No. 16-743 

In The 

Supreme Court of the United States 

––––––––♦–––––––– 

INDEPENDENCE INSTITUTE,

a Colorado nonprofit corporation, 

Appellant,

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

––––––––♦–––––––– 

On Appeal From The United States 

District Court For The District of Columbia 

––––––––♦–––––––– 

AMICUS CURIAE BRIEF OF RANDY ELF 

IN SUPPORT OF 

APPELLANT INDEPENDENCE INSTITUTE 

––––––––♦–––––––– 

January 4, 2017 

RANDY ELF

 Counsel of Record

Post Office Box 525 

Lakewood, N. Y. 14750 

Telephone (202) 423-2122 

ForCMECFOnly@gmail.com 

Counsel for Amicus
i 

TABLE OF CONTENTS 

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 4

I. The Court has applied constitutional 

scrutiny and established the two-track 

system under which government may 

regulate—i.e., require disclosure of—

political speech. .................................................... 4

II. The Court distinguishes Track 1 and 

Track 2 law. This action involves Track 2 

law, so Track 2 analysis—not Track 1 

analysis—applies. ................................................ 9

III. Substantial-relation exacting scrutiny 

applies to Track 2 law. Because this action 

does not involve Track 1 law, the Court 

should expressly avoid ruling on the 

constitutionality of law triggering Track 1 

burdens, including what scrutiny level 

applies to such law. ............................................ 12

IV. Political-speech law derives from 

government’s power to regulate elections. 

Track 2 law regulating genuine-issue 

speech is not tailored to any government 

interest in regulating elections. Based on 

this alone, Appellant Independence 

Institute prevails. .............................................. 15
ii 

A. Appellant Independence Institute 

prevails regardless of the Buckley 

phrases “unambiguously related to the 

campaign” and “unambiguously 

campaign related” or the Citizens 

United word “pejorative.” ............................ 19

B. Appellant Independence Institute 

prevails regardless of its tax-law 

status. .......................................................... 21

V. The appeal-to-vote test—once known as 

the “functional equivalent of express 

advocacy”—no longer has any place in law. ..... 21

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

 
iii 

TABLE OF AUTHORITIES 

CASES

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

 ........................................................................ passim 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en 

banc) ...................................................................... 13 

Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 

(9th Cir. 2003) ....................................................... 22 

Canyon Ferry Rd. Baptist Church of E. Helena, Inc. 

v. Unsworth, 556 F.3d 1021 (9th Cir. 2009) ........ 13 

Citizens United v. FEC, 558 U.S. 310 (2010) ... passim 

Colo. Ethics Watch v. Senate Majority Fund, LLC, 

269 P.3d 1248 (Colo. 2012) ............................. 24, 28 

Ctr. for Individual Freedom, Inc. v. Tennant, 706 

F.3d 270 (4th Cir. 2013) ................................... 8, 13 

Del. Strong Families v. Att’y Gen. of Del., 793 F.3d 

304 (3d Cir. 2015) ................................ 10, 21, 24, 25 

Del. Strong Families v. Denn, 136 S.Ct. 2376 (2016)

 ............................................................................... 20 

Elections Bd. v. Wis. Mfrs. & Commerce, 597 N.W.2d 

721 (Wis. 1999) ..................................................... 22 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 

(1986) ...................................................... 5, 9, 10, 11 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007)

 ........................................................................ passim 

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998) ........... 5 
iv 

Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 

990 (9th Cir. 2010) .......................................... 10, 13 

Indep. Inst. v. FEC, 70 F.Supp.3d 502 (D.D.C. 2014)

 ............................................................................... 27 

Indep. Inst. v. FEC, 816 F.3d 113 (D.C. Cir. 2016) .. 9, 

24, 27 

Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir. 

2016) ............................................................... passim 

Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d 

576 (8th Cir. 2013) ................................................ 13 

Justice v. Hosemann, 771 F.3d 285 (5th Cir. 2014) 10 

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

McCutcheon v. FEC, 134 S.Ct. 1434 (2014) ............ 14 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 

(1995) ...................................................................... 7 

Minn. Citizens Concerned for Life, Inc. v. Swanson, 

692 F.3d 864 (8th Cir. 2012) (en banc) ................ 13 

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th 

Cir. 2008) ........................................................ 11, 24 

NAACP v. Button, 371 U.S. 415 (1963) ..................... 5 

Nat’l Org. for Marriage, Inc. v. McKee, 649 F.3d 34 

(1st Cir. 2011) ....................................................... 25 

Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010)

 ................................................................................. 6 

SpeechNow.org v. FEC, 599 F.3d 696 (D.C. Cir. 2010) 

(en banc) ................................................................ 12 

State ex rel. Two Unnamed Petitioners v. Peterson, 

866 N.W.2d 165 (Wis. 2015) ................................. 26 
v 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) . 13 

Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 

(2d Cir. 2014) ........................................................ 25 

Wallace v. Jaffree, 472 U.S. 38 (1985) ....................... 1 

Wis. Right to Life, Inc. v. Barland, 751 F.3d 804 (7th 

Cir. 2014) ....................................................... passim 

Wis. Right to Life, Inc. v. Barland, No. 10-C-0669, 

2015 WL 658465 (E.D. Wis. Jan. 30, 2015, as 

amended Feb. 13, 2015) ........................................ 22 

Wis. Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) 

(per curiam) ............................................................ 9 

Yamada v. Kuramoto, 744 F.Supp.2d 1075 (D. Haw. 

2010) ........................................................................ 5 

STATUTES

52 U.S.C. 30104 ............................................ 11, 12, 24 

RULES

S.CT.R. 37 ................................................................... 1 

LAW REVIEWS

Randy Elf, The Constitutionality of State Law 

Triggering Burdens on Political Speech and the 

Current Circuit Splits, 29 REGENT U.L. REV. 35

(2016) (“Triggering”) ...................................... passim 

OTHER AUTHORITIES

Electioneering Communications Database, FED.

