No. 08-1977 

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, Richmond Division, Case No. 3:08-cv-00483-JS 

UNOPPOSED MOTION OF CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 FOR LEAVE TO FILE BRIEF AMICI CURIAE 

SUPPORTING DEFENDANTS-APPELLEES AND URGING 

AFFIRMANCE

The Campaign Legal Center (CLC) and Democracy 21 respectfully move 

for leave to participate as amici curiae and to file the attached Brief Amici Curiae

in Support of Defendants-Appellees and Urging Affirmance. Counsel for both 

appellant and appellees have consented to this motion; it is unopposed. 

In support of this motion, amici movants state: 

1. Plaintiff-appellant The Real Truth About Obama, Inc. (RTAO) is 

appealing the decision of the U.S. District Court of the Eastern District of Virginia 

to deny its motion for a preliminary injunction to enjoin certain Federal Election 

Commission (FEC) regulations and policies. See RTAO v. FEC, Memorandum 
 2

Opinion, No. 08-CV-483, 2008 WL 4416282 (E.D. Va. Sept. 24, 2008) (Spencer, 

J.); see also Order, No. 08-CV-483 (E.D. Va. Sept. 11, 2008). These regulations 

and policies collectively establish when a political organization such as RTAO 

must abide by the “political committee” requirements in the Federal Election 

Campaign Act (FECA), as well as when a corporation is prohibited from using 

general treasury funds to pay for an “electioneering communication.” Specifically, 

RTAO sought to have enjoined FEC regulations defining “expressly advocating” 

(11 C.F.R. § 100.22(b)), defining “contribution” (11 C.F.R. § 100.57), and 

interpreting the Supreme Court’s 2007 decision in FEC v. Wisconsin Right to Life, 

127 S. Ct. 2652 (2007) (“WRTL II”), (11 C.F.R. § 114.15). 

2. The CLC is a non-profit, non-partisan organization created to 

represent the public perspective in administrative and legal proceedings 

interpreting and enforcing the campaign and media laws throughout the nation. It 

participates in rulemaking and advisory opinion proceedings at the FEC to ensure 

that it is properly enforcing federal election laws, and files complaints with the 

Commission requesting that enforcement actions be taken against individuals or 

organizations which violate the law. 

3. Democracy 21 is a non-profit, non-partisan policy organization that 

works to ensure the integrity of our democracy. It supports campaign finance and 

other political reforms, and conducts public education efforts to accomplish these 
 3

goals, participates in litigation involving the constitutionality and interpretation of 

campaign finance laws and engages in efforts to help ensure that campaign finance 

laws are effectively and properly enforced and implemented. 

4. The amici movants have substantial experience and expertise in the 

issues raised in this case. The amici movants participated in the litigation below, 

and filed an amici brief with the district court to oppose RTAO’s motion for a 

preliminary injunction and to defend the constitutionality of the FEC regulations 

and policies. 

5. The amici movants also participated extensively in the FEC 

rulemaking proceedings that produced several of the regulations challenged here. 

The amici movants filed public comments in the rulemaking that produced 11 

C.F.R. § 100.57, regarding the solicitation of contributions.1

 This rulemaking also 

dealt more generally with the FEC’s policy of regulating groups, such as RTAO, 

that are organized under section 527 of the Internal Revenue Code, 26 U.S.C. § 

527, as federal political committees, which RTAO likewise challenges in the 

present case. Further, the amici movants participated in the FEC rulemaking 

proceedings to interpret the Supreme Court decision in WRTL II, which led to the 

 

1

 Comments of Democracy 21, Campaign Legal Center and Center for 

Responsive Politics on FEC Notice 2004-6 (Political Committee Status) (April 5, 

2004), available at http://www.fec.gov/pdf/nprm/political_comm_status/simon_ 

potter_nobel_sanford.pdf. 
 4

FEC’s promulgation of another regulation challenged in this law suit, 11 C.F.R. § 

114.15.2

 The amici movants have also filed numerous administrative complaints 

with the FEC challenging the failure of various 527 groups to register as federal 

political committees in violation of the FEC’s political committee enforcement 

policy.3

 The amici movants thus have a significant interest in this case and can 

materially contribute to the Court’s consideration of RTAO’s claims. 

6. The amici movants also have substantial expertise in litigation 

regarding the specific laws at issue in this case and campaign finance laws more 

generally. The CLC and Democracy 21 have provided legal counsel to parties or 

amici in numerous campaign finance cases, including representing intervening 

defendants in McConnell v. FEC, 540 U.S. 93 (2003). More recently, the CLC and 

Democracy 21 represented parties in Wisconsin Right to Life v. FEC, 126 S.Ct. 

1016 (2006) (WRTL I) and WRTL II, 127 S.Ct. 2652 (2007), lawsuits which 

substantially underlie RTAO’s claims in the present case. The CLC and 

 

2

 Comments of the Campaign Legal Center, Democracy 21, the Brennan 

Center, Common Cause, the League of Women Voters and U.S. PIRG on FEC 

Notice 2007-16 (Electioneering Communications) (Oct. 1, 2007), available at 

http://www.fec.gov/pdf/nprm/electioneering_comm/2007/campaign_legal_center_

democracy21_brennan_center_for_justice_commoncause_league%20_of_women_

voters_uspirg_eccomment7.pdf. 

