Attorney. Adav 

Noti, Attorney, Federal Election Commission, entered an 

appearance. 

Before: BROWN and GRIFFITH, Circuit Judges, and 

SENTELLE, Senior Circuit Judge. 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 1 of 13
2 

Opinion for the Court filed by Circuit Judge BROWN. 

Senior Circuit Judge SENTELLE concurs in the judgment. 

BROWN, Circuit Judge. The iconic musician Mick Jagger 

famously mused, “You can’t always get what you want. But 

if you try sometimes, well, you just might find, you get what 

you need.” The Rolling Stones, You Can’t Always Get What 

You Want, on Let It Bleed (Decca Records 1969). Here, Stop 

This Insanity—a grassroots organization—wants to remove 

the congressionally-imposed binds on solicitation by separate 

segregated funds, a type of political action committee 

connected to a parent corporation. What it needs, however, it 

already has—an unrestrained vehicle, in the form of that 

parent corporation, which can engage in unlimited political 

spending. Because this less-obsolete and less-onerous 

alternative exists, we decline Stop This Insanity’s invitation 

for us to tinker with what has become a statutory artifact. 

I 

 The Federal Election Campaign Act sets forth ground 

rules for, inter alia, the participation of corporations in the 

electoral process. See 2 U.S.C. § 441b; FEC v. Beaumont, 

539 U.S. 146, 149 (2003). Corporations, for example, cannot 

contribute directly to candidates for federal office or parties. 

2 U.S.C. § 441b(a). And before the Supreme Court’s decision 

in Citizens United v. FEC, 558 U.S. 310 (2010), they could 

not use their treasuries to pay for independent expenditures, 

i.e., funds used to expressly advocate for or against a 

candidate. See 2 U.S.C. § 441b(a); see also id. § 431(17); 

Citizens United, 558 U.S. at 320–21, 372. But the preCitizens United landscape did not leave corporations 

completely exiled from the political process. Instead, the Act 

permitted limited corporate participation through separate 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 2 of 13
3 

segregated funds, a type of political action committee. 2 

U.S.C. § 441b(b)(2), 431(4)(B). “Though the treasuries of a 

corporation and its fund [were to be] kept separate, a 

corporation [could] nonetheless control how the separate 

segregated fund [spent] its money.” FEC v. NRA, 254 F.3d 

173, 179–80 (D.C. Cir. 2001) (citations omitted). A fund was 

“separate . . . only in the sense that there [was] a strict 

segregation of its monies from the corporation’s other assets.” 

FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 200 n.4 

(1982) (internal quotation marks omitted). 

 These funds, however, came with strings attached. They 

were subject to organizational, recordkeeping, and reporting 

requirements. See 2 U.S.C. §§ 432–34. The Act also placed 

constraints on the funds’ ability to solicit. For one, the Act 

restricted whom the funds could solicit: only the connected 

company’s stockholders, executives, and administrative 

personnel, in addition to their respective families. See id. 

§ 441b(b)(4)(A)(i); see also Citizens United, 558 U.S. at 321. 

Solicitation of the public was off limits. See McConnell v. 

FEC, 540 U.S. 93, 118 n.3 (2003), overruled on other 

grounds by Citizens United, 558 U.S. at 310 (“As a general 

rule, [the Act] permits corporations . . . to solicit contributions 

to their PACs from their shareholders or members, but not 

from outsiders.”). The other major restriction came in the 

form of when the funds could solicit: twice yearly to any 

corporate employee or family member thereof, with responses 

being anonymous. See 2 U.S.C. § 441b(b)(4)(B). But with 

the strings came benefits: because the funds were so closely 

tied to their parent corporations, they were not required to 

disclose the corporation’s contributions or expenditures for 

“the establishment, administration, and solicitation of 

contributions.” Id. § 441b(b)(2)(C). Citizens United, of 

course, did away with the ban on corporate independent 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 3 of 13
4 

expenditures. But the funds—now functionally obsolete—

still remained. 

