IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

INDEPENDENCE INSTITUTE, 

a Colorado nonprofit corporation,

727 E. 16th Avenue

Denver, Colorado 80203

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

999 E Street, N.W. 

Washington, D.C. 20436

Defendant.

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) Civil Action No. ____________________

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) Three-Judge Court Requested

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VERIFIED COMPLAINT

NATURE OF ACTION

1. This case challenges the definition of electioneering communications as applied to 

specific advertisements and the disclosure provisions for electioneering communications as 

applied to the Independence Institute. Bipartisan Campaign Reform Act of 2002 (“BCRA”) Pub. 

L. No. 107-155 § 201, 116 Stat. 81, 88-89 (2002) (once codified at 2 U.S.C. § 434(f), now 

codified at 52 U.S.C. § 30104(f)). 

2. Plaintiff Independence Institute is a nonprofit corporation organized under the Internal 

Revenue Code and under Colorado law. 26 U.S.C. §§ 501(c)(3) (charity status); 170(b)(1)(A)(vi) 

(public charity-foundation status for revenue generated by donations from the general public); 

COLO. REV. STAT. §§ 6-16-103(1) (defining “charitable organization”); 7-21-101 et seq.

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(“Colorado Revised Nonprofit Corporation Act”) (2013). The Independence Institute conducts 

research and educates the public on various aspects of public policy—including taxation, 

education policy, health care, and justice policy. Occasionally, its educational endeavors include 

advertisements that mention the officeholders who direct such policies. Sometimes, these 

officeholders are also candidates for office.

3. The Independence Institute plans to produce an issue advertisement, to be aired on 

broadcast radio, which will discuss federal sentencing guidelines. The advertisement will 

mention Senators Mark Udall and Michael Bennet and ask that they support the Justice Safety 

Valve Act.

4. The Independence Institute believes that the issue advertisement will qualify as an 

“electioneering communication” under 2 U.S.C. § 434(f)(3) (now codified at 52 U.S.C. § 

30104(f)(3)). Thus, the Independence Institute will be required to report and disclose its donors’

names and addresses, pursuant to 2 U.S.C. § 434(f)(1)-(2) (now codified at 52 U.S.C. § 

30104(f)(1)-(2)). 

5. The Independence Institute reasonably fears that failure to disclose its donors under 2 

U.S.C. § 434(f)(1)-(2) (now codified at 52 U.S.C. § 30104(f)(1)-(2)) will result in enforcement 

actions, investigations, and penalties levied by the Defendant and its agents.

6. BCRA’s regulation of electioneering communications chills discussion of public policy 

issues by forcing would-be speakers—including the Independence Institute—to comply with 

unconstitutional regulatory burdens should it merely mention a candidate for office, even if its 

speech neither promotes nor disparages that candidate.

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JURISDICTION

7. This Court has jurisdiction because this action arises under the First Amendment to the 

United States Constitution. 28 U.S.C. § 1331 (federal question). 

8. This Court has jurisdiction to grant relief under The Declaratory Judgment Act. See 28 

U.S.C. §§ 2201 and 2202.

9. Because this is a constitutional challenge to a provision of BCRA, this Court has 

jurisdiction under BCRA § 403 to convene a three-judge court. BCRA §§ 403(a)(1) (jurisdiction 

of this Court) and (d)(2) (actions brought after Dec. 31, 2006), 116 Stat. at 113-14 (once codified 

at 2 U.S.C. § 437h note, now codified at 52 U.S.C. § 30110 note). See also 28 U.S.C. § 2284 

(three-judge court composition and procedure); LCvR 9.1 (governing three-judge court 

procedure in this District).

10. Therefore, plaintiffs will seek to have this matter heard by a three-judge panel of this 

Court. 

VENUE

11. Venue is proper under 28 U.S.C. §§ 1391(b)(1) (“a judicial district in which any 

defendant resides, if all defendants are residents of the State in which the district is located”) and 

(b)(2) (the “judicial district in which a substantial part of the events or omissions giving rise to 

the claim occurred”).

12. Venue is proper under 28 U.S.C. §§ 1391(e)(1)(A) (in a civil action against an agency, 

the judicial district where “a defendant in the action resides”) and (e)(1)(B) (in a civil action 

against an agency, the judicial district where “a substantial part of the events or omissions giving 

rise to the claim occurred”). 

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13. Venue is also proper under BCRA § 403(a)(1) (once codified at 2 U.S.C. § 437h note,

now codified at 52 U.S.C. § 30110 note) (“the action shall be filed in the United States District 

Court for the District of Columbia”).

PARTIES

14. Established in 1985, the Independence Institute is a nonprofit corporation organized 

under the Internal Revenue Code and under Colorado law. 26 U.S.C. §§ 501(c)(3) (charity 

status); 170(b)(1)(A)(vi) (public charity-foundation status for revenue generated by donations 

from the general public); COLO. REV. STAT. §§ 6-16-103(1) (defining “charitable organization”); 

7-21-101 et seq. (“Colorado Revised Nonprofit Corporation Act”).

15. Defendant Federal Election Commission (“FEC” or “Commission”) is the agency 

charged with “exclusive jurisdiction with respect to the civil enforcement” of the Federal 

Election Campaign Act (“FECA”) (once codified at 2 U.S.C. § 431 et seq., now codified at 52 

U.S.C. § 30101 et seq.) and its amendments—including BCRA. 2 U.S.C. § 437c(b)(1) (now 

codified at 52 U.S.C. § 30106(b)(1)). The FEC is to “administer, seek to obtain compliance with, 

and formulate policy with respect to” the federal campaign finance regime. Id. 

FACTS

16. This case arises from BCRA § 201, defining and governing “electioneering 

communications.” BCRA § 201, 116 Stat. at 88-89 (once codified at 2 U.S.C. § 434(f), now 

codified at 52 U.S.C. § 30104(f)). 

17. The general election in Colorado is scheduled for November 4, 2014. COLO. REV. STAT.§ 

1-1-104(17) (“‘General election’ means the election held on the Tuesday succeeding the first 

Monday of November in each even-numbered year”).

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The Independence Institute and its tax status

18. Established May 31, 1985, the Independence Institute is a nonprofit corporation 

organized under the Internal Revenue Code (“IRC”) and under Colorado law. 26 U.S.C. §§ 

501(c)(3) (charity status); 170(b)(1)(A)(vi) (public charity-foundation status for revenue 

generated by donations from the general public); COLO. REV. STAT. §§ 6-16-103(1) (defining 

“charitable organization”); 7-121-101 et seq. (“Colorado Revised Nonprofit Corporation Act”).