3

 E.g., Complaint, Democracy 21 et al. v. America Coming Together (FEC 

June 22, 2004) (MUR 5403); Complaint, Democracy 21 et al. v. The Media Fund, 

(FEC Jan. 15, 2004) (MUR 5440); Complaint, Democracy 21 et al. v. Progress for 

America Voter Fund (FEC July 21, 2004) (MUR 5487); Complaint, Democracy 21 

et al. v. Swift Boat Veterans for Truth (FEC Aug. 10, 2004) (MUR 5511). 
 5

Democracy 21 are presently participating as amici curiae in SpeechNow.org v. 

FEC, --- F. Supp. 2d ---, 2008 WL 2698652 (D.D.C. July 1, 2008) (Memorandum 

Order Denying Motion for Preliminary Injunction), a pending civil action that 

likewise challenges the FEC’s regulation of political organizations as “political 

committees.” The CLC and Democracy 21 have also represented parties or amici 

in the following cases relating to the interpretation of the federal and state 

campaign finance laws: Randall v. Sorrell, 126 S.Ct. 2479 (2006); Shays v. FEC 

(“Shays I”), 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d 414 F.3d 76 (D.C. Cir. 2005); 

and Shays v. FEC (“Shays III”), 528 F.3d 914 (D.C. Cir. 2008). 

7. Amici movants believe the attached Brief Amici Curiae in Support of 

Defendants-Appellees and Urging Affirmance will assist the Court in considering 

the issues presented in this case. This filing is timely because this motion and the 

attached memorandum are being filed on the date that the principal briefs of 

appellees are due. 

9. Pursuant to Fed. R. App. P. 29(a) and Local Rule 27(a), counsel for 

appellant RTAO and appellees FEC and United States Department of Justice were 

contacted about their consent to the filing of the attached memorandum. All 

parties have consented to the amici-movants’ participation. 
 6

Wherefore, amici-movants respectfully request that the Court grant leave to 

file the attached Brief Amici Curiae in Support of Defendants-Appellees and 

Urging Affirmance. 

Respectfully submitted, 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W. 

Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Amicus Curiae

 Democracy 21 

/s/ J. Gerald Hebert

J. Gerald Hebert 

(Va. Bar No.38432) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

Tara Malloy 

(NY Bar No. 4251005) 

THE CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., N.W. 

Suite 650 

Washington, DC 20036 

Tel: (202) 736-2200 

Counsel for Amicus Curiae

 Campaign Legal Center 

Dated: October 28, 2008 
 7

CERTIFICATE OF FILING AND PROOF OF SERVICE

This is to certify that on October 28, 2008, I electronically filed the 

foregoing UNOPPOSED MOTION OF THE CAMPAIGN LEGAL CENTER 

AND DEMOCRACY 21 FOR LEAVE TO FILE MEMORANDUM AS AMICI 

CURIAE using the Court’s CM/ECF system, which will then send a notification of 

such filing to the following: 

James Bopp, Jr., jboppjr@aol.com 

Clayton James Callen, ccallen@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Eric Fleisig-Greene, eric.fleisig-greene@usdoj.gov 

Debra J. Prillaman, debra.prillaman@usdoj.gov

Adav Noti, anoti@fec.gov 

David Kolker, dkolker@fec.gov 

In addition, a courtesy copy of the motion was sent on October 28, 2008 by 

email, where email addresses were available and known, to the following counsel: 

Michael Boos, michael.boos@gte.net 

Attorney & Counselor at Law 

4101 Chain Bridge Road, Suite 313 

Fairfax, VA 22030 

James Bopp, Jr., jboppjr@aol.com 

Barry Alan Bostrom, 

bbostrom@bopplaw.com 

Clayton James Callen, 

John Richard Griffiths, 

john.griffiths@usdoj.gov 

United States Department of Justice 

Civil Division, Federal Programs 

Branch 

Post Office Box 883 

Washington, DC 20044 

Debra Jean Prillaman, 
 8

ccallen@bopplaw.com 

Richard Eugene Coleson, 

rcoleson@bopplaw.com 

Bopp, Coleson & Bostrom 

1 South Sixth Street 

Terre Haute, IN 47807-3510 

Counsel for Plaintiff-Appellant

debra.prillaman@usdoj.gov 

Office of the U.S. Attorney 

600 East Main Street, Suite 1800 

Richmond, VA 23219 

Audra Hale-Maddox, ahalemaddox@fec.gov 

Thomasenia P. Duncan, 

tduncan@fec.gov 

David B. Kolker, dkolker@fec.gov 

Kevin Deeley, kdeeley@fec.gov 

Holly Baker, hbaker@fec.gov 

Vivien Clair, vclair@fec.gov 

Seth Nesin, snesin@fec.gov 

Adav Noti, anoti@fec.gov 

Claire Rajan, crajan@fec.gov 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

Counsel for Defendants-Appellees

 A courtesy copy of the motion was also mailed on October 28, 2008 via 

United States mail, first-class postage prepaid, to the following counsel: 

Charles Philip Rosenberg 

Office of the United States Attorney 

2100 Jamieson Avenue 

Alexandria, VA 22314-5194 

Thomasenia P. Duncan 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 
 9

Michael Boos 

Suite 313 

4101 Chain Bridge Road 

Fairfax, VA 22030

/s/ Tara Malloy

Tara Malloy 

The Campaign Legal Center 

1640 Rhode Island Ave. NW, Ste. 650 

Washington, DC 20036 

(202) 736-2200 

Dated: October 28, 2008