 Stop This Insanity, Inc. (“STII” or “the Corporation”) is a 

corporation that had a past life as a “nonconnected,” 

standalone political action committee engaged in political 

advocacy. See Appellee’s Br. at 14. It later deregistered as 

such a committee, and instead formed a segregated fund—the 

Employee Leadership Fund (“the Fund”). See J.A. at 10. The 

Corporation asked the Federal Election Commission (“the 

Commission”) for guidance on whether the Fund could open a 

separate unrestricted account devoted to making independent 

expenditures that could solicit the general public. See J.A. at 

31–34. The Commission’s response was the regulatory 

equivalent of a shrug—one memorandum said yes, while 

another one said no. See J.A. at 41–71. At an impasse, the 

Commission declined to issue advice. J.A. at 73. 

 Unhappy with this nonresponse, STII, the Fund, two 

individuals, and another corporation filed a complaint in 

district court, alleging the restrictions on the segregated fund 

were unconstitutional. J.A. at 4–11. The plaintiffs moved for 

a preliminary injunction. J.A. at 79–81. The Commission 

moved to dismiss. J.A. at 185–89. Siding with the 

Commission, the district court dismissed the case. See Stop 

This Insanity, Inc. Employee Leadership Fund v. FEC, 902 F. 

Supp. 2d 23 (D.D.C. 2012). The plaintiffs timely appealed.1

 

 

 

1

 We lack jurisdiction over the individuals’ claims, as they were not 

made through the en banc certification process prescribed in 2 

U.S.C. § 437h. See Wagner v. FEC, 717 F.3d 1007, 1016 (D.C. 

Cir. 2013). 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 4 of 13
5 

II 

 Simply put, Stop This Insanity would like to use its 

segregated fund to solicit the entire public while concealing 

its expenses for such solicitation. It claims Citizens United 

compels such a result. Even assuming the Corporation’s 

constitutional analysis is correct, it is far from a foregone 

conclusion that the Act is severable in a way that would 

eliminate the restrictions but leave intact the partial waiver on 

disclosure. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 

685 (1987) (“The more relevant inquiry in evaluating 

severability is whether the statute will function in a manner 

consistent with the intent of Congress.” (emphasis added)). 

Thankfully, we need not make that determination, for STII’s 

arguments fall short on the merits. We review de novo the 

district court’s grant of a motion to dismiss for failure to state 

a claim. Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 

2012). 

A 

 Political participation is integral to our democratic 

government; for this reason, limitations on political 

contributions and expenditures “operate in an area of the most 

fundamental First Amendment activities.” Buckley v. Valeo, 

424 U.S. 1, 14 (1976) (per curiam). Accordingly, limits on 

independent expenditures, which do not implicate the 

anticorruption rationale, are subjected to the highest form of 

scrutiny and are generally unconstitutional. See, e.g., Citizens 

United, 558 U.S. at 340, 357. Limits on direct contributions 

to candidates to avoid corruption or the appearance of 

corruption, however, are tolerated, subjected to a milder form 

of scrutiny. See Buckley, 424 U.S. at 25; see also McConnell, 

540 U.S. at 140–41. 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 5 of 13
6 

 Congress crafted the segregated fund scheme at a time 

when this reality was not fully realized—in other words, at a 

time when direct participation by corporations was banned. 

Segregated funds were limited vehicles through which 

corporations could participate in the political process. See 

NRA, 254 F.3d at 179 (“Notwithstanding [the Act’s] 

prohibition[s], . . . the statute does permit corporations to 

participate in the electoral process in a limited fashion.”). 

After Citizens United, segregated funds became a vintage—

yet still operable—relic. Though these funds have the 

advantage of being able to directly contribute to candidates—

something parent corporations still cannot do—they are no 

longer necessary for independent expenditures. And yet, STII 

decided to form a separate segregated fund. 