19. The Independence Institute’s mission is “to empower individuals and to educate citizens, 

legislators[,] and opinion makers about public policies that enhance personal and economic 

freedom.” See INDEPENDENCE INSTITUTE “Mission Statement” available at

http://www.i2i.org/about.php.

20. The Independence Institute’s president is Jon Caldara.

21. Organizations exempt from taxation under §501(c)(3) may not engage in activity 

supporting or opposing a candidate. 26 U.S.C. §501(c)(3) (banning “participat[ion] in, or 

interven[tion] in (including the publishing or distributing of statements), any political campaign 

on behalf of (or in opposition to) any candidate for public office”).

22. In applying the IRC’s prohibition of § 501(c)(3) political activity, the Internal Revenue 

Service (“IRS”) has issued regulations and guidance on what does and does not constitute 

political activity. For example, voter registration drives and “get-out-the-vote” drives—if 

conducted in a nonpartisan manner—are not political activity. See Rev. Rul. 2007-41, 2007-25 

I.R.B. 1421, 1422; see also FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 263-264 (1986) 

(“MCFL”) (holding federal independent expenditure ban for corporations was unconstitutional as 

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applied to a nonprofit’s voter guide). Likewise, nonpartisan candidate fora are not political 

activity. Rev. Rul. 2007-41, 2007-25 I.R.B. at 1421; Rev. Rul. 66-256 2 C.B. 210 (1966).

23. However, BCRA § 201 specifically differentiates between the “political activity” covered 

by the § 501(c)(3) prohibition and “electioneering communications.” 2 U.S.C. § 434(f)(7) (now 

codified at 52 U.S.C. § 30104(f)(7)) (“[n]othing in this subsection may be construed to establish, 

modify, or otherwise affect the definition of political activities or electioneering activities...for 

purposes of the Internal Revenue Code”). Thus, “electioneering communications” are distinct 

from “political activity” under tax law. 

24. The Independence Institute is not under the control or influence of any political 

candidate.

25. The Independence Institute is not under the control or influence of any political party.

26. “Public charity” § 501(c)(3) organizations may engage in only limited lobbying activity. 

26 U.S.C. § 501(c)(3) (“An organization is not operated exclusively for one or more exempt 

purposes if...a substantial part of its activities is attempting to influence legislation by 

propaganda or otherwise”); 26 C.F.R 1.501(c)(3)-1(c)(3).

27. An organization may elect treatment under IRC § 501(h), which permits it to spend a 

defined portion of its budget on lobbying. 26 U.S.C. §§ 501(h)(2)(B) and (D).

28. The Independence Institute elects treatment under § 501(h).

29. Federal law safeguards the privacy of donors to § 501(c)(3) organizations. See, e.g., 26 

U.S.C. § 6104(d)(3)(A) (prohibiting, in the case of organizations recognized under § 501(c)(3),

“the disclosure of the name or address of any contributor to the organization”).

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The advertisement 

30. As part of its mission, the Independence Institute wishes to run an advertisement

discussing federal sentencing guidelines.

31. The advertisement will clearly mention the sitting United States Senators from Colorado, 

Mark Udall and Michael Bennet, the former of whom is also a candidate for re-election in 

November 2014.

32. The advertisement will be approximately 60 seconds in length, and be distributed over 

local broadcast radio in Colorado on major AM radio stations—850 KOA and 630 KHOW.

33. The advertisement will reach more than 50,000 natural persons in the Denver 

metropolitan area. 

34. The Independence Institute intends to spend more than $10,000 on the advertisement.

35. The advertisement will read as follows:

Independence Institute

Radio :60

“Let the punishment fit the crime” 

Let the punishment fit the crime.

But for many federal crimes, that’s no longer true.

Unfair laws tie the hands of judges, with huge increases in prison costs that help 

drive up the debt.

And for what purpose?

Studies show that these laws don’t cut crime.

In fact, the soaring costs from these laws make it harder to prosecute and lock up 

violent felons.

Fortunately, there is a bipartisan bill to help fix the problem – the Justice Safety 

Valve Act, bill number S. 619.

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It would allow judges to keep the public safe, provide rehabilitation, and deter 

others from committing crimes.

Call Senators Michael Bennet and Mark Udall at 202-224-3121. Tell them to 

support S. 619, the Justice Safety Valve Act. 

Tell them it’s time to let the punishment fit the crime.

Paid for by Independence Institute, I2I dot org. Not authorized by any candidate or 

candidate’s committee. Independence Institute is responsible for the content of this 

advertising.

36. The Independence Institute wishes to raise funds for this specific advertisement from 

individual donors, independent of its general fundraising efforts for other programs.

37. The Independence Institute wishes to raise funds for the specific advertisement, including 

seeking donations in amounts greater than $1,000 from individual donors.

38. The Independence Institute guards the privacy of its donors and therefore does not wish 

to disclose their names and addresses on an electioneering communications report. If forced to 

do so, it will not run the advertisement.

THE LAW AT ISSUE

The statutory and regulatory definition of “electioneering communications”

39. Departing from the traditional “issues speech versus candidate speech” dichotomy, 

BCRA created a new form of speech to be regulated. “Electioneering communications” are 

[A]ny broadcast, cable, or satellite communication which—(I) refers to a clearly 

identified candidate for Federal office; (II) is made within—(aa) 60 days before a 

general, special, or runoff election for the office sought by the candidate; or (bb) 

30 days before a primary or preference election, or a convention or caucus of a 

political party that has authority to nominate a candidate, for the office sought by 

the candidate; and (III) in the case of a communication which refers to a candidate 

for an office other than President or Vice President, is targeted to the relevant 

electorate.

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2 U.S.C. § 434(f)(3)(A)(i) (now codified at 52 U.S.C. § 30104(f)(3)(A)(i)).

40. “Targeted to the relevant electorate” is a term of art, with a specific definition under 

BCRA, meaning: 

a communication which refers to a clearly identified candidate for Federal office 

is “targeted to the relevant electorate” if the communication can be received by 

50,000 or more persons—(i) in the district the candidate seeks to represent, in the 

case of a candidate for Representative in, or Delegate or Resident Commissioner 

to, the Congress; or (ii) in the State the candidate seeks to represent, in the case of 

a candidate for Senator.

2 U.S.C. § 434(f)(3)(C) (now codified at 52 U.S.C. § 30104(f)(3)(C)).

41. Since the general election is on November 4, 2014, sixty days prior to the general 

election is Friday, September 5, 2014. FEDERAL ELECTION COMMISSION, Colorado 2014 Federal 

Election Compliance Information, http://www.fec.gov/info/ElectionDate/2014/CO.shtml (last 

accessed July 29, 2014).

42. BCRA provides exemptions to the definition of “electioneering communications,” 

including a press exemption (2 U.S.C. § 434(f)(3)(B)(i) (now codified at 52 U.S.C. § 

30104(f)(3)(B)(i))) and an exemption for candidate fora (2 U.S.C. § 434(f)(3)(B)(iii) (now 

codified at 52 U.S.C. § 30104(f)(3)(B)(iii))). 

43. BCRA also exempts “a communication which constitutes an expenditure or an 

independent expenditure under this Act” from the electioneering communications definition. 2 

U.S.C. § 434(f)(3)(B)(ii) (now codified at 52 U.S.C. § 30104(f)(3)(B)(ii)). That is, 

expenditures—communications that expressly advocate for or against a specified candidate—are 

not “electioneering communications.” See Buckley v. Valeo, 424 U.S. 1, 42 (1976) (regulation of 

expenditures “must be construed to apply only to expenditures for communications that in 

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express terms advocate the election or defeat of a clearly identified candidate for federal office”).

Thus, electioneering communications do not contain express advocacy.

44. Organizations exempt from taxation under § 501(c)(3) may not engage in activity 

supporting or opposing a candidate. 26 U.S.C. § 501(c)(3). BCRA § 201 specifically 

differentiates, however, between the § 501(c)(3) “political activity” prohibition and activities that 

constitute “electioneering communications.” 2 U.S.C. § 434(f)(7) (now codified at 52 U.S.C. § 

30104(f)(7)) (“Nothing in this subsection may be construed to establish, modify, or otherwise 

affect the definition of political activities or electioneering activities...for purposes of the 

Internal Revenue Code....”). Thus, “electioneering communications” are distinct from the 

“political activity” regulated under the tax laws. 

45. The FEC promulgated rules to give effect to BCRA. See, e.g., Federal Election 

Commission, Electioneering Communications Notice 2002-20, 67 Fed. Reg. 65190 (Oct. 23, 

2002) (initial regulation).

46. The FEC defined communications as referring to a “clearly identified candidate” when: 

“the candidate’s name, nickname, photograph, or drawing appears, or the identity of the 

candidate is otherwise apparent through an unambiguous reference....” 11 C.F.R. § 100.29(b)(2).

47. Likewise, the FEC clarified the “targeted to the relevant electorate” standard, as defined 

by a radio station’s audience. 11 C.F.R. §§ 100.29(b)(7)(i)(C) (station within the relevant 

jurisdiction of the election) and (D) (station only partially within the relevant jurisdiction with 

the election).

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48. The FEC and the Federal Communications Commission have produced a database to 

determine if a station’s coverage qualifies under BCRA’s definition of targeting the relevant 

electorate. 11 C.F.R. § 100.29(b)(6)(i).

49. According to the FEC’s website, advertisements run on KOA and KHOW are targeted to

the Colorado electorate. FCC MEDIA BUREAU, THE ELECTIONEERING COMMUNICATION 

DATABASE (last accessed July 31, 2014), http://apps.fcc.gov/ecd/ (search run by choosing 

“Federal Senate Race,” “Colorado,” “AM stations” and running “KOA” and “KHOW”). 

Disclosure requirements for “electioneering communications”

50. Electioneering communications disclosure under BCRA is triggered once an organization 

spends $10,000 on electioneering communications during any calendar year. 2 U.S.C. § 

434(f)(1) (now codified at 52 U.S.C. § 30104(f)(1)). Once disclosure is triggered, every 

disbursement over $200 must be reported. 2 U.S.C. § 434(f)(2)(C) (now codified at 52 U.S.C. § 

30104(f)(2)(C)).

51. Disclosure is due within approximately 24 hours of the disbursement. 2 U.S.C. § 

434(f)(1) (now codified at 52 U.S.C. § 30104(f)(1)); 2 U.S.C. § 434(f)(4) (now codified at 52 

U.S.C. § 30104(f)(4)) (defining “disclosure date” as “the first date during any calendar year by 

which a person has made [qualifying] disbursements for... electioneering communications...; 

and any other date during such calendar year by which a person has made [qualifying] 

disbursements for... electioneering communications... since the most recent disclosure date for 

such calendar year”); but see 11 C.F.R. § 104.20(b) (“[e]very person who has made an 

electioneering communication, as defined in 11 C.F.R. 100.29... shall file a statement with the 

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Commission by 11:59 p.m. Eastern Standard/Daylight Time on the day following the disclosure 

date”).

52. Electioneering communications disclosure includes the “identification of the person 

making the disbursement, of any person sharing or exercising direction or control over the 

activities of such person, and of the custodian of the books and accounts of the person making 

the disbursement.” 2 U.S.C. § 434(f)(2)(A) (now codified at 52 U.S.C. § 30104(f)(2)(A)). The 

principal place of business of the organization is also disclosed. 2 U.S.C. § 434(f)(2)(B) (now 

codified at 52 U.S.C. § 30104(f)(2)(B)).

53. If the funds to pay for the electioneering communication came out of a special, 

segregated account, then only the “the names and addresses of all contributors who contributed 

an aggregate amount of $ 1,000 or more to that account during the period beginning on the first 

day of the preceding calendar year and ending on the disclosure date” must be disclosed. 2 

U.S.C. § 434(f)(2)(E) (now codified at 52 U.S.C. § 30104(f)(2)(E)).

54. If the funds used to pay for the electioneering communication came from an account not 

described in 2 U.S.C. § 434(f)(2)(E) (now codified at 52 U.S.C. § 30104(f)(2)(E)), then “the 

names and addresses of all contributors who contributed an aggregate amount of $1,000 or more 

to the person” must be disclosed. 2 U.S.C. § 434(f)(2)(F) (now codified at 52 U.S.C. § 

30104(f)(2)(F)) (emphasis added). Thus, without first forming a separate account, an 

organization faces the very real possibility of being required to disclose all of its donors, should 

it disseminate an electioneering communication. 

55. The FEC believes that 2 U.S.C. §§ 434(f)(2)(E) and 434(f)(2)(F) (now codified at 52 

U.S.C. §§ 30104(f)(2)(E) and 30104(f)(2)(F)), taken together, mean that only donations of 

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$1,000 or more—earmarked for electioneering communications—are required to be disclosed. 

11 C.F.R. § 104.20(c)(9). This construction was recently tacitly upheld in Center for Individual 

Freedom v. Van Hollen, 694 F.3d 108, 110 (D.C. Cir. 2012) (per curiam). But the D.C. Circuit

vacated and remanded the case for further consideration of a proposed rulemaking clarifying the 

FEC’s justification for its rule. Id. at 112. Absent a new rulemaking, the district court in Van 

Hollen has been ordered to perform a Chevron step two analysis. Id.

56. Failure to disclose and report the donors who earmark their donations for the proposed 

advertisement will result in investigations, prosecutions, possible criminal liability and 

substantial civil penalties. 2 U.S.C. § 437g (now codified at 52 U.S.C. § 30109) (detailing 

investigatory and enforcement process by the FEC along with referral to the attorney general for 

criminal prosecution). 

SUPREME COURT DECISIONS REGARDING ISSUE ADVOCACY

Buckley v. Valeo

57. The Supreme Court’s touchtone for all campaign finance law is Buckley v. Valeo, 424 

U.S. 1 (1976), an omnibus facial challenge to the Federal Election Campaign Act (“FECA”) 

(once codified at 2 U.S.C. § 431 et seq., now codified at 52 U.S.C. § 30101 et seq.).

58. One aspect of FECA limited the amount spent on independent communications made 

“relative to a clearly identifiable candidate.” Id. at 7.

59. The language “relative to a clearly identifiable candidate” was found unconstitutionally 

vague because the “distinction between discussion of issues and candidates and advocacy of 

election or defeat of candidates may often dissolve in practical application. Candidates, 

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especially incumbents, are intimately tied to public issues involving legislative proposals and 

governmental actions.” Id. at 42.

60. To avoid this vagueness, the Supreme Court said FECA “must be construed 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.

61. Specifically, the Court limited regulable speech to “express words of advocacy of 

election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for 

Congress,’ ‘vote against,’ ‘defeat,’ [and] ‘reject.’” Id. at 44 n. 52.

62. In this way, the Court explicitly acted to prevent the federal campaign finance regime 

from reaching speech discussing issues of public policy. For decades, this “express advocacy” 

test (or “Buckley’s ‘magic words’”—including synonymous words or phrases) remained the 

hallmark for examining communications. 

63. In addition to distinguishing between issue speech and campaign speech, the Supreme 

Court has also recognized that disclosure implicates the First Amendment freedom of 

association. Buckley, 424 U.S. at 75.

64. To prevent the federal disclosure requirement from reaching groups that merely 

mentioned candidates in the context of issue speech, the Buckley Court construed the relevant 

provisions to apply only to “organizations that are under the control of a candidate or the major 

purpose of which is the nomination or election of a candidate.” Id. at 79.

65. Expenditures by groups under the control of a candidate or with “the major purpose” of 

supporting or opposing a candidate “are, by definition, campaign related.” Id. This language, 

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now known as “the major purpose test,” effectively narrowed the reach of FECA’s disclosure 

provisions to protect the associational freedoms of individuals and groups speaking about issues.

66. As applied to individuals and groups that did not have “the major purpose” of political 

activity, the Buckley Court narrowed the definition of “expenditures” in the same way—“to reach 

only funds used for communications that expressly advocate the election or defeat of a clearly 

identified candidate.” Id. at 80. To describe the term “expressly advocate,” the Court simply 

incorporated the “magic words” examples listed in footnote 52. Id. at 80 n. 108 (incorporating id. 

at 44 n. 52).

67. Under Buckley, disclosure of donors is appropriate only when an organization is under 

the control of a candidate or has the major purpose of supporting or opposing clearly identified 

candidates. To protect issue speech, Buckley demanded express advocacy before speechsuppressing regulations could take effect. 

McConnell v. FEC

68. In 2002, Congress again substantively overhauled the federal campaign finance regime, 

creating a new category of communications called “electioneering communications.” BCRA § 

201, 116 Stat. at 88 (once codified at 2 U.S.C. § 434(f)(3)(A)(i), now codified at 52 U.S.C. § 

30104(f)(3)(A)(i)); McConnell v. FEC, 540 U.S. 93, 189 (2003) overruled in part by Citizens 

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

69. An omnibus facial challenge was brought against BCRA. See McConnell 540 U.S. at 194 

(discussing facial overbreadth challenge to electioneering communications provisions).

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70. The new “electioneering communications” term was a response to the rise of “sham issue 

advocacy...candidate advertisements masquerading as issue ads.” McConnell, 540 U.S. at 132 

(internal quotations omitted).

71. With this in mind and in the context of a facial challenge, the Supreme Court examined 

the ban on electioneering communications by corporations and unions. McConnell, 540 U.S. at 

206 (examining BCRA § 203 (once codified at 2 U.S.C. § 441b(b)(2), now codified at 52 U.S.C. 

§ 30118(b)(2)). 

72. The Court noted a study in the McConnell record that found “the vast majority of ads” 

which would be regulated as electioneering communications “clearly had” an electioneering 

purpose. Id.

73. Therefore, while pure issue speech could not be regulated as an electioneering 

communication, the government could regulate speech if ads “broadcast during the 30- and 60-

day periods preceding federal primary and general elections are the functional equivalent of 

express advocacy.” Id. (emphasis added). Consequently, the Court upheld the statute against a 

facial challenge. Id.

74. But the McConnell Court “assume[d] that the interests that justify the regulation of 

campaign speech might not apply to the regulation of genuine issue ads,” and thus left open the 

possibility for future, as-applied challenges. Id. at 206, n. 88 (emphasis added).

FEC v. Wisconsin Right to Life

75. Four years later, the Court addressed just such an as-applied challenge involving the ban 

on corporation-funded electioneering communications. FEC v. Wis. Right to Life, Inc., 551 U.S. 

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449 (2007) (“WRTL II”). WRTL II examined the distinction between issue advocacy and 

candidate advocacy under “the functional equivalent of express advocacy” test. Id. at 455-56.

76. Returning to Buckley, WRTL II noted the difficulty of distinguishing “between discussion 

of issues on the one hand and advocacy of election or defeat of candidates on the other,” and 

therefore rejected “analyzing the question in terms ‘of intent and of effect’” as it “would afford 

‘no security for free discussion.’” Id. at 467 (quoting Buckley, 424 U.S. at 43). 

77. Consequently, “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. at 469-470 (emphasis added); see also Citizens 

United v. FEC, 558 U.S. 310, 324-25 (quoting and applying this test).

78. Invoking this standard, the WRTL II Court found that BCRA § 203’s ban did not apply to 

the nonprofit’s three proposed advertisements: 

Under this test, WRTL's three ads are plainly not the functional equivalent of 

express advocacy. First, their content is consistent with that of a genuine issue ad: 

The ads 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. Second, their content lacks indicia of express advocacy: The ads do 

not mention an election, candidacy, political party, or challenger; and they do not 

take a position on a candidate's character, qualifications, or fitness for office.

Id. at 470 (Roberts, C.J., controlling opinion); see also id. at 482 (announcing decision of the 

Court upholding the district court’s ruling that the advertisements were not subject to the ban in 

BCRA § 203). 

79. The controlling opinion specifically rejected the assertion that “any ad covered by § 203 

that includes an appeal to citizens to contact their elected representative is the ‘functional 

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equivalent’ of an ad saying defeat or elect that candidate.” Id. (internal quotations and citation 

omitted). 

80. Noting that the “Court has never recognized a compelling interest in regulating ads, like 

WRTL’s, that are neither express advocacy nor its functional equivalent,” the controlling opinion 

agreed with the district court below that there was no compelling interest in regulating the 

advertisements. Id. at 476 (approving of Wis. Right to Life, Inc. v. FEC, 466 F. Supp. 2d 195, 

208-210 (D.D.C. 2006)); Id. at 481.

Citizens United v. FEC

81. The Court struck down the corporate independent expenditure ban (both BCRA § 203 

and other parts of 2 U.S.C. § 441b, now 52 U.S.C. § 30118) in Citizens United v. FEC, 558 U.S. 

at 372. In so doing, the Court specifically upheld BCRA’s disclosure and disclaimer 

requirements. Id. But “this part of the opinion is quite brief.” Wis. Right to Life, Inc. v. Barland, 

751 F.3d 804, 824 (7th Cir. 2014).

82. Citizens United argued that “the disclosure requirements in § 201 must be confined to 

speech that is the functional equivalent of express advocacy...,” but the Court “reject[ed] this 

contention.” Citizens United, 558 U.S. at 368-69. The Court held that disclosure is “a less 

restrictive alternative to more comprehensive regulations of speech.” Id. at 369 (citing MCFL, 

479 U.S. at 262 and Buckley, 424 U.S. at 75-76). 

83. In Citizens United, the organization produced a film called Hillary: The Movie 

(“Hillary”) and several advertisements to promote the film. Id. at 320. 

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84. Central to the Court’s disposition of the challenge to corporate independent expenditures 

was whether Hillary and its supporting advertisements were express advocacy or its functional 

equivalent, as articulated in WRTL II. Citizens United, 558 U.S. at 324-25.

85. The Court explicitly held that Hillary was the functional equivalent of express advocacy

under the WRTL II test. Id. at 325. 

86. Turning to the advertisements, the Court held that “[t]he ads fall within BCRA's 

definition of an ‘electioneering communication’” because “[t]hey referred to then-Senator 

Clinton by name shortly before a primary and contained pejorative references to her candidacy.” 

Id. at 368.

87. The Seventh Circuit has stated that the Citizens United Court’s reasoning on 

electioneering communication disclosure “was dicta. The Court had already concluded that 

Hillary and the ads promoting it were the equivalent of express advocacy.” Barland, 751 F.3d at 

836 (citations omitted). Given that the Court had already found Hillary to be express advocacy, 

and the advertisements to be “pejorative,” the holding does not address advertisements that are 

pure issue advocacy. 

88. As Buckley observed, “the distinction between discussion of issues and candidates and 

advocacy of election or defeat of candidates may often dissolve in practical application.” 

Buckley, 424 at 42. 

89. Speech, under the law, lies on a spectrum. On one end sits express advocacy—speech 

using Buckley’s magic words of “support” or “reject” or their synonyms in connection with a 

specific candidacy. See id. at 44 n. 52. Next to express advocacy sit communications that do not 

use Buckley’s magic words but are nonetheless the “functional equivalent of express advocacy,” 

19

Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 19 of 29
under the test articulated in WRTL II and found to apply to the communications at issue in 

Citizens United. WRTL II, 551 U.S. at 469-70; Citizens United, 558 U.S. at 325; id. at 368. 

90. But on the other end of the spectrum is pure issue advocacy—discussion of public policy 

that also asks elected leaders to take action. The Independence Institute’s advertisement is pure 

issue advocacy. It simply educates the public and asks Colorado’s senator to support the Justice 

Safety Valve Act.

91. In rejecting the organization’s claim that disclosure would harm its donors, the Court 

noted that the organization had already disclosed its donors in the past. Citizens United, 558 U.S. 

at 370. But Citizens United is a IRC § 501(c)(4) organization. Citizens United v. FEC, 530 F. 

Supp. 2d 274, 275 (D.D.C. 2008). Thus, the court did not examine the dangers of disclosure in 

the more sensitive IRC § 501(c)(3) context.

92. The problem of disclosure attendant to “electioneering communications” has not been 

directly addressed by the Supreme Court in the situation of pure issue advocacy by an IRC § 

501(c)(3) nonprofit organization (which, by statute, cannot engage in any political activity). 26 

U.S.C. § 501(c)(3).

The D.C. Circuit in Buckley v. Valeo

93. In the en banc D.C. Circuit decision in Buckley v. Valeo, the Court of Appeals was asked 

to interpret 2 U.S.C. § 437a. Buckley v. Valeo, 519 F.2d 821, 869-870 (D.C. Cir. 1975) aff’d in 

part and rev’d in part 424 U.S. 1 (1976).

94. Later repealed, the provision provided for disclosure of organizations 

who publish[] or broadcast[] to the public any material referring to a candidate 

(by name, description, or other reference) advocating the election or defeat of 

such candidate, setting forth the candidate's position on any public issue, his 

voting record, or other official acts (in the case of a candidate who holds or has 

20

Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 20 of 29
held Federal office), or otherwise designed to influence individuals to cast their 

votes.

Id. (emphasis added) (quoting 2 U.S.C. § 437a (repealed by Federal Election Campaign Act 

Amendments of 1976 Pub. L. 94-283 § 105 90 Stat. 475, 481 (1976))). The problem was that this 

provision covered the activity of nonprofit organizations, such as the New York Civil Liberties 

Union, that engaged in issue advocacy. Id. at 871.

95. The Supreme Court never reviewed this provision of FECA because the government did 

not appeal the holding of the D.C. Circuit. Buckley, 424 U.S. at 11 n. 7. 

96. The D.C. Circuit’s Buckley opinion recognized that “compelled disclosure...can work a 

substantial infringement on the associational rights of those whose organizations take public 

stands on public issues.” Id. at 872 (citing NAACP v. Alabama, 357 U.S. at 462; Bates, 361 U.S. 

at 522-524).

97. Even though “discussion of important public questions can possibly exert some influence 

on the outcome of an election” the “nexus may be far more tenuous” then in the context of 

advocacy for or against candidates. Id. at 872-73. 

98. Therefore the law is not allowed to equate “groups seeking only to advance discussion of 

public issues or to influence public opinion” with “groups whose relation to political processes is 

direct and intimate.” Id. at 873.

99. These principles are unmodified by the subsequent Supreme Court decision and therefore 

remain good law in this Circuit.

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Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 21 of 29
CAUSES OF ACTION

Count 1:

Declaratory judgment regarding BCRA’s definition of “electioneering communications” as 

applied to the Independence Institute’s proposed advertisements

100. Plaintiff realleges and incorporates by reference paragraphs 1 through 99.

101. The Supreme Court described the dichotomy between issue speech and political speech in 

Buckley. Noting that “the distinction between discussion of issues and candidates and advocacy 

of election or defeat of candidates may often dissolve in practical application,” the Court created 

the express advocacy standard to protect issue speech from the regulations applicable to political 

speech. Buckley, 424 U.S. at 42. 

102. But BCRA § 201 regulates communications near an election that contain mere mention 

of a “clearly identified candidate.” 2 U.S.C. §§ 434(f)(3)(A)(i) (now codified at 52 U.S.C. § 

30104(f)(3)(A)(i)); 11 C.F.R. § 100.29(b)(2).

103. McConnell upheld this regulation on its face, fearing “sham issue advocacy.” McConnell, 

540 U.S. at 132 (internal quotations omitted). But this conclusion, reached in a facial context, 

was premised explicitly on a record demonstrating that the vast majority of the covered ads were 

the functional equivalent of express advocacy. Id. at 206.

104. Indeed, McConnell Court specifically “assume[d] that the interests that justify the 

regulation of campaign speech might not apply to the regulation of genuine issue ads.” Id. at 206 

n. 88 (emphasis added).

105. In this case, the Independence Institute presents a genuine issue advertisement that 

merely mentions Senator Udall, a candidate for reelection to represent Colorado in the Senate, 

together with his Senate colleague who is not a candidate for reelection. 

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106. Although the advertisement mentions Senator Udall, a candidate in the upcoming general 

election, the advertisement is not presently an electioneering communication because it is 

not yet within the 60-day electioneering communication period before the general election.

107. Considering the time needed to raise funds for and produce the advertisement, the 

advertisement will run after September 5, 2014, and consequently during the electioneering 

communications period.

108. The proposed advertisement does not qualify under BCRA’s press exemption, since they 

are paid advertisements, not “communication[s] appearing in a news story, commentary, or 

editorial distributed through the facilities of any broadcasting station.” 2 U.S.C. § 434(f)(3)(B)(i)

(now codified at 52 U.S.C. § 30104(f)(3)(B)(i)).

109. Since the proposed advertisement merely mentions Senator Udall (and contain no words 

of express advocacy or its functional equivalent), it does not qualify as an independent 

expenditure exempted under 2 U.S.C. § 434(f)(3)(B)(ii) (now codified at 52 U.S.C. § 

30104(f)(3)(B)(ii)). Likewise, it is not an expenditure. Id. In either case, it is not likely to be 

“reported under the Act or Commission regulations” and therefore is not eligible under that

exemption. 11 C.F.R. § 100.29(c)(3).

110. Nor does the advertisement constitute a debate forum or a call to hold such a forum.

Thus, it is not exempt under 2 U.S.C. § 434(f)(3)(B)(iii) (now codified at 52 U.S.C. § 

30104(f)(3)(B)(iii)).

111. Finally, 2 U.S.C. § 434(f)(3)(b)(iv) (now codified at 52 U.S.C. § 30104(f)(3)(b)(iv))

(“other communications”) likely does not apply since the proposed advertisement 

unambiguously refers to a candidate for office and satisfies the other electioneering 

23

Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 23 of 29
communication requirements. See, e.g., McConnell v. FEC, 251 F. Supp. 2d 176, 282-283, 368 

(D.D.C. 2003) aff’d in part and rev’d in part, 540 U.S. 93 (noting that the 2 U.S.C. § 

434(f)(3)(b)(iv) (now 52 U.S.C. § 30104(f)(3)(b)(iv)) exemption was not to apply to issue 

advocacy). Therefore, no BCRA exemption applies.

112. Because none of the statutory electioneering communication exemptions apply, the 

Independence Institute is left to choose between burdensome regulation and the violation of its 

donors’ privacy, or remaining silent. The Independence Institute’s speech is, consequently,

chilled. 

113. Since the proposed advertisement is not “an appeal to vote for or against a specific 

candidate,” but rather a genuine discussion of a pressing issue of public concern, BCRA § 201 is 

overbroad as applied to the Independence Institute’s advertisement. 

114. Therefore, the Independence Institute seeks a declaration that 2 U.S.C. § 434(f)(3)(A)(i)

(now codified at 52 U.S.C. § 30104(f)(3)(A)(i)) is overbroad as applied to the Independence 

Institute’s proposed advertisement.

Count 2:

Declaratory judgment on the associational burdens of BCRA’s electioneering 

communications disclosure provision as applied to the Independence Institute

115. Plaintiff realleges and incorporates by reference paragraphs 1 through 114.

116. The Independence Institute’s planned advertisement is genuine issue speech. 

117. The Independence Institute wishes to raise funds for this specific advertisement, 

including soliciting donations greater than $1,000 from individual donors.

118. Due to the sensitive nature of § 501(c)(3) donor lists, the Independence Institute wishes 

to keep such donations private, and therefore does not wish to disclose its donors on an 

24

Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 24 of 29
electioneering communications report, as required by 2 U.S.C. §§ 434(f)(1)-(2) (now 52 U.S.C. 

§§ 30104(f)(1)-(2)). 

119. Failure to disclose and report the donors who support the proposed advertisement will 

subject the Independence Institute to investigations, prosecutions, possible criminal liability, and 

substantial civil penalties. 2 U.S.C. § 437g (now codified at 52 U.S.C. § 30109) (detailing 

investigatory and enforcement process by the FEC along with referral to the attorney general for 

criminal prosecution). 

120. The Supreme Court has consistently recognized the danger of requiring disclosure of 

donors to nonprofit organizations. See, e.g., Buckley, 424 U.S. at 64 (citing Gibson v. Florida 

Legislative Comm., 372 U.S. 539 (1963); NAACP v. Button, 371 U.S. 415 (1963); Shelton v. 

Tucker, 364 U.S. 479 (1960); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357 

U.S. 449 (1958)).

121. Under Buckley, disclosure is only appropriate for groups “that are under the control of a 

candidate or the major purpose of which is the nomination or election of a candidate.” Id. at 79.

122. Likewise, if a group does not have “the major purpose” of political activity, then only 

communications that “expressly advocate the election or defeat of a clearly identified candidate” 

are subject to disclosure. Id. at 80.

123. Nevertheless, BCRA § 201 demands the name and address for every person who gives 

more than $1,000 to an organization that wishes to run an issue advertisement that happens to 

mention a candidate for office within the electioneering communications window. 2 U.S.C. § 

434(f)(2) (now codified at 52 U.S.C. § 30104(f)(2)).

25

Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 25 of 29
124. Indeed, unless the organization uses a segregated account, every donor who gives more 

than $1,000 to the organization—even if they do not earmark their donation, and even if they 

have no knowledge of the particular electioneering communication—may need to be reported. 

Compare 2 U.S.C. § 434(f)(2)(E) with 2 U.S.C. § 434(f)(2)(F) (now 52 U.S.C. § 30104(f)(2)(E) 

with 52 U.S.C. § 30104(f)(2)(F)). While the Commission does not read the statute in this manner, 

that rule is currently the subject of pending litigation. 11 C.F.R. § 104.20(c)(9); Van Hollen, 694 

F.3d at 110. 

125. Therefore, the “earmarked only” reading of disclosure rests on unsteady footing, posing 

an even greater risk that the Independence Institute may be forced to disclose all of its donors,

merely because it engaged in a single instance of issue speech.

126. While Citizens United upheld similar disclosure, it was in the context of an IRC § 

501(c)(4) organization making a film and advertisements that were the “functional equivalent of 

express advocacy.” This case presents distinctly different facts.

127. The Independence Institute and similarly situated groups organized under IRC § 

501(c)(3) must remain silent on issues 60 days before a general election, if they wish to protect 

their donors private information, consistent with federal statutory and judicial safeguards.

128. The Independence Institute wishes to raise funds to run the proposed advertisement, but 

cannot for fear that the donors who give more than $1,000 will be disclosed. BCRA’s 

electioneering communications disclosure makes the Independence Institute choose between 

disclosing its donors and remaining silent on issues central to its mission.

26

Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 26 of 29
129. Therefore, the Independence Institute seeks a declaration that, as applied to the 

Independence Institute’s proposed advertisement, 52 U.S.C. § 30104(f)(1)-(2)’s disclosure 

provisions are overbroad.

PRAYERS FOR RELIEF

WHEREFORE, Plaintiff prays for the following relief:

A. A declaration that definition of “electioneering communication” in 2 U.S.C. §

434(f)(3)(A)(i) (now codified at 52 U.S.C. § 30104(f)(3)(A)(i)) is overbroad as applied to the 

Independence Institute’s proposed advertisement.

B. A declaration that the electioneering communication disclosure regime in 2 U.S.C. §§

434(f)(1)-(2) (now codified at 52 U.S.C. §§ 30104(f)(1)-(2)) is overbroad as applied to the 

Independence Institute and its proposed advertisement.

C. Such injunctive relief as this Court may direct.

D. Any other relief this Court may grant in its discretion. 

Respectfully submitted this 2nd day of September, 2014.

s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

Tyler Martinez*

Center for Competitive Politics

124 S. West Street

Suite 201

Alexandria, Virginia 22314

Phone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff

*Admission pro hac vice pending

27

Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 27 of 29

CERTIFICATE OF SERVICE

I hereby certify that on the 2nd day of September, 2014, the foregoing document was 

served on the following, via first class mail:

Lisa J. Stevenson, 

Deputy General Counsel – Law

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20436

Phone: 202.694.1650

Facsimile: 202.219.0260

Counsel for Defendant, FEC

Eric H. Holder,

United States Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Nancy Erickson

Secretary of the Senate

United States Senate

Washington, D.C. 20510-6601

Karen L. Haas

Clerk of the House of Representatives

U.S. House of Representatives

U.S. Capitol, Room H154

Washington, D.C. 20515-6601

Civil Process Clerk

U.S. Attorney’s Office

555 Fourth Street, N.W.

Washington, D.C. 20530

s/ Allen Dickerson

 Allen Dickerson

Case 1:14-cv-01500 Document 1 Filed 09/02/14 Page 29 of 29
CIVIL COVER SHEET 

JS-44 (Rev. 7/13 DC) 

I. (a) PLAINTIFFS 

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _____________________

(EXCEPT IN U.S. PLAINTIFF CASES) 

DEFENDANTS 

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT _____________________

(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED 

(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) ATTORNEYS (IF KNOWN) 

II. BASIS OF JURISDICTION

(PLACE AN x IN ONE BOX ONLY)

III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX FOR 

PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

o 1 U.S. Government

 Plaintiff

o 2 U.S. Government

 Defendant

o 3 Federal Question

 (U.S. Government Not a Party) 

o 4 Diversity

 (Indicate Citizenship of 

 Parties in item III) 

Citizen of this State 

Citizen of Another State 

Citizen or Subject of a 

Foreign Country 

PTF

o 1

o 2

o 3

DFT 

o 1

o 2

o 3

Incorporated or Principal Place 

of Business in This State 

Incorporated and Principal 

Place of Business in Another State 

Foreign Nation 

PTF 

o 4

o 5

o 6

DFT

o 4

o 5

o 6

IV. CASE ASSIGNMENT AND NATURE OF SUIT

(Place an X in one category, A-N, that best represents your Cause of Action and one in a corresponding Nature of Suit) 

o A. Antitrust

410 Antitrust 

o B. Personal Injury/

 Malpractice

310 Airplane 

315 Airplane Product Liability 

320 Assault, Libel & Slander 

330 Federal Employers Liability 

340 Marine 

345 Marine Product Liability 

350 Motor Vehicle 

355 Motor Vehicle Product Liability 

360 Other Personal Injury 

362 Medical Malpractice 

365 Product Liability 

367 Health Care/Pharmaceutical 

 Personal Injury Product Liability 

368 Asbestos Product Liability 

o C. Administrative Agency

 Review

151 Medicare Act 

Social Security 

861 HIA (1395ff) 

862 Black Lung (923) 

863 DIWC/DIWW (405(g)) 

864 SSID Title XVI 

865 RSI (405(g)) 

Other Statutes 

891 Agricultural Acts 

893 Environmental Matters 

890 Other Statutory Actions (If 

 Administrative Agency is 

 Involved) 

o D. Temporary Restraining

 Order/Preliminary 

 Injunction

Any nature of suit from any category 

may be selected for this category of case 

assignment. 

*(If Antitrust, then A governs)* 

o E. General Civil (Other) OR o F. Pro Se General Civil

Real Property 

210 Land Condemnation 

220 Foreclosure 

230 Rent, Lease & Ejectment 

240 Torts to Land 

245 Tort Product Liability 

290 All Other Real Property 

Personal Property 

370 Other Fraud 

371 Truth in Lending 

380 Other Personal Property 

 Damage 

385 Property Damage 

 Product Liability 

Bankruptcy 

422 Appeal 27 USC 158 

423 Withdrawal 28 USC 157 

Prisoner Petitions 

535 Death Penalty 

540 Mandamus & Other 

550 Civil Rights 

555 Prison Conditions 

560 Civil Detainee – Conditions 

 of Confinement 

Property Rights 

820 Copyrights 

830 Patent 

840 Trademark 

Federal Tax Suits 

870 Taxes (US plaintiff or 

 defendant) 

871 IRS-Third Party 26 USC 7609 

Forfeiture/Penalty 

625 Drug Related Seizure of 

 Property 21 USC 881 

690 Other 

Other Statutes 

375 False Claims Act 

400 State Reapportionment 

430 Banks & Banking 

450 Commerce/ICC 

 Rates/etc. 

460 Deportation 

462 Naturalization 

 Application 

465 Other Immigration 

 Actions 

470 Racketeer Influenced 

 & Corrupt Organization 

480 Consumer Credit 

490 Cable/Satellite TV 

850 Securities/Commodities/ 

 Exchange 

896 Arbitration 

899 Administrative Procedure 

 Act/Review or Appeal of 

 Agency Decision 

950 Constitutionality of State 

 Statutes 

890 Other Statutory Actions 

 (if not administrative agency 

 review or Privacy Act)

Case 1:14-cv-01500 Document 1-1 Filed 09/02/14 Page 1 of 2
o G. Habeas Corpus/

 2255

530 Habeas Corpus – General 

510 Motion/Vacate Sentence 

463 Habeas Corpus – Alien 

 Detainee 

o H. Employment

Discrimination

442 Civil Rights – Employment

 (criteria: race, gender/sex, 

 national origin, 

 discrimination, disability, age, 

 religion, retaliation) 

*(If pro se, select this deck)*

o I. FOIA/Privacy Act

895 Freedom of Information Act 

890 Other Statutory Actions 

 (if Privacy Act) 

*(If pro se, select this deck)*

o J. Student Loan

152 Recovery of Defaulted 

 Student Loan 

 (excluding veterans)

o K. Labor/ERISA

 (non-employment) 

710 Fair Labor Standards Act 

720 Labor/Mgmt. Relations 

740 Labor Railway Act 

751 Family and Medical 

 Leave Act 

790 Other Labor Litigation 

791 Empl. Ret. Inc. Security Act

o L. Other Civil Rights

 (non-employment)

441 Voting (if not Voting Rights 

 Act) 

443 Housing/Accommodations 

440 Other Civil Rights 

445 Americans w/Disabilities – 

 Employment 

446 Americans w/Disabilities – 

 Other 

448 Education 

o M. Contract

110 Insurance

120 Marine 

130 Miller Act

140 Negotiable Instrument

150 Recovery of Overpayment 

 & Enforcement of 

 Judgment 

153 Recovery of Overpayment 

 of Veteran’s Benefits 

160 Stockholder’s Suits 

190 Other Contracts 

195 Contract Product Liability 

196 Franchise 

o N. Three-Judge

Court

441 Civil Rights – Voting

 (if Voting Rights Act) 

V. ORIGIN 

o 1 Original

 Proceeding 

o 2 Removed

 from State 

 Court 

o 3 Remanded from 

 Appellate Court 

o4 Reinstated or

 Reopened 

o 5 Transferred from 

 another district 

 (specify) 

o 6 Multi-district

 Litigation 

o7 Appeal to

 District Judge 

 from Mag. Judge 

VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.)

VII. REQUESTED IN

COMPLAINT

CHECK IF THIS IS A CLASS 

ACTION UNDER F.R.C.P. 23 

DEMAND $ 

 JURY DEMAND: 

Check YES only if demanded in complaint 

YES NO 

VIII. RELATED CASE(S)

IF ANY

(See instruction) YES NO If yes, please complete related case form 

DATE: _________________________ SIGNATURE OF ATTORNEY OF RECORD _________________________________________________________ 

INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS-44 

Authority for Civil Cover Sheet 

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required 

by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the 

Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. 

Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet. 

I. COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use 11001 to indicate plaintiff if resident 

of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United States. 

III. CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed only if diversity of citizenship was selected as the Basis of Jurisdiction

under Section II.

IV. CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best

represents the primary cause of action found in your complaint. You may select only one category. You must also select one corresponding

nature of suit found under the category of the case.

VI. CAUSE OF ACTION: Cite the U.S. Civil Statute under which you are filing and write a brief statement of the primary cause.

VIII. RELATED CASE(S), IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obtained from 

the Clerk’s Office.

Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the form. 

Case 1:14-cv-01500 Document 1-1 Filed 09/02/14 Page 2 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

__________ District of __________ 

)

)

)

)

)

)

)

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. 

You also must file your answer or motion with the court.

ANGELA D. CAESAR, CLERK OF COURT

Date:

Signature of Clerk or Deputy Clerk

Case 1:14-cv-01500 Document 1-2 Filed 09/02/14 Page 1 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

’ I personally served the summons on the individual at (place)

on (date) ; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) , who is

 designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:

Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

Case 1:14-cv-01500 Document 1-2 Filed 09/02/14 Page 2 of 2