UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

 ) 

THE HISPANIC LEADERSHIP ) 

FUND, INC., ) Civ. No. 1:12-893-TSE-TRJ 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) MEMORANDUM IN OPPOSITION 

FEDERAL ELECTION COMMISSION, ) TO PLAINTIFF’S MOTION FOR 

) PRELMINARY INJUNCTION 

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM IN 

OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 

Anthony Herman 

General Counsel 

 

David Kolker 

Associate General Counsel 

Lisa J. Stevenson 

Special Counsel to the General Counsel 

 

Adav Noti 

Acting Assistant General Counsel 

Audra Hale-Maddox 

Kevin P. Hancock 

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

August 15, 2012 (202) 694-1650 

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TABLE OF CONTENTS 

Page 

LEGAL AND FACTUAL BACKGROUND ............................................................................2 

I. STATUTES AND REGULATIONS .............................................................................2 

 

A. Electioneering Communications ..............................................................................2 

B. “Clearly Identified” ..................................................................................................5 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ................................6 

ARGUMENT ............................................................................................................................8 

I. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY 

THAT REQUIRES PLAINTIFF TO MEET A HEAVY BURDEN .............................8 

II. PLAINTIFF CANNOT MEET ITS HEAVY BURDEN OF DEMONSTRATING 

THAT IT IS LIKELY TO SUCCEED ON THE MERITS ...........................................9 

A. The Commission’s Statutory Interpretation Is Entitled to Deference ......................9 

B. It Is Reasonable to Examine How an Advertisement Uses Words or Phrases 

in Context When Determining Whether It Contains an Unambiguous 

Reference to a Clearly Identified Candidate ..........................................................10 

C. Draft B Reasonably Concluded that Five Advertisements Unambiguously 

Refer to a Clearly Identified Candidate .................................................................15 

1. Advertisement 1 ...............................................................................................15 

2. Advertisement 2 ...............................................................................................17 

3. Advertisement 3 ...............................................................................................18 

4. Advertisement 4 ...............................................................................................19 

5. Advertisement 5 ...............................................................................................20 

D. Disagreements About the Meaning of References Like “White House” or 

“the Administration” in Particular Communications Do Not Make Their 

Use Inherently Ambiguous ....................................................................................21 

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III. PLAINTIFF FAILS TO DEMONSTRATE THAT COMPLYING WITH 

FECA’S DISCLOSURE PROVISIONS DURING THE PENDENCY OF 

THIS CASE WILL CAUSE IRREPARABLE HARM ...............................................25 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION, AND AN 

INJUNCTION WOULD BE ADVERSE TO THE PUBLIC INTEREST ..................28 

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

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The Hispanic Leadership Fund, Inc. (“HLF”) asks this Court for extraordinary 

preliminary injunctive relief that would alter the status quo and bar enforcement of a key 

provision of the Federal Election Campaign Act (“FECA”) that ensures that the voting public has 

access to information about who is financing campaign-related advertisements during the run-up 

to a presidential election. The Court should deny this relief because plaintiff meets none of the 

requirements for a preliminary injunction. 

HLF is unlikely to succeed on the merits. At issue in this case is whether five 

advertisements HLF claims it wishes to air are within the scope of FECA’s provision governing 

“electioneering communications,” because they “refer[] to a clearly identified candidate for 

Federal office.” 2 U.S.C. § 434(f)(3)(A)(i)(I). If the provision applies, then HLF may have to 

disclose certain information relating to the financing of those ads and include in their text a 

disclaimer stating that HLF is responsible for their content. 

Nearly seven weeks before HLF filed its motion, a controlling group of Commissioners 

of the Federal Election Commission found that five proposed advertisements identical to those 

that HLF now wishes to air would be “electioneering communications” because, among other 

things, they unambiguously refer to President Barack Obama by using phrases like “the White 

House” and “the Administration” and an audio clip of the President’s voice. Under well-settled 

principles of administrative law, this decision is entitled to deference. Plaintiff makes the 

meritless claim that an advertisement featuring an audio clip of President Obama speaking does 

not unambiguously refer to President Obama. Plaintiff also takes the extreme position that 

phrases like “the White House” and “the Administration” can never be considered unambiguous 

references to the President simply because, like virtually all words, they have different meanings 

in differing contexts. Nothing in the governing statutes or regulations requires such a strange 

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result, which would undermine the campaign finance disclosure regime that the Supreme Court 

has recognized is important to ensuring that the public can assess various claims made in federal 

election campaigns. 

Additionally, HLF cannot show that it will suffer irreparable harm in the absence of a 

preliminary injunction. As HLF is forced to concede, it seeks only to avoid disclosing its donors 

— the legal regime it challenges does not prevent it from speaking, i.e., from running the 

advertisements at issue. And HLF has not even attempted to show that it would suffer the kind 

of serious threats or reprisals necessary to demonstrate irreparable injury from such disclosure. 

In contrast, a preliminary injunction barring disclosure of information about the funding of 

electioneering communications would significantly harm the public because it would erode the 

public’s confidence in the federal campaign finance system and deprive voters of knowledge 

about who is speaking about candidates shortly before an election. As the Supreme Court has 

noted, “the public has an interest in knowing who is speaking about a candidate shortly before an 

election.” Citizens United v. FEC, 130 S. Ct. 876, 915 (2010). Enjoining a campaign finance 

statute providing for disclosure just months before an election would harm that interest by 

“depriv[ing] the public of important information.” Real Truth About Obama, Inc. v. FEC, Civ. 

No. 3:08-483, 2008 WL 4416282, at *16 (E.D. Va. Sept. 24, 2008), aff’d, 575 F.3d 342 (4th Cir. 

2009), vacated on other grounds, 130 S. Ct. 2371 (2010). 

LEGAL AND FACTUAL BACKGROUND 

I. STATUTES AND REGULATIONS 

A. Electioneering Communications 

The text of the Federal Election Campaign Act, 2 U.S.C. §§ 431-57 (“FECA”), as 

amended, prohibits corporations and labor unions from making any “expenditure” in connection 

with a campaign for federal office. 2 U.S.C. § 441b(a). Included within this statutory 

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prohibition are “independent expenditures,” which FECA defines as communications “expressly 

advocating the election or defeat of a clearly identified candidate” and not made in coordination 

with a candidate or political party. 2 U.S.C. § 431(17). FECA also requires that any entity 

financing an independent expenditure file with the Commission for public disclosure certain 

information regarding the entity’s disbursements in support of the expenditure, and contributions 

the entity received “for the purpose of furthering an independent expenditure.” 2 U.S.C. 

§ 434(c)(2). 

This statutory regime, which Congress enacted in the 1970s, was being widely 

circumvented by the end of the 1990s. Independent groups had begun to spend millions of 

dollars on so-called “sham issue ads” — ads that avoided “expressly advocating” for or against 

candidates but nonetheless included candidate advocacy under the guise of educating the public 

about legislative issues. See McConnell v. FEC, 540 U.S. 93, 126-128 (2003). After conducting 

an exhaustive investigation, Congress determined that entities were funding sham issue ads to 

influence federal elections “while concealing their identities from the public” by avoiding 

FECA’s disclosure requirements. Id. at 196-97 (discussing Congressional report of 

investigation); see also id. at 131-32. 

Congress addressed this problem by enacting the Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”). BCRA expanded FECA’s corporate 

financing prohibition to encompass any “electioneering communication,” 2 U.S.C. §§ 434(f), 

441b(b)(2), which BCRA defines as a “broadcast, cable, or satellite communication” that 

(a) “refers to a clearly identified candidate for Federal office,” and (b) is aired within sixty days 

before the general election or thirty days before a primary election or convention. 2 U.S.C. 

