No. 08-1977

United States Court of Appeals for the Fourth Circuit

____________

The Real Truth About Obama, Inc., Plaintiff-Appellant

v.

Federal Election Commission and

United States Department of Justice, Defendants-Appellees

____________

Appeal from the United States District Court for the

Eastern District of Virginia, Richmond Division

____________

Reply Brief

____________

Michael Boos

LAW OFFICE OF MICHAEL BOOS

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717

Counsel for Plaintiff-Appellant

James Bopp, Jr.

Richard E. Coleson

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

Lead Counsel for Plaintiff-Appellant
Table of Contents

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. The District Court Ignored This Court’s Controlling Analysis . . . . . . . . . . . . . 1

II. Speech-Protective Standards and Interests Must Govern . . . . . . . . . . . . . . . . . . 6

III. RTAO Has Likely Success on the Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. The Unambiguously-Campaign-Related Requirement Analysis

Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. 11 C.F.R. § 100.22(b) Is Void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. 11 C.F.R. § 100.57 Is Void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

D. The FEC’s PAC-Status Policy Is Void . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

E. 11 C.F.R. § 114.15 Is Void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

IV.The Other Preliminary Injunction Standards Were Met . . . . . . . . . . . . . . . . . . 27

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

i
Table of Authorities

Cases

Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) . . . . . . . . . . . . . . 9

Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990) . . . . . . . . . . . . . . . . 27

Broward Coalition of Condos., Homeowners Ass’ns and Cmty. Orgs.

v. Browning, No. 08-445, slip op. (N.D. Fla. Oct. 29, 2008) . . . . . . . . . . . . . . . . 5, 9

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . 2, 7, 10, 14, 22, 24, 25

California Medical Ass’n v. FEC, 453 U.S. 182 (1981) . . . . . . . . . . . . . . . . . . . . . 24

California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003) . . . . . . . 3, 4

Center for Individual Freedom v. Ireland, Nos. 08-190 & 08-1133,

2008 WL 4642268 (S.D. W. Va. Oct. 17, 2008) . . . . . . . . . . . 5, 12, 13, 14, 15, 16, 23

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149

(10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Eu v. San Francisco County Democratic Central Committee, 

489 U.S. 214 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Faucher v. FEC, 928 F.2d 468 (1st. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995) . . . . . . . . . 22

FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997) . . . . 3, 4, 13, 21, 22

FEC v. Florida for Kennedy Comm., 681 F.2d 1281 (11th Cir. 1982) . . . . . . . . . . 11

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . 3, 22, 23, 26

ii
FEC v. Machinists Non-Partisan Political League, 655 F.2d 380

(D.C. Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

FEC v. Survival Educ. Fund, 65 F.3d 285 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . 24

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) . . . . . . . . . . . . . . . . . . passim

Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 

546 U.S. 418 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Koerber v. FEC, No. 08-39 (E.D.N.C. Oct. 29, 2008), notice of appeal filed

(4th Cir. Oct. 31, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . . . 3, 18, 20, 22, 26

Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) . . . . . . . 15

National Right to Work Legal Def. & Educ. Found. v. Herbert, No. 07-809, 

2008 WL 4181336 (D. Utah Sept. 8, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

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

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005) . . . . . . . . . . 9

Right to Life of Duchess County v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998) . . . . 11

Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . 8

SCFC, Inc. v. Visa USA, Inc., 936 F.2d 1096 (10th Cir. 1991) . . . . . . . . . . . . . . . . 8

Slott v. Plastic Fabricators, Inc., 167 A.2d 306 (Pa. 1961) . . . . . . . . . . . . . . . . . . . 8

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) . . . . . . . . . . . . . . . 16

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . . 15, 16

iii
Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1060 (10th Cir. 2001) . . . . . . . 9

Constitution, Statutes & Rules

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

11 C.F.R. § 100.57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

11 C.F.R. § 100.57(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

11 C.F.R. § 114.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 25

2 U.S.C. § 434(17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

BCRA § 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18, 19

N.C. Gen. Stat. § 163-278.14A(a)(2) (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

iv
I. The District Court Ignored This Court’s Controlling Analysis.

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

this case. Yet the district court’s opinion completely ignored Leake’s clear articulation of the unambiguously-campaign-related principle that governs all campaignfinance regulation and of the tests implementing the principle. Appellees (collectively “FEC”) also ignore Leake’s analysis and attempt to distinguish the case because it involved a different provision. FEC-Br. 24-26, 35, 45-46. Any case can be

distinguished on superficial bases. But since Leake is binding precedent, its analysis is binding. That analysis required a preliminary injunction on all counts under

the unambiguously-campaign-related principle and the tests implementing it that

Leake recognized. 525 F.3d at 281-82, 286-89.1

In addition to stating that controlling principle, Leake was explicit as to three

controlling tests applying this principle. First, where express advocacy is required,

it must include the “magic words.” Id. at 282. So 11 C.F.R. § 100.22(b) is unconstitutional and void. Second, the major-purpose test for PAC status is “an empiri1While a peak period of public interest in the issue discussed in RTAO’s proposed ads has just passed, this case and the preliminary injunction motion is not

moot because this case and this motion fit the exception to mootness for cases capable of repetition yet evading review, see FEC v. Wis. Right to Life, 127 S. Ct.

2652, 2662-63 (2007) (“WRTL II”), and because RTAO has verified its intent to

run materially similar ads in the future and it is highly likely that President-Elect

Obama will run again. Because of the ongoing problem with obtaining preliminary

injunctions to protect free speech, this appeal, focusing on preliminary injunction

standards, is particularly important.

1
cal judgment as to whether an organization primarily engages in regulable, election-related speech.” 525 F.3d at 287 (emphasis added). So the FEC’s PAC-status

policy is unconstitutional and void. Third, an “electioneering communication” is

regulable only if it (a) meets the statutory definition and (b) is “‘susceptible of no

reasonable interpretation other than as an appeal to vote for or against a specific

candidate.’” Id. at 282 (quoting FEC v. Wisconsin Right to Life, 127 S. Ct. 2652,

2667 (2007) (“WRTL II”)). This appeal-to-vote test applies only in the context of

electioneering communications (so cannot support 11 C.F.R. § 100.22(b)), and it

is as stated, without the addition of elements from the application of the test in

WRTL II. So 11 C.F.R. § 114.15—which demotes the true test to being only part of

the FEC’s test and treats elements of the application of the test in a particular context as part of the test itself—is unconstitutional and void.2

 These particular tests

implementing the unambiguously-campaign-related requirement might be debatable elsewhere, but not in the Fourth Circuit, unless district courts may now disregard their superior appellate courts.

2While Leake had no occasion to explicitly deal with a test to determine what

may be considered a contribution, it explicitly stated that “after Buckley, campaign

finance laws may constitutionally regulate only those actions that are ‘unambiguously related to the campaign of a particular . . . candidate,’” Leake, 525 F.3d at

281 (quoting Buckley v. Valeo, 424 U.S. 1, 80 (1976), which includes the determination of what constitutes a contribution and renders 11 C.F.R. § 100.57(a) unconstitutional. See infra at III.C.

2
In addition, the FEC cites FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), as

the authority for 11 C.F.R. § 100.22(b), but the regulation does not follow

Furgatch under this Circuit’s interpretation of that case in FEC v. Christian Action

Network, 110 F.3d 1049 (4th Cir. 1997) (“CAN II”).3

 In CAN II, this court considered at length the Furgatch decision, id. at 1053-55, and declared that

the simple holding of Furgatch was, in those instances where political communications do include an explicit directive to voters to take some course of

action, but that course of action is unclear, ‘context’—including the timing

of the communication in relation to the events of the day—may be considered

in determining whether the action urged is the election or defeat of a particular candidate for public office.

Id. at 1054 (emphasis in original). Since 11 C.F.R. § 100.22(b) requires no such

“explicit directive,” it is not authorized by Furgatch.

4

 Moreover, CAN II declared

3McConnell v. FEC, 540 U.S. 93 (2003), did not eliminate the continued applicability of CAN II, see FEC-Br. 21-22, or the unambiguously-campaign-related

requirement from which the express-advocacy test was derived to govern “independent expenditures” (which still require “magic words” express advocacy).

McConnell merely approved “electioneering communications” as to another category that Congress could regulate (which was then given the appeal-to-vote test in

WRTL II, implementing the unambiguously-campaign-related requirement). CAN

II’s holding that 11 C.F.R. § 100.22(b) is unconstitutional on the independent basis that it is inconsistent with Furgatch, its purported authority, was untouched by

McConnell, as was this Court’s determination that the regulation is a we-know-itwhen-we-see-it test. See infra (in text).

4The Ninth Circuit has placed its own limiting gloss on Furgatch: “a close

reading of Furgatch indicates that we presumed express advocacy must contain

some explicit words of advocacy.” Cal. Pro-Life Council v. Getman, 328 F.3d

1088, 1098 (9th Cir. 2003) (emphasis in original). So 11 C.F.R. § 100.22(b) is not

authorized under the Ninth Circuit’s own interpretation of the Furgatch test because it does not require “some explicit words of advocacy” in a “clear plea for

3
that 11 C.F.R. § 100.22(b) is a forbidden we-know-it-when-we-see-it test, which is

unconstitutional in any event (as Leake also held, 525 F.3d at 283):

To quote the following passage, in which the FEC articulates some of the

multitude offactors that would be considered underits interpretation in determining whether a given communication was prohibited, is to appreciate the

breadth of power that the FEC would appropriate to itself under its definition

of “express advocacy”: 

[E]xpress electoral advocacy [can] consist[ ] not of words alone, but of the

combined message of words and dramatic moving images, sounds, and other

non-verbal cues such as film editing, photographic techniques, and music,

involving highly charged rhetoric and provocative images which, taken as a

whole, sen[d] an unmistakable message to oppose [a specific candidate].

Appellant’s Opposition to Fees at 8. This is little more than an argument that

the FEC will know “express advocacy” when it sees it.

CAN II, 110 F.3d at 1057. CAN II’s conclusion that the FEC was not “substantially

justified” in asserting that “‘no words of advocacy are necessary to expressly advocate the election of a candidate,’” id. at 1064 (emphasis in original), remains as

true today as when CAN II was decided.

Although the court below declined to follow Leake’s analysis, other courts

have done so. A Utah federal court expressly relied on Leake for its analytic

framework in granting summary judgment, including, inter alia, (a) that only

unambiguously-campaign-related activity “may be constitutionally regulated,” (b)

that “[a]ccordingly, [Buckley] defined the term ‘contribution’ to include donations

made directly to a candidate and also any expenditures made in cooperation with a

action.” Furgatch, 807 F.2d at 864.

4
candidate,” (c) that “expenditure” was limited to express advocacy, by which was

meant “magic words,” and (d) that the unambiguously-campaign-related requirement governs the major-purpose test for PAC status. Nat’l Right to Work Legal

Def. & Educ. Found. v. Herbert, No. 07-809, 2008 WL 4181336, at *5, *17-18 (D.

Utah Sep. 8, 2008). A Florida federal court followed Leake and Herbert in recognizing the unambiguously-campaign-related principle as a threshold requirement

for regulation under any level of scrutiny. Broward Coal. of Condos., Homeowners Ass’ns. and Cmty. Orgs. v. Browning, No. 08-445, slip. op. at 13 (N.D. Fla.

Oct. 29, 2008) (order granting prelim. inj.) (available on PACER). And a West

Virginia court issued a preliminary injunction against a Furgatch-style express

advocacy definition “strikingly similar” to the one in Leake (and also 11 C.F.R.

§ 100.22(b)), and it expressly relied on the unambiguously-campaign-related requirement, Ctr. for Individual Freedom v. Ireland, Nos. 08-190 & 08-1133, 2008

WL 4642268, at *5, *9, *14, *17 (S.D. W. Va. Oct. 17, 2008) (mem. op. granting

prelim. inj.), including citing Leake as to its necessity, id. at *17. The court below

should have similarly followed Leake’s analysis and issued a preliminary injunction, as happened in Ireland and Browning.

5

5Another federal court in this Circuit followed the court below in denying a

preliminary injunction, but it also ignored the Leake analysis. See Koerber v. FEC,

No. 08-39 (E.D.N.C. Oct. 29, 2008) (order denying prelim. inj.), notice of appeal

filed (4th Cir. Oct. 31, 2008) (provided as supplemental authority herein by FEC).

5
The fact that RTAO received no preliminary injunction despite explicit, binding Fourth Circuit precedent reveals a mistake of law that this Court should correct. Equally apparent is the need to clarify and strengthen preliminary injunction

standards to protect timely free speech because a later victory on the merits does

not protect speech when it is required. Where the need for timely speech is involved, the denial of a preliminary injunction is a denial of the right to speak.

II. Speech-Protective Standards and Interests Must Govern.

 This Court should clarify that where free speech is involved preliminary

injunction standards must be speech-protective. The same is true of the interests

that courts consider in applying these standards. See infra.

The district court set out the preliminary injunction standards it would apply,

JA–102-04, and the FEC recites its own, FEC-Br. 13-14. While one standard

indicates that in free speech cases the merits-success factor should be decided first

to determine if there is harm, JA–104, no standards were cited that otherwise

recognize that this case involves free speech and the highest constitutional

protections.

RTAO argued that the preliminary injunction standards should take into

account WRTL II’s special protection for issue advocacy and the fact that WRTL

forever lost the opportunity to run its ads when they were timely, even though the

ads were fully protected by the First Amendment. RTAO-Br. 17-18. WRTL II

6
addressed the need for timely judicial protection of issue advocacy, particularly

the sort that by definition arises shortly before elections, and instituted streamlined

procedures and highly speech-protective rules. 127 S. Ct. at 2666-67.6

 These must

be reflected, in several ways, in how preliminary injunction motions about issue

advocacy are decided.

First, preliminary injunction standards involving issue advocacy must reflect

our constitutional principles that “[i]n a republic . . . the people are sovereign,”

Buckley v. Valeo, 424 U.S. 1, 14 (1976), and there is a “‘profound national

commitment to the principle that debate on public issues should be uninhibited,

robust, and wide-open,’” id. (citation omitted). WRTL II requires that we recall

that we deal with the First Amendment, which mandated that “‘Congress shall

make no law . . . abridging the freedom of speech,’” 127 S. Ct. at 2674, and that

“[t]he Framers’ actual words put these cases in proper perspective,” id. So “no

law,” i.e., “freedom of speech,” is the constitutional default and must be the

overriding presumption where free expression is at issue.

6Even the WRTL II dissent agreed that preliminary injunctions should be available for those who could qualify, 127 S. Ct. at 2704, which means that the standards must be capable of qualification, i.e., both the standards applied and the interests balanced must be speech-protective.

7
Second, this “no law” default, supra, means that when determining the status

quo in a “prohibitory” injunction,7 as sought here, the status quo to be preserved is

“freedom of speech,” i.e., the state of the law before a challenged provision or

policy regulating speech or association was set in place. When a regulation is

challenged as unconstitutional, that regulation has altered the status quo. “[T]he

status quo is “the last peaceable uncontested status between the parties which

preceded the controversy until the outcome of the final hearing.’” Dominion Video

Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001)

(citation omitted). “The purpose of a preliminary injunction is to preserve the

status quo as it exists or previously existed before the acts complained of, thereby

preventing irreparable injury or gross injustice.” Slott v. Plastic Fabricators, Inc.,

167 A.2d 306 (Pa. 1961) (emphasis added). Agencies must not be permitted to

bootstrap a purported “status quo” and an enforcement interest by altering the

status quo with a regulation of debatable constitutionality and then asserting that

preliminary injunctions must be denied because the new regulation is the status

quo and agencies have an interest in enforcement.

7

In contrast to a “prohibitory” injunction, a “mandatory” injunction “affirmatively require[s] the nonmovant to act in a particular way, and as a result . . .

place[s] the issuing court in a position where it may have to provide ongoing supervision to assure that the nonmovant is abiding by the injunction.” SCFC, Inc. v.

Visa USA, Inc., 936 F.2d 1096,1099 (10th Cir.1991). Mandatory injunctions usually alter the status quo and a movant must show a heightened likelihood of success. Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir.1999) (per curiam).

8
Third, the “freedom of speech” presumption, supra, means that First

Amendment protections must be incorporated into the preliminary injunction

standards, not limited to merits consideration. So, for example, if strict scrutiny

applies, as here, the preliminary injunction burden shifts to the FEC to prove the

elements of strict scrutiny, just as the FEC has the burden on the merits:

The Government argues that, although it would bear the burden of

demonstrating a compelling interest as part of its affirmative defense at trial

on the merits, the [plaintiff] should have borne the burden of disproving the

asserted compelling interests at the hearing on the preliminary injunction.

This argument is foreclosed by our recent decision in Ashcroft v. American

Civil Liberties Union, 542 U.S. 656 (2004). In Ashcroft, we affirmed the grant

of a preliminary injunction in a case where the Government had failed to

show a likelihood of success under the compelling interest test. We reasoned

that ‘[a]s the Government bears the burden of proof on the ultimate question

of [the challenged Act’s] constitutionality, respondents [the movants] must

be deemed likely to prevail unless the Government has shown that

respondents’ proposed less restrictive alternatives are less effective than

[enforcing the Act].’ Id., at 666. That logic extends to this case; here the

Government failed on the first prong of the compelling interest test, and did

not reach the least restrictive means prong, but that can make no difference.

The point remains that the burdens at the preliminary injunction stage track

the burdens at trial.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428

(2006). See also Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1060, 1072-73

(10th Cir. 2001) (placing the burden on the government to justify its speech

restrictions in a preliminary injunction hearing); Pac. Frontier v. Pleasant Grove

City, 414 F.3d 1221, 1231 (10th Cir. 2005) (in First Amendment challenge,

government bears burden of establishing that content-based restriction will “more

9
likely than not” survive strict scrutiny); Browning, No. 08-445, slip. op. at 11

(N.D. Fla. Oct. 29, 2008) (preliminary injunction burden tracks trial burden).

Fourth, where the unambiguously-campaign-related requirement is at issue, the

government always has the burden of meeting that threshold burden, regardless of

the level of scrutiny, before it proceeds to meet the burden imposed by the

required level of scrutiny. Leake, 525 F.3d at 281 (government authority to

regulate elections “cabin[ed]” by unambiguously-campaign-related requirement);

Herbert, No. 07-809, 2008 WL 4181336, at *10 (“before applying exacting

scrutiny . . . the court must first determine whether the activities being regulated

are unambiguously campaign related”). The unambiguously-campaign-related

principle has been implemented through the magic-words express-advocacy test

(for “independent expenditures”), Buckley, 424 U.S. at 80, the major-purpose test

(for PAC status), id. at 79, Buckley’s recognition of a limiting interpretation of

“contribution,” id. at 23 n.24 (“The use of [‘for the purpose of influencing’]

presents fewer problems in connection with the definition of a contribution

because of the limiting connotation created by the general understanding of what

constitutes a political contribution. ” (emphasis added)), and WRTL II’s appeal-tovote test (for “electioneering communications”), 127 S. Ct. at 2667. See also

Leake, 525 F.3d at 281-83, 287. So applying this threshold requirement entails a

straightforward measuring of a challenged provision against these benchmarks.

10
Fifth, because strict scrutiny is the antithesis of deference or a presumption of

constitutionality, no deference or favorable presumption must be afforded the

regulation of speech in preliminary injunction balancing. This is required by the

“freedom of speech” presumption and because “the Government must prove that

applying [the challenged provision to the communication at issue] furthers a

compelling interest and is narrowly tailored to achieve that interest. WRTL II, 127

S. Ct at 2664 (emphasis in original). In fact, the enforcement efforts of agencies

charged with regulating free speech require “extra-careful scrutiny from the

court,” FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 387

(D.C. Cir. 1981), because “[t]he subject matter which the FEC oversees . . . relates

to behavior of individuals and groups only insofar as they act, speak and associate

for political purposes,” id.

8

 While there is a place for deference to an agency, it

applies only where there is a “‘reasonable choice within a gap left open by

Congress.’” Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) (quoting Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984)). But

there is no deference where “the Supreme Court has spoken on the issue. . . . It is

8

See also FEC v. Florida for Kennedy Comm., (“[T]he activities that the FEC

seeks to investigate differ profoundly in terms of constitutional significance from

the activities that are generally the subject of investigation by other federal administrative agencies. The sole purpose of the FEC is to regulate activities involving

political expression, the same activities that are the primary object of the first

amendment's protection. The risks involved in government regulation of political

expression are certainly evident here.”).

11
not the role of the FEC to second-guess the wisdom of the Supreme Court.”

Faucher v. FEC, 928 F.2d 468, 471 (1st Cir.1991). See also Right to Life of

Dutchess County v. FEC, 6 F. Supp. 2d 248, 254 (S.D. N.Y. 1998) (same).

Sixth, the necessary incorporation of First Amendment protections into

preliminary injunction standards requires that in determining the balance of harms

and the public interest, courts must apply WRTL II’s requirement that “‘[w]here

the First Amendment is implicated, the tie goes to the speaker, not the censor.’” 

Ireland, No. 08-190, slip. op. at *51 (S.D. W. Va. Oct. 17, 2008) (mem. op.

granting prelim. inj.) (quoting WRTL II, 127 S. Ct. at 2669) (applying principle to

consideration of public harm).

Seventh, the “freedom of speech” presumption, supra, means that agencies

have no per se interest in restricting or regulating speech. Since they deal with free

speech, their first loyalty should be to the First Amendment. Beyond that, their

only interest is in enforcing the laws as they exist, with any interest in the

particular content of those laws being beyond the agency’s interest in the

preliminary injunction balancing of harms: “It is difficult to fathom any harm to

Defendants [enforcement officials] as it is simply their responsibility to enforce

the law, whatever it says.” Id. Even where an agency’s regulation is at issue, the

agency’s only interests are in faithfully implementing the substantive law

established by the legislature and abiding by the Constitution. Consequently, while

12
the FEC has the duty to defend campaign laws and regulations, it does so as a

statutory mandate, not as a party having any ownership interest in the substantive

content or the per se ability to enforce them. The risks inherent in an agency

charged with overseeing our most precious liberties, see supra, apply here, too. As

a consequence, courts should expect from the FEC its best, good-faith arguments

on the merits, not scorched-earth litigation tactics in disregard of the fundamental

liberties at issue, cf. CAN II, 110 F.3d 1049, and any “right to enforce” must be

viewed as an instrumental, statutory interest, not as some weighty property right

(let alone a powerful liberty). Certainly it should never be equated with the

fundamental “freedom of speech.” So where there is a balancing of the two,

“freedom of speech” must always win unless there is some other interest that is

weighty enough to warrant denial of a preliminary injunction. Even to the extent

the “freedom of speech” and the ability to enforce a regulation are considered

equal, “‘[w]here the First Amendment is implicated, the tie goes to the speaker,

not the censor.’” Ireland, Nos. 08-190 & 08-1133, 2008 WL 4642268, at *27

(quoting WRTL II, 127 S. Ct. at 2669).

Eighth, the fact that an issue-advocacy case may be filed near an election

favors the plaintiff, not the defendant in the preliminary injunction balancing,

because issue advocacy is most important when public interest in an issue is

highest, which may fall near an election: “a group can certainly choose to run an

13
issue ad to coincide with public interest,” without proximity to an election

meaning that it is “electioneering.” WRTL II, 127 S. Ct. at 268. WRTL II expressly

rejected the use of timing to determine whether an ad is regulable: “That the ads

were run close to an election is unremarkable in a challenge like this. Every ad

covered by BCRA § 203 will by definition air just before a primary or general

election.” Id. at 2667. WRTL II also specifically envisioned eve-of-election

litigation in its rules for as-applied challenges involving electioneering

communications. Id. at 2666. To penalize people who suddenly see a need to

exercise their First Amendment right to associate to amplify their speech, Buckley,

424 U.S. at 22, is to ignore the “freedom of speech” presumption. See supra.

Under the First Amendment, there is no reason that citizens can’t just suddenly

associate and speak—whenever they want. There is no prescience requirement,

mandating people to know months in advance that they will want to speak. Nor are

First Amendment protections limited to long-established groups. Nor do First

Amendment rights diminish near the peak of the election cycle. Speech in

temporal and topical proximity to an election enjoys the highest protection.

Buckley, 424 U.S. at 14 (“‘constitutional guarantee has its fullest and most urgent

application precisely to the conduct of campaigns for political office’” (citation

omitted)). Any delay in filing a challenge may not be held against the would-be

speaker because it “could . . . have delayed because it did not arrive at a plan to

14
exercise its rights to speak until relatively recently. Ireland, Nos. 08-190 & 08-

1133, 2008 WL 4642268, at *26.

Ninth, where a law is unconstitutional or likely so, there is no authority for it

to exist or operate just because an election is near. In fact, proximity to a time of

high public interest argues against allowing a law restricting issue advocacy to

remain in effect. See supra. So the trial court was wrong in insisting that issuing

the preliminary injunction “would likely” result in “a ‘wild west’” with

“confuse[d] political actors” and so on. JA–30. “[F]inding these laws

unconstitutional will not likely result in the type of chaotic ‘wild west’ scenario

Defendants . . . foretell. Rather, it will simply result in the dissemination of more

information of precisely the kind the First Amendment was designed to protect.”

Ireland, Nos. 08-190 & 08-1133, 2008 WL 4642268, at *26.

Tenth, where an agency wants to argue that there will be a “wild west”

scenario if a law of questionable constitutionality is preliminarily enjoined and

“freedom of speech” prevails, the agency must provide proof. Id. at *27. Where

First Amendment rights are involved, the government “must do more than simply

posit the existence of the disease sought to be cured. It must demonstrate that the

recited harms are real, not merely conjectural, and that the regulation will in fact

alleviate these harms in a direct and material way.” Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 664 (1994) (internal citation omitted); see also Members of

15
City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n. 22 (1984) (“[This

Court] may not simply assume that the ordinance will always advance the asserted

state interests sufficiently to justify its abridgement of expressive activity.”). FEC

v. NRA, 254 F.3d 173, 191 (D.C. Cir. 2001) (same); see also id. at 192 (FEC may

not speculate that NRA received more because it did not record corporate

contributions of under $500, citing Turner, 512 U.S. at 664). Where an agency

asserts voter confusion, it bears a heavy burden of proof. See, e.g., Timmons v.

Twin Cities Area New Party, 520 U.S. 351, 370 n.13 (1997) (re anti-fusion

statute); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223

(1989) (paternalistic limiting of information highly suspect); Tashjian v.

Republican Party of Conn., 479 U.S. 208, 221 (1986) (closed primary law banning

opening primary to independents not justified by preventing voter confusion).

Against this need for proof that the sky will fall if a law of questionable

constitutionality is preliminarily enjoined is the paramount fact that “the protection

of First Amendment rights is very much in the public’s interest.” Ireland, Nos. 08-

190 & 08-1133, 2008 WL 4642268, at *27.

In sum, where issue advocacy is involved, our most cherished constitutional

rights are involved, as is the fundamental right of the sovereign people to

participate in self-governance. The high constitutional protections for issue

advocacy reflect that fact. The preliminary injunction standards and permissible

16
interests to consider must reflect that high protection. It is not constitutionally

permissible to employ the same preliminary-injunction standards that might be

applied to maintaining the status quo in a fuss between neighbors over fence

construction. If proper standards had been followed below, RTAO should have

received a preliminary injunction. Those standards should be articulated by this

Court so that when RTAO does materially similar issue advocacy in the future at

times when public interest is high, which likely will again be near an election, it

will get the protection to which the First Amendment entitles it.

III. RTAO Has Likely Success on the Merits.

A. The Unambiguously-Campaign-Related Requirement Analysis Controls.

As noted in Part I, this Court has recognized the unambiguously-campaignrelated requirement as a threshold requirement that all campaign-finance laws

must meet. Under that principle, and the clearly-articulated tests that implement it,

RTAO had a high likelihood of success on the merits. But there was a failure below to follow precedent, as the district court ignored the controlling analysis, as

the FEC essentially ignores it now.

B. 11 C.F.R. § 100.22(b) Is Void.

The district court decided that 11 C.F.R. § 100.22(b) was likely constitutional

on two bases, i.e., because (1) its contextual, reasonable-person test was essentially the same as the “appeal-to-vote” test for regulable electioneering communi17
cations in WRTL II (127 S. Ct. at 2667), JA–21, and (2) WRTL II approved using

context to interpret the meaning of communications. JA–21. The court was wrong

on both bases.

As to the first basis, WRTL II’s appeal-to-vote test is not a free-floating test for

express advocacy. WRTL II expressly stated that “the proper standard for an

as-applied challenge to BCRA § 203,” 127 S. Ct. at 2666 (emphasis added), includes the appeal-to-vote test, which by its terms is for the “functional equivalent

of express advocacy,” id. at 2667 (emphasis added). Since the test is for as-applied

challenges to “BCRA § 203,” which is the electioneering communication prohibition, it applies solely to electioneering communications. It was not created to interpret the “expressly advocating” language in FECA’s “independent expenditure”

definition at 2 U.S.C. § 434(17), as 11 C.F.R. § 100.22(b) does. McConnell established the “functional equivalent” terminology to refer to electioneering communications, as distinct from express-advocacy independent expenditures. 540 U.S. at

206. WRTL II followed that terminology. Moreover, it is logically impossible for

“the functional equivalent of express advocacy” to be a kind of express advocacy.

If it were a kind of express advocacy, it would be express advocacy, not the functional equivalent of express advocacy. So the appeal-to-vote test applies only in

the electioneering communication context, as WRTL II made clear in its defense

against the dissent’s claim that the appeal-to-vote test is vague. WRTL II, 127 S.

18
Ct. at 2669 n.7 (appeal-to-vote test not vague because, inter alia, it is restricted to

communications fitting the statutory electioneering communications definition).

The FEC attempts to avoid WRTL II’s clear limitation of the appeal-to-vote

test to the electioneering communication context with a strained argument based

on the following statement from Leake, although the FEC omits the underlined

words: “even if the dissent is correct and WRTL did not intend to mandate the specific dictates of BCRA § 203 as a necessary prerequisite for functional equivalency, it is inconceivable that the Supreme Court would ever allow a state to substitute a test as vague and broad as this “context prong” as an alternative standard.

For even a cursory reading of § 163-278.14A(a)(2) uncovers its serious constitutional infirmities . . . .” 525 F.3d at 299. The FEC argues that this means that this

Court did not find the “electioneering communication” definition necessary to the

functional equivalent of express advocacy. FEC-Br. 26. In fact, the FEC goes further, insisting that RTAO’s argument makes the definition a “constitutional test,

requiring that every regulation of non-magic-words express advocacy meet both

the WRTL standard and the BCRA definition to be constitutional.” Id.

This argument is flawed. First, there is no such thing as “non-magic-words

express advocacy” because express advocacy requires magic words, as Leake reiterated in the same context as the statement the FEC cites above: “Specifically,

WRTL only allows political speech to be regulated if it both ‘meets the brightline

19
requirements of BCRA § 203’ and ‘is susceptible of no reasonable interpretation

other than as an appeal to vote for or against a specific candidate.’” 525 F.3d at

297. Second, as noted from the underlined words omitted by the FEC, this Court in

Leake was making an arguendo statement responding to the dissent, i.e., the statute is flawed because of WRTL II, but even absent WRTL II it would still be unconstitutional. Leake held that WRTL II is controlling authority, however, so that

ultimately ends the analysis. Third, the definition of electioneering communication

definition is not itself a constitutional requirement (e.g., because Congress might

be able to justify changing the 60-day periods before general elections to 61-day

periods), but it (as limited by the appeal-to-vote test) is the only “functional equivalent of express advocacy” that Congress has passed and the Supreme Court has

recognized to date. If there were another attempt to create another “functional

equivalent,” Congress would have to do that, not the FEC. If Congress were to

attempt it, the statute would have to meet the same strict scrutiny burden of proof

that was required for BCRA in McConnell. Until that happens, Leake makes clear

(following Supreme Court precedents) that there are only two options: (1) magicwords express advocacy or (2) “electioneering communications” limited by the

appeal-to-vote test. The FEC has not authority for creating hybrid creatures in between.

20
The FEC makes an “arguendo” nod to the controlling unambiguouslycampaign-related principle by pointing to the word “unambiguous” in § 100.22(b).

FEC-Br. 20. Including that word does not comply with the principle because the

Supreme Court has always implemented the principle through specific tests, and

the one applicable to independent expenditures is the express-advocacy test. In

WRTL II, all of the Justices agreed that where the express-advocacy test applies it

requires “magic words.” See RTAO-Br. at 27 n.6. In any event, this Court has already held that express advocacy requires “magic words,” Leake, 525 F.3d at 281-

82, which excludes applying the appeal-to-vote test. The FEC might have argued

for ignoring stare decisis (for which there is no justification), but its effort to ignore Leake must fail.

As to the district court’s approval of a “context” test—because WRTL II approved noticing “basic background information”—the Court ignored the first part

of the same sentence in WRTL II, which contains the clear instruction that “contextual factors of the sort invoked by appellants should seldom play a significant

role in the inquiry” when “determining whether an ad is the ‘functional equivalent’

of express advocacy.” 127 S. Ct. at 2669. In addition, WRTL II expressly rejected,

individually, the contextual factors (such as timing) that the FEC would rely on in

applying § 100.22(b). Id. at 2668-69. Moreover, this Court said that the limited

reference to context approved in Furgatch could only come “in those instances

21
where political communications do include an explicit directive to voters to take

some course of action, but that course of action is unclear,” CAN II, 110 F.3d at

1054 (emphasis in original), which limitation is not reflected in § 100.22(b). This

flawed “express advocacy” definition is “based . . . ‘on a misreading of the Ninth

Circuit’s decision in Furgatch.’” Id. at 1061 (quoting FEC v. Christian Action

Network, 894 F. Supp. 946, 958-59 (W.D. Va. 1995), affirmed, 92 F.3d 1178 (4th

Cir. 1996) (per curiam)). As a result of the fundamental flaws in § 100.22(b), this

Court declared that “[e]ven absent binding Supreme Court precedent, [it] would

bridle at the power over political speech that would reside in the FEC under such

an interpretation.” Id. at 1061. McConnell did not alter either the FEC’s fundamental misreading of Furgatch nor the fundamental flaws in § 100.22(b).

Furthermore, § 100.22(b) is doomed for vagueness because the FEC continues

to declare that Change is not express advocacy under that regulation, FEC-Br. 28

n.8, while the district court insists that it is, JA–110-11. So the regulation “trap[s]

the innocent by not providing fair warning,” “foster[s] arbitrary and discriminatory

application,” and “inhibit[s] protected expression by inducing citizens to steer far

wider of the unlawful zone . . . than if the boundaries of the forbidden areas were 

22
clearly marked.” Buckley, 424 U.S. at 41 n.48 (quotation marks and citations omitted). This is far from the “narrow specificity” required to protect free speech. Id.

9

Also, Change could not be express advocacy under the regulation’s own criterion because “reasonable minds . . . differ[ed]”—since the district court made no

finding that the FEC is unreasonable. And the failure to protect Change in the face

of such a “tie” means that the First Amendment required protection for Change

because “[w]here the First Amendment is implicated, the tie goes to the speaker,

not the censor.” WRTL II, 127 S. Ct. at 2669. “[W]e give the benefit of the doubt

to speech, not censorship.” Id. at 2674.

Finally, as noted in Part I, the federal district court in the Ireland case preliminarily enjoined a Furgatch-style express advocacy test relying on Leake’s analysis.

Supra Part 1. The same would have happened here, if precedent had been similarly

followed.

9The FEC suggests that vagueness can be mitigated by advisory opinion

(“AO”) requests. But the National Right to Life Committee’s (“NRLC”) requested

an AO on September 26, 2008, to protect similar pro-life ads. Athough enough

commissioners said at an October 23, 2008, meeting that they approved one of the

ads, the FEC did not issue an AO to protect it, postponing further consideration

until after the timely opportunity was lost. See

http:??saos.nictusa.com/saos/searchao?SUBMIT=pending (last visited Nov. 11,

2008).

23
C. 11 C.F.R. § 100.57 Is Void.

The FEC attempts to evade a challenge to 11 C.F.R. § 100.57 on standing

grounds, insisting that the regulation does not govern the solicitation letter. FECBr. 31. The district court rightly rejected this argument. JA–112. The central problem of knowing when § 100.57 applies is the vagueness of “support or oppose.”

When RTAO sends materially similar future solicitations, how will it know where

the support/oppose line falls? Here it appears that the FEC has pushed the line toward the First Amendment’s “freedom of speech” to avoid litigation, but absent

litigation the vagueness of the line permits the FEC to interpret it to offer less liberty, which should be expected. After all, FEC v. Survival Educ. Fund, 65 F.3d

285 (2d Cir. 1995) was a solicitation for express advocacy, but the FEC spun that

into a broader, vaguer support/oppose standard. Buckley’s endorsement of a narrowed scope of the “contribution” definition to avoid vagueness and overbreadth,

424 U.S. at 23 n.24, 78 (which is consistent with its uniform application of the

unambiguously-campaign-related requirement in all other areas of campaign-finance law), including donations “earmarked for political purposes,” is not broader

than § 100.57, as the FEC argues. FEC-Br. 33. “Political purposes” in Buckley

plainly referred to the activities of which Buckley spoke elsewhere, i.e., making

“contributions” or independent “expenditures” to which terms Buckley had already

applied interpretations to meet the unambiguously-campaign-related requirement.

24
Leake’s recognition that all campaign finance regulations must be “cabined” by

the unambiguously-campaign-related requirement, 525 F.3d at 284, requires the

same interpretation of “political purpose.” The FEC attempts to dodge this plain

meaning of “political purposes” by relying on California Medical Ass’n v. FEC,

453 U.S. 182 (1981), but of course that case was donations to a PAC, which are

clearly “contributions” and fit the unambiguously-campaign-related requirement.

Measured against the benchmark phrase that Buckley found unconstitutionally

vague and overbroad—“advocating the election or defeat of a candidate,” 424 U.S.

at 42— “support or oppose the election of a . . . candidate” is unconstitutionally

vague and overbroad.

D. The FEC’s PAC-Status Policy Is Void.

As set out in Part I, Leake said that the major-purpose test for PAC status is

“an empirical judgment as to whether an organization primarily engages in

regulable, election-related speech.” 525 F.3d at 287 (emphasis added). The FEC

fails to respond to this central argument and decisive argument. Since Leake controls in this circuit, the district court had no discretion to ignore it.

E. 11 C.F.R. § 114.15 Is Void.

As set out in Part I, Leake stated WRTL II’s appeal-to-vote test as it truly is,

525 F.3d at 282, without the addition of elements from the application of the test

in WRTL II. By contrast, 11 C.F.R. § 114.15 demotes the true test to being only

25
part of the FEC’s test and imports application factors. Since Leake controls in this

circuit, the district court had no discretion to depart from it. The FEC tries to divert attention from this controlling analysis by distinguishing Leake based on the

sort provision at issue, but that does not alter the analysis, which controls. The

FEC then attempts to ignore the import of the carefully-chosen words of WRTL

II’s appeal-to-vote test. FEC-Br. 46. If an ad can only be interpreted “as an appeal

to vote,” 127 S. Ct. at 2667, there must be some sort of “appeal,” i.e., some clear

plea for action, that can only be interpreted as a call “to vote” for or against a candidate (not simply as supporting or opposing a candidate). Apparently having no

response to this argument, the FEC creates the straw-man argument that RTAO

“seeks to reintroduce a test akin to the magic words requirement that the Supreme

Court rejected in McConnell and WRTL.” FEC-Br. 46. Preliminarily, of course,

McConnell and WRTL II actually recognized that where an express-advocacy test

applies the magic words are required. But as to the appeal-to-vote test, RTAO has

never argued for particular “magic words,” only that there be a clear plea for action, and that the action appealed for could only be interpreted as an appeal to vote

for or against a candidate. Otherwise, in limiting the scope of regulable electioneering communications (consistent with the unambiguously-campaign-related requirement), WRTL II was creating a test that allowed regulation of free speech far

beyond Furgatch’s interpretation of express advocacy (which required such a

26
“clear plea for action”). But such an interpretation of the appeal-to-vote test must

be rejected if phrase “functional equivalent of express advocacy,” as set out in

McConnell and WRTL II, is to have any meaning. An “appeal to vote” test could

not identify the “functional equivalent” of express advocacy absent some sort of

appeal to vote.

IV. The Other Preliminary Injunction Standards Were Met.

As outlined in the opening brief and above, RTAO had a strong likelihood of

success on the merits. Because of this, RTAO had a loss of First Amendment

rights at a time when the issue in its ads was perhaps at its peak in the public interest, clearly irreparable harm. RTAO-Br. 51-52. The FEC argues that RTAO has no

irreparable harm because RTAO can do what it wants to do as a political committee. FEC Br. 15. Imposed PAC status is itself a well-recognized harm, which is

why the Supreme Court said that the government must justify imposing PAC status with strict scrutiny. See Austin v. Mich. Chamber of Commerce, 494 U.S. 652,

658 (1990). WRTL II declared that “PACs impose well-documented and onerous

burdens, particularly on small nonprofits.” 127 S. Ct. at 2671 n.9. And if a wouldbe speaker does not speak because it does not want to assume the onerous and

unconstitutionally-applied burdens of PAC status or face severe penalties, that

serious First Amendment harm has no remedy. Certainly, the FEC will not be reimbursing RTAO for any harm caused by its regulations and policy.

27
And if the proper standards for preliminary injunctions where issue advocacy

is involved as applied, as set out in Part I, supra, the balance of harms and public

interest factors clearly weigh in RTAO’s favor. So the district court was wrong to

deny a preliminary injunction.

Conclusion

For the foregoing reasons the district court’s denial of a preliminary injunction

should be reversed.

Michael Boos

LAW OFFICE OF MICHAEL BOOS

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717

Respectfully submitted,

 /s/ James Bopp, Jr.

James Bopp, Jr.

Richard E. Coleson

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

28
Certificate of Service

I hereby certify that on November 12, 2008, I electronically filed the foregoing

with the Clerk of Court using the CM\ECF System, which will send notice of such

filing to the following registered CM\ECF users:

Eric Fleisig-Greene

U.S. DEPARTMENT OF JUSTICE

Debra Jean Prillaman

OFFICE OF U.S. ATTORNEY

Adav Noti

David Kolker

Harry Summers

FEDERAL ELECTION COMMISSION

Tara Malloy

CAMPAIGN LEGAL CENTER AND

DEMOCRACY 21

 /s/ James Bopp, Jr.

James Bopp, Jr