 The crux of the Corporation’s argument is simple: 

Citizens United prohibits restrictions based on distinctions 

between organizational entities, and such restrictions are 

subject to our highest form of scrutiny. Because segregated 

funds are singled out for the solicitation restrictions, STII 

reasons the constraints should be subjected to the more 

exacting half of the Buckley paradigm. 

 We do not share the Corporation’s confidence that 

Citizens United is apposite here. This case does not present 

an “outright ban” on political speech, see Citizens United, 558 

U.S. at 337; it is governmental “regulat[ion] [of] corporate 

political speech,” not suppression, see id. at 319. Indeed, the 

Citizens United Court even acknowledged the existence of 

these segregated funds—as the so-called counterparts to the 

then-speechless corporate entities, the funds formed a critical 

part of the Court’s analysis. See id. at 321. The Court 

indicated these segregated funds were capable of speaking, 

not unduly restrained by their various obligations. In no 

uncertain terms, the Court stated “a PAC created by a 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 6 of 13
7 

corporation can still speak.” Id. at 337; see id. at 338 (“PACs 

have to comply with these regulations just to speak.”); id. at 

339 (“PACs, furthermore, must exist before they can speak.”). 

Never did the Court suggest the statutory scheme for 

segregated funds “muzzled” their speech. See Appellants’ Br. 

at 15. 

 There are other reasons for considering Citizens United 

inapposite. The corporation in that case was thrust into a 

scenario where its only avenue of speech was a type of 

entity—the political action committee—that could not speak 

on behalf of the corporation and was a “burdensome 

alternative[].” Id. at 337 (“A PAC is a separate association 

from the corporation. . . . Even if a PAC could somehow 

allow a corporation to speak—and it does not—the option to 

form PACs does not alleviate the First Amendment 

problems. . . . PACs are burdensome alternatives; they are 

expensive to administer and subject to extensive 

regulations.”). Contrary to the representations of Appellants’ 

counsel at oral argument, the converse is not true. Nothing 

prevents the corporation from speaking on behalf of the PAC; 

in fact, the regulatory scheme specifically provides for such 

activity, albeit with strings attached. See 11 C.F.R. § 

114.5(g). Moreover, independent expenditures are less 

burdensome through the corporate alternative. Despite the 

availability of a more robust option—at least, when it comes 

to independent expenditures—the Corporation has decided to 

do things the hard way. And now, trapped in a snare it has 

fashioned for itself, STII decries its inability to use the Fund 

in the way it sees fit—without the limits Congress attached to 

the operation of these funds. 

 That observation exposes the critical flaw in the 

Appellants’ argument. This case does not present a choice 

between “unfettered political speech and subjection to 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 7 of 13
8 

discriminatory fundraising limitations.” Davis v. FEC, 554 

U.S. 724, 739 (2008); cf. Buckley, 424 U.S. at 57 n.65. STII’s 

decision to form the more cumbersome segregated fund was 

purely voluntary; the statutory scheme did not compel the 

Corporation to form the segregated fund, lest it be without a 

vehicle for political speech in the form of independent 

expenditures. The Corporation even acknowledged the 

tradeoff; in its advisory opinion request to the Commission, 

STII noted the “distinction between Connected and NonConnected PACs,” and “the trade-off between the subsidized 

administrative and operating costs . . . and the corresponding 

restriction on fundraising.” J.A. at 33. By clothing itself in 

the letter of Citizens United, the Corporation claims there is a 

constitutional right to do things the hard way. We cannot 

sanction such an illogical conclusion. 

As the Appellants observe, the Court did make it clear the 

First Amendment prohibits the silencing of an entire class of 

speakers, i.e., corporations, see Citizens United, 558 U.S. at 

341–42, because they were “disfavored associations of 

citizens,” id. at 356. In conjunction with this observation, the 

Appellants also cite our pre-Citizens United decision in 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009), where we 

held “hybrid” political action committees are entitled to 

unlimited expenditure accounts. According to the Appellants’ 

legal arithmetic, Citizens United “eliminated distinctions 

between” various organizational forms; ergo, it should have 

access to the same type of unlimited expenditure account 

sought in EMILY’s List, notwithstanding the fact that the Fund 

is not a “hybrid” political action committee. See Appellants’ 

Br. at 21. 