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§ 434(f)(3)(A)(i).1 BCRA also contains disclosure provisions requiring each entity spending 

more than $10,000 in a calendar year on electioneering communications to file with the 

Commission a statement that identifies the maker, amount, and recipient of each of the entity’s 

disbursements over $200, as well as information about donors who contributed to the entity 

making the communications. 2 U.S.C. § 434(f)(1)-(2). Additionally, BCRA requires an 

electioneering communication that is not authorized by a candidate to contain a disclaimer 

stating the name and the address, phone number, or website of the entity that paid for the 

advertisement, and stating that the communication is not authorized by any candidate. 2 U.S.C. 

§ 441d(a)(3), (d)(2); 11 C.F.R. § 110.11. 

The Supreme Court initially upheld the constitutionality of BCRA’s prohibition on 

corporate financing of electioneering communications “to the extent that the [communications] 

. . . are the functional equivalent of express advocacy.” McConnell, 540 U.S. at 189-94, 203-08 

(quotation at 206). The Court later defined “the functional equivalent of express advocacy” as a 

communication that is “susceptible of no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469-70 (2007) 

(Roberts, C.J., controlling op.). In Citizens United, 130 S. Ct. at 913, the Court subsequently 

struck down the corporate financing prohibition in its entirety, including both BCRA’s 

restrictions on corporate electioneering communications and FECA’s ban on corporate 

independent expenditures. 

But in Citizens United, eight Justices upheld BCRA’s disclosure and disclaimer 

requirements for all electioneering communications, even those that are not the functional 

                                                           

1

 Regarding campaigns for the United States Senate and House of Representatives, the 

communication must also be broadcast within the geographic area of the relevant jurisdiction to 

constitute an electioneering communication. See 2 U.S.C. § 434(f)(3)(A)(i)(III), (C). 

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equivalent of express advocacy. 130 S. Ct. at 913-15. The Court held that “[d]isclaimer and 

disclosure requirements may burden the ability to speak, but they ‘impose no ceiling on 

campaign-related activities.’” Id. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976)). The 

Court thus declined to review such requirements through the lens of strict scrutiny and instead 

“subjected these requirements to ‘exacting scrutiny,’ which requires ‘a substantial relation’ 

between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id. 

(quoting Buckley, 424 U.S. at 64, 66). Applying that standard, the Court held that the 

government can constitutionally require disclaimers and financial disclosure relating to all 

electioneering communications to further the government’s important interest in ensuring that 

the public can know “who is speaking about a candidate shortly before an election,” even if the 

ads contain no candidate advocacy. See id. at 915-16. 

B. “Clearly Identified” 

As noted above, a broadcast communication is not regulated as an “electioneering 

communication” unless it “refers to a clearly identified candidate for Federal office.” 2 U.S.C. 

§ 434(f)(3)(A)(i)(I). FECA defines the term “clearly identified” to mean “that 

(A) the name of the candidate involved appears; 

(B) a photograph or drawing of the candidate appears; or 

(C) the identity of the candidate is apparent by unambiguous reference.” 

2 U.S.C. § 431(18) (emphasis added). The Commission’s regulations similarly explain the term: 

Refers to a clearly identified candidate means that the candidate’s name, 

nickname, photograph, or drawing appears, or the identity of the candidate 

is otherwise apparent through an unambiguous reference such as “the 

President,” “your Congressman,” or “the incumbent,” or through an 

unambiguous reference to his or her status as a candidate such as “the 

Democratic presidential nominee” or “the Republican candidate for Senate 

in the State of Georgia.” 

11 C.F.R. § 100.29(b)(2); see also 11 C.F.R. § 100.17. 

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II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

The Commission is the independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce FECA. Congress empowered 

the Commission to “formulate policy” with respect to the Act, 2 U.S.C. § 437c(b)(1); “to make, 

amend, and repeal such rules . . . as are necessary to carry out the provisions of [the] Act,” 

2 U.S.C. § 437d(a)(8); to issue advisory opinions construing the Act, 2 U.S.C. §§ 437d(a)(7), 

437f; and to civilly enforce against violations of the Act. 2 U.S.C. § 437g. 

On April 18, 2012, an organization named American Future Fund (“AFF”) — not HLF 

— requested an advisory opinion from the Commission. (Compl. Exh. 2.) AFF’s request stated 

that it planned to produce and distribute a series of television advertisements within 30 days of 

the upcoming presidential primaries and within 60 days of the November 2012 general election. 

(See id. at 1-3.) AFF asked the Commission to opine that none of its planned ads would “refer to 

a clearly identified candidate for federal office”; under such an opinion, the ads would not 

constitute electioneering communications and would thereby trigger no disclosure requirements. 

(See id. at 5-11.) 

The Commission considered two alternative draft responses to AFF’s request. Draft A 

would have concluded that none of AFF’s proposed ads constituted an electioneering 

communication. (Compl. Exh. 3.) Draft B would have concluded that seven of AFF’s eight 

proposed ads constituted electioneering communications; one did not refer to a clearly identified 

candidate for federal office. (Compl. Exh. 4.) 

The Commission deliberated over these drafts during an open meeting on June 7, 2012 

(see generally Compl. Exhs. 5, 6), but neither draft received the affirmative votes of four 

Commissioners, as is required for the Commission to issue an advisory opinion. 2 U.S.C. 

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§§ 437c(c), 437d(a)(7). Ultimately, four Commissioners agreed that two of AFF’s proposed ads 

— ads that discussed the Patient Protection and Affordable Care Act and included multiple 

references to “Obamacare” and “Romneycare” — referred to clearly identified candidates. 

(Compl. Exh. 7 at 3-4 (FEC Advisory Op. 2012-19).) The Commission also unanimously agreed 

that one proposed communication — an ad that contained references to “the government,” 

“HHS,” and “Secretary Sebelius” — did not refer to a clearly identified candidate. (Id. at 2-3.) 

The Commission was unable to issue an advisory opinion regarding AFF’s five other proposed 

ads.2 (Id. at 4.) 

Plaintiff HLF is a non-profit Virginia corporation holding tax-exempt status as a “social 

welfare” organization under 26 U.S.C. § 501(c)(4). (See Compl. ¶ 24.) On July 30, 2012, almost 

seven weeks after the Commission issued its final response to AFF’s request for an advisory 

opinion, HLF filed a complaint and moved for a preliminary injunction in the United States 

District Court for the Southern District of Iowa. Hispanic Leadership Fund, Inc. v. FEC, Civ. 

No. 4:12-339 (S.D. Iowa) (Docket No. 1). On August 9, 2012, that court granted the 

Commission’s motion to dismiss the case without prejudice for improper venue pursuant to 

28 U.S.C. § 1406(a). Hispanic Leadership Fund, Inc. v. FEC, Civ. No. 4:12-339, slip. op. at 1-5 

(S.D. Iowa Aug. 9, 2012) (Docket No. 26). 

On August 10, 2012, plaintiff refiled its suit in this Court. HLF alleges that it plans to 

run the same five advertisements as to which AFF did not receive a conclusive determination 

from the Commission. (Compl. Exh. 1 (scripts); Compl. ¶ 48 (noting that HLF’s ads are 

                                                           

2

 The Commission defends in this lawsuit the position of the “controlling group” of three 

Commissioners who declined to provide AFF with the response it sought to its request. Cf. FEC 

v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1475-76 (D.C. Cir. 1992) (in case where 

the “central issue” concerned “the appropriate construction of” an FEC regulation, explaining 

that when suit challenges action on which Commission deadlocked, subject of judicial review is 

position of controlling group of Commissioners). 