COMMC’NS COMM’N (Feb. 28, 2016) ....................... 28 
1 

INTEREST OF AMICUS CURIAE1

 Amicus has practiced political-speech law, 

presented many briefs and oral arguments on the 

constitutionality of such law, and written a lawreview article addressing much of what is at issue 

here. Randy Elf, The Constitutionality of State Law 

Triggering Burdens on Political Speech and the 

Current Circuit Splits, 29 REGENT U.L. REV. 35

(2016) (“Triggering”), available at

http://www.regent.edu/acad/schlaw/student_life/stud

entorgs/lawreview/docs/issues/v29n1/10_Elf_vol_29_

1.pdf. 

 Although Triggering particularly addresses state 

law, the same First Amendment principles apply to 

federal law. Wallace v. Jaffree, 472 U.S. 38, 48-49 

(1985), quoted in Triggering at 55 & n.114, 63 n.154. 

 Since Triggering has analysis that applies here, 

Amicus summarizes and presents it in this brief. 

Where Triggering most efficiently makes points that 

apply here, this brief quotes Triggering. When this 

brief quotes Triggering text, some cites from 

corresponding Triggering footnotes are inserted into 

the text, and some cites remain in footnotes. 

Triggering cites are converted from law-review style 

 1 Counsel of record for all parties received timely notice of 

Amicus’s intent to file this brief and consent to this filing. No 

party’s counsel wholly or partly authored this brief. No such 

counsel, party, or other person—other than Amicus or Amicus’s 

counsel—contributed monetarily to preparing or submitting 

this brief. Amicus has no members. Cf. S.CT.R. 37.2(a), 37.6.
2 

to brief style, and many are condensed. Emphases 

are as they are in Triggering. 

 For all readers’ convenience, a Triggering draft, 

with string cites not published in the law review, 

remains at https://ssrn.com/abstract=2713496.

––––––––♦–––––––– 

SUMMARY OF ARGUMENT 

 The Court has applied constitutional scrutiny 

and established the two-track system under which 

government may regulate—i.e., require disclosure 

of—political speech. E.g., Buckley v. Valeo, 424 U.S. 

1, 63-64, 79-82 (1976) (per curiam); Triggering at 35-

37 & nn.1-12.

 This action does not address law triggering 

Track 1, political-committee or political-committeelike burdens. Instead, this action addresses Track 2, 

non-political-committee disclosure requirements and 

presents this question: May government regulate 

genuine-issue speech with Track 2, non-politicalcommittee disclosure requirements? 

 The answer is “no,” and the explanation is 

simple. Political-speech law derives from 

government’s power to regulate elections, Buckley, 

424 U.S. at 13 & n.16; Triggering at 39 & nn.32-33, 

including the three government interests in 

regulating political speech, Buckley, 424 U.S. at 66-

68, cited in Triggering at 50 n.88. 

[I]f anything is beyond what government 

should regulate with Track 2 law, then 
3 

“genuine issue” speech is. FEC v. Wis. Right 

to Life, Inc., 551 U.S. 449, 470 (2007) 

(opinion of Roberts, C.J.) (addressing a 

speech ban). Track 2 law regulating genuineissue speech is not tailored to any 

government interest in regulating elections, 

much less “substantially related” to a 

“‘sufficiently important’ government 

interest.” Citizens United v. FEC, 558 U.S. 

310, 366-67 (2010) (addressing Track 2 law 

(quoting Buckley, 424 U.S. at 64, 66)). 

Triggering at 68-69 n.181 (brackets omitted). 

 In this action, there is no need to define genuineissue speech for all time. The Court should instead 

reaffirm all the elements of the Wisconsin Right to 

Life safe harbor for genuine-issue speech, 551 U.S. at 

469-70 (opinion of Roberts, C.J.), except one: The 

Court should hold that speech need not “urge the 

public to contact public officials” for speech to be 

genuine-issue speech, Triggering at 69 n.181. 

 With or without this safe-harbor revision, 

Appellant Independence Institute’s speech is in the 

safe harbor, so government may not regulate the 

speech with Track 2, non-political-committee 

disclosure requirements. Based on this alone, 

Appellant Independence Institute prevails. 

 Whether political speech is “unambiguously 

related to the campaign,” “unambiguously campaign 

related,” or “pejorative” does not determine whether 

Track 2 law regulating the speech is constitutional. 

Id. at 69-70 n.181. Nor does the constitutionality of 
4 

political-speech law turn on a speaker’s status under 

the Internal Revenue Code or Internal Revenue 

Service regulations. Id. at 62 n.151. 

 Furthermore, “the appeal-to-vote test—once 

known as the ‘functional equivalent of express 

advocacy’—no longer affects whether government 

may ban, otherwise limit, or regulate speech, and 

the appeal-to-vote test is vague. It has no place in 

law.” Id. at 77. 

––––––––♦–––––––– 

ARGUMENT 

I. The Court has applied constitutional 

scrutiny and established the two-track 

system under which government may 

regulate—i.e., require disclosure of—

political speech. 

Recognizing that political speech is at the 

“core” of what the First Amendment protects, 

e.g., Buckley, 424 U.S. at 44-45, the ... Court 

has applied constitutional scrutiny and 

established the two-track system under 

which government may regulate political 

speech.2 

 2 

In other words, require disclosure of, which differs 

from “ban” or otherwise “limit.” See Yamada v. 

Kuramoto, 744 F.Supp.2d 1075, 1082 & n.9 (D. Haw. 
5 

Under “Track 1,” government may under 

some circumstances—and subject to further 

inquiry, see, e.g., id. at 74 (addressing 

“threats, harassment, or reprisals”)3—trigger 

political-committee or political-committeelike burdens, see, e.g., id. at 63, 79 

(addressing “organizations” that are “under 

the control of a candidate” or candidates in 

their capacities as candidates or have “the 

major purpose” under Buckley), followed in 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 

238, 252 n.6, 262 (1986), and quoted in 

McConnell v. FEC, 540 U.S. 93, 170 n.64 

 

2010) (distinguishing restrictions, i.e., bans or other 

limits, from regulation, i.e., disclosure). The umbrella 

term “disclosure” can cover registration, 

recordkeeping, reporting, attributions, and 

disclaimers in all their forms. Wis. Right to Life, Inc. 

v. Barland, 751 F.3d 804, 812-16, 836 (7th Cir. 2014). 

Barland understands the difference between 

attributions and disclaimers. Id. at 815-16. By 

definition, an “attribution” attributes and says who is

speaking, while a “disclaimer” disclaims and says who 

is not speaking. Id.

Triggering at 35 n.2. Independence Institute v. Williams, 812 

F.3d 787, 795 & n.9 (10th Cir. 2016), frames this differently by 

applying the label “disclosure” only to Track 2 law, not Track 1 

law. Either way, constitutional principles—not “mere labels”—

are what matters. NAACP v. Button, 371 U.S. 415, 429 (1963); 

Triggering at 51 n.91; 52-53 n.103.

3 Compare Barland, 751 F.3d at 816, 832 (striking down 

an attribution and disclaimer requirement), with Gable v. 

Patton, 142 F.3d 940, 944-45 (6th Cir. 1998) (upholding an 

attribution requirement for a political committee). Triggering 

at 35 n.3. 
6 

(2003) (overruled on other grounds by 

Citizens United, 558 U.S. at 365-66);

Sampson v. Buescher, 625 F.3d 1247, 1249, 

1251, 1261 (10th Cir. 2010) (addressing 

organizations with the Buckley major 

purpose but only small-scale speech). ... 

Under “Track 2,”4 apart from whether 

government may trigger Track 1, politicalcommittee(-like) burdens, government may—

subject to further inquiry, see, e.g., Citizens 

United, 558 U.S. at 370 (addressing “threats, 

harassment, or reprisals” (quoting 

McConnell, 540 U.S. at 198))—require 

attributions, disclaimers, and non-politicalcommittee reporting for: 

 independent expenditures properly 

understood, Buckley, 424 U.S. at 63-64, 

79-82;5 cf. McIntyre v. Ohio Elections 

 4 

The terms “Track 1” and “Track 2” are [Amicus’s], yet 

the concepts have been in the case law since the ... 

Court first distinguished what [Amicus] calls Track 1 

law and Track 2 law in Buckley, 424 U.S. at 63-64. 

Triggering at 36 n.7.

5 

Under the Constitution, “independent expenditure” 

means Buckley express advocacy, Buckley, 424 U.S. at 

44 & n.52, 80, that is not coordinated with a 

candidate, id. at 46-47, 78. Thus, non-coordinated 

spending for political speech that is not Buckley 

express advocacy is independent spending but not an 
7 

Comm’n, 514 U.S. 334, 354-56 (1995) 

(rejecting a Track 2, non-politicalcommittee disclosure requirement for 

other speech), and 

 Federal Election Campaign Act 

electioneering communications, Citizens 

United, 558 U.S. at 366-71.6

The ... Court has allowed government to 

regulate only these two types of political 

speech with Track 2 law. Indep. Inst. v. 

Williams, 812 F.3d 787, 791 (10th Cir. 2016) 

(holding that this Court allows limited Track 

2 disclosure for particular speech); id. at 795 

(holding that Track 2 law may reach some 

 

independent expenditure. See id. at 44 & n.52, 80 

(addressing express advocacy and thereby 

independent expenditures). 

Triggering at 36 n.9. 

6 

Federal Election Campaign Act electioneering 

communications (1) are broadcast, (2) run in the 30 

days before a primary or 60 days before a general 

election, (3) have a clearly identified candidate in the 

jurisdiction, (4) are targeted to the relevant electorate, 

and (5) do not expressly advocate. McConnell, 540 

U.S. at 189-94. To be a Federal Election Campaign 

Act electioneering communication, speech about 

presidential or vice-presidential candidates need not 

be targeted to the relevant electorate, id. at 189-90, 

yet it must meet the other criteria, id. at 189-94. 

Triggering at 36 n.10. 
8 

speech beyond Buckley express advocacy); id.

at 793 (addressing independent expenditures 

properly understood); id. at 789-90, 794-95, 

797 (addressing Federal Election Campaign 

Act electioneering communications in state 

law); Wis. Right to Life, Inc. v. Barland, 751 

F.3d 804, 836-37, 841 (7th Cir. 2014) 

(discussing Track 2 disclosure for 

independent expenditures properly 

understood and Federal Election Campaign 

Act electioneering communications). If 

government, working within Track 2, wants 

to regulate political speech beyond how 

current case law allows, government must 

prove the law survives scrutiny. See, e.g.,

Indep. Inst., 812 F.3d at 797-98 (addressing 

overbreadth); Ctr. for Individual Freedom, 

Inc. v. Tennant, 706 F.3d 270, 282-85 (4th 

Cir. 2013) (addressing underinclusiveness). 

Triggering at 35-37 & nn.1-4, 6-12. In upholding 

Track 2 law, 

Citizens United does not hold that all 

Federal Election Campaign Act 

electioneering communications, much less 

other forms of non-express-advocacy 

spending for political speech, are regulable 

under Track 2 now and forevermore. Instead, 

it rejects an as-applied challenge based on 

what the Citizens United plaintiff called the 

“functional equivalent of express advocacy,” 

558 U.S. at 368-69, the former name of the 

appeal-to-vote test, id. at 335 (quoting Wis. 

Right to Life, 551 U.S. at 470 (opinion of 
9 

Roberts, C.J.)). The possibility of other asapplied challenges—beyond “threats, 

harassment, or reprisals”—remains. Supra 

at 6; see Wis. Right to Life, Inc. v. FEC, 546 

U.S. 410, 411-12 (2006) (per curiam) (holding 

that McConnell’s facial upholding of Federal 

Election Campaign Act electioneeringcommunication law does not foreclose asapplied challenges); Indep. Inst. v. FEC, 816 

F.3d 113, 115-16 (D.C. Cir. 2016) (holding 

that Citizens United leaves the door open for 

future as-applied challenges and rejects “one 

particular as-applied challenge” and “one 

such as-applied challenge” (citing Citizens 

United, 558 U.S. at 368-69)). 

Triggering at 37 n.12. 

II. The Court distinguishes Track 1 and Track 

2 law. This action involves Track 2 law, so 

Track 2 analysis—not Track 1 analysis—

applies. 

 The Court evaluates Track 1 and Track 2 law 

differently, Mass. Citizens for Life, 479 U.S. at 262; 

Buckley, 424 U.S. at 79, because they are different. 

Track 1 law can trigger political-committee(-like) 

burdens, Citizens United, 558 U.S. at 338; Buckley,

424 U.S. at 63; Triggering at 44 & n.62, including 

registration (including, in turn, treasurer 

designation, bank-account designation, and 

termination, i.e., deregistration), recordkeeping, 

extensive reporting, and ongoing reporting, see, e.g., 

Citizens United, 558 U.S. at 338 (describing such 
10 

law); Mass. Citizens for Life, 479 U.S. at 253-56 & 

nn.7-9 (opinion of Brennan, J.) (same); Buckley, 424 

U.S. at 63 (same); Triggering at 44 & nn.63-65. 

These are “onerous” burdens. Citizens United, 558 

U.S. at 339; Wis. Right to Life, 551 U.S. at 477 n.9 

(opinion of Roberts, C.J.) (citing Mass. Citizens for 

Life, 479 U.S. at 253-55 (opinion of Brennan, J.)); 

Triggering at 44-45 & nn.66-70.7 By contrast, Track 

2, non-political-committee reporting—which Buckley 

and Citizens United uphold for particular speech, 

supra at 6-9—includes none of these Track 1 

burdens. Instead, 

Track 2 reporting occurs only for reporting 

periods when the particular speech occurs,8

 7 Law need not trigger all of these burdens to require 

Track 1 analysis. See, e.g., Justice v. Hosemann, 771 F.3d 285, 

288-89 (5th Cir. 2014) (addressing law with extensive and 

ongoing reporting yet not recordkeeping as Track 1 law), cert. 

denied, 136 S.Ct. 1514 (2016); Human Life of Wash., Inc. v. 

Brumsickle, 624 F.3d 990, 1013 (9th Cir. 2010) (addressing law 

with extensive but not ongoing reporting as Track 1 law); 

Triggering at 45-46 & nn.71-72. But cf. Del. Strong Families v. 

Att’y Gen. of Del., 793 F.3d 304, 312-13 n.10 (3d Cir. 2015) 

(addressing law with extensive but not ongoing reporting as 

Track 2 law when the parties did so), cert. denied, 136 S.Ct. 

2376 (2016) (denial of certiorari after subsequent Third Circuit 

appeal). 

8 

This is what “one-time” and “event-driven” mean. 

E.g., Barland, 751 F.3d at 824, 836, 841. It is time to 

abandon these confusing labels and simply say what 

one means. It is not clear from these labels what they 

mean. They do not reveal that “one-time” and “eventdriven” mean the same thing. 
11 

and the reports are less burdensome than 

extensive or ongoing reporting. See, e.g., 

Mass. Citizens for Life, 479 U.S. at 262 (“less 

than the full panoply of” Track 1 burdens); 

Buckley, 424 U.S. at 63-64 (describing Track 

2, non-political-committee reporting); 52 

U.S.C. 30104(c), (f)-(g) (same). 

Triggering at 57 & nn.126-28 (ellipses omitted).9 

 

As for “one-time,” some understandably think it 

means speakers that are not political committees file 

only one Track 2, non-political-committee report ever;

others understandably think it means such speakers 

file one such report every time they engage in 

regulable speech. Neither is right. See Mass. Citizens 

for Life, 479 U.S. at 262 (describing Track 2, nonpolitical-committee reporting); Buckley, 424 U.S. at 

63-64 (same). 

As for “event-driven,” it is not precise, because Track 

1 reporting is also driven by events; they are just 

different events. See Citizens United, 558 U.S. at 338 

(describing Track 1 burdens); Buckley, 424 U.S. at 63 

(same). 

Triggering at 57 n.127. 

9 Track 1 law 

focuses on the organization’s major purpose, i.e., the 

nature of the speaker, not the speech. Mass. Citizens 

for Life, 479 U.S. at 262 (citing Buckley, 424 U.S. at 

79). Meanwhile, Track 2 attributions, disclaimers, and 

non-political-committee reporting are “based on the 

communication, not the organization,” i.e., the nature 

of the speech, not the speaker. N.C. Right to Life, Inc. 

v. Leake, 525 F.3d 274, 290 (4th Cir. 2008). 

Triggering at 62 n.151. 
12 

 Thus, it contradicts Buckley, Massachusetts 

Citizens for Life, Wisconsin Right to Life, and 

Citizens United to believe—as SpeechNow.org v. 

FEC, 599 F.3d 696, 690-92, 697-98 (D.C. Cir. 2010) 

(en banc), and opinions following it do—that Track 1 

burdens are not that much greater than Track 2 

reporting, Triggering at 58 n.131 (collecting 

authorities). 

 This action involves 52 U.S.C. 30104(f) 

(JURISDICTIONAL STATEMENT at 5-7, available at

http://www.campaignfreedom.org/wpcontent/uploads/2014/09/11/II-v-FEC-JurisdictionalStatement-12.5.16.pdf), which is Track 2 law, not 

Track 1 law, because it has neither registration, 

recordkeeping, extensive reporting, nor ongoing 

reporting. 

 Thus, Track 2 analysis—not Track 1 analysis—

applies. Supra at 6-9. 

III. Substantial-relation exacting scrutiny 

applies to Track 2 law. Because this action 

does not involve Track 1 law, the Court 

should expressly avoid ruling on the 

constitutionality of law triggering Track 1 

burdens, including what scrutiny level 

applies to such law. 

 Citizens United addresses Track 2 law and holds 

that substantial-relation exacting scrutiny applies. 

558 U.S. at 366-67 (quoting Buckley, 424 U.S. at 64, 

66). Such scrutiny “is more than a rubber stamp,” 

Minn. Citizens Concerned for Life, Inc. v. Swanson, 
13 

692 F.3d 864, 876 (8th Cir. 2012) (en banc) (citing 

Buckley, 424 U.S. at 64, 66), “is not a loose form of 

judicial review,” Barland, 751 F.3d at 840, and, 

though not strict scrutiny, is a “strict test” and a 

“strict standard,” Buckley, 424 U.S. at 66, 75. 

Triggering at 79 n.247.10 

 Just as the tests for the constitutionality of law 

triggering Track 1 burdens go to the tailoring part of 

constitutional scrutiny, not the government interest 

part, e.g., Barland, 751 F.3d at 841-42; Canyon Ferry 

Rd. Baptist Church of E. Helena, Inc. v. Unsworth,

556 F.3d 1021, 1032-34 (9th Cir. 2009); Buckley v. 

Valeo, 519 F.2d 821, 869 (D.C. Cir. 1975) (en banc), 

aff’d in part and rev’d on other grounds, 424 U.S. 1 

(1976) (per curiam); Triggering at 49-50 & nn.87-89, 

64 & nn.155-56 (collecting competing authorities), 

what government may regulate with Track 2 law 

goes to tailoring, not the government interest, see, 

e.g., Indep. Inst., 812 F.3d at 792-93, 797-98 

(addressing overbreadth); Tennant, 706 F.3d at 282-

85 (addressing underinclusiveness); Triggering at 50 

n.87.11 The Court does “not look to a government 

 10 As Iowa Right to Life Committee, Inc. v. Tooker, 717 F.3d 

576, 590-91 (8th Cir. 2013), understands, this Court since 

Buckley has separated strict scrutiny from exacting scrutiny. 

Triggering at 80 n.247. 

11 But see, e.g., Human Life of Wash., 624 F.3d at 1016-19 

(overlooking that under tailoring, Buckley/Citizens United 

reach only independent expenditures/Federal Election 

Campaign Act electioneering communications, while creating 

an express-advocacy strawman). But cf. Van Hollen v. FEC, 811 

F.3d 486, 501 (D.C. Cir. 2016) (addressing Track 2 law and 
14 

interest and truncate this tailoring test at the 

outset.” McCutcheon v. FEC, 134 S.Ct. 1434, 1450 

(2014) (addressing another tailoring test). “Thus, 

pounding the table about the government interest in 

regulating political speech is no answer to the 

tailoring part of constitutional scrutiny.” Triggering

at 50 & n.89, 64. 

 Circuits are split over whether strict scrutiny or 

substantial-relation exacting scrutiny applies to law 

triggering Track 1 burdens, id. at 77-80 & nn.236-56 

(explaining the split and collecting competing 

authorities), and whether Citizens United pages 366-

71 allow government to trigger Track 1 burdens, id. 

at 51-52 & nn.97-103, 56-57 & nn.123-28 (same). 

However, no Track 1 law is at issue in this action, so 

the Court should expressly avoid ruling on the 

constitutionality of law triggering Track 1 burdens, 

including what scrutiny level applies to such law, 

because Track 1 law and Track 2 law are different. 

Supra at 9-12. 

 

stating incorrectly that this Court treats speech and 

transparency as equivalents). Triggering at 50 n.87. 
15 

IV. Political-speech law derives from 

government’s power to regulate elections. 

Track 2 law regulating genuine-issue 

speech is not tailored to any government 

interest in regulating elections. Based on 

this alone, Appellant Independence 

Institute prevails. 

 Political-speech law derives from government’s 

power to regulate elections, Buckley, 424 U.S. at 13 

& n.16; Triggering at 39 & nn.32-33, including the 

three government interests in regulating political 

speech, Buckley, 424 U.S. at 66-68, cited in 

Triggering at 50 n.88. 

Citizens United holds the appeal-to-vote test 

does not prevent regulating speech with 

Track 2 law. 558 U.S. at 368-69. However, if 

anything is beyond what government should 

regulate with Track 2 law, then “genuine 

issue” speech is. Wis. Right to Life, 551 U.S. 

at 470 (opinion of Roberts, C.J.) (addressing 

a speech ban). Track 2 law regulating 

genuine-issue speech is not tailored to any 

government interest in regulating elections, 

much less “substantially related” to a 

“‘sufficiently important’ government 

interest.” Citizens United, 558 U.S. at 366-67 

(addressing Track 2 law (quoting Buckley,

424 U.S. at 64, 66)). Moreover, genuine-issue 

speech presents an easy case, because it is at 

the opposite end of the issue-advocacy 

spectrum from appeal-to-vote speech, once 

known as “the functional equivalent of 

express advocacy.” Id. at 335 (quoting Wis. 
16 

Right to Life, 551 U.S. at 470 (opinion of 

Roberts, C.J.)). See generally McConnell, 540 

U.S. at 206 n.88 (referring to regulation of 

genuine-issue speech but meaning a ban). 

If genuine-issue speech were the perfect 

complement of appeal-to-vote speech, then 

Citizens United’s appeal-to-vote-test holding 

on Track 2 law would similarly foreclose a 

genuine-issue-speech test. One would be just 

the flipside of the other: Saying that speech 

is genuine-issue speech would be the same as 

saying it is not appeal-to-vote speech, and 

vice versa. Then, since the appeal-to-vote test 

is not a boundary between what is and is not 

regulable with Track 2 law, Citizens United,

558 U.S. at 368-69, a genuine-issue-speech 

test would also not be a boundary. 

However, genuine-issue speech is not the 

perfect complement of appeal-to-vote speech. 

Whatever the appeal-to-vote test may have 

meant, some speech is neither genuine-issue 

speech nor appeal-to-vote speech—some 

speech is in-between. See Wis. Right to Life,

551 U.S. at 469-70 (opinion of Roberts, C.J.) 

(defining the appeal-to-vote test pre-Citizens 

United, and establishing a safe harbor 

among genuine-issue speech), quoted in 

Indep. Inst., 812 F.3d at 793 n.5. Therefore, 

Citizens United does not foreclose a genuineissue-speech test. 

Triggering at 68-69 n.181 (brackets omitted). 
17 

 Yet what about the Wisconsin Right to Life safe 

harbor for genuine-issue speech? The Wisconsin 

Right to Life ads are in the safe harbor, because they 

“focus on a legislative issue, take a position on the 

issue, exhort the public to adopt that position, and 

urge the public to contact public officials with 

respect to the matter” and neither “mention an 

election, candidacy, political party, or challenger” 

nor “take a position on a candidate’s character, 

qualifications, or fitness for office.” 551 U.S. at 470 

(opinion of Roberts, C.J.). However, urging the public 

to contact public officials does not affect whether 

speech is genuine-issue speech, so there is no need to 

make future speakers jump through the hoop of 

urging the public to contact public officials just to 

make sure speech is in the genuine-issue-speech safe 

harbor. Triggering at 69 n.181. The Court should 

revise the safe harbor by eliminating any 

requirement that speech “urge the public to contact 

public officials” for the speech to be in the safe 

harbor. Id.

 With or without this safe-harbor revision, 

Appellant Independence Institute’s speech is in the 

safe harbor (see JURISDICTIONAL STATEMENT at 6-7), 

so government may not regulate the speech with 

Track 2, non-political-committee disclosure 

requirements. Based on this alone, Appellant 

Independence Institute prevails. 

 Because Appellant Independence Institute’s 

speech is in the safe harbor, there is no need to 

define, here for all time, what speech beyond the safe 

harbor is genuine-issue speech. 
18 

 Meanwhile, the clarity of the safe harbor’s 

boundaries resolves for now the district court’s 

concern that the genuine-issue-speech test is 

“entirely unworkable.” (JURISDICTIONAL STATEMENT 

at App.24.) 

 As an aside, the foregoing does not mean that 

government may never regulate genuine-issue 

speech. Rather, it means that government may not 

regulate genuine-issue speech with Track 2 law, the 

only type of law at issue here. However, Track 1 law 

is different, because 

[o]nce it is constitutional to trigger Track 1 

burdens for an organization, government 

may—subject to further inquiry, supra at 5—

require disclosure of all income and spending 

by the organization, see Citizens United, 558 

U.S. at 338 (describing Track 1 burdens); 

Buckley, 424 U.S. at 63 (same), 

Triggering at 61 n.149, including genuine-issue 

speech. Whether government may trigger such 

burdens for an organization in the first place is a 

separate question. Supra at 5-6.
19 

A. Appellant Independence Institute 

prevails regardless of the Buckley 

phrases “unambiguously related to the 

campaign” and “unambiguously 

campaign related” or the Citizens 

United word “pejorative.” 

 Because government may not regulate genuineissue speech with Track 2 law, and Appellant 

Independence Institute’s speech is in the safe 

harbor, Appellant prevails regardless of two 

additional phrases from Buckley, 424 U.S. at 80-81 

(“unambiguously related to the campaign” and 

“unambiguously campaign related”), or one 

additional word from Citizens United, 558 U.S. at 

320, 368 (“pejorative”). 

 The Court should anchor the genuine-issuespeech test in the Constitution without using these 

extra phrases or this extra word. They are 

unnecessary. See supra at 15. 

 Thus, it does not diminish the victory to which 

Appellant Independence Institute is due to hold that 

the phrases “unambiguously related to the 

campaign” and “unambiguously campaign 

related” in Buckley, 424 U.S. at 80-81, are 

not a test for constitutionality of Track 2 law. 

... Indep. Inst., 812 F.3d at 796 (incorrectly 

rejecting a genuine-issue-speech test after 

correctly declining to define genuine-issue 

speech in this way). “The difficulty of reliably 

distinguishing between campaign-related 

speech and non-campaign-related speech is 
20 

why courts must look only to whether the 

specific statutory definitions before them are 

sufficiently tailored to the government’s 

compelling or sufficiently important 

interests.” Id. Besides, these phrases are 

vague. How is anyone to know whether some 

bureaucrat, some court, or worse yet some 

jury would conclude (after the fact, mind you) 

that speech is “unambiguously related to the 

campaign” or “unambiguously campaign 

related”? Buckley, 424 U.S. at 80-81; cf. 

Triggering at 49 n.84 (rejecting “campaign 

related” under Track 1). 

Triggering at 69 n.181 (brackets omitted) (collecting 

competing authorities). Nor does it diminish the 

victory to which Appellant Independence Institute is 

due to hold that 

[t]he word “pejorative” in Citizens United

would fare no better as a constitutional-law 

standard even if the word were not dictum. 

558 U.S. at 320, 368, quoted in Del. Strong 

Families v. Denn, 136 S.Ct. 2376, 2378 

(2016) (Thomas, J., dissenting) (denial of 

certiorari). How is anyone to know whether 

some bureaucrat, some court, or worse yet 

some jury would conclude (after the fact, 

mind you) that speech is pejorative? 

Triggering at 69-70 n.181. 
21 

B. Appellant Independence Institute 

prevails regardless of its tax-law status. 

 Holding for Appellant Independence Institute is 

consistent with its following the law for tax-exempt 

organizations (see JURISDICTIONAL STATEMENT at 5, 

33-35), yet its tax-law status is not the reason that it 

prevails (see id. at App.33-35). 

A speaker’s status under statutory or 

regulatory law, such as the Internal Revenue 

Code or the Internal Revenue Service 

regulations, does not determine whether 

Track 1 law or Track 2 law, or other politicalspeech law, survives a challenge under 

constitutional law. See Del. Strong Families 

v. Att’y Gen. of Del., 793 F.3d 304, 308-09 (3d 

Cir. 2015), cert. denied, 136 S.Ct. 2376 (2016) 

(denial of certiorari after subsequent Third 

Circuit appeal). That would be like the 

statutory or regulatory tail wagging the 

constitutional dog. 

Triggering at 62 n.151. 

V. The appeal-to-vote test—once known as the 

“functional equivalent of express 

advocacy”—no longer has any place in law. 

 The parties and the district court have 

mentioned the appeal-to-vote test (e.g., 

JURISDICTIONAL STATEMENT at 13-14, 17-19, App.20), 

so it is important to understand why the appeal-tovote test no longer has any place in law. 
22 

Under constitutional law, express 

advocacy—including independent 

expenditure—means Buckley express 

advocacy, i.e., “communications that in 

express terms advocate the election or defeat 

of a clearly identified candidate”—or the 

passage or defeat of a ballot measure—using 

terms “such as ‘vote for,’ ‘elect,’ ‘support,’ 

‘cast your ballot for,’ ‘Smith for Congress,’ 

‘vote against,’ ‘defeat,’ ‘reject.’” Buckley, 424 

U.S. at 44 & n.52; see Cal. Pro-Life Council, 

Inc. v. Getman, 328 F.3d 1088, 1102-04 & 

n.18 (9th Cir. 2003) (addressing “express 

ballot-measure advocacy”). To be Buckley 

express advocacy, speech need not include 

the specific Buckley words. Synonyms suffice. 

That is what “such as” means. Buckley, 424 

U.S. at 44 n.52; Elections Bd. v. Wis. Mfrs. & 

Commerce, 597 N.W.2d 721, 730-31 (Wis. 

1999). Nevertheless, Buckley express 

advocacy requires “explicit words of 

advocacy.” Buckley, 424 U.S. at 43; Wis. 

Mfrs. & Commerce, 597 N.W.2d at 737.

Under constitutional law, the Wisconsin 

Right to Life “‘appeal to vote’ test”—once 

known as “the functional equivalent of 

express advocacy,” Citizens United, 558 U.S. 

at 335 (quoting Wis. Right to Life, 551 U.S. 

at 470 (opinion of Roberts, C.J.))12—cannot 

 12 

Citizens United “re-labels ‘the functional equivalent of 

express advocacy’ as the ‘appeal to vote’ test.” Wis. 
23 

be a form of express advocacy. Rather, “as 

explained in” and “consistent with the lead 

opinion in” Wisconsin Right to Life, Barland, 

751 F.3d at 834, 838, the appeal-to-vote test 

reached beyond Buckley’s words and 

synonyms for them, id. at 820.13 It applied 

when there were no explicit words of 

advocacy and asked whether the only 

reasonable interpretation of Federal Election 

Campaign Act electioneering 

communications was as an appeal to vote for 

or against a clearly identified candidate. Wis. 

Right to Life, 551 U.S. at 469-70 (opinion of 

Roberts, C.J.) (holding pre-Citizens United 

that “a court should find that an ad is the 

 

Right to Life, Inc. v. Barland, No. 10-C-0669, at 5 

n.23, 2015 WL 658465 (E.D. Wis. Jan. 30, 2015, as 

amended Feb. 13, 2015) (quoting Citizens United, 558 

U.S. at 335) (declaratory judgment and permanent 

injunction following Barland, 751 F.3d at 844), 

available at http://gab.wi.gov. 

Triggering at 67 n.172. 

13 

Thus, Wisconsin Right to Life asked not whether 

speech was “express advocacy” but whether it was 

“the functional equivalent of express advocacy.” 551 

U.S. at 469 (opinion of Roberts, C.J.). Indeed, 

Wisconsin Right to Life’s repeatedly referring to 

“express advocacy” and its “functional equivalent” 

illustrated that the latter reached beyond the former. 

Id. at 465, 471, 476, 477 n.9, 479, 482 (opinion of 

Roberts, C.J.). 

Triggering at 67 n.174.
24 

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”). 

This test applied only to Federal Election 

Campaign Act electioneering 

communications, id. at 474 n.7 (opinion of 

Roberts, C.J.) (holding that “this test is only 

triggered if the speech” is a Federal Election 

Campaign Act electioneering communication 

“in the first place”),14 which by definition are 

not express advocacy, because they are not 

expenditures or independent expenditures, 

Del. Strong Families, 793 F.3d at 311 

(quoting 52 U.S.C. 30104(f)(3)(B)(ii)).15 Only 

expenditures/independent expenditures are 

express advocacy. Buckley, 424 U.S. at 44 & 

n.52, 80. Indeed, one point of regulating 

Federal Election Campaign Act 

electioneering communications was for Track 

2 law to reach beyond express advocacy. 

McConnell, 540 U.S. at 189-94. 

Furthermore, after Citizens United, the 

appeal-to-vote test no longer even affects 

 14 N.C. Right to Life, 525 F.3d at 282; Colo. Ethics Watch v. 

Senate Majority Fund, LLC, 269 P.3d 1248, 1257-58 (Colo. 

2012); see also Barland, 751 F.3d at 819-21, 823 (addressing 

the appeal-to-vote test). Triggering at 68 n.176.

15 But see Indep. Inst., 816 F.3d at 116 (implicitly and 

incorrectly believing that Federal Election Campaign Act 

electioneering communications can be express advocacy (citing 

Citizens United, 558 U.S. at 368-69)). Triggering at 68 n.177. 
25 

whether government may ban, otherwise 

limit, or regulate speech. See Citizens 

United, 558 U.S. at 324-26, 365-66, 368-69 

(holding that government may not ban or 

otherwise limit Federal Election Campaign 

Act electioneering communications even 

when they are the functional equivalent of 

express advocacy, and holding that 

government may regulate Federal Election 

Campaign Act electioneering 

communications even when they are not the 

functional equivalent of express advocacy).16

Citizens United thereby “eliminated the 

context in which the appeal-to-vote test has 

had any significance” under the Constitution. 

Nat’l Org. for Marriage, Inc. v. McKee, 649 

F.3d 34, 69 (1st Cir. 2011). 

Triggering at 67-68 & nn.168-81 (ellipsis omitted). 

Nevertheless, Barland—based on the premise 

that Citizens United pages 3[68-]69 have appeal-tovote-test dictum, 751 F.3d at 836—believes the 

 16 Accord Indep. Inst., 812 F.3d at 793 n.4, 794-95 

(reviewing Citizens United’s Track 2 holding while mistakenly 

conflating express advocacy and the appeal-to-vote test); Del. 

Strong Families, 793 F.3d at 308 (rejecting the plaintiff’s 

contention that the appeal-to-vote test remains valid postCitizens United (quoting Citizens United, 558 U.S. at 368)); Vt. 

Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 132 (2d Cir. 

2014) (agreeing with a plaintiff’s contention that the appeal-tovote test is invalid post-Citizens United (quoting Citizens 

United, 558 U.S. at 369)), cert. denied, 135 S.Ct. 949 (2015). 

Triggering at 68 n.180. 
26 

appeal-to-vote test remains in constitutional law. Id.

at 838.17 However, 

Citizens United pages 368-69 have no 

appeal-to-vote-test dictum. Barland 

incorrectly concludes that they do by 

crucially believing Citizens United (1) holds, 

on pages 324-26, that all the speech at 

issue—a Federal Election Campaign Act 

electioneering-communication movie and 

Federal Election Campaign Act

electioneering-communication ads for it—is 

the functional equivalent of express 

advocacy, i.e., is appeal-to-vote speech, id. at 

823 (discussing Citizens United, 558 U.S. at 

324-26), and (2) allows, on pages 368-69, 

Track 2, non-political-committee reporting of 

Federal Election Campaign Act 

electioneering communications even when 

they are not the functional equivalent of 

express advocacy, i.e., are not appeal-to-vote 

speech, id. at 824-25, 836 (discussing 

Citizens United, 558 U.S. at 368-69). Point 2 

is correct. If Point 1 were entirely correct, 

Point 2 would be dictum. Id. at 836. But 

Point 1 is incorrect: Only the movie was the 

functional equivalent of express advocacy, 

i.e., was appeal-to-vote speech, so Point 2 is 

not dictum. Indep. Inst., 812 F.3d at 794-95 

 17 Accord State ex rel. Two Unnamed Petitioners v. 

Peterson, 866 N.W.2d 165, 192-93 & n.23 (Wis. 2015) (holding 

that the appeal-to-vote test remains valid post-Citizens United), 

cert. denied, 137 S.Ct. 77 (2016). Triggering at 70 n.183. 
27 

& nn.8-9, 798 n.13 (recognizing that the 

Wisconsin Right to Life ads were not the 

functional equivalent of express advocacy, 

holding that Citizens United has no appealto-vote-test dictum without mentioning 

Barland, and addressing Track 2 disclosure 

while acknowledging the difference between 

Track 1 and Track 2 disclosure); Indep. Inst. 

v. FEC, 70 F.Supp.3d 502, 507-08, 515 

(D.D.C. 2014) (recognizing that the 

Wisconsin Right to Life ads were not the 

functional equivalent of express advocacy, 

holding that Citizens United has no appealto-vote-test dictum while disagreeing with 

Barland, and addressing Track 2 disclosure 

without acknowledging either the difference 

between Track 1 and Track 2 disclosure or 

the correct Barland holdings on Track 1

disclosure), vacated on other grounds, 816 

F.3d 113, 115-17 (D.C. Cir. 2016) (remanding 

for a three-judge district court). 

Triggering at 70-71 & nn.185-89 (brackets 

omitted).18

Moreover, under Wisconsin Right to Life, the 

appeal-to-vote test is vague as to speech 

other than Federal Election Campaign Act 

electioneering communications. See 551 U.S. 

at 474 n.7 (opinion of Roberts, C.J.) 

(answering a charge that “our test” is 

 18 For further explanation of how Barland is mistaken on 

this point, please see Triggering at 71 n.189.
28 

impermissibly vague partly by saying “this 

test is only triggered if the speech” is a 

Federal Election Campaign Act 

electioneering communication “in the first 

place”). Elsewhere the test “might create an 

unwieldy standard that would be difficult to 

apply” and unconstitutionally chill political 

speech. Colo. Ethics Watch v. Senate 

Majority Fund, LLC, 269 P.3d 1248, 1258 

(Colo. 2012) (citing Wis. Right to Life, 551 

U.S. at 468-69 (opinion of Roberts, C.J.)).19

 19 

Please recall that the appeal-to-vote test applied only 

to Federal Election Campaign Act electioneering 

communications, supra at 24, one part of the 

definition of which is that speech—other than speech 

about presidential or vice-presidential candidates—

must be “targeted to the relevant electorate,” supra at 

7 n.6, meaning it can be received by a certain number 

of people, McConnell, 540 U.S. at 190. When speech is 

broadcast—which Federal Election Campaign Act 

electioneering communications are, supra at 7 n.6—

government knows with precision how many people 

can receive it, because government licenses 

broadcasters for particular signal strength. 

Government cannot know this for non-broadcast 

speech. See The Electioneering Communications 

Database, FED. COMMC’NS COMM’N (Feb. 28, 2016),

available at http://apps.fcc.gov/ecd (addressing 

broadcast speech). Hence the Federal Election 

Campaign Act electioneering-communication 

definition is vague as to non-broadcast speech. 

It may be tempting to resolve this vagueness as to 

non-broadcast speech by removing the targeted-tothe-relevant-electorate requirement. But then the law 

would be overbroad, as applied and facially: When 
29 

And after Citizens United, what remains 

from Wisconsin Right to Life regarding the 

test is the conclusion that the test is 

unconstitutionally vague, even vis-à-vis 

Federal Election Campaign Act 

electioneering communications. Wis. Right to 

Life, 551 U.S. at 492-94 (Scalia, J., 

concurring). 

How was anyone to know whether some 

bureaucrat, some court, or worse yet some 

jury would conclude (after the fact, mind you) 

that speech has no reasonable interpretation 

other than as an appeal to vote for or against 

a clearly identified candidate?

Triggering at 72-73 & nn.190-92 (brackets and 

ellipsis omitted). 

Therefore, “the appeal-to-vote test—once known 

as the ‘functional equivalent of express advocacy’—

no longer affects whether government may ban, 

otherwise limit, or regulate speech, and the appeal-

 

spending for political speech is not for Buckley express 

advocacy or for speech that is targeted to the relevant 

electorate, Track 2 law regulating the speech is not 

tailored to any government interest in regulating 

elections, supra at 15; cf. supra at 18 (addressing 

Track 1 law, which is different), much less 

“substantially related” to a “‘sufficiently important’ 

government interest,” Citizens United, 558 U.S. at 

366-67 (addressing Track 2 law (quoting Buckley, 424 

U.S. at 64, 66)). 

Triggering at 72 n.191 (brackets omitted). 
30 

to-vote test is vague. It has no place in law.” 

Triggering at 77.20 

––––––––♦––––––––

CONCLUSION 

 The Court should reverse the district-court 

order and remand this action with instructions to 

enter judgment for Appellant Independence 

Institute. 

January 4, 2017 

Respectfully submitted, 

RANDY ELF

 Counsel of Record 

Post Office Box 525 

Lakewood, N. Y. 14750 

Telephone (202) 423-2122 

ForCMECFOnly@gmail.com 

Counsel for Amicus 

 20 For replies to five sets of possible responses to the 

foregoing, please see Triggering at 73-76.