No. 10-145 

================================================================ 

In The 

Supreme Court of the United States 

--------------------------------- ♦ --------------------------------- 

SPEECHNOW.ORG, et al., 

Petitioners, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

--------------------------------- ♦ --------------------------------- 

On Petition For A Writ Of Certiorari 

To The United States Court Of Appeals 

For The District Of Columbia Circuit 

--------------------------------- ♦ --------------------------------- 

BRIEF AMICI CURIAE OF COMMITTEE 

FOR TRUTH IN POLITICS AND THE 

COMMONWEALTH FOUNDATION FOR 

PUBLIC POLICY ALTERNATIVES IN 

SUPPORT OF PETITIONERS 

--------------------------------- ♦ --------------------------------- 

HEIDI K. ABEGG

Counsel of Record

ALAN P. DYE

WEBSTER, CHAMBERLAIN & BEAN

1747 Pennsylvania Ave., N.W. 

Suite 1000 

Washington, D.C. 20006 

(202) 785-9500 

habegg@wc-b.com 

Counsel for Amici Curiae 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

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

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

INTEREST OF AMICI CURIAE ......................... 1 

SUMMARY OF ARGUMENT .............................. 1 

ARGUMENT ........................................................ 3 

 I. THE LOWER COURT’S HOLDING 

THAT THE GOVERNMENT, CONSISTENT WITH THE FIRST AMENDMENT, MAY REQUIRE ASSOCIATIONS 

OF CITIZENS TO REGISTER AND REPORT AS PACs IN ORDER TO MAKE 

UNLIMITED INDEPENDENT EXPENDITURES CONFLICTS WITH SUPREME 

COURT PRECEDENT ............................... 4 

A. PAC Registration And Reporting Requirements Are Burdensome As A 

Matter Of Law ..................................... 5 

B. The Court Of Appeals’ Holding Conflicts With Supreme Court Precedent 

Because It Grossly Underappreciates 

The Organizational, Reporting, and 

Administrative Burdens Of PAC Status ........................................................ 9 

1. The court of appeals erroneously 

concluded that “organizational requirements” do not impose much 

of an additional burden .................. 9 
ii 

TABLE OF CONTENTS – Continued 

Page 

2. The court of appeals erroneously 

concluded that additional reporting requirements by PACs are 

“minimal” ........................................ 15 

3. The PAC regulatory scheme also 

imposes significant administrative 

burdens ........................................... 19 

 II. THE CONSEQUENCES OF ALLOWING 

THE DECISION BELOW TO STAND: 

REDUCED PARTICIPATION BY CITIZEN GROUPS IN THE POLITICAL 

PROCESS .................................................. 20 

A. The Lower Court’s Decision Allows 

The Government To Impose Onerous 

Burdens On Associations Of Citizens 

Wishing To Exercise Their Rights Of 

Political Speech ................................... 21 

B. The Lower Court’s Decision Has Generated Uncertainty Among Associations Of Citizens Wishing To Speak, 

Thereby Chilling Their First Amendment Rights ......................................... 24 

C. The Lower Court’s Holding Allows 

Continued Application Of The “Major 

Purpose” Test By The Federal Election Commission, Which Chills NonCorrupting Speech ............................... 25 

CONCLUSION ..................................................... 29 
iii 

TABLE OF AUTHORITIES 

Page 

CASES

AFL-CIO v. Federal Election Commission, 333 

F.3d 168 (D.C. Cir. 2003) ......................................... 26 

Austin v. Michigan Chamber of Commerce, 494 

U.S. 652 (1990) ........................................................ 13 

Buckley v. Valeo, 424 U.S. 1 (1976) .......................... 2, 5 

Citizens United, Inc. v. Federal Election Commission, 130 S. Ct. 876 (2010) ........................ passim

Federal Election Commission v. Akins, 524 U.S. 

11 (1998) .................................................................... 5 

Federal Election Commission v. Machinists 

Non-Partisan Political League, 655 F.2d 380 

(D.C. Cir. 1981) ........................................................ 26 

Federal Election Commission v. Massachusetts 

Citizens for Life, 479 U.S. 238 (1986) ............. passim

Federal Election Commission v. Wisconsin 

Right to Life, Inc., 127 S. Ct. 2652 (2007) ................ 5 

McConnell v. Federal Election Commission, 540 

U.S. 93 (2003) ........................................................ 7, 8 

National Organization For Marriage v. McKee, 

2010 U.S. Dist. LEXIS 85725 (D. Me. Aug. 

19, 2010) .................................................................... 4 

National Organization For Marriage v. McKee, 

666 F. Supp. 2d 193 (D. Me. 2009) ............................ 3 

Nike, Inc. v. Kasky, 539 U.S. 654 (2003) .................... 20 

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ....... 26 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

CONSTITUTION, STATUTES, REGULATIONS & RULES

2 U.S.C. 432 .................................................................. 6 

2 U.S.C. 432(a) ........................................................ 6, 10 

2 U.S.C. 432(b)(2) ......................................................... 6 

2 U.S.C. 432(c) .............................................................. 6 

2 U.S.C. 432(d) .............................................................. 6 

2 U.S.C. 433 .................................................................. 6 

2 U.S.C. 433(a) .............................................................. 6 

2 U.S.C. 433(b) .............................................................. 6 

2 U.S.C. 433(c) .............................................................. 6 

2 U.S.C. 433(d)(1) ......................................................... 6 

2 U.S.C. 434 .................................................................. 6 

2 U.S.C. 434(a)(4)(A) .................................................... 7 

2 U.S.C. 434(a)(4)(B) .................................................... 7 

2 U.S.C. 434(b) .............................................................. 7 

2 U.S.C. 437f(b) .......................................................... 25 

2 U.S.C. 437f(c)(1)(B) ................................................. 25 

11 C.F.R. 104.18(a)(i) .................................................. 16 

11 C.F.R. 104.18(a)(ii) ................................................. 16 

OTHER AUTHORITIES

Agency Policies and Procedures, 73 Fed. Reg. 

74494 (Dec. 8, 2008) ................................................ 14 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Bipartisan Commission on the Political Reform 

Act of 1974, Overly Complex and Unduly 

Burdensome: The Critical Need to Simplify 

the Political Reform Act <http://www.fppc. 

ca.gov/pdf/McPherson.pdf> ................... 12, 13, 18, 24 

Comment of Birkenstock and Cline in Response to SEC File #S7-18-09, Political Contributions by Certain Investment Advisers 

(Oct. 9, 2009) <http://www.sec.gov/comments/ 

s7-18-09/s71809-227.pdf> ......................................... 11 

Comment of Diane Valentino, Agency Procedures and Processes (Dec. 12, 2008) <http://www. 

fec.gov/law/policy/enforcement/2009/comments/ 

comm29.pdf> ........................................................... 14 

Comment of Gloria Bram, Agency Procedures 

and Processes (Feb. 11, 2009) <http://www.fec 

gov/law/policy/enforcement/2009/comments/ 

bram.pdf> .......................................................... 12, 17 

Comment of Jan Baran, FEC Agency Procedures (Jan. 5, 2009) <http://www.fec.gov/ 

law/policy/enforcement/2009/comments/comm33. 

pdf> .......................................................................... 19 

Comment of Jason Eugene Call, Agency Procedures and Processes (Dec. 17, 2008) 

<http://www.fec.gov/law/policy/enforcement/ 

2009/comments/comm30.pdf> ................................ 14 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

Comment of Peter d’Errico, Agency Procedures 

and Processes (Dec. 19, 2009) <http://www. 

fec.gov/law/policy/enforcement/2009/comments/ 

comm14.pdf> ........................................................... 17 

Committee Treasurers Brochure, <http://www. 

fec.gov/pages/brochures/committee_treasurers_ 

brochure.pdf> .......................................................... 12 

FEC Internal Controls and Political Committees, <http://www.fec.gov/law/policy/guidance/ 

internal_controls_polcmtes_07.pdf> ...................... 11 

FEC, Political Committee Status, 72 Fed. Reg. 

5595 (Feb. 7, 2007) .................................................. 28 

FEC Statement of Policy Regarding Treasurers 

Subject to Enforcement Proceedings, 70 Fed. 

Reg. 3 (Jan. 3, 2005) <http://www.fec.gov/ 

law/policy/2004/notice2004-20.pdf> ....................... 12 

http://eqs.nictusa.com/eqs/searcheqs ......................... 16 

http://saos.nictusa.com/saos/searchao ................. 15, 25 

Interview by Jim Lehrer of Randy Tate, Campaigns Under Scrutiny – Opposing Reform, 

NewsHour (Sept. 30, 1997) <www.pbs.org/ 

newshour/campaign/september97/hearing_9-

30.html> .................................................................. 13 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

Jeffrey Milyo, Ph.D., Campaign Finance Red 

Tape: Strangling Free Speech & Political 

Debate, Institute for Justice (Oct. 2007) <www. 

ij.org/publications/other/campaign-finance-redtape.html> ............................................. 17, 18, 22, 23 

Robert Bauer, More Soft Money Hard Law 

(Feb. 1, 2007) <http://www.moresoftmoney 

hardlaw.com/news.html?AID=920> ....................... 27 

Statement for the Record of Commissioner 

Smith, FEC MUR 4624 (Nov. 6, 2001) <http:// 

eqs.nictusa.com/eqsdocs /0000018E.pdf> ............... 27 

Statement of Reasons of Commissioners 

Petersen, Hunter and McGahn II, FEC 

MURS 5957, 6031 <http://eqs.nictusa.com/ 

eqsdocs/29044243959.pdf> ..................................... 23 

Statement of Reasons of Commissioners 

Petersen, Hunter and McGahn II, FEC 

MUR 6005 <http://eqs.nictusa.com/eqsdocs/ 

29044234461.pdf> ............................................. 23, 24 

Testimony of Jan Baran, FEC Public Hearing on 

Agency Practices and Procedures (Jan. 14, 2009) 

<http://www.fec.gov/law/policy/enforcement/ 

2009/01141509hearingtranscript.pdf> ................... 26 

Testimony of Marc Elias, FEC Public Hearing on 

Agency Practices and Procedures (Jan. 14, 2009) 

<http://www.fec.gov/law/policy/enforcement/2009/ 

01141509hearingtranscript.pdf> ........................ 19, 20 

www.fec.gov/audits/audit_reports_auth.shtml .......... 16 

www.fec.gov/general /library.shtml ............................ 16 
viii 

TABLE OF AUTHORITIES – Continued 

Page 

www.fec.gov/law/cfr/11_cfr.pdf ................................... 15 

www.fec.gov/law/cfr/ej_main.shtml ............................ 15 

www.fec.gov/law/feca/feca.pdf .................................... 15 

www.fec.gov/law/litigationalpha.shtml ...................... 16 
1 

INTEREST OF AMICI CURIAE1

 The Committee for Truth in Politics is a nonprofit organization that is deeply concerned about 

associational privacy and the effect of unconstitutional campaign finance laws on the political process. Its 

interest is in safeguarding associations’ First Amendment rights from the ever-increasing expansion of 

unconstitutional burdens imposed by the government. 

 The Commonwealth Foundation for Public Policy 

Alternatives is an independent, non-profit research 

and educational institute that develops and advances 

public policies on the nation’s founding principles of 

limited constitutional government, economic freedom, 

and personal responsibility for one’s actions. It is 

concerned about governments’ impositions of burdensome regulatory schemes on First Amendment rights. 

--------------------------------- ♦ ---------------------------------

SUMMARY OF ARGUMENT 

At issue in this case is whether the government 

can impose the burdens of political action committee 

(“PAC”) status on associations of citizens whose 

1

 The parties have consented to the filing of this brief amici 

curiae, as indicated by letters of consent filed with the Office of 

the Clerk of this Court. Counsel of record for all parties have 

been given at least 10 days notice of amici curiae’s intention to 

file. This brief was not authored, in whole or in part, by any 

counsel for any party. No person or entity, other than the amici, 

or its counsel, has made a monetary contribution to the preparation or submission of this brief. 
2 

speech is non-corrupting. The lower court held that 

the PAC organizational and reporting requirements 

found burdensome in Supreme Court precedents 

imposed little additional burden on SpeechNow, 

because it had already agreed to comply with significantly less burdensome expenditure-specific disclosure requirements. Such a finding in effect equates 

PACs with other citizen groups who do not possess 

the same attributes that warrant extensive regulation of PACs. Also, it mistakenly views the burdens of 

this invasive regime as of the same kind as the less 

burdensome requirements for simple expenditurespecific disclosure. 

 PAC status places an association into a comprehensive regulatory scheme, which has been found 

burdensome in and of itself, and as applied to certain 

associations. This Court has repeatedly recognized 

the burdens of PAC status, and these burdens have 

been borne out by the experience of associations. In 

light of this, the Court should review the lower court’s 

ruling that imposes PAC status on independent 

expenditure groups whose speech is non-corrupting, 

and for which there is no compelling government 

interest in burdening. 

 The Court’s guidance on this issue of national 

importance is urgently needed now. The burdens 

under which PACs operate have only increased in 

the years since Buckley v. Valeo, 424 U.S. 1 (1976). 

Government-imposed monetary and other costs of 

participation in the political process – the expert 
3 

accountants, lawyers, paid advisors and staff – effectively restrains speech. 

 The current PAC regulatory scheme imposes too 

great a burden because it permits few to speak freely, 

other than the elite who have the time and resources 

to ensure they will not be investigated, fined or found 

inadvertently out of compliance with the law. 

 Allowing the lower court’s decision to stand 

effectively takes away the free speech rights safeguarded by Citizens United v. FEC, 130 S. Ct. 876 

(2010). The result will be that citizens who can’t 

afford the monetary and time commitments required 

under the PAC regulatory scheme will not be able to 

exercise their First Amendment rights. 

--------------------------------- ♦ ---------------------------------

ARGUMENT 

 This case is of utmost importance to associations 

of citizens across the country because there are very 

real and burdensome consequences if PAC status is 

imposed on them. Campaign finance regulation has 

become so complex and confusing that ordinary 

citizens cannot understand it, and even experts 

struggle with it. Professionals must be hired before 

one speaks to handle the heavy workload, help maneuver through the complex web of restrictions, and 

help avoid the imposition of penalties. The PAC 

regulatory regime imposes a greater burden on the 

speech of small associations. See National Organization For Marriage v. McKee, 666 F. Supp. 2d 193, 206 
4 

(D. Me. 2009) (“Regulation tends to grow and to 

develop requirements appropriate for large organizations . . . and to ignore the burdensome effects on the 

speech of individuals and small organizations.”). 

Small citizen groups, including those whose speech is 

non-corrupting, are chilled from speaking because 

they want to avoid the complexity altogether or 

because they cannot afford a team of specialists. The 

Court’s review is needed to prevent immediate and 

nationwide suppression of speech on important public 

policy matters. Indeed, the lower court’s holding that 

PAC burdens are minimal has already been cited 

approvingly. See National Organization For Marriage 

v. McKee, 2010 U.S. Dist. LEXIS 85725 at *45-46 (D. 

Me. Aug. 19, 2010) (citing SpeechNow’s finding that 

organizational PAC requirements are “only a minimal 

added burden”). 

I. The Lower Court’s Holding That The Government, Consistent With The First Amendment, May Require Associations Of Citizens 

To Register And Report As PACs In Order 

To Make Unlimited Independent Expenditures Conflicts With Supreme Court Precedent. 

“PACs are burdensome alternatives; they are 

expensive to administer and subject to extensive 

regulations.” Citizens United, 130 S. Ct. at 897. While 

the lower court understood disclosure can be burdensome, App. 20, it entirely missed that PAC burdens 

are not judged as mere disclosure laws. 
5 

A. PAC registration and reporting requirements are burdensome as a matter of 

law. 

 The burdens associated with PAC status were 

first noted in Buckley. The Court was concerned not 

only with the chilling effect of reporting and disclosure requirements on an organization’s contributors, 

but also with the potential burden of disclosure 

requirements on an association’s own speech. FEC v. 

Massachusetts Citizens for Life, 479 U.S. 238, 265-66 

(1986) (O’Connor, J., concurring) (MCFL) (citing 

Buckley, 424 U.S. at 66-68, 74-82). Since Buckley, the 

Court has repeatedly recognized, both generally and 

specifically, the burdens imposed by PAC status, 

especially on small associations. “Detailed recordkeeping and disclosure obligations, along with the 

duty to appoint a treasurer and custodian of the 

records, impose administrative costs that many small 

entities may be unable to bear.” MCFL, 479 U.S. at 

253; see also FEC v. Wisconsin Right to Life, Inc., 127 

S. Ct. 2652, 2671 n.9 (2007) (citing MCFL, 479 U.S. at 

253-255 (plurality opinion)) (“PACs impose welldocumented and onerous burdens, particularly on 

small nonprofits.”); FEC v. Akins, 524 U.S. 11, 14-15 

(1998) (“[T]he Act imposes extensive recordkeeping 

and disclosure requirements upon groups that fall 

within the Act’s definition of ‘political committee.’ 

Those groups must . . . file complex FEC reports. . . .”). Most recently, the Court held that “PACs 

are burdensome alternatives; they are expensive to 
6 

administer and subject to extensive regulations.” 

Citizens United, 130 S. Ct. at 897. 

 In MCFL, the Court provided a detailed description of the burdens of PAC status imposed by operation of the statute: 

Under § 432, [a PAC] must appoint a treasurer, § 432(a); ensure that contributions are 

forwarded to the treasurer within 10 or 30 

days of receipt, depending on the amount of 

contribution, § 432(b)(2); see that its treasurer keeps an account of every contribution 

regardless of amount, the name and address 

of any person who makes a contribution in 

excess of $50, all contributions received from 

political committees, and the name and address of any person to whom a disbursement 

is made regardless of amount, § 432(c); and 

preserve receipts for all disbursements over 

$200 and all records for three years, 

§§ 432(c), (d). Under § 433, [a political committee] must file a statement of organization containing its name, address, the name 

of its custodian of records, and its banks, 

safety deposit boxes, or other depositories, 

§§ 433(a), (b); must report any change in the 

above information within 10 days, § 433(c); 

and may dissolve only upon filing a written 

statement that it will no longer receive any 

contributions nor make disbursements, and 

that it has no outstanding debts or obligations, § 433(d)(1). 

Under § 434, [a political committee] must file 

either monthly reports with the FEC or 
7 

reports on the following schedule: quarterly 

reports during election years, a pre-election 

report within 30 days after an election, and 

reports every 6 months during nonelection 

years, §§ 434(a)(4)(A), (B). These reports 

must contain information regarding the 

amount of cash on hand; the total amount of 

receipts, detailed by 10 different categories; 

the identification of each political committee 

and candidate’s authorized or affiliated 

committee making contributions, and any 

persons making loans, providing rebates, 

refunds, dividends, or interest or any other 

offset to operating expenditures in an aggregate amount over $200; the total amount of 

all disbursements, detailed by 12 different 

categories; the names of all authorized or affiliated committees to whom expenditures 

aggregating over $200 have been made; persons to whom loan repayments or refunds 

have been made; the total sum of all contributions, operating expenses, outstanding 

debts and obligations, and the settlement 

terms of the retirement of any debt or obligation, § 434(b). 

MCFL, 479 U.S. at 253-54. The court of appeals 

ignored these facts and neglected these precedents. It 

imposed the PAC regulatory regime on SpeechNow 

based on the government interest justifying non-PAC

disclosure requirements upheld in McConnell v. FEC, 

540 U.S. 93, 231-32 (2003) and Citizens United, 130 

S. Ct. at 914. App. 21-23. 
8 

 This holding turns MCFL on its head. The lower 

court found that because expenditure-specific disclosure requirements of electioneering communications 

were upheld by this Court in McConnell and Citizens 

United, it was thus constitutional to impose the “full 

panoply of regulations that accompany status as a 

political committee” on associations making only 

independent expenditures because such additional 

regulations are a minimal additional burden. MCFL, 

479 U.S. at 262. Such a conclusion is erroneous both 

as a matter of law and as a matter of fact. 

 PAC organizational and reporting requirements 

are not mere expenditure-specific disclosure requirements; operating as a PAC imposes an entirely different and much more burdensome regulatory scheme 

upon an association. Moreover, the fact that 

SpeechNow can comply with significantly less burdensome expenditure-specific disclosure requirements 

does not ipso facto turn the PAC regulatory scheme 

into a “minimal burden” for SpeechNow. If such were 

the case, it would have been a minimal burden for 

MCFL to have operated as a PAC, rather than using 

expenditure-specific disclosure for its independent 

expenditures. But this Court did not find that to be 

the case. MCFL, 479 U.S. at 255. 
9 

B. The court of appeals’ holding conflicts 

with Supreme Court precedent because 

it grossly underappreciates the organizational, reporting, and administrative 

burdens of PAC status. 

 As the previous section demonstrates, this Court 

has held as a matter of law that PACs are burdensome. And, in fact, the evidence over the last three 

decades demonstrates that this holding is incontrovertibly true. The court of appeals thus ignored both 

relevant holdings of this Court and clear evidence 

supporting those holdings. 

 The court of appeals made two determinations 

regarding PAC burdens. First, the court concluded 

that organizational requirements do not impose much 

of a burden in addition to those already imposed by 

expenditure-specific disclosure requirements. Second, 

the court concluded that additional PAC reporting 

requirements are minimal. Both of these determinations are erroneous. In addition, the court of appeals 

failed even to discuss, let alone recognize the administrative burdens that PAC status imposes. 

1. The court of appeals erroneously 

concluded that “organizational requirements” do not impose much of 

an additional burden. 

From creation to termination, operating a PAC is 

complex, time consuming, and fraught with opportunity for misstep. In concluding that organizational 
10 

requirements do not impose much of an additional 

burden on citizen groups, the court of appeals erred 

in two respects. 

 First, it erroneously concluded that designating a 

treasurer and retaining records does not impose 

much of an additional burden. App. 23. Second, the 

court of appeals failed to recognize that the burdensome organizational requirements imposed by the 

government on a PAC are the same whether an 

association chooses to operate relatively simply or 

with a more complex organizational structure. App. 

23. Each of these will be addressed in turn. 

 The complexity and burdens of organizing as a 

PAC preclude many organizations from even attempting to participate in the political process. See MCFL, 

479 U.S. at 255 n.8 (some “may not find it feasible to 

establish such a committee, and may therefore decide 

to forgo engaging in independent political speech”). 

One of the first things a PAC must do is name a 

treasurer. See 2 U.S.C. 432(a) (“No contribution or 

expenditure shall be accepted or made by or on behalf 

of a political committee during any period in which 

the office of treasurer is vacant.”). The act of naming 

a treasurer is easy – it consists of listing the individual’s name and address on a form. However, it is often 

no easy task to find a qualified individual willing to 

devote the time to serve in the position or to assume 

the legal liability of doing so. 

The days of the volunteer treasurer are over for 

several reasons. The complexity of the job has all but 
11 

required committees to look for individuals with 

expertise in accounting. A nine-page guidance document published by the Federal Election Commission 

(“FEC”) on implementing internal controls by political committees is but one example of the specialized 

knowledge a treasurer needs. See FEC Internal 

Controls and Political Committees at 1, 2 <http:// 

www.fec.gov/law/policy/guidance/internal_controls_ 

polcmtes_07.pdf> (emphasis added) (“The responsibility of establishing the necessary control procedures 

falls to a political committee’s treasurer. . . . This 

guide should not be the only resource that is consulted. In addition to accounting professionals, there are 

numerous resources that can be found on the Internet.”). Treasurers are expected to be up to date on the 

reporting and recordkeeping rules, reconcile the bank 

account, file FEC reports, IRS returns, and state 

reports. See Comment of Birkenstock and Cline in 

Response to SEC File #S7-18-09, Political Contributions by Certain Investment Advisers at 3 (Oct. 9, 2009) 

<http://www.sec.gov/comments/s7-18-09/s71809-227.pdf> 

(“It is also common for candidates to have treasurers 

who work in finance or accounting and serve a particularly important role. . . .”). 

 Even for those with experience, recordkeeping 

imposes significant burdens: 

As a treasurer of a county party, and an accountant for the past 40 years, I thought I 

was capable of handling the reporting and 

record keeping requirements for a Congressional candidate. I was wrong and my efforts 
12 

to learn were severely hampered by . . . the 

unwieldy reporting program. 

 Comment of Gloria Bram, Agency Procedures and 

Processes (Feb. 11, 2009) <http://www.fec.gov/law/ 

policy/enforcement/2009/comments/bram.pdf>. One 

mistake is enough to create discrepancies that are 

difficult to remedy and can lead to fines. The FEC has 

confirmed that treasurers may be pursued in their 

personal capacities and thus, be personally liable. 

Statement of Policy Regarding Treasurers Subject to 

Enforcement Proceedings, 70 Fed. Reg. 3 (Jan. 3, 

2005) <http://www.fec.gov/law/policy/2004/notice2004-

20.pdf>. An FEC brochure specifically states that 

“[c]ommittee treasurers may be liable for civil monetary penalties if reports are not filed or are not filed 

on time.” Committee Treasurers Brochure, <http:// 

www.fec.gov/pages/brochures/committee_treasurers_b

rochure.pdf>. 

 Given all this, it is not hard to see why some 

organizations have difficulty finding an individual 

willing and qualified to serve as treasurer. As experts 

have noted, “The unintended consequence of [complicated laws] is that the price of admission into politics 

becomes too high. People do not want to become . . . 

treasurers because of the potential liability.” Bipartisan Commission on the Political Reform Act of 1974, 

Overly Complex and Unduly Burdensome: The Critical Need to Simplify the Political Reform Act at 62 

(last visited August 18, 2010) <http://www.fppc.ca.gov/ 

pdf/McPherson.pdf> (“Bipartisan Commission”). 
13 

 But working as a treasurer is not the only labor 

required to operate a PAC. Far from it. In Austin v. 

Michigan Chamber of Commerce, 494 U.S. 652, 708 

(1990) (Kennedy, J., dissenting), for example, it was 

noted that the organization’s PAC consumed an 

estimated twenty-five to fifty percent of its receipts in 

establishment and administrative expenses. Given 

this reality, it is becoming a rarity to find a PAC that 

is able to successfully operate on a small administrative budget using a volunteer staff. The sheer amount 

of time required, the knowledge of rules, the potential 

for significant fines for minor missteps, and continuous recordkeeping and reporting requirements necessitate hiring a cadre of professionals. 

 To comply with the law’s requirements, PACs 

need to hire attorneys, CPAs, and IT professionals, all 

of which cost money that a new or small PAC does not 

have. See Interview by Jim Lehrer of Randy Tate, 

Campaigns Under Scrutiny – Opposing Reform, 

NewsHour at ¶14 (Sept. 30, 1997) <www.pbs.org/ 

newshour/campaign/september97/hearing_9-30.html> 

(Randy Tate stating that “If you’ve ever set up a 

political action committee, you need several attorneys, a couple of CPA’s, piles of paper work, and it 

would have a chilling effect on everyday citizens 

trying to organize their neighborhood to have an 

impact on their local member of Congress.”); Bipartisan Commission at 62 (“Thus the regulations have 

injured grassroots democracy and have essentially 

professionalized politics so that you have to have 

lawyers and accountants on your campaign staff.”). 
14 

 In January 2009, the FEC sought public comment on its policies and procedures. Agency Policies 

and Procedures, 73 Fed. Reg. 74494, 74495 (Dec. 8, 

2008). In response, the FEC received comments from 

several individuals highlighting the organizational 

burdens placed on volunteer-driven PACs: 

This whole system needs to be revised, the 

rules are mountainous. . . . As a local grassroots Democratic club, for us, the rules, regulations, paperwork, filings are so complex, 

and if something is missed, fines are issued 

. . . this makes it impossible for a group of 

volunteers to operate in a relatively small 

way in the process, without expensive, professional assistance from one of few professionals who understand it. . . . 

Comment of Diane Valentino, Agency Procedures and 

Processes (Dec. 12, 2008) <http://www.fec.gov/law/policy/ 

enforcement/2009/comments/comm29.pdf>. Another individual also noted the burdens which demand professional help: 

I have just started a political action committee. The record-keeping burden is simply unbearable! I believe this red tape has the 

effect of deterring grassroots participation in 

the political process. If I did not have hours 

to volunteer to the PAC, we just could not 

participate. This favors the large PACs that 

can hire professionals to run the PAC. 

Comment of Jason Eugene Call, Agency Procedures 

and Processes (Dec. 17, 2008) http://www.fec.gov/law/ 
15 

policy/enforcement/2009/comments/comm30.pdf>; see also 

Citizens United, 130 S. Ct. at 897 (noting that PAC 

regulations might explain why fewer than 2,000 of 

the millions of corporations have PACs). 

 “Relative simplicity of operation” does not eliminate these organizational requirements, contrary to 

the court of appeals’ belief. The burdensome organizational requirements imposed on a PAC are the same 

irrespective of how an organization chooses to operate. The legal obligations of PACs are the same, 

which is why the lower court’s decision to allow the 

government to require a group to function as a PAC is 

such a consequential ruling for the country. 

2. The court of appeals erroneously 

concluded that additional reporting 

requirements by PACs are “minimal.” 

The organizational requirements are “just the 

beginning.” Citizens United, 130 S. Ct. at 897. PACs 

must also comply with an entirely different, and 

much more complex and confusing reporting scheme 

than that used by expenditure-specific filers. The 

Federal Election Campaign Act (FECA) is 244 pages, 

www.fec.gov/law/feca/feca.pdf, and there are 567 pages 

of regulations, www.fec.gov/law/cfr/11_cfr.pdf. There 

have been over 1,803 advisory opinions issued since 

1975, http://saos.nictusa.com/saos/searchao, over 1,200 

pages of explanations and justifications for regulations in the Federal Register, www.fec.gov/law/cfr/ej_ 
16 

main.shtml, and more than 379 court cases, www.fec. 

gov/law/litigationalpha.shtml. 

 There are reporting forms with instructions, 

www.fec.gov/general/library.shtml, campaign guides 

and brochures, www.fec.gov/general/library.shtml. Other 

sources of information regarding enforcement of laws 

and regulations are found in audit reports, www.fec. 

gov/audits/audit_reports_auth.shtml, and in over 

6000 Matters under Review, http://eqs.nictusa.com/ 

eqs/searcheqs. 

 It is true that the FEC is required by law to 

provide resources and to assist PACs with compliance 

with these complex requirements. However, this legal 

duty is a tacit acknowledgment of the pitfalls inherent in operating as a PAC. Moreover, the FEC’s 

attempt to fulfill its statutory duty does not sufficiently ameliorate the burdens placed upon PACs by 

the complexity of PAC reporting. 

 For example, PACs that expect to receive or make 

contributions or expenditures in excess of $50,000 in 

a calendar year are required to file reports electronically with the FEC. 11 C.F.R. § 104.18(a)(i) and (ii). 

Although the FEC provides free filing software, this 

does not lessen the burden placed on many PACs. As 

one commenter noted, “[t]he current software provided – FECFile – is clunky and confusing. . . . The free 

FEC software need not be as fully-featured as commercial packages available to campaigns, but it 

should be easy to use so that low-budget candidates 

and committees are able to file reports without 
17 

recourse to prohibitively expensive applications. . . .” 

Comment of Peter d’Errico, Agency Procedures and 

Processes (Dec. 19, 2009) <http://www.fec.gov/law/policy/ 

enforcement/2009/comments/comm14.pdf>. 

 Another commenter stated: 

The sample formats for transmitting data 

were poorly explained, the program was extremely convoluted and not user friendly. It 

shouldn’t require a Master’s degree in both 

Accounting and Systems Analysis to use it. 

And the experience required to use the program severely hampers the ability of new 

candidates with limited funds to run for public office. 

Comment of Gloria Bram at ¶3. 

 The barrier to exercising the right to association 

due to being regulated as a PAC is demonstrated in 

an experiment conducted by Dr. Milyo. In 2007, 255 

subjects attempted to comply with PAC reporting 

laws from 3 states. Jeffrey Milyo, Ph.D., Campaign 

Finance Red Tape: Strangling Free Speech & Political 

Debate, at 27, Institute for Justice (Oct. 2007; last 

visited August 19, 2010) <www.ij.org/publications/other/ 

campaign-finance-red-tape.html> (“Milyo”). The difficulties of complying with PAC reporting laws was 

evident: not one subject completed all of the tasks 

correctly. Id. at 8. This is problematic because for 

“even a very small group with just a few contributors 

and expenditures, missing one filing deadline might 

generate hundreds of thousands of dollars in fines, or 
18 

more.” Id. at 3. Almost 89% of the participants agreed 

that when the specter of fines and punishment for 

incorrect compliance was raised, many people would 

be deterred from engaging in independent political 

activity altogether. Id. at 14-16. Or, their participation in the political process was delayed for years: 

Even with [my] limited experience I found 

this exercise to be complicated and mentally 

challenging. I took nearly the alloted [sic] 

amount of time to complete the forms and 

still made two major errors. The burdensome 

paper work and fines imposed for errors in 

reporting proved to be a hurdle that prevented the formation of our PAC . . . for a number 

of years. 

Id at 18; see also Citizens United, 130 S. Ct. at 898 

(noting onerous restrictions may prevent PAC formation and that “PACs, furthermore, must exist 

before they can speak”). 

 In another reporting experiment, California’s 

Bipartisan Commission found that even participants 

with backgrounds in campaigns could not generate a 

form without making multiple mistakes, even with 

using a fairly simple set of mock campaign data. 

Bipartisan Commission at 69. Those without a campaign background spent up to 3 hours completing the 

forms; some gave up in frustration. Id. Both those 

with campaign experience and those without it felt 

uncomfortable and uncertain about some of the 

responses on their prepared reports. Id. 
19 

3. The PAC regulatory scheme also 

imposes significant administrative 

burdens. 

The burdens on a PAC do not end with the filing 

of its reports. After a report is filed with the FEC, it is 

reviewed by an analyst in the Reports Analysis 

Division (RAD). If the analyst believes there is an 

error, however slight, the PAC will receive a “request 

for additional information” (“RFAI”). The PAC is 

required to respond to the RFAI, and in some cases, 

must amend reports. RFAI’s themselves can create 

substantial burdens for small and large PACs alike. 

See Comment of Jan Baran, FEC Agency Procedures 

at 10 (Jan. 5, 2009) <http://www.fec.gov/law/policy/ 

enforcement/2009/comments/comm33.pdf> (“These RFAIs 

are redundant and impose significant burdens on the 

recipients.”). 

 The FEC may also audit the PAC. One practitioner described the impact of the audit process on a 

PAC as potentially “catastrophic.” Testimony of Marc 

Elias, FEC Public Hearing on Agency Practices and 

Procedures at 26 (Jan. 14, 2009) <http://www.fec.gov/ 

law/policy/enforcement/2009/01141509hearingtranscript. 

pdf>. Mr. Elias went on to explain: 

The FEC – an FEC audit, for those of you 

who are not here and have never been 

through it, is equivalent to those life audits 

that the IRS did and drew so much criticism 

for. It is not “let us come in and spend a few 

weeks talking to you and looking at some 

records.” It is “give us every piece of paper 
20 

that the committee has ever generated over a 

cycle.” We will look at every check. We will 

look at every disbursement. We will look at 

every invitation. We will question everything 

and anything you have done during the 

course of this election cycle. It is extremely 

burdensome. 

Id. 

 Post-Citizens United, citizens now face the unhappy choice of remaining quiet or becoming burdened by the PAC regulatory scheme. Imposing this 

scheme on non-corrupting associations cannot be 

squared with this Court’s precedents. See Citizens 

United, 130 S. Ct. at 908, 910. The Court should take 

this opportunity to reiterate that the PAC regulatory 

scheme is not only burdensome, but that it may not 

be imposed in the absence of non-corrupting speech. 

II. The Consequences Of Allowing The Decision Below To Stand: Reduced Participation By Citizen Groups In The Political 

Process. 

Refusal to review the decision will seriously 

erode the federal constitutional policy in favor of free 

speech and may well chill the exercise of free speech 

rights. Nike, Inc. v. Kasky, 539 U.S. 654, 681-82 

(2003) (Breyer, J., dissenting). 

 
21 

A. The lower court’s decision allows the 

government to impose onerous burdens 

on associations of citizens wishing to 

exercise their rights of political speech. 

Expenditure-specific disclosure is done only if 

and when an independent expenditure is made. Once 

the independent expenditure is disclosed, no additional reports are required assuming no additional 

expenditures are made. By contrast, PAC reporting is 

ongoing and is required whether or not expenditures 

are made; it does not end until termination of the 

PAC. PAC reporting requirements thus severely 

burden speech by restricting spontaneous expression, 

especially for associations that do not intend to 

continue to speak after an election. See MCFL, 479 

U.S. at 254 n.7 (PAC burdens serve as a disincentive 

for such organizations to engage in political speech.). 

Newcomers are often unable to organize quickly 

enough to speak, see Citizens United, 130 S. Ct. at 

898 (“Given the onerous restrictions, a corporation 

may not be able to establish a PAC in time to make 

its views known regarding candidates and issues in a 

current campaign.”), and they are intimidated by the 

ongoing burdens that operating as a PAC entail. The 

numerous requirements and steep learning curve not 

only dampen enthusiasm of new associations, they 

often cause such citizens to choose not to speak 

altogether. 

 Both the Milyo and California studies show that 

PAC reporting requirements are so complex, that even 

those with accounting and campaign backgrounds 
22 

have difficulty complying. See MCFL, 479 U.S. at 256 

(noting “practical effect” of PAC burdens is “to make 

engaging in protected speech a severely demanding 

task”). Complex reporting is a burden in and of itself, 

but it also creates other burdens – administrative 

fines and investigations from simple errors, and 

deterrence of participation in the political process. 

 The subjects in Dr. Milyo’s experiment had little 

doubt that the burdens of PAC compliance, especially 

when combined with the threat of severe penalties, 

would chill participation: 

Subjects were sincerely frustrated in their 

attempts to complete the disclosure forms – 

and believed these difficulties would deter 

political activity. . . . About two-thirds of respondents agreed that the disclosure requirements would deter many people from 

engaging in independent political activity. 

That figure rose to 85% to 89% when the 

specter of fines and punishment for incorrect 

compliance was raised. 

Milyo at 14-16. After the experiment, subjects were 

given the opportunity to comment. By a ratio of more 

than 20 to one, the comments were negative, and 

included: 

 “A lawyer would have a hard time wading through this disclosure mess and we read 

legal jargon all the time.” 

 “Good Lord! I would never volunteer to 

do this for any committee.” 
23 

 “Worse than the IRS!” 

 “Seriously, a person needs a lawyer to do 

this correctly.” 

Id. at 17. 

 Recent FEC enforcement actions have demonstrated the complexities of reporting and the threat of 

fines from technical violations, and provide real-life 

examples of how the FEC’s complex procedures and 

processes burden citizens, particularly the inexperienced, and how “being subjected to such treatment 

leads many to swear off future involvement in the 

federal election process.” Statement of Reasons of 

Commissioners Petersen, Hunter and McGahn II, 

FEC MURS 5957, 6031 at 1 <http://eqs.nictusa.com/ 

eqsdocs/29044243959.pdf>. 

 The FEC’s commissioners have noted the widespread problem of burdensome requirements that 

deter participation. “We have been struck by the 

number of committees, including separate segregated 

funds of corporations, that seek to terminate after 

encountering the regulatory burdens associated with 

‘political committee’ status the court noted in 

GOPAC.” Statement of Reasons of Commissioners 

Petersen, Hunter and McGahn II, FEC MUR 6005 at 

4 n.10 <http://eqs.nictusa.com/eqsdocs/29044234461.pdf> 

(“MUR 6005) (citing five committees). This was reaffirmed in the California study: 

Nothing discourages the citizenry from participating in the political process more quickly or completely than a political system that 
24 

is permitted to become unduly complex and 

incomprehensible. If the rules of the game 

are too difficult or complicated for the average citizen to readily understand them, the 

citizens are naturally repelled by that complexity. The average citizen may then rationally choose to opt out of the process rather 

than attempt to maneuver through the difficulties and expense of obtaining the necessary legal or technical assistance. Such 

complexity then runs counter to the purpose 

of government to encourage public participation. 

See Bipartisan Commission at 34. 

 It is therefore clear that the lower court’s ruling, 

if allowed to stand, will create a chilling effect across 

the country and significantly burden the exercise of 

core First Amendment freedoms. 

B. The lower court’s decision has generated uncertainty among associations 

of citizens wishing to speak, thereby 

chilling their First Amendment rights. 

 The lower court’s decision creating a new type of 

PAC – an independent expenditure PAC – brings the 

total number of “distinct entities” regulated by the 

FEC to 72. Citizens United, 130 S. Ct. at 895. Associations unclear about how the ruling below applies to 

them must choose not to speak, guess about the 

ruling’s application and hope they’re correct, or request an advisory opinion from the FEC. See Citizens 
25 

United, 130 S. Ct. at 896. The latter option operates 

as a prior restraint particularly on ad hoc associations that form quickly in the heat of an election. See 

id. at 895. 

 Prior advisory opinions may not be relied upon by 

other would-be speakers unless their situation is 

“indistinguishable in all its material aspects from the 

transaction or activity with respect to which such 

advisory opinion is rendered.” 2 U.S.C. § 437f(c)(1)(B). 

Rarely are situations “indistinguishable in all its 

material aspects.” For example, the use of excess 

campaign funds has been the subject of over 350 

advisory opinions. http://saos.nictusa.com/saos/searchao? 

SUBMIT=clear_basic (search term “excess campaign 

funds”). Therefore, recent advisory opinions regarding 

independent expenditure groups provide little comfort 

for others. Unless this Court reviews the case, there 

will remain great uncertainty for citizens. See 2 

U.S.C. § 437f(b) (FEC cannot properly establish 

binding rule of law in an advisory opinion). 

C. The lower court’s holding allows continued application of the “major purpose” 

test by the Federal Election Commission, which chills non-corrupting speech. 

The Court should take the opportunity to hold 

that PAC registration and the full panoply of PAC 

burdens may not be imposed on non-corrupting 

speech, regardless of the major purpose of the association. Such a holding would serve two important 
26 

purposes. First, it would avoid the imposition of PAC 

burdens on organizations engaging in non-corrupting 

speech. Second, it would declare the “major purpose” 

test irrelevant whenever non-corrupting speech is at 

issue. This would provide associations a ready defense to intrusive and burdensome “major purpose” 

investigations, which themselves may violate the 

First Amendment. See Sweezy v. New Hampshire, 354 

U.S. 234, 250 (1957) (“Merely to summon a witness 

and compel him, against his will, to disclose the 

nature of his past expressions and associations is a 

measure of governmental interference in these matters.”); see also AFL-CIO v. FEC, 333 F.3d 168 (D.C. 

Cir. 2003) (quoting FEC v. Machinists Non-Partisan 

Political League, 655 F.2d 380, 387 (D.C. Cir. 1981)) 

(“Unique among federal administrative agencies, the 

Federal Election Commission has as its sole purpose 

the regulation of core constitutionally protected 

activity – ‘the behavior of individuals and groups only 

insofar as they act, speak and associate for political 

purposes.’ ”). 

 Currently, associations are subjected to onerous 

investigations into what their true “major purpose” is, 

regardless of the fact that their protected speech 

poses no threat of corruption. If anyone wants to 

silence the organization’s speech, it need only employ 

a weapon in the political arsenal – an FEC complaint. 

See Testimony of Jan Baran, FEC Public Hearing on 

Agency Practices and Procedures at 6 (Jan. 14, 2009) 

<http://www.fec.gov/law/policy/enforcement/2009/01141509 

hearingtranscript.pdf> (“I think it’s a serious problem. 
27 

I think that there is with some regularity, and I think 

Bob Bauer even suggested that complaints get filed in 

the heat of a campaign in order to grab a headline.”). 

 There are many examples from which to choose, 

but a recent complaint highlights this danger well. 

The American Leadership Project (ALP), a § 527 

organization, ran ads in Ohio calling on Senator 

Clinton to “keep on fighting” for certain issues. MUR 

6005 at 2. On April 30, 2008, counsel for Obama for 

America filed a complaint against the organization, 

alleging it violated the FECA by failing to register as 

a PAC. On February 25, 2009, the Commission voted 

to take no further action and closed the case. However, the complaint fulfilled its purpose – it tied ALP up 

in the FEC’s enforcement process until well after the 

convention. See Statement for the Record of Commissioner Smith, FEC MUR 4624 at 2 (Nov. 6, 2001) 

<http://eqs.nictusa.com/eqsdocs/0000018E.pdf> (“These 

complaints are usually filed as much to harass, annoy, chill, and dissuade their opponents from speaking as to vindicate any public interest in preventing 

‘corruption or the appearance of corruption.’ ”). 

 One practitioner correctly points out the fear that 

non-PACs face: “All unregistered organizations of 

whatever kind that are seen to influence elections – 

or that are suspected of this activity – will undergo 

extensive examination.” Robert Bauer, More Soft 

Money Hard Law at ¶9 (Feb. 1, 2007) <http://www. 

moresoftmoneyhardlaw.com/news.html?AID=920>. Complaints lead to FEC investigations, which are costly 

and chilling, and which consists of “an extensive 
28 

examination of the organization,” to determine its 

major purpose. FEC, Political Committee Status, 72 

Fed. Reg. 5595, 5606 (Feb. 7, 2007). 

 The burdens arising out of these investigations 

clearly demonstrate that the “major purpose” test 

should not be permitted to be used as a political 

weapon to silence opponents. If this Court holds that 

independent expenditure groups do not trigger PAC 

registration no matter what their major purpose, 

then the major purpose test need not be applied if 

only non-corrupting speech is involved. This will 

enable citizen groups to avoid a burdensome investigation into their major purpose if their speech is noncorrupting, as a matter of law. While it may be true 

that post-Citizens United associations can speak 

freely, the practical reality is just the opposite. Until 

the application of the major purpose test is limited to 

corrupting speech, the threat of PAC status, and the 

intrusive investigation that precedes it, is always 

there. 

 This Court should grant certiorari and reverse 

the lower court’s holding that PAC registration and 

reporting requirements are not unduly burdensome 

for citizen associations that only make independent 

expenditures. 

--------------------------------- ♦ ---------------------------------
29 

CONCLUSION 

For these reasons, the Court should grant the 

petition for a writ of certiorari. 

Respectfully submitted, 

HEIDI K. ABEGG

 Counsel of Record

ALAN P. DYE

WEBSTER, CHAMBERLAIN & BEAN

1747 Pennsylvania Ave., N.W. 

Suite 1000 

Washington, D.C. 20006 

(202) 785-9500 

Counsel for Amici Curiae 

August 27, 2010