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“materially indistinguishable” from AFF’s).) HLF alleges that it plans to broadcast these ads “in 

Virginia and other states” (id. ¶ 46) on unspecified dates. HLF argues that its ads do not refer to 

a clearly identified candidate, and therefore that the Commission erred as a matter of law by not 

granting AFF’s advisory opinion request. (Id. ¶¶ 15-20; Pl.’s Br. in Supp’t of Mot. for Prelim. 

Inj. (“Pl.’s Inj. Br.”) at 9-11 (Docket No. 4).) HLF avers that it does not wish to disclose the 

information required of entities that finance electioneering communications and that HLF will 

choose not to run its ads unless it is assured that no such disclosure will be required. (See 

Compl. ¶¶ 17, 40, 48.) 

ARGUMENT 

I. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY THAT 

REQUIRES PLAINTIFF TO MEET A HEAVY BURDEN 

A preliminary injunction is “an extraordinary remedy afforded prior to trial at the 

discretion of the district court.” Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345 (4th 

Cir. 2009), vacated by 130 S. Ct. 2371 (2010), reinstated in relevant part by 607 F.3d 355 (4th 

Cir. 2010). To qualify, a plaintiff “must demonstrate by ‘a clear showing’ . . . ‘[1] that he is 

likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of 

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in 

the public interest.’” Id. at 345-46 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 

7, 22 (2008)). 

“The purpose of a preliminary injunction is merely to preserve the relative positions of 

the parties until a trial on the merits can be held,” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 

(1981); Capital Tool & Mfg. Co., Inc. v. Maschinenfabrik Herkules, 837 F.2d 171, 172 (4th Cir. 

1988), but plaintiff here seeks to upend the status quo by preventing the Commission from 

enforcing an important provision of FECA in the final months of the presidential election cycle. 

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Cf. Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) (Rehnquist, C.J., in chambers) 

(refusing to enjoin enforcement of congressional Act despite First Amendment claim because 

“[b]y seeking an injunction, applicants request that I issue an order altering the legal status 

quo”) (emphasis in original). An injunction that alters the status quo is “‘disfavored’” and 

“‘require[s] that the movant satisfy an even heavier burden of showing that the four factors listed 

above weigh heavily and compellingly in movant’s favor before such an injunction may be 

issued.’” Tiffany v. Forbes Custom Boats, Inc., 959 F.2d 232 (table), No. 91-3001 (4th Cir. Apr. 

6, 1992) (emphases added) (quoting SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1099 

(10th Cir. 1991)). Such an injunction is particularly inappropriate in the pre-election context, 

where “considerations specific to election cases” weigh even further against the issuance of 

injunctions. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (vacating lower court’s 

injunction against enforcement of election statute and noting potential for pre-election 

injunctions to cause confusion among voting public). 

Thus, plaintiff can prevail on its motion only by meeting its heavy burden to make a clear 

showing in its favor on all four of the preliminary injunction factors, see Real Truth About 

Obama, 575 F.3d at 346 — a showing sufficient to justify bringing to a halt the enforcement of a 

longstanding federal election statute just as the election season approaches its peak. 

II. PLAINTIFF CANNOT MEET ITS HEAVY BURDEN OF DEMONSTRATING 

THAT IT IS LIKELY TO SUCCEED ON THE MERITS 

Plaintiff’s claim for a preliminary injunction fails under the first factor, as plaintiff is 

unable to demonstrate that it is likely to succeed on the merits. 

A. The Commission’s Statutory Interpretation Is Entitled to Deference 

“When a court reviews an agency’s construction of the statute that it administers, it 

employs the deferential standard of review articulated in Chevron, U.S.A., Inc. v. Natural Res. 

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Def. Council, Inc., 467 U.S. 837 [] (1984).” EEOC v. Seafarers Intern. Union, 394 F.3d 197, 

200 (4th Cir. 2005). Under Chevron, where Congress has not “directly spoken to the precise 

question at issue,” a court must defer to “a reasonable interpretation made by the administrator of 

an agency.” 467 U.S. at 842, 844. The agency’s “view governs if it is a reasonable 

interpretation of the statute — not necessarily the only possible interpretation, nor even the 

interpretation deemed most reasonable by the courts.” Entergy Corp. v. Riverkeeper, Inc., 556 

U.S. 208, 218 (2009); see Nat’l Elec. Mfrs. Ass’n v. U.S. Dep’t of Energy, 654 F.3d 496, 505 (4th 

Cir. 2011); Md. Dep’t of Human Res. v. U.S. Dep’t of Agric., 976 F.2d 1462, 1475 (4th Cir. 

1992) (“The court is not empowered to substitute its judgment for that of the agency.” (internal 

quotation marks omitted)). 

Plaintiff expressly states that it does not challenge the constitutionality of the 

electioneering communications statute or the validity of the Commission’s regulations. (Pl.’s 

Inj. Br. at 2, 14.) It argues instead that those provisions should be interpreted not to apply to 

each of plaintiff’s proposed advertisements (id. at 14) — an issue of statutory interpretation that 

falls squarely within the Commission’s broad discretion because the statutory text does not 

“directly sp[eak] to” it. See Nat’l Republican Senatorial Comm., 966 F.2d at 1476-77 (deferring 

to interpretation of controlling group of Commissioners when Commission deadlocks); In re 

Sealed Case, 223 F.3d 775, 779-81 (D.C. Cir. 2000) (same, citing Nat’l Republican Senatorial 

Comm.).

B. It Is Reasonable to Examine How an Advertisement Uses Words or Phrases 

in Context When Determining Whether It Contains an Unambiguous 

Reference to a Clearly Identified Candidate 

As explained supra pp. 2-5, for a communication to be an “electioneering 

communication” it must “refer[] to a clearly identified candidate for Federal office” through an 

“unambiguous reference.” 2 U.S.C. §§ 431(18), 434(f)(A)(i)(II). HLF takes the extreme 

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position that words such as “the Administration” or “the White House” can never be considered 

unambiguous references to a clearly identified candidate. Specifically, plaintiff claims that 

“advertisements containing the terms ‘the government,’ ‘the Administration,’ and ‘the White 

House,’ or unidentified audio passages of federal officials or their spokesmen speaking, do not 

‘refer[] to a clearly identified candidate for Federal office,’ as that phrase is used in FECA.” 

(Pl.’s Inj. Br. at 14 (alteration in original).) HLF’s position is untenable. 

This broad assertion ignores the unremarkable and universally understood proposition 

that the precise meaning of virtually any word or phrase in the English language cannot be 

determined without examining its context — that is, “‘[t]he part or parts of a discourse preceding 

or following a ‘text’ or passage or a word, or so intimately associated with it as to throw light 

upon its meaning.’” Rowland v. Cal. Men’s Colony Unit II Men’s Advisory Council, 506 U.S. 

194, 199 (1993) (quoting Webster’s New International Dictionary 576 (2d ed. 1942)). Thus, 

courts commonly examine context to interpret the meaning of statutory text, see, e.g., Dolan v. 

Postal Service, 546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase depends upon 

reading the whole statutory text.”); King v. St. Vincent’s Hospital, 502 U.S. 215, 221 (1991) 

(“[T]he meaning of statutory language, plain or not, depends on context.”). And courts 

commonly look to context to interpret the meaning of text to which a statute might apply. See, 

e.g., Browning v. Washington Post Co., 92 F.3d 1177 (table), No. 95-2895 (4th Cir. Aug. 6, 

1996) (“[A]n alleged defamatory statement must be determined from the document or material as 

a whole, from beginning to end, and words cannot be singled out as libelous, but rather, the 

material must be libelous within the context of the entire writing.” (alteration in original and 

internal quotation marks omitted)). 