 But it would be disingenuous to say the Corporation is 

simply seeking equalization across different types of 

organizations. The type of account EMILY’s List sought in 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 8 of 13
9 

that case also came with strings: disclosure requirements, the 

sort the Appellants are endeavoring to avoid. Cf. EMILY’s 

List, 581 F.3d at 19 n.16 (“This case does not involve 

reporting and disclosure obligations.”). What the Appellants 

are looking for, no political action committee has. 

 Solicitation restrictions are difficult to categorize, as they 

do not fit neatly into the Buckley framework. But Citizens 

United aside, we have other reasons for concluding the 

restrictions here are not properly treated as constraints on 

independent expenditures. For one, they “do[] not restrict the 

amount or manner in which . . . [a political entity] can spend

money.” Siefert v. Alexander, 608 F.3d 974, 988 (7th Cir. 

2010) (emphasis added). Nor can we say the restriction truly 

silences the segregated fund as the speaker—instead, it serves 

to “limit contributions . . . from certain persons or groups,” 

i.e., non-employees, in exchange for administrative ease. 

Wolfson v. Concannon, 750 F.3d 1145, 1153 (9th Cir. 2014) 

(emphasis omitted). Though STII suggests the First 

Amendment allows the unfettered ability to solicit, “[n]either 

the right to associate nor the right to participate in political 

events is absolute. Nor are the management, financing, and 

conduct of political campaigns wholly free from 

governmental regulation.” U.S. Civil Serv. Comm’n v. Nat’l 

Ass’n of Letter Carriers, 413 U.S. 548, 567 (1973) (citations 

omitted); see id. at 567 n.13 (citing, inter alia, a ban on the 

solicitation of political contributions). Though we cannot 

speak to solicitation restrictions generally, this idiosyncratic 

and outmoded congressional arrangement is not deserving of 

the closest sort of scrutiny. 

B 

 What Citizens United does do, however, is highlight the 

oddity of the segregated funds’ existence in the wake of that 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 9 of 13
10 

case. STII insists we treat the Fund as if it existed in 

isolation, with a distinct set of constitutional protections 

attendant to it. But it is unclear whether our analysis should 

be so formalistic. Cf. Burwell v. Hobby Lobby Stores, Inc., --- 

S. Ct. ----, 2014 WL 2921709, at *13 (U.S. June 30, 2014). 

After all, the Corporation begot the Fund, the Corporation 

runs the Fund, and there is a great deal of—if not complete—

overlap between the political speech of the Corporation and 

that of the Fund. See Nat’l Right to Work Comm., 459 U.S. at 

200 n.4 (“The separate segregated fund may be completely 

controlled by the sponsoring corporation or union, whose 

officers may decide which political candidates’ contributions 

to the fund will be spent to assist.”). If the Corporation and 

the Fund are two parts of the same whole, neither likely has a 

First Amendment claim; if the Fund is unable to speak on an 

issue or candidate of concern, the Corporation can, making 

any burden “merely theoretical,” rather than substantial. See 

Buckley, 424 U.S. at 19. And that would extinguish any First 

Amendment claim. See Libertarian Party of Ohio v. Husted, 

751 F.3d 403, 418 (6th Cir. 2014) (describing the nature of 

the “burden imposed on core First Amendment activity” as 

“largely theoretical and speculative”). 

 But let us assume STII is right in stating the Fund should 

be assessed in isolation. We must discern whether the 

Government has demonstrated “a sufficiently important 

interest” and “employ[ed] means closely drawn to avoid 

unnecessary abridgement of associational freedoms.” 

Buckley, 424 U.S. at 25. STII is resolute in asserting there 

can be no governmental interest other than preventing quid 

pro quo corruption, which it claims is not present here. See 

Reply Br. at 8; see also EMILY’s List, 581 F.3d at 6 (“[T]he 

Court has recognized a strong governmental interest in 

combating corruption and the appearance thereof. This, 

indeed, is the only interest the Court thus far has recognized 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 10 of 13
11 

as justifying campaign finance regulation.” (citations 

omitted)). 

 The Commission does not necessarily dispute the first 

half of that observation; instead, its position reflects an 

anticorruption interest more robust than the anemic one 

portrayed by the Appellants. See McCutcheon v. FEC, 134 S. 

Ct. 1434, 1459 (2014) (plurality opinion) (“Disclosure 

requirements are in part ‘justified based on a governmental 

interest in “provid[ing] the electorate with information” about 

the sources of election-related spending.’” (quoting Citizens 

United, 558 U.S. at 367)). The evolving technological and 

political landscape has altered the scope of the anticorruption 

rationale. See id. at 1460 (“Today, given the Internet, 

disclosure offers much more robust protections against 

corruption. . . . Because massive quantities of information can 

be accessed at the click of a mouse, disclosure is effective to a 

degree not possible at the time Buckley, or even McConnell, 

was decided.”). Although McCutcheon intimates disclosure is 

an obvious antidote to corruption and so appropriately 

included within the anticorruption rationale, the correlation is 

not self-evident and disclosure cannot be reflexively 

substituted as the Commission’s raison d’etre. Not every 

intrusion into the First Amendment can be justified by 

hoisting the standard of disclosure. Buckley, 424 U.S. at 64. 

 As the Appellants point out, we observed in 

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

banc), that “[a]n informational interest in ‘identifying the 

sources of support for and opposition to’ a political position 

or candidate is not enough to justify [a] First Amendment 

burden.” Id. at 692 (citing Citizens Against Rent Control v. 

City of Berkeley, 454 U.S. 290, 298 (1981)). But the en banc 

court, in rejecting First Amendment challenges to 

organizational and reporting requirements, remarked “the 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 11 of 13
12 

public has an interest in knowing who is speaking about a 

candidate and who is funding that speech, no matter whether 

the contributions were made towards administrative expenses 

or independent expenditures.” Id. at 698. The Commission 

clings to that interest now, claiming it is “protect[ing] the . . . 

First Amendment rights of the public to know the identity of 

those who seek to influence their vote.” Appellee’s Br. at 39 

(citing Citizens United, 558 U.S. at 369–71). There may be 

circumstances in which disclosure requirements could 

facilitate intimidation and give free rein to animus in a way 

that impoverishes and inhibits public debate instead of 

protecting First Amendment concerns. See, e.g., NAACP v. 

Alabama, 357 U.S. 449 (1958); see also McConnell, 124 S. 

Ct. at 735–36 (Thomas, J., concurring in the judgment). But 

this is no such case; STII makes no attempt to refute the 

legitimacy of the interest invoked here or examine how 

closely the restrictions on the segregated fund hew to the 

interest. Instead, its response is “only quid pro quo”—hardly 

a response at all. Therefore, we are satisfied with the 

Commission’s explanation for maintaining the status quo. If 

the Fund wishes to solicit freely, it must do so in the light. 

 STII is already capable of sweeping solicitation. And 

yet, it wants a vehicle capable of soliciting without 

transparency. The Court has endorsed disclosure as “a 

particularly effective means of arming the voting public with 

information,” McCutcheon, 134 S. Ct. at 1460, and the 

Appellants’ approach would stifle the Government’s ability to 

achieve that endeavor. Our Constitution does not compel 

such a result. 

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 12 of 13
13 

III 

 We may never know why the Appellants wish to do 

things the hard way. The Constitution, however, does not 

guarantee a right to be obstinate. Try as it might, STII will 

get no satisfaction. The district court’s dismissal is 

Affirmed.

USCA Case #13-5008 Document #1506093 Filed: 08/05/2014 Page 13 of 13