No. 11-1760

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

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

Counsel for Plaintiff-Appellant

James Bopp, Jr.

Richard E. Coleson

Kaylan L. Phillips

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

Lead Counsel for Plaintiff-Appellant

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Table of Contents

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

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. FEC’s Alternate “Expressly Advocating” Definition Is Vague,

Overbroad, Beyond Statutory Authority, and Void... . . . . . . . . . . . . . . . . . 2

A. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Section 100.22(b) Fails the Requirement that Government Only

Regulate Speech that Is Election-Influencing by Being Unambiguously Campaign Related.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. “Express Advocacy” Requires “Magic Words.”. . . . . . . . . . . . . . . . . . 5

D. Section 100.22(b) Is Beyond Statutory Authority... . . . . . . . . . . . . . . . 9

E. Section 100.22(b) Is Unconstitutionally Vague and Overbroad... . . . 10

F. Applying Section 100.22(b) Highlights the Vagueness.. . . . . . . . . . . 18

II. FEC’s PAC-Status Policy Is Vague, Overbroad, Beyond Authority, and

Void.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Standards of review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. Citizens Declared PAC Burdens “Onerous” and Rejected PACs

as Adequate Vehicles for Corporate Political Speech and

Vague, Multi-Factor Tests.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

C. FEC Must Prove Its Policy Only Regulates Activity that Is

Election-Influencing by Being Unambiguously Campaign Related... 24

D. Major Purpose Is Based on “an Empirical Judgment [that] an Organization Primarily Engages in Regulable, Election-Related

Speech.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

(i)

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E. FEC Employs an Impermissible Major-Purpose Policy.. . . . . . . . . . . 25

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

(ii)

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Table of Authorities

Cases

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

Citizens United v. FEC, 130 S. Ct. 876 (2010).. . . . . . . . . . . . . . . . . . . . . . . passim

Colorado Right to Life Committee v. Coffman, 498 F.3d 1137 (10th Cir. 2007).. . 4

Davis v. FEC, 554 U.S. 724 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . 9, 21

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) . . . . . . . . . . . . . . . . 3

Lawrence v. Chater, 516 U.S. 163 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

McConnell v. FEC, 540 U.S. 93 (2003). . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 12-14

National Organization for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011). . . . 15

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010). . . . . . . 4

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

RTAO v. FEC, No. 08-483, 2008 WL 4416282 (E.D. Va. Sept. 24, 2008). . . . . . 23

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . 24

Virginia Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001). . . . . . . . 15

Constitutions, Statutes & Regulations

2 U.S.C. 431(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2 U.S.C. 431(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2 U.S.C. 434(f)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

(iii)

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2 U.S.C. 441b.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

1 C.F.R. 100.22(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

11 C.F.R. 100.57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

11 C.F.R. 114.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16-17, 19, 21

Other Authorities

FEC, “Political Committee Status,” 72 Fed. Reg. 5597 (Feb. 7, 2007). . . . . . 10, 26

William Shakespeare, Hamlet, Act iii, Scene 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Statement of Reasons of Chair Cynthia L. Bauerly and Commissioners Steven

T. Walther and Ellen L. Weintraub, MUR 6346 (Cornerstone Action) (Oct.

21, 2011) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

(iv)

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Argument

The Supreme Court says that when it issues a grant-vacate-remand (“GVR”)

order it finds “a reasonable probability that the decision below rests upon a premise that the lower court would reject given the opportunity for further consideration,” Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam) (emphasis

added). See Appellant’s Br. (“RTAO-Br.–”) at 13. Appellees (collectively “FEC”)

say “a ‘GVR order’ is not a determination on the merits.” Appellees’ Br. (“FECBr.–”) at 16 n.8. This does not alter the Supreme Court’s finding of a reasonable

probability of a different outcome, based on prescribed reconsideration in light of

Citizens United v. FEC, 130 S. Ct. 876 (2010). Citizens United reasserted brightline protection for core political speech, rejecting vague and overbroad tests, such

as previously challenged 11 C.F.R. 114.15 and those now before the Court.

But FEC ignores Citizens United’s bright-line protection for political speech,

trying instead to apply Citizens United’s narrow upholding of ordinary disclaimer

and reporting requirements to the case at hand. See, e.g., FEC-Br.–19-20. The

challenged regulation and policy are not ordinary disclaimer and reporting requirements, and branding them “disclosure” does not make them constitutional. They

trigger PAC-status, the burdens of which Citizens United pronounced “onerous”

and reviewed under strict scrutiny. 130 S. Ct. at 898.

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I. FEC’s Alternate “Expressly Advocating” Definition

Is Vague, Overbroad, Beyond Statutory Authority, and Void.

A. Standards of Review.

RTAO established that vagueness and overbreadth standards, including the

unambiguously-campaign-related requirement, are part of the standards of review

that must be resolved before other review may proceed and that if the FEC lacks

statutory authority its regulation is unlawful. RTAO-Br.–15-16. “Only after determining that 11 C.F.R. 100.22(b) is not unconstitutionally vague and overbroad, is

unambiguously campaign related, and is not beyond statutory authority would any

other standard of review come into play.” RTAO-Br.–16. FEC only addresses exacting versus strict scrutiny in its standards discussion, ignoring crucially the controlling analysis of North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir.

2008) (see RTAO-Br.–18-19). FEC-Br.–22-25.1

FEC argues that, though its alternate expressly advocating definition can trigger PAC burdens that Citizens United declared “onerous,” 130 S. Ct. at 898, exacting scrutiny applies. FEC-Br.–23-25. But FEC’s assertion that Citizens United did

not apply strict scrutiny to PAC-style organizational and reporting burdens fails to

 FEC attempts to downplay the controlling authority of Leake as inapplicable 1

because Leake involved an express advocacy definition that “was significantly

more expansive and less precise than section 100.22(b).” FEC-Br.-41. However,

FEC points to distinctions without a difference between the statutes, and Leake’s

analysis controls.

2

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deal with what Citizens United actually said:

A PAC is a separate association from the corporation. So the PAC exemption

from § 441b’s expenditure ban, § 441b(b)(2), does not allow corporations to

speak. Even if a PAC could somehow allow a corporation to speak—and it

does not—the option to form PACs does not alleviate the First Amendment

problems with § 441b. PACs are burdensome alternatives; [listing organizational and reporting burdens].”

130 S. Ct. at 897 (emphasis added). In other words, Citizens United considered

both the ban and the PAC-option under strict scrutiny because “[l]aws that burden

political speech”—not just those that prohibit political speech—“are ‘subject to

strict scrutiny.’” Id. at 898 (citation omitted) (emphasis added). And FEC failed to

demonstrate, FEC-Br.–23 n.10, that FEC v. Massachusetts Citizens for Life, 479

U.S. 238 (1986) (“MCFL”), did not also consider both the PAC-option and the

corporate expenditure ban (from which MCFL was exempted), under strict scrutiny. See MCFL, 479 U.S. at 256, 262.

In Davis v. FEC, 554 U.S. 724 (2008), the Supreme Court held—immediately

after setting out the exacting-scrutiny formulation—that “the strength of the governmental interest must reflect the seriousness of the actual burden on First

Amendment rights.” Id. at 744 (emphasis added). FEC asks this Court to ignore the

Supreme Court’s explanation of its just-described, exacting-scrutiny formulation.

FEC-Br.–23 n.10. But if the issue here is not resolved on vagueness and

overbreadth grounds, if exacting scrutiny applies, and if a provision imposes bur3

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dens that Citizens United pronounced “onerous,” 130 S. Ct. at 898, then FEC must

make a stronger showing than for a non-onerous provision, i.e., high-level exacting scrutiny applies, not complaisant exacting scrutiny. See RTAO-Br.–17-18.

B. Section 100.22(b) Fails the Requirement that Government Only Regulate

Speech that Is Election-Influencing by Being Unambiguously Campaign

Related.

RTAO established that this Circuit follows the Supreme Court in requiring that

government only regulate political speech that is “unambiguously campaign related.” RTAO-Br.–19-23. Under that requirement, this Court held that the Supreme Court has only recognized two types of communications that meet the requirement and strike the right “balance,” i.e., magic-words express advocacy and

federally defined electioneering communications. See Leake, 525 F.3d at 284. Cf.

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) (employing unambiguously-campaign-related requirement); Colorado Right to Life Committee v. Coffman, 498 F.3d 1137 (10th Cir. 2007) (same).

FEC argues that 11 C.F.R. 100.22(b) meets the requirement because it contains

the word “unambiguous.” FEC-Br.–42. But this Court’s unambiguouslycampaign-related requirement, which limits express advocacy to magic words,

Leake, 525 F.3d at 281, cannot be met by a non-magic-words, express-advocacy

definition that simply contains “unambiguous.” To say that a communication must

be “unambiguous,” as 100.22(b) does, says nothing about whether it is “unambig4

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uously campaign related,” which in Buckley v. Valeo, 424 U.S. 1 (1976), required

that the vague terms “relative to,” “advocating,” and “for the purpose of influencing” be construed to reach only magic-words express advocacy. Id. at 42, 44 &

n.52, 80-81.

RTAO challenges 100.22(b) as being overbroad in the sense in which Buckley

expressed the concern in establishing the unambiguously-campaign-related requirement: “the relation of the information sought to the purpose of the Act [regulating elections] may be too remote,” and, therefore, “impermissibly broad.” Id. at

80 (RTAO-Br.–20). This type of overbreadth may fairly be called “Buckleyoverbreadth.” See RTAO-Br.–16. And under the unambiguously-campaign-related

requirement, the Supreme Court has recognized two types of regulable speech that

strike the right balance—magic-words express advocacy and federally defined

electioneering communications, see Leake, 525 F.3d at 281—so anything beyond

these approved types is overbroad. RTAO’s reliance on these two types of

overbreadth makes FEC’s citation of a test for the First Amendment’s “substantial

overbreadth” doctrine (for facial invalidity) inapposite because it is a different

overbreadth doctrine. See FEC-Br.–26.

C. “Express Advocacy” Requires “Magic Words.”

RTAO established that “express advocacy” requires “magic words,” citing

controlling precedents, opinions by all of the current Supreme Court Justices (in5

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cluding in Citizens United, 130 S. Ct. 876), and numerous cases from this and

other courts. RTAO-Br.–23-32. FEC attempts to evade these authorities in several

ways.

First, it employs a diversionary theme proclaimed in the heading at II.A, to the

effect that Congress may require disclosure beyond magic words. FEC-Br.–28.

That is not the issue here, which is what express advocacy means, which turns on

the construction that the Supreme Court imposed on the “expenditure” definition

(with “purpose of influencing” language) to avoid vagueness and overbreadth. See

Buckley, 424 U.S. at 79-81. The construction the Supreme Court imposed was an

“express words of advocacy” construction, i.e., magic words. Id. at 44 & n.52, 80.

The fact that Congress has extended disclosure to “electioneering communications,” with Supreme Court approval, says nothing about what “express advocacy”

means.

Second, in the very next heading, FEC argues that Buckley’s magic-words

express-advocacy construction was a mere statutory construction, not a constitutional requirement. See FEC-Br.–28 (heading at II.A.1). But as already established, the construction is of an “expenditure” definition—in the disclosure context—with the same “purpose of influencing” language that continues in the present “expenditure” definition; that definition is foundational to the meaning of “independent expenditure”; so FEC’s regulation at 100.22(b) is beyond statutory au6

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thority. See RTAO-Br.–32-34. FEC’s argument here undercuts its argument elsewhere that it has statutory authority for 100.22(b). And the unambiguouslycampaign-related requirement, see supra, which underlies the express-advocacy

statutory construction is a constitutional requirement, i.e., that regulation of political speech may not be vague or reach beyond speech that is “unambiguously campaign related,” Buckley, 424 U.S. at 80. In any event, the fact that the same

expenditure-definition language that was at issue in Buckley is still used means

that any mere “statutory construction” required in Buckley is still required now. So

“independent expenditure” still means non-coordinated, magic-words express advocacy.

Third, FEC just ignores all of the opinions in which Supreme Court Justices

plainly stated that the express-advocacy test is a magic-words test, see RTAOBr.–23-26, including Citizens United, where four Justices declared that “there has

been little doubt about what counts as express advocacy since the ‘magic words’

test of Buckley . . . .” 130 S. Ct. at 935 n.8 (Stevens, J., joined by Ginsburg, Breyer

& Sotomayor, JJ., concurring in part and dissenting in part). Nowhere does FEC

even concede that these Justices said this or try to explain that the Justices didn’t

really mean it. The FEC’s ignoring of this and other direct, clear, repeated statements by all of the Justices to the same effect indicates that FEC has no real answer to the fact that all of the Justices have said that the express-advocacy test is a

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magic-words test. This is surely central to the Supreme Court’s vacatur and remand for reconsideration in light of Citizens United.

FEC attempts to dodge these plain statements by arguing that Justice Thomas

said in McConnell v. FEC, 540 U.S. 93 (2003) that the Court had “‘overturned’ all

of the courts of appeals decisions . . . that had interpreted Buckley as limiting government regulation to a wooden magic-words formula.” FEC-Br.–30 (citation

omitted). But the FEC’s argument is beside the point. The issue here is whether

“express advocacy” is a magic-words test, not whether government may also regulate “electioneering communications.” Justice Thomas did not address that in his

cited dissent, but he did join all of the Justices in FEC v. Wisconsin Right to Life,

551 U.S. 449 (2007) (“WRTL-II”), in equating express advocacy with magic

words. See RTAO-Br.–26 (citing all members of Court for proposition). Thus

WRTL-II requires that “express advocacy” be “magic words,” despite FEC’s diversionary argument that WRTL-II also allowed regulation of electioneering communications meeting WRTL-II’s appeal-to-vote test. See FEC-Br.–31. So the holdings

of the numerous lower courts that also equate express advocacy with magic words

likewise remain undisturbed, see RTAO-Br.–26-29, and the truth of their assertion

may not be assailed by distinguishing them as occurring before McConnell, 540

U.S. 93 (or the other meaningless distinctions FEC attempts). Thus, the FEC is

simply wrong in stating that “McConnell and WRTL laid to rest the claim that

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Buckley limits express advocacy to communications with magic words.” FECBr.–30.

2

D. Section 100.22(b) Is Beyond Statutory Authority.

RTAO established that 100.22(b) is beyond statutory authority. RTAO-Br.–32-

34. As already discussed, supra at 6, FEC’s insistence that Buckley’s magic-words,

express-advocacy construction of the “purpose of influencing” language in the

definition of independent “expenditures” that must be reported was a mere statutory construction undercuts its argument that 100.22(b) is within statutory authority. In short, the Supreme Court already imposed a constitutionally compliant judicial construction of the purpose-of-influencing expenditure definition, precluding

FEC’s “regulatory construction,” FEC-Br.–43, of the current “expenditure” definition retaining the same language. An “independent expenditure” is an independent

expenditure for a magic-words, express-advocacy communication. See Buckley,

424 U.S. at 80. Congress incorporated this judicial construction of “expenditure,”

2 U.S.C. 431(9), into its “independent expenditure” definition, 2 U.S.C. 431(17),

by incorporating Buckley’s “expressly advocating” language. FEC ignores this

 FEC cites FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), as authority for 2

100.22(b), but doesn’t follow Furgatch in substantial and legally significant ways.

See RTAO-Br.–30-32. FEC’s concession that it didn’t really follow Furgatch,

FEC-Br.–31 n.14, undercuts its reliance on Furgatch as authority, and FEC’s reliance on “recent rulings” to support its liberties with Furgatch fails, as noted in this

brief.

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controlling analysis, which precludes its contrary regulatory construction. Given

Congress’s incorporation of Buckley’s magic-words, express-advocacy construction, FEC’s argument that BCRA also declared 100.22(b) unaffected means nothing. See FEC-Br.–43-44. After all, at the time BCRA was passed, 100.22(b) had

been declared unconstitutional, see RTAO-Br.–26-29, and was widely considered

moribund. In fact, it was not until after McConnell that FEC decided, erroneously,

that it could enforce 100.22(b) again.3

E. Section 100.22(b) Is Unconstitutionally Vague and Overbroad.

RTAO established that 100.22(b) is unconstitutionally vague and overbroad.

RTAO-Br.–34-42. Part of FEC’s response is under a heading arguing that “Citizens United . . . upheld disclosure requirements for a broad range of communications that lack magic words.” FEC-Br.–32 (capitalization altered). But that is not

the issue here, which is whether 100.22(b) is unconstitutionally vague and

overbroad. The fact that the Supreme Court has upheld disclosure for both magic-

 FEC’s supplemental explanation and justification for its PAC-enforcement

3

policy concedes the foregoing assertions. First, FEC noted that BCRA did not

amend the “expenditure” definition, instead adding “electioneering communications” for regulation, so that “the Supreme Court’s limitation of expenditures, on

communications made independently of a candidate, to ‘express advocacy’ continues to apply.” FEC, “Political Committee Status,” 72 Fed. Reg. 5597 (Feb. 7,

2007) (“PAC-Status 2”). Second, FEC asserted (erroneously) that McConnell had

freed FEC “to apply . . . 100.22(b) free of constitutional doubt.” Id. at 5604. Thus,

when BCRA left 100.22(b) alone, it left alone a moribund, unenforced regulation,

which is far from saying that Congress endorsed it (which wouldn’t matter anyway

since under Buckley and other decisions 100.22(b) is unconstitutional).

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words “express advocacy” and “electioneering communications” says nothing to

whether 100.22(b) is constitutional.

Also not at issue is the “blanket exemption” from disclosure for which Buckley

established the “reasonable probability [of] . . . harassment” test. 424 U.S. at 74.

That is a separate claim, which RTAO has not asserted here, so FEC’s italicized

assertion that RTAO has not argued it is irrelevant and another misdirection. See

FEC-Br.–32.

FEC argues that Citizens United both applied WRTL-II’s appeal-to-vote test

and then approved disclosure for all electioneering communications regardless of

whether they met the appeal-to-vote test. FEC-Br.–33-36. That is true, but it is not

the issue here, so it is irrelevant misdirection. All of the communications at issue

in Citizens United were subject to disclosure because they were electioneering

communications. See 130 S. Ct. at 888. There is no dispute here over whether government may require disclosure of electioneering communications. But the present

issue is about 100.22(b), which controls which communications are “independent

expenditures,” not “electioneering communications.” Thus, FEC’s statement—“If

mandatory disclosure of [Citizens United’s] ad . . . is constitutional, then inexorably so is disclosure of RTAO’s ‘Survivors’ ad,” FEC-Br.–36—mixes apples and

oranges. One must be disclosed because it is an electioneering communication, the

other ought not be subject to independent-expenditure reporting unless 100.22(b)

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is constitutional and properly applies. FEC does this sort of mingling of concepts

throughout its argument, but the issue here is whether 100.22(b) is unconstitutionally vague and overbroad.

RTAO established that WRTL-II’s appeal-to-vote test is vague unless limited

by the brightline “electioneering communication” definition. RTAO-Br.–34-38.

But FEC argues that 100.22(b) is not vague because it “tracks” WRTL-II’s appealto-vote test. FEC-Br.–44. FEC argues that “the controlling opinion . . . rejected

Justice Scalia’s dissenting argument that the . . . test was ‘impermissibly vague.’”

FEC-Br.–44 (citation omitted). But WRTL-II did so because the test was cabined

by the “electioneering communication” definition, 551 U.S. at 474 n.7. See

RTAO-Br.–34-38.

FEC tries to evade this problem in its analysis with an erroneous statement:

“WRTL’s acknowledgment that the statutory ‘trigger’ for the WRTL test is a ‘bright

line’ requirement in no way suggests that the test itself would be vague absent the

‘trigger’ or with a different ‘trigger.’” FEC-Br.–45-46. But WRTL-II did not simply “acknowledge” that the electioneering-communication definition is a “bright

line.” That it was a bright line needed no “acknowledgment” because that had already been established in McConnell, see 540 U.S. at 192. Rather, the controlling

opinion was expressly answering the accusation that the appeal-to-vote test was

unconstitutionally vague, so the statement that the test was limited by the

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brightline electioneering-communication definition was made to argue that the test

was not vague, not to “acknowledge” that the definition was a bright line. See

WRTL-II, 551 U.S. at 474 n.7. So the controlling opinion was acknowledging precisely that the test would be vague without that “trigger.” A majority of the WRTLII Court held it vague absent that trigger. Compare 515 U.S. 474 n.7 (Roberts,

C.J., joined by Alito, J.) (test non-vague because limited by electioneering-communication definition) with id. at 492 (Scalia, J., joined by Kennedy & Thomas,

JJ., concurring in part and concurring in the judgment) (test “impermissibly

vague” in all circumstances). So the appeal-to-vote test is not a free-standing test.

And FEC’s use of a test that has some similarities to the appeal-to-vote test, but is

not limited by any comparable brightline “trigger,” is unconstitutionally vague and

overbroad.

FEC then argues that there is nothing about the electioneering-communication

definition that makes the appeal-to-vote test not vague. FEC-Br.–46. That directly

contradicts WRTL-II, supra, and it contradicts McConnell, which held both that

the electioneering-communication definition was not vague, 540 U.S. at 192, and

that “the vast majority of [electioneering-communication] ads clearly had [an electioneering] . . . purpose,” id. at 206. FEC has a heavy burden in light of these contradictions with precedent, which burden it fails to carry. It argues that the “30-

and 60-day windows” have nothing to do with the vagueness of a communication.

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FEC-Br.–46. But there is more to the electioneering-communication definition

than these windows, including requirements of a clearly identified candidate, targeting to the candidate’s constituents, and use of broadcast media. See 2 U.S.C.

434(f)(3). McConnell endorsed the whole premise of BCRA that communications

so defined constituted “electioneering” that could be subject to regulation similar

to what had been imposed on magic-words, express-advocacy communications. So

WRTL-II’s controlling opinion essentially said that if you start with a pool of communications so defined with brightline limits, the appeal-to-vote test was sufficiently bright in that context to separate electioneering communications that could

be banned for corporations from those that could not be, but conversely, without

that initial filtering, the test would be unconstitutionally vague. FEC’s next argument, that “[t]he test remains the same outside the time windows,” FEC-Br.–46, is

nonsensical because the test would be unconstitutionally vague outside the time

window, just as WRTL-II indicated. So the fact that 100.22(b) applies year-round,

and has none of the other electioneering-communication-definition limits, excludes it from WRTL-II’s decision that the appeal-to-vote test is not vague.

FEC argues that application of WRTL-II’s appeal-to-vote “test in Citizens

United puts to rest any claim that the standard is constitutionally deficient.” FECBr.–44. But WRTL-II held that its test was not vague for electioneering communications—because it was limited by the electioneering-communication defini14

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tion—so the application of that test in Citizens United to electioneering communications is unremarkable and proves nothing about 100.22(b), which is not limited

by any such brightline definition. And the Supreme Court’s use of the appeal-tovote test, which is an objective test not turning on any reasonable-person standard,

does not undermine this Court’s holding in Virginia Society for Human Life v.

FEC, 263 F.3d 379 (4th Cir. 2001), that 100.22(b) is unconstitutional because its

shifts the focus from the text to the impressions of a “reasonable listener or

viewer,” id. at 391.

FEC repeatedly relies on National Organization for Marriage v. McKee, 649

F.3d 34 (1st Cir. 2011) (“NOM”), including for the proposition that a test similar

to 100.22(b) is not vague. FEC-Br.–46. NOM is a First Circuit decision and this is

the Fourth Circuit. NOM does not control here. NOM is simply wrong, and a petition for a writ of certiorari has been filed in that case. And there are better-reasoned Fourth Circuit decisions that control this case. Especially the analysis of

Leake establishes the unambiguously-campaign-related requirement, under which

there are two types of communications that may be regulated (magic-words express advocacy and federally defined electioneering communications), and the

means for determining “major purpose” for PAC-status. 525 F.3d at 281, 287. This

analysis controls here, and FEC’s superficial distinction based on different wording of a statute at issue in Leake is the sort of distinction without a difference that

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can be argued in most any case, but without legal significance. And Leake’s statement that the state was free to adopt statutes consistent with Supreme Court precedent, see FEC-Br.–41, does not mean that FEC may adopt a non-magic-words,

express-advocacy test that Leake expressly said was not permitted and that this

Court expressly held to be unconstitutional. See supra. Nothing in Citizens United

or WRTL-II authorizes such a forbidden rule.

RTAO established that 11 C.F.R. 100.22(b) takes the same approach that the

FEC took in its regulation at 11 C.F.R. 114.15, which Citizens United strongly

repudiated. See RTAO-Br.–39. FEC attempts to evade this by arguing that

100.22(b) is not a balancing test and has few factors and that anyway it’s like

WRTL-II’s appeal-to-vote test. FEC-Br.–46-47. As already shown, 100.22(b) is not

like WRTL-II’s test, and FEC fails to respond to RTAO’s arguments that 100.22(b)

is like rejected 114.15 because it seeks to impose maximum control over issue advocacy with a rule so vague and overbroad that speakers will be chilled from

speaking absent prior FEC approval. RTAO-Br.–39.

And FEC adds that 100.22(b)’s vague phrase “electoral portion” somehow

makes 100.22(b) more clear than WRTL-II’s appeal-to-vote test, without explaining how this is so or even what “electoral portion” means. FEC-Br.–47. And FEC

even rearranges the words of 100.22(b) to come up with the non-existent phrase

(which it italicizes), “unambiguous electoral portion,” but putting “unambiguous”

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in front of a vague term does nothing to solve the vagueness of the term. Moreover, contrary to FEC, 100.22(b)’s use of the yet-undefined and vague “electoral

portion” does not make 100.22(b) “narrower than the WRTL test,” because “WRTL

looks to the mere ‘mention’ of an election and similar indicia of express advocacy.” FEC-Br.–27. But here FEC steps into the very problem that it had in promulgating 114.15 by importing into WRTL-II’s actual appeal-to-vote test these “indicia” that WRTL-II merely mentioned in applying the test. Citizens United expressly took FEC to task for so converting a simple, objective test into multi-factor

test. See 130 S. Ct. at 896. FEC can no more do that now than it could do it in

114.15, and the effort to justify 100.22(b) with the condemned approach taken in

114.15, shows the flaw of FEC’s overreaching in 100.22(b).

RTAO established that 100.22(b) is unconstitutionally vague and overbroad in

other ways, including its forbidden reliance on “context and proximity to an election” to be determined by forbidden discovery, an operative “advocacy” phrase

that Buckley held vague and overbroad, and other vague terms, such as “encourages,” “actions,” “suggestive,” and “electoral portion.” See RTAO-Br.–39-41.

FEC tries to evade WRTL-II’s holding that “proximity” to an election is a forbidden consideration in determining the meaning of a communication by arguing

that all electioneering communications would be near an election. See FEC-Br.47-

48. But FEC is wrong. WRTL-II makes clear that the meaning of a communication

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must be based on the actual text, i.e., the particular words chosen, not external

contextual factors. See WRTL-II, 551 U.S. at 469 (“focusing on the substance of

the communication”). WRTL-II did no more than follow the longstanding practice

of the Supreme Court in requiring that the meaning of regulated core political

speech be based on the actual words of the text. See Buckley, 424 U.S. at 44 &

n.52 (“express words of advocacy required”).

FEC tries to evade the vagueness of “suggestive” in 100.22(b) by arguing that

it must be considered in context, FEC-Br.–49, which RTAO did and which does

not save it. FEC makes no effort to counter RTAO’s explanation of why the terms

significantly differ, RTAO-Br.–41 n.18, other than to assert that they are really

alike.

FEC makes no effort to refute RTAO’s arguments concerning the vagueness of

the “advocacy” phrase that Buckley expressly rejected, or of the use of “encourages” and “actions,” see RTAO-Br.–41, apparently having no response and

thereby conceding the vagueness of 100.22(b) because of these operative terms.

F. Applying Section 100.22(b) Highlights the Vagueness.

Two stories particularly reveal the unconstitutional vagueness and overbreadth

of 100.22(b). The first story is about how the federal district judge below and FEC

disagree over whether RTAO’s Change ad is express advocacy under 100.22(b),

which reveals the inherent flaw in 100.22(b). See RTAO-Br.–42-43. FEC tries to

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evade this by arguing that the different results of the application of 100.22(b) to

Change arise not from the regulation’s vagueness but from “the narrowness and

precision with which the Commission applies the test.” FEC-Br.–50. This is a remarkable comment that says several things. It says that the district court doesn’t

apply 100.22(b) that way, but would instead ride roughshod over core political

speech and speakers. It says that the FEC that created the “appeal to vote test” at

114.15 that Citizens United forcefully repudiated for overreaching, 130 S. Ct. at

895-96, is more protective of First Amendment rights than a federal district court.

FEC asks too much and should rather settle for the obvious, that 100.22(b) is unconstitutionally vague and overbroad.

That this is so is also evident from another story, which has just arisen within

the FEC itself. On October 21, 2011, FEC released the Statement of Reasons of

Chair Cynthia L. Bauerly and Commissioners Steven T. Walther and Ellen L.

Weintraub (“Statement”) in Matter Under Review (“MUR”) 6346, In the Matter of

Cornerstone Action et al. (available at http://fec.gov/em/mur.shtml). These three

FEC Commissioners state their reasons why they think that an ad is express advocacy under 100.22(b), but indicate that the three other Commissioners would not

agree. The Statement indicates the authors’ view that the last sentence, about

4

 The Statement sets out the ad, titled The Feeling is Mutual, as follows:

4

Bill Binnie portrays himself as a conservative. Truth is he’s shockingly liberal. Binnie supports abortion to avoid the expense of disabled children. He’s

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“tell[ing] Binnie the feeling is mutual,” means “vote against him in the primary.”

Statement at 4. But as the Statement indicates, the other Commissioners disagree.

Id. The fact that FEC Commissioners—presumably all reasonable people and all

equally concerned with “narrowness and precision” in applying 100.22(b)—cannot agree on the application of 100.22(b) to this ad shows the inherent unconstitutional vagueness and overbreadth of 100.22(b).

And FEC’s treatment of RTAO’s Survivors ad also shows the constitutional

inadequacy of 100.22(b). In deeming the ad express advocacy, FEC points to “indicia of express advocacy” that it says WRTL-II made a part of the appeal-to-vote

test. FEC-Br.-51. Setting aside the fact that WRTL-II’s test is unconstitutionally

vague and overbroad outside of the electioneering-communication context, even

WRTL-II did not make facts it discussed in applying its test part of the test itself.

That was precisely what drew down the Supreme Court’s wrath on FEC in Citizens United, 130 U.S. at 895-96, i.e., FEC imported these “indicia” into the test

itself. They are not part of the test. Yet, FEC now seeks to import those indicia,

forbidden to it in Citizens United for the appeal-to-vote test regulation at 114.15,

excited about imposing gay marriage on New Hampshire. He’s praised key

elements of Obama’s healthcare bill. He’s even said that he’s open to imposing a European-styled value added tax on working families. With these shockingly liberal positions, it’s no wonder Bill Binnie says he doesn’t like the

Republican Party. Now New Hampshire Republicans can tell Binnie the

feeling is mutual.

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into 100.22(b), which FEC claims is justified by that appeal-to-vote test.

5

So setting those forbidden indicia aside, is there any appeal to action that can

only be interpreted as voting, which Furgatch, 807 F.2d 857, would require (see

RTAO-Br.–30), or any “appeal to vote,” as WRTL-II’s test required (see RTAOBr.–30)? No. What FEC points to is “that should give everyone pause,” which

FEC says can only mean “‘[e]veryone’ should ‘pause’ before voting for that candidate,” which FEC says means “to consider ‘reject[ing]’ him,” a “‘magic word.’”

FEC-Br.-52. But FEC’s speculative extrapolation of “pause” shows the unconstitutional vagueness and overbreadth of 100.22(b), if indeed it permits the FEC to

insert the word “reject” where the speaker did not say it. Words have meaning, and

one cannot be merely substituted for another just because FEC thinks it can see a

way to link one not spoken to another the FEC provides. Indeed, this is exactly the

forbidden inquiry into the speaker’s intent that WRTL-II forbade, 551 U.S. at 467,

and it is a purported intent fashioned from speculative extrapolation. Survivors did

not even say “Pause!” or “Let’s pause!”—there was no command or invitation.

“Pause” is intransitive, so there is no indication of anything to be “paused.” The

 Nowhere in any purported express-advocacy test, including 100.22(b), is 5

there any rule indicating that saying that an incumbent politician is lying or being

callous or being in any way flawed converts a communication to express-advocacy. For the FEC to indicate that it does here is to make up the rules as the FEC

goes along, but still without brightline guidance. Will FEC change its mind if

RTAO instead says the politician is “mistaken,” “in error,” “wrong,” or “untruthful”? This whole approach must be rejected as unconstitutional.

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“pause” is something “given” by words and ideas that precede it. In Hamlet,

Shakespeare begins a famous passage with “[t]o be, or not to be,” then considers

that “in that sleep of death what dreams may come . . . [m]ust give us pause.”

Hamlet, Act iii, Scene 1. Shakespeare was calling no one to “reject” the “sleep of

death,” as FEC would have it, but to consider what had been said. So Survivors

readily may be interpreted as stating that the actions of Senator Obama with respect to infanticide are of such a profound nature as to cause everyone to pause

and reflect. What they think about in the predicted pause is up to them. Some will

doubtless applaud, while others will not. How they proceed after the predicted

pause is also up to them They have, as WRTL-II said of issue advocacy, been given

information and educated, and whether they take cognizance of the information,

including in their voting, is up to them, for they have not been invited to vote one

way or the other. See 551 U.S. at 470. The FEC again overreaches, and its test is

unconstitutionally vague and overbroad.

II. FEC’s PAC-Status Policy Is Vague,

Overbroad, Beyond Authority, and Void.

FEC again argues that its PAC-enforcement policy is not final agency action

that may reviewed. FEC-Br.–53. See also JA–76. For the reasons previously stated

by the district court, this argument should be rejected.

6

 In its 2008 opinion, the district court rejected this claim as follows: 6

The FEC is alleging that RTAO is challenging the Explanation and Justifica22

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A. Standards of review.

RTAO established that when government imposes PAC-status and -burdens,

strict scrutiny applies. See RTAO-Br.–44-49. This is so for the same reasons discussed herein in the prior standards of review discussion. See supra at 2-4. FEC

only cross-references its prior standards-of-review discussion. FEC-Br.–55 n.24.

But it also insists that “RTAO accuses the Commission of providing too much information.” FEC-Br.–62. RTAO’s point was, and remains, the point of Citizens

United that “[p]rolix laws chill speech for the same reason that vague laws chill

speech . . . .” 130 S. Ct. at 889.

tion set forth in 72 Fed.Reg. 5595, and that this Explanation and Justification

is not final agency action because it explains why a broader regulation was

not adopted. (Def. FEC Mem. 24.) Plaintiff’s challenge to the definition of

“political committee” isstill valid, because the rule establishing what the FEC

would consider as a “political committee” is a standard set by the FEC, even

absent a definition. The U.S. District Court for the District of Columbia ruled

in 2007 that the FEC was permitted to refrain fromascertaining a specific rule

for “major purpose,” but this does not mean the rights and obligations of

parties cannot be determined from the FEC’s enforcement of the term “major

purpose.” See Shays v. FEC, 511 F.Supp.2d 19, 31 (D.D.C.2007).

While there is no specific definition for “major purpose,” the rights and

obligations of parties can still be determined from the FEC rule, as enforcement power existsthrough the judicial construct of the term“major purpose.”

Therefore, Defendant’s claimthat the challenged rule is not reviewable under

the APA because it is not a final agency action fails.

RTAO v. FEC, No. 08-483, 2008 WL 4416282, at *9 (E.D. Va. Sept. 24, 2008) (order

denying preliminary injunction).

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B. Citizens United Declared PAC Burdens “Onerous” and Rejected PACs as

Adequate Vehicles for Corporate Political Speech and Vague, Multi-Factor Tests.

RTAO established that Citizens United declared PAC burdens “onerous,” said

PACs were inadequate vehicles for corporate political speech, and rejected vague

multi-factor tests of the sort that FEC employs in determining PAC-status. RTAOBr.–49-50. FEC makes no real effort to dispute these points, except to say that its

enforcement policy is supported by various decisions. See, e.g., FEC-Br.–54. Of

these, FEC’s statement about SpeechNow.org v. FEC, 599 F.3d 686, 692-97 (D.C.

Cir. 2010), requires a response. FEC quotes SpeechNow for the proposition that

PAC-style administrative and reporting burdens “do[] not ‘impose much of an additional burden’ compared with” ordinary independent-expenditure reporting.

FEC-Br.–11 (quoting SpeechNow, 599 F.3d at 697). What FEC fails to mention,

and what is crucial on this point, is that SpeechNow was a PAC. So the holding is

simply that PAC-style burdens are not unduly burdensome for PACs, which does

not make them non-onerous for non-PACs. 

C. FEC Must Prove Its Policy Only Regulates Activity that Is ElectionInfluencing by Being Unambiguously Campaign Related.

RTAO established that FEC must prove that it only regulates speech and activity that is unambiguously campaign related in its PAC-status enforcement policy.

RTAO-Br.–50-51. FEC makes no effort to meet this burden.

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D. Major Purpose Is Based on “an Empirical Judgment [that] an Organization Primarily Engages in Regulable, Election-Related Speech.”

RTAO established that “major purpose” must be based on, as Leake put it, 525

F.3d at 287, “an empirical judgment [that] an organization primarily engages in

regulable, election-related speech.” RTAO-Br.–51-55. FEC makes no effort to

show that its policy meets this requirement, instead stating that it considers a

broad range of other activity in imposing PAC-status.

E. FEC Employs an Impermissible Major-Purpose Policy.

RTAO established that FEC’s PAC-status enforcement policy is constitutionally impermissible. RTAO-Br.–55-57. As noted, FEC insists that it may decide

PAC status on a range of non-regulable activities on a case-by-case basis without

further guidance to groups concerned with avoiding PAC status or complying with

its requirements. FEC does argue that RTAO does not point to any misapplications

of its PAC-status enforcement policy. See FEC-Br.–58. That is not a constitutional

argument and does nothing to justify FEC’s policy against RTAO’s constitutional

arguments. It is not part of RTAO’s burden to litigate other situations in trying to

gain judicial relief in its own situation. However, the FEC’s own description of

how it applied its PAC-status enforcement policy to the organizations described in

its supplemental explanations and justification (“PAC-Status 2”)—based as it was

on now unconstitutional 11 C.F.R. 100.57, the FEC’s revival of enforcement for

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the deeply flawed 11 C.F.R. 100.22(b) at issue herein, and undefined and ad-hoc

factors—is highly questionable. See FEC, “Political Committee Status,” 72 Fed.

REg. 5595 (Feb. 7, 2007).

Conclusion

For the foregoing reasons, the district court’s order granting summary judgment to FEC and DOJ should be reversed and the case remanded with an order to

enter summary judgment for RTAO.

Michael Boos

LAW OFFICE OF MICHAEL BOOS

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

Counsel for Plaintiff-Appellant

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr.

Richard E. Coleson

Kaylan L. Phillips

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

Lead Counsel for Plaintiff-Appellant

26

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No. 11-1760

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Caption: The Real Truth About Obama v. FEe

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)

Certificate of Compliance With Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or

32(a)(7)(B) because:

[Appellant's Opening Brief, Appellee's Response Brief, and Appellant's Response/Reply Brief

may not exceed 14,000 words or 1,300 lines; Appellee's Opening/Response Briefmay not exceed

16,500 words or 1,500 lines; any Reply or Amicus Brief may not exceed 7,000 words or 650

lines; line count may be used only with monospaced type]

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D this brief uses a monospaced typeface and contains [state the

number of] lines of text, excluding the parts of the brief exempted by Fed. R. App.

P.32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the

type style requirements of Fed. R. App. P. 32(a)(6) because:

[14-point font must be used with proportional typeface, such as Times New Roman or CG Times;

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with [state number of characters per inch and name

oftype style].

(s) Richard E. Coleson

Attorney for Real Truth About Obama

Dated: Nov. 3, 2011

03/03/2011

see

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Certificate of Service

I certify that on November 3, 2011, the foregoing document was served by

electronic service through the Court’s CM/ECF system on the following counsel

of record for Defendants at the listed e-mail addresses:

Anthony Herman

 General Counsel

David Kolker

 Associate General Counsel

dkolker@fec.gov

Harry J. Summers

 Assistant General Counsel

hsummers@fec.gov

Adav Noti

 Attorney

anoti@fec.gov

Office of the General Counsel

Federal Election Commission

999 E Street, NW

Washington, DC 20463-0000

Counsel for Appellee FEC

Debra J. Prillaman

debra.prillaman@usdoj.gov

Office of the United States attorney

Suite 1800

Main Street Center

600 E. Main Street

Richmond, VA 23219-0000

Counsel for Appellee DOJ

Tony West

 Assistant Attorney General

Neil H. MacBride

 United States Attorney

Michael S. Raab

michael.raab@usdoj.gov

(202) 514-4053

Daniel Tenny

daniel.tenny@usdoj.gov

(202) 514-1838

 Attorneys, Appellate Staff

Civil Division, Room 7215

U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Counsel for Appellee DOJ

 /s/ 

Richard E. Coleson

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