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 Like most words and phrases, the meaning of the terms “the Government,” “the 

Administration,” and “the White House” depend on context. While a communication stating that 

“the White House was painted yesterday,” makes clear that “the White House” refers to a 

building at 1600 Pennsylvania Avenue in Washington, a communication stating that “the White 

House vetoed legislation passed by Congress yesterday” uses “the White House” to 

unambiguously refer to the President of the United States, the only person with authority to veto 

an act of Congress. The same would be true of statements claiming that “the Administration” 

vetoed legislation. 

Nothing in FECA or its implementing regulations prevents the Commission from using 

common sense and looking to the entire context of a communication to determine whether it 

unambiguously references a federal candidate. Plaintiff points to nothing in the statutory or 

regulatory language to the contrary. The test for an electioneering communication in FECA asks 

whether a “communication . . . refers to a clearly identified candidate for Federal office.” 

2 U.S.C. § 434(f)(3)(A)(i)(I). One way a candidate is “clearly identified” is when his or her 

identity is “apparent by unambiguous reference.” 2 U.S.C. § 431(18). Nothing in these 

definitions indicates that Congress shared HLF’s tunnel-vision and atextual focus on just one or 

two words at a time divorced from their context. 

As explained below, the Commissioners supporting Draft B reasonably determined that 

five advertisements used the phrases “the Administration” and “the White House,” images of the 

White House, and audio of President Obama’s voice in ways that unambiguously referred to 

President Obama. Contrary to HLF’s assertion (Pl.’s Inj. Br. at 22), none of these analyses 

hinged on the advertisements’ use of the word “government.” In fact, the Commission 

unanimously agreed that another advertisement with the words, “the Government,” did not

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unambiguously refer to President Obama or any other federal candidate, as it only instructed 

viewers to call Secretary of Health and Human Services Kathleen Sebelius.3

 (Compl. Exh. 7 

at 2-3 (FEC Advisory Op. 2012-19).) But if an advertisement instead were to state, “the 

Government vetoed the bill Congress passed,” it would unambiguously refer to President Obama 

since he is the only person in the government with such veto power. What HLF condemns as 

“disparate treatment” (Pl.’s Inj. Br. at 24), is simply the common-sense and quite ordinary 

principle that what a word means depends on the context in which it is used. 

Indeed, even HLF recognizes — as it must — that context matters, as it concedes that the 

“White House” can sometimes refer to a federal candidate. (Pl.’s Inj. Br. at 28 (“The ‘White 

House’ . . . could refer to . . . the President.”).) Nevertheless, plaintiff claims that because 

phrases like the “White House” can have different meanings in different contexts — like 

virtually all words and phrases — they are “inherently ambiguous” and thus can never be 

considered references to federal candidates. (See id.) HLF cites multiple dictionary definitions 

for “Government,” “Administration,” and “White House” for the unremarkable proposition that 

these terms each have various meanings. (Id. at 21-22, 26, 27.) But the fact that “White House” 

might refer to the building at 1600 Pennsylvania Avenue in one communication does not create 

permanent ambiguity in all contexts that forecloses a conclusion that, for example, “the White 

House nominated an experienced criminal lawyer to join the Supreme Court” is an unambiguous 

reference to the President. 

                                                           

3

 Draft B’s contextual analysis is consistent with Senator Snowe’s statement during floor 

debate on BCRA about an advertisement that she did not consider to be an electioneering 

communication. (See Pl.’s Inj. Br. at 23.) That advertisement’s use of “government” did not 

unambiguously refer to a particular federal candidate. It stated, “Farmers are suffering because 

foreign markets have been closed to us and our own government won’t even help,” and then 

instructed, “Tell Congress we need a sound, strong trade policy.” (Id.) Nothing in Senator 

Snowe’s statement suggests that she believed “the government” can never refer to a federal 

candidate in another communication. 

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14

In this sense, HLF’s analysis is perversely extra-contextual and backwards: It would 

require the Commission to make itself aware of alternative contexts outside the four corners of 

the particular communication at issue; and if any of those alternatives used an operative word or 

phrase in a way that did not unambiguously refer to a candidate, this would preclude a “clearly 

identified candidate” conclusion for the actual ad being construed. Thus, for example, even a 

reference to “the President” might not meet plaintiff’s standard. To be sure, “the President” in a 

communication stating, “Call the President of the United States,” unambiguously refers to a 

candidate for federal office (assuming he is running for reelection). Under HLF’s approach, 

however, even “the President” would be “inherently ambiguous” and thus could never qualify as 

a reference to a federal candidate because — read in a different context — “the President” could 

refer to the president of countless businesses or non-profit entities, including, for that matter, the 

president of HLF, Mario Lopez. (See Verification of Pl.’s Compl. ¶ 1.) By allowing potentially 

unlimited hypothetical formulations and contexts to trump the meaning of a word or phrase as it 

is actually used in a communication under review, this peculiar approach would critically 

undermine the statute and the important governmental interest in informing the electorate. 

Plaintiff provides no support for such an unusual and unprincipled method of interpretation. 

In sum, the Commissioners who supported Draft B acted reasonably when they rejected 

plaintiff’s interpretation of the electioneering communication definition and instead examined 

the context of how a phrase is actually used to determine whether a communication refers to a 

clearly identified candidate for federal office. HLF’s approach — which focuses on discrete 

references entirely divorced from the context of the advertisement — should be rejected. 

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C. Draft B Reasonably Concluded that Five Advertisements Unambiguously 

Refer to a Clearly Identified Candidate 

 The Commissioners supporting Draft B reasonably determined that the five 

advertisements at issue here are electioneering communications. (See Compl. Exh. 4.) Read in 

context, the way the advertisements used “White House,” “Administration,” images of the White 

House, and an audio clip of President Obama made apparent that they unambiguously refer to 

President Obama, a candidate for federal office. 

 1. Advertisement 1 

Advertisement 1 uses the words “Administration,” “White House,” and images of the 

White House. The context in which they are used makes clear that they are unambiguous 

references to President Obama. The advertisement generally criticizes American energy policy 

and features an announcer who states that “[s]ince this Administration began, gas prices are up 

104%.” (Compl. Exh. 1 at 1, Exh. 2 at 12.) The video shows an image of the White House 

while the announcer states, “The White House says: We must end our dependence on foreign 

oil.” (Id.) The announcer continues by stating that “the Administration stopped American 

energy exploration” and “banned most American oil and gas production,” and that “the White 

House wants foreign countries to drill — so we can buy from them,” while the video shows a 

“‘Denied’ Stamp with an image of the White House.” (Id.) Finally, text appears on the screen 

instructing to “Call the White House at (202) 456-1414,” while the announcer states, “Tell the 

White House it’s time for an American energy plan . . . that actually works for America.” (Id.) 

The advertisement personifies “White House” by stating that it “says” something; by 

stating that the White House “wants” foreign countries to do something; and by instructing that 

people should “Call” the White House and “Tell” it their opinions on the nation’s energy plan. 

(See Compl. Exh. 1 at 1, Exh. 2 at 12.) The advertisement similarly personifies 

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16

“Administration,” by stating that it “stopped” American energy exploration and “banned” 

American oil and gas production, while video of a “Denied” stamp and the White House plays, 

indicating that someone at the White House has taken action to deny American oil and gas 

production. (See id.) 

The President, of course, lives and works at the White House, and as such, “White 

House” is commonly understood as a reference to the President. (See, e.g., Compl. Exh. 4 at 5 & 

n.1 (explaining that using “White House” to refer to the President is a textbook example of 

“a figure of speech which consists in substituting for the name of a thing the name of an attribute 

of it or of something closely related”).) Similarly, the “Administration” is shorthand for the 

“Obama Administration,” which “began” when the President took office. (See id. at 5 & n.2 

(citing numerous periodicals using “White House” and “Administration” as a synonym for 

President Obama).) The actions the advertisement attributes to the personified “White House” 

and “Administration” — determining American energy policy — are within the executive 

responsibilities of the President. Accordingly, Draft B reasonably concluded that Advertisement 

1 unambiguously refers to the identity of a federal candidate. (Id. at 4-6.) 

HLF points out — quite correctly — that “Administration” in other contexts means the 

Executive Branch, “a governmental agency or board,” and the “[t]housands of people” who work 

for the administration. (Pl.’s Inj. Br. at 26 (alteration in original).) Plaintiff also points out, 

again correctly, that “White House” can mean the physical structure located at 1600 

Pennsylvania Avenue, and that other people besides the President work there. (Id. at 27.) But 

that is all beside the point. In the context of this advertisement, those words unambiguously refer 

to President Obama. As Draft B explains, “the building located at 1600 Pennsylvania Avenue, of 

course, cannot speak, nor can it ‘want[] foreign countries to drill.’” (Compl. Exh. 4 at 5.) 

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Similarly, no reasonable person would take the advertisement’s instruction to “Tell the White 

House” it is time for a better energy plan as an instruction to tell this to the physical building or 

people besides the President. Of the people who work in the White House, it is the President 

who ultimately sets energy policy and has the power to change it.4

 

 2. Advertisement 2 

Advertisement 2 features an audio clip with President Obama’s voice, which Draft B 

reasonably concludes is an unambiguous reference to President Obama. (See Compl. Exh. 4 

at 6-7.) The advertisement is nearly identical to Advertisement 1, except it omits the references 

to the “Administration” and “White House,” as well as the images of the White House. (Compl. 

Exh. 1 at 2, Exh. 2 at 13.) Instead of a narrator, the advertisement uses an audio recording of 

President Obama stating, “We must end our dependence on foreign oil.”5

 (Id.) 

The audio recording of President Obama’s voice is an unambiguous reference to his 

identity because the clip is, in fact, President Obama. Thus, the audio clip makes “the identity of 

the candidate . . . apparent by unambiguous reference.” 2 U.S.C. § 431(18)(C). 

HLF objects that the clip is audio, not text or an image. (Pl.’s Inj. Br. at 29-30.) But the 

statute does not require that a communication “refer[] to” a clearly identified federal candidate in 

any particular form, see id. 434(f)(3)(A)(i)(I); it only requires that a “reference” be 

                                                           

4

 Draft B’s conclusion that “Administration” and “White House” can be unambiguous 

references to a clearly identified candidate does not rely on the kind of “codewords” at issue in 

FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff’d, 92 F.3d 1178 (4th 

Cir. 1996), as HLF claims (Pl.’s Inj. Br. at 25-27). In that case, an expert opined that 

“codewords” like “vision” and “quota” had particular meanings at the time of that election that 

would resonate with viewers by associating certain policies and issues with the candidates. See

http://www.insidepolitics.org/ps111/issueads.html. The FEC did not argue that such words 

functioned as synonyms for other terms. 

5

 Despite HLF’s erroneous contention (Pl.’s Inj. Br. at 22), Draft B’s analysis of 

Advertisement 2 does not depend upon the advertisement’s references to the “government.” (See

Compl. Exh. 4 at 7 (“[T]he inclusion of an audio clip of President Obama’s voice discussing his 

energy policy is a reference to a clearly identified candidate for Federal office.”).) 

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“unambiguous,” id. § 431(18)(C). The non-exhaustive list of examples of unambiguous 

references in 11 C.F.R. § 100.29(b)(2) does not purport to have anticipated every way in which a 

communication might “[r]efer[] to a clearly identified candidate” and thus does not exempt 

identifications made by audio reference from the scope of electioneering communications. 

President Obama’s voice is widely recognized, which HLF does not dispute. (Pl.’s Inj. 

Br. at 29-31.) But even if it were not, whether an audio clip of a candidate is clearly identifying 

does not depend on whether the candidate’s voice is well-known among the public. What makes 

an identifying reference unambiguous is not how widely known it is but whether it is clear and 

accurate, and thus recognizable to someone already familiar with the reference. For example, a 

photograph or drawing that accurately portrays the face of a fringe candidate unknown to the 

vast majority of the electorate is still unambiguous, even if not widely known. What matters 

about the use of a name, photo, drawing, or audio recording of a candidate is whether it is clearly 

identifying to those who know the candidate’s name, appearance, or voice. Draft B was thus 

entirely reasonable in concluding that an audio clip of the President clearly identifies him. 

 3. Advertisement 3 

Advertisement 3 uses the phrase “White House” as a contextually unambiguous reference 

to President Obama. Advertisement 3 is similar to Advertisement 2, except the audio clip of 

President Obama has been replaced by the White House press secretary’s voice stating, “We 

must end our dependence on foreign oil.” (Compl. Exh. 1 at 3; Exh. 2 at 14.) Like 

Advertisement 2, Advertisement 3 concludes with audio instructing to “[t]ell the government it’s 

time for an American energy plan . . . that actually works for America.” (Id.) But like 

Advertisement 1, Advertisement 3 also includes on-screen text instructing the viewer to “[c]all 

the White House at (202) 456-1414.” (Id.) 

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Draft B reasonably concludes that “[c]all the White House,” is an unambiguous reference 

to President Obama given that this instruction is accompanied by an audio command to air 

displeasure about America’s energy plan. (Compl. Exh. 4 at 7.) As Draft B explains, “[i]f 

viewers were to follow this command by calling the White House to tell ‘the government’ about 

the need for a different energy policy, they would necessarily be seeking to convey that message 

to the President, the ‘government’ official who resides and maintains his office at the White 

House and the only person at the White House with executive authority to change the ‘American 

energy plan.’”6 (Id. at 8.) 

 4. Advertisement 4 

Advertisement 4 (Compl. Exh. 1 at 4), which was the fifth advertisement Draft B 

considered (Compl. Exh. 2 at 16), uses the phrase “the Administration” and White House footage 

and images in a context that makes clear they unambiguously refer to President Obama. This 

advertisement criticizes the Administration’s alleged policies on religious liberty and abortion. 

(See Compl. Exh. 1 at 4.) An announcer states that “the Administration is taking a stand on a 

critical question of religious liberty[] . . . [a]gainst the U.S. Catholic Bishops . . . and people of 

faith across the country,” as images of the Health and Human Services building appear. (Id.) 

The advertisement concludes with video of “White House footage and images,” while audio 

instructs the viewer to “[c]all Secretary Sebelius, tell her it’s wrong for her and the 

Administration to trample the most basic American right.” (Id. (emphasis added).) 

                                                           

6

 Like its analysis of Advertisement 2, Draft B’s analysis of Advertisement 3 does not 

depend upon the advertisement’s references to the “government,” as HLF claims. (See Compl. 

Exh. 4 at 7-8 (“[T]he textual instruction to ‘[c]all the White House,’ particularly when 

accompanied by an audio command to ‘[t]ell the government it’s time for an American energy 

plan . . . that actually works for America’ is an unambiguous reference to a clearly identified 

candidate for federal office.”).) 

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Draft B reasonably concludes that the reference to “the Administration” in combination 

with video footage and images of the White House unambiguously refers to President Obama. 

(Compl. Exh. 4 at 8.) The advertisement states that the viewer should criticize “the 

Administration,” separate and apart from Secretary Sebelius. (See id.) “The Administration” is 

commonly a reference the President, and in this advertisement, the use of “Administration” is 

explicitly combined with images of the White House — a joint reference that unambiguously 

identifies the primary Administration occupant of the White House, President Obama. (Id.) 

 5. Advertisement 5 

Advertisement 5 (Compl. Exh. 1 at 5), which was the sixth AFF advertisement Draft B 

considered (Compl. Exh. 2 at 17), uses the “White House” as a contextually unambiguous 

reference to President Obama.7

 Advertisement 5 criticizes the Patient Protection and Affordable 

Care Act by analogizing it to a two-year-old toddler. (See Compl. Exh. 1 at 5.) While an 

announcer states, “And now that government run healthcare is turning two, its own parents don’t 

even want to celebrate,” text appears on screen appears, which reads: “‘White House will not 

mark two-year anniversary’ of health care law (Washington Free Beacon, 3/19/12).” (Id.) Later 

on in the advertisement, that same text appears again, while the audio voice-over states, “So . . 

[s]ince its family won’t wish its health care law a happy birthday . . . .” (Id.) 

Like advertisements 1, 3, and 4, this advertisement personifies the “White House,” with 

two textual references stating that the “‘White House will not mark two-year anniversary’ of 

health care law.” (See Compl. Exh. 1 at 5, Exh. 4 at 9-10.) This personification and the context 

of the rest of the advertisement makes it apparent that the advertisement is stating that President 

                                                           

7

 HLF’s Advertisement 5 differs from AFF’s Advertisement 6 only in that the text of 

Advertisement 5 identifies “HispanicLeadershipFund.org” at its conclusion (Compl. Exh. 1 at 5), 

while Advertisement 6 identifies “AmericanFutureFund.com” (Compl. Exh. 2 at 17). 

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Obama will not mark that anniversary, not the building at 1600 Pennsylvania Avenue, which of 

course, could not mark an anniversary. (See Exh. 4 at 10.) This conclusion is further reinforced 

by the audio’s simultaneous claim that the Affordable Care Act’s “own parents” and “family” do 

not want to mark the anniversary. (Id.) Finally, as Draft B points out, “the very article AFF cites 

in Advertisement [5] led with the sentence, ‘President Obama has no plans to mark the two-year 

anniversary of the Affordable Care Act’s passage.’”8 (Id.) 

In sum, Draft B reasonably concluded that each of the five advertisements at issue here 

clearly identify President Obama, a candidate for federal office. 

D. Disagreements About the Meaning of References Like “White House” or 

“the Administration” in Particular Communications Do Not Make Their Use 

Inherently Ambiguous 

 Although the Commissioners were not unanimous in their conclusions about the meaning 

of references like “the White House” or “the Administration” in some of the proposed 

communications, such disagreement does not, as plaintiff suggests (Pl.’s Inj. Br. at 10), 

demonstrate that such references are ambiguous for purposes of the “clearly identified” standard. 

Plaintiff’s suggestion is akin to arguing that the definition of “clearly identified” is necessarily 

vague as applied to these kinds of references, but as the Fourth Circuit explained in a closely 

analogous situation involving the definition of “express advocacy,” 11 C.F.R. § 100.22(b), 

“cases that fall close to the line will inevitably arise when applying” that kind of definition. Real 

Truth About Abortion v. FEC, 681 F.3d 544, 554 (4th Cir. 2012) (“RTAA”). Indeed, in that case 

the Commission had disagreed with the district court about whether one ad in contention 

                                                           

8

 Like Advertisement 2 and 3, Draft B’s analysis of Advertisement 5 (AFF’s advertisement 

6) also does not depend upon the advertisement’s references to the “government.” (See Compl. 

Exh. 4 at 10 (concluding that “[t]he use of ‘White House’ in Advertisement 6 thus 

unambiguously references a clearly identified candidate for Federal office.”).) 

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constituted “express advocacy,” yet the Fourth Circuit rejected the idea that such disagreement 

evidenced a constitutional weakness in the regulation at issue. Id. 

 While the parties here agree that the “clearly identified” standard is a bright-line test, as 

courts have long recognized, bright-line tests often present hard cases. “This kind of difficulty is 

simply inherent in any kind of standards-based test.” RTAA, 681 F.3d at 554; see also FEC v. 

Nat’l Right to Work Comm., 459 U.S. 197, 211 (1982) (holding FEC’s construction of statute not 

unconstitutionally vague even if it might “leave room for uncertainty at the periphery”); United 

States v. Williams, 553 U.S. 285, 306 (2008) (“Close cases can be imagined under virtually any 

statute. The problem that poses is [not] addressed . . . by the doctrine of vagueness.”); United 

States v. Wurzbach, 280 U.S. 396, 399 (1930) (holding that Federal Corrupt Practices Act was 

not invalid because “[w]herever the law draws a line there will be cases very near each other on 

opposite sides”). “[R]egulations ‘are not automatically invalidated as vague simply because 

difficulty is found in determining whether certain marginal [cases] fall within their language.’” 

Great Am. Houseboat Co. v. United States, 780 F.2d 741, 747 (9th Cir. 1986) (quoting United 

States v. Nat’l Dairy Products Corp., 372 U.S. 29, 32 (1963)). Even in reviewing statutes 

regulating political activity, the Supreme Court has stated that “there are limitations in the 

English language with respect to being both specific and manageably brief, and . . . although the 

prohibitions may not satisfy those intent on finding fault at any cost, [it is enough that] they are 

set out in terms that the ordinary person exercising ordinary common sense can sufficiently 

understand and comply with.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 

413 U.S. 548, 578-79 (1973). 

 Although the parties also agree that the definition of “clearly identified” requires an 

“unambiguous reference” to a candidate, the Supreme Court did not, as plaintiff suggests 

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(Pl.’s Inj. Br. at 15-16), impose a “limiting construction” on that definition in Buckley. Rather, 

when the Court explained the definition’s meaning, it gave examples of unambiguous references 

and stated non-exhaustively that they “would include” references such as a candidate’s initials or 

nickname. Buckley, 424 U.S. at 43 n.51 (emphasis added). Nothing in the Court’s opinion 

suggests that “unambiguous reference” is to be equated with wooden literalism; there are 

numerous ways to make an “unambiguous reference to [someone’s] identity,” that “would 

include” but not be limited to a “drawing,” “nickname,” or “status as a candidate.” Id. As the 

Ninth Circuit has warned: 

Although we may not place burdens on the freedom of speech beyond what is 

strictly necessary to further the purposes of the Act, we must be just as careful 

to ensure that those purposes are fully carried out, that they are not cleverly 

circumvented, or thwarted by a rigid construction of the terms of the Act. 

We must read section 434(c) so as to prevent speech that is clearly intended to 

affect the outcome of a federal election from escaping, either fortuitously or 

by design, the coverage of the Act. 

FEC v. Furgatch, 807 F.2d 857, 862 (9th Cir. 1987).9

 In a variety of contexts involving 

regulation of speech, courts have recognized that — understood in context — creative or 

symbolic expressions can convey the same message as literal appellations or descriptions.10 

Thus, “clearly identified” should not be construed so narrowly that all references to 

the incumbent President using phrases such as “the White House” or “the Administration” 

                                                           

9

 Like this case, Furgatch involved reporting obligations associated with one type of 

independent campaign advocacy. Under 2 U.S.C. § 434(c), a person who spends more than $250 

to make an expenditure that expressly advocates for or against the election of a clearly identified 

candidate must report certain information to the Commission for disclosure to the public. 

10 See, e.g., Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (in a 

libel case, Court recognized true meaning of “blackmail” when used as “rhetorical hyperbole”); 

Old Dominion Branch No. 496, National Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 

284-86 (1974) (Court viewed insults to “scabs” — calling them “traitors” — in their “loose, 

figurative sense” and not as literal accusations of treason); County of Allegheny v. ACLU, 492 

U.S. 573 (1989) (under Establishment Clause, symbols and visual associations, such as crèche on 

public property, can convey prohibited religious messages and government endorsements of 

religion). 

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would be deemed too ambiguous to require disclosure. Such a crabbed reading is especially 

at odds with the Supreme Court’s recent reaffirmation in Citizens United of the important 

informational interests served by the disclosure plaintiff seeks to avoid — including 

disclosure for all ads that meet the definition of electioneering communication, “[e]ven if the 

ads only pertain to a commercial transaction.” 130 S. Ct. at 915; see also Doe v. Reed, 

130 S. Ct. 2811, 2819-22 (2010) (upholding disclosure of names and addresses of signatories 

on petitions to place referenda on ballot); id. at 2837 (Scalia, J., concurring) (“Requiring 

people to stand up in public for their political acts fosters civic courage, without which 

democracy is doomed.”).11

* * * 

                                                           

11 Contrary to plaintiff’s suggestion (Pl.’s Inj. Br. at 10-11, 19), the Commissioners who 

supported Draft B of the advisory opinion did not rely upon an impermissible “subjective” 

standard when they discussed the intent of certain ads in their concurring statement. (Compl. 

Exh. 7.) A number of FECA’s statutory and regulatory definitions include terms that could be 

misconstrued as requiring an analysis of subjective intent, but the Commission interprets them as 

objective standards. See, e.g., 2 U.S.C. § 431(8)(A)(i), (9)(A)(i) (definitions of “contribution” 

and “expenditure” include phrase “for the purpose of influencing any election for Federal 

office”) (emphasis added); 11 C.F.R. § 100.22(b) (construing “expressly advocating” portion of 

definition of “independent expenditure” in 2 U.S.C. § 431(17) to include requirement that 

“[r]easonable minds could not differ” as to whether communication encourages action to elect or 

defeat candidate); 60 Fed. Reg. 35,291, 35,295 (July 6, 1995) (when applying § 100.22(b), “the 

subjective intent of the speaker is not a relevant consideration”). While the Supreme Court in 

Buckley cautioned against putting a speaker at the mercy of the subjective “varied understanding 

of his hearers,” 424 U.S. at 43 (internal quotation marks omitted), understanding a speaker’s 

intent under FECA involves an objective test that does not differ based upon the sensitivity or 

special knowledge or ignorance of particular listeners. In many areas of the law, courts routinely 

apply “reasonable person” tests and consider them objective tests precisely because they do not 

depend upon the subjective understanding or feelings of any one person, including the specific 

people involved in the lawsuit at issue. See, e.g., Wyatt v. Cole, 504 U.S. 158, 166 (1992) 

(qualified immunity for certain government officials depends upon “wholly objective standard” 

based on whether “reasonable person” would have known of clearly established statutory or 

constitutional rights) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Florida v. 

Jimeno, 500 U.S. 248, 251 (1991) (“The standard for measuring the scope of a suspect’s consent 

under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical 

reasonable person have understood by the exchange between the officer and the suspect?”). 

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 In short, HLF cannot meet its heavy burden of showing that the conclusions in Draft B 

were unreasonable. Thus, HLF has not made the required showing that it is likely to succeed on 

the merits and, on that basis, its motion should be denied. 

III. PLAINTIFF FAILS TO DEMONSTRATE THAT COMPLYING WITH FECA’S 

DISCLOSURE PROVISIONS DURING THE PENDENCY OF THIS CASE WILL 

CAUSE IRREPARABLE HARM 

In addition to showing likely success on the merits of its case, plaintiff must also 

demonstrate a likelihood — not merely a possibility — that it will suffer irreparable harm in the 

absence of injunctive relief. Winter, 555 U.S. at 22. “[T]he injury must be . . . actual and not 

theoretical . . . [and] of such imminence that there is a clear and present need for equitable relief 

. . . .” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). 

Plaintiff suggests that it need not independently meet this standard if it can demonstrate a 

likelihood of success on the merits. (Pl.’s Inj. Br. at 32.) However, the Fourth Circuit recently 

rejected this precise argument and held — in a case, like this one, involving allegations of First 

Amendment harm arising from the potential application of FECA — that a plaintiff’s burden of 

showing irreparable harm cannot be lowered “upon a strong showing on the probability of 

success” on the merits of the case. Real Truth About Obama, 575 F.3d at 346-47 (citing Winter, 

555 U.S. at 20-22). Each of the four requirements for a preliminary injunction articulated by the 

Supreme Court in Winter “must be satisfied as articulated.” Id. at 347. Thus, even if plaintiff 

could demonstrate a likelihood of success on the merits, which it cannot, its motion should 

nevertheless be denied because plaintiff cannot demonstrate that it will likely suffer irreparable 

injury from the disclosure requirements at issue here. 

In the course of discussing irreparable harm, HLF refers several times to alleged 

deprivations of its First Amendment rights. (See Pl.’s Inj. Br. at 32-33, 35-36.) But plaintiff 

concedes, as it must, that the provisions it challenges do not limit its speech. (See Pl.’s Inj. Br. at 

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12 (noting that definition of electioneering communication no longer implements “ban on 

speech” but only “exists today as a trigger for disclaimer and disclosure requirements”).) Indeed, 

Citizens United reaffirmed that disclosure requirements “do not prevent anyone from speaking.” 

130 S. Ct. at 914. There is accordingly no legal basis for HLF’s suggestion that the 

electioneering communication disclosure provisions are preventing it from televising its ads or 

from engaging in any other electioneering activity. And, indeed, HLF does not even allege that 

it will in fact run the ads if an injunction is granted.12 Thus, HLF cannot claim irreparable harm 

on the basis of its incorrect suggestion that its speech is being limited. See Real Truth About 

Obama, 2008 WL 4416282, at *15-*16 (finding Elrod v. Burns inapplicable and no threat of 

irreparable harm where “Plaintiff is free to disseminate their message and make any expenditures 

they wish” and subject only to “constitutionally permitted restrictions”); see also Christian 

Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 919 F.2d 148, 149-50 

(D.C. Cir. 1990) (mere allegation of First Amendment burden does not support finding of 

irreparable harm under Elrod). 

The only relevant harm HLF could possibly allege here would be one arising from 

FECA’s disclosure and disclaimer requirements for electioneering communications. (See Pl.’s 

Inj. Br. at 2 (seeking injunction to prevent Commission from applying “disclosure and disclaimer 

requirements”).) But HLF fails to identify any irreparable harm that would result from 

complying with those provisions while this case is pending. 

                                                           

12 HLF states only that it “cannot make an informed decision [regarding whether to run its 

ads] without guidance from the FEC, which it requested and did not receive.” (Pl.’s Inj. Br. at 

33 n.8 (emphasis added).) That representation is also false: HLF never requested any guidance 

from the Commission. Instead, HLF filed this lawsuit piggybacking on AFF’s request. The 

Commission does not at this stage challenge the veracity of HLF’s assertion that it intends to air 

(by the most amazing coincidence) the exact same advertisements that AFF developed, but, even 

on its face, that assertion should give the Court pause as to whether HLF is truly the party whose 

“harm” is at issue here. 

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As to FECA’s disclaimer requirements, plaintiff identifies no prospective harm 

whatsoever that would result from having to identify itself as the source of its advertising.13 And 

as to the disclosure requirements, the Supreme Court has recognized that harm can arise from 

disclosure only when there is a “reasonable probability that the group’s members would face 

threats, harassment, or reprisals if their names were disclosed.” Citizens United, 130 S. Ct. 

at 916. Harm of this kind has been demonstrated only in cases involving organizations, such as 

the NAACP and the Socialist Workers Party, whose members faced actual, documented danger 

at the relevant time. See Buckley, 424 U.S. at 69 (noting that NAACP members faced “economic 

reprisal, loss of employment, threat of physical coercion, and other manifestations of public 

hostility”); McConnell, 540 U.S. at 198-99 (noting that Brown v. Socialist Workers ’74 

Campaign Comm., 459 U.S. 87 (1982), found “reasonable probability” of “threats, harassment, 

and reprisals”). 

HLF, relying not even on evidence about itself but on press accounts about others, asserts 

generally that there have been recent events in which political donors were harassed. (See Pl.’s 

Inj. Br. at 33-35 n.8.) HLF implies that the Court should infer from those reported events that 

HLF’s donors might experience the same treatment. But to demonstrate a probability of 

harassment and reprisals to itself or its donors, HLF must provide evidence of “adjudicative 

facts” and cannot rely on hearsay or “legislative facts” about others.14 See Fed. R. Evid. 201 

advisory committee’s note (explaining difference between adjudicative and legislative facts); 

                                                           

13 To the extent HLF may argue, as it did before the Southern District of Iowa, that the 

disclaimer provisions are unconstitutionally burdensome because they occupy too much time 

within plaintiff’s proposed 30-second ads, that argument is foreclosed by Citizens United. See

130 S. Ct. at 914 (upholding disclaimer requirements as applied to “two 10-second ads”). 

14 The Commission has a well-established procedure for exempting from disclosure groups 

with a history of donor harassment — an exemption that HLF “is not requesting.” (Pl.’s Inj. Br. 

at 33 n.8.) See, e.g., FEC Advisory Op. 2009-01 (Socialist Workers Party), 2009 WL 961212.

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Fed. R. Evid. 801 (hearsay). HLF’s argument is precisely the type of unsupported and 

speculative claim that Citizens United rejected: The Court held that mere allegations of potential 

harassment are insufficient; a group seeking to avoid otherwise valid disclosure requirements 

must provide “evidence that its members may face . . . threats or reprisals.” See Citizens United, 

130 S. Ct. at 916 (emphasis added). HLF presents not a single admissible fact that would tie its 

donors to any potential reprisals, and its unsupported suggestions based on inadmissible hearsay 

of disclosure-related harassment to others must therefore fail. 

Because “[t]he basis of injunctive relief in the federal courts has always been irreparable 

harm,” Sampson v. Murray, 415 U.S. 61, 88 (1974), HLF’s failure to establish this element alone 

warrants denial of the requested preliminary injunction. See Rum Creek Coal Sales, Inc. v. 

Caperton, 926 F.2d 353, 360 (4th Cir. 1991) (“To succeed, the [plaintiff] must show that it will 

sustain irreparable harm without a preliminary injunction.” (emphasis added)). 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION, AND AN 

INJUNCTION WOULD BE ADVERSE TO THE PUBLIC INTEREST 

The balance of harms and the public interest also weigh heavily in favor of preserving the 

status quo and denying plaintiff’s request for extraordinary injunctive relief. 

In evaluating any request to enjoin the enforcement of a federal statute, “[t]he 

presumption of constitutionality which attaches to every Act of Congress is not merely a factor 

to be considered in evaluating success on the merits, but an equity to be considered in favor of 

[the government] in balancing hardships.” Bowen v. Kendrick, 483 U.S. 1304 (1987) 

(Rehnquist, C.J., in chambers); cf. United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 

483, 497 (2001) (holding that “[c]ourts of equity cannot, in their discretion, reject the balance 

that Congress has struck in a statute” by enjoining its enforcement). That presumption is at its 

apex here, because the Supreme Court has already determined in Citizens United that the 

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electioneering communications disclosure provisions are constitutional. See Christian Civic 

League of Me., Inc. v. FEC, 433 F. Supp. 2d 81, 90 (D.D.C. 2006) (three-judge court) (“To the 

extent that the injunction of the proposed application of those provisions interferes with the 

execution of the statute upheld by the Supreme Court . . . , the public interest is already 

established by the Court’s holding and by Congress’s enactment, and the interference therewith 

is inherent in the injunction.”). 

As discussed above, the electioneering communications provisions are a critical part of 

FECA’s public disclosure regime; enjoining their enforcement would therefore substantially 

injure the public interest. See Real Truth About Obama, 575 F.3d at 352 (upholding denial of 

pre-election preliminary injunction regarding a regulation and policy that implicated disclosure 

requirements); see generally Citizens United, 130 S. Ct. at 914-15 (discussing public interest in 

disclosure). Indeed, for the same reasons that HLF is especially interested in distributing its ads 

now — during the run-up to a presidential election, when “interest in . . . major public policy 

issues will be at their [sic] zenith” (Pl.’s Inj. Br. at 36) — the public also has “a heightened 

interest in knowing who [is] trying to sway [its] views . . . and how much they were willing to 

spend to achieve that goal.” Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1019 (9th 

Cir. 2010). An injunction would open the door to sham issue advertising akin to that which led 

Congress to pass BCRA in the first place, and the price of such undisclosed, untraceable 

advertising is ultimately paid by the public. That price far outweighs any burden arising from 

HLF’s voluntary decision to withhold its advertising rather than take responsibility for its 

communications and make the required disclosures. See Real Truth About Obama, 2008 WL 

4416282, at *16 (noting that “enjoining application of the challenged provisions could confuse 

political actors . . . and deprive the public of important information”) (internal quotation marks 

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30

omitted); see also Iowa Right to Life Comm., Inc. v. Smithson, 750 F. Supp. 2d 1020, 1048-49 

(S.D. Iowa 2010) (finding that balance of harms favored government because injunction would 

impair government’s “valid interest in facilitating transparency in . . . elections”). 

As the Supreme Court has noted, “the public has an interest in knowing who is speaking 

about a candidate shortly before an election.” Citizens United, 130 S. Ct. at 915. This interest 

would be impaired, not served, by enjoining the FECA provisions at issue in this case. Such an 

injunction also could cause confusion among political actors and undermine the public’s 

confidence in the federal campaign finance system. “Should this Court enter the injunction, the 

next two months of election law and enforcement would likely become a ‘wild west’ of 

electioneering communication[s] . . . .” Real Truth About Obama, 2008 WL 4416282, at *16; 

see Purcell, 549 U.S. at 4-5 (“Court orders affecting elections . . . can themselves result in voter 

confusion,” and “[a]s an election draws closer, that risk will increase.”); Iowa Right to Life, 750 

F. Supp. 2d at 1049 (declining to impose preliminary injunction that would “radically change 

Iowa’s campaign finance rules mid-stream during an election”). Such irreparable harm to the 

public interest counsels heavily against granting plaintiff’s desired relief.

CONCLUSION 

The preliminary injunction HLF seeks would, just prior to an election, bar the 

enforcement of an important campaign finance statute that ensures the voting public has access 

to information about who is speaking about federal candidates. Plaintiff has made no showing 

that would justify this injury to the public interest. The statute does not prevent HLF from 

speaking and it has shown no irreparable harm that would result from disclosure. And HLF is 

not likely to succeed on the merits given its extreme claims and the deference owed to the 

Commission’s interpretation of FECA. The Court should deny plaintiff’s motion for a 

preliminary injunction. 

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31

 Respectfully submitted, 

Anthony Herman 

General Counsel 

 

David Kolker* 

Associate General Counsel 

Lisa J. Stevenson 

Special Counsel to the General Counsel 

 

Adav Noti* 

Acting Assistant General Counsel 

/s/ Audra Hale-Maddox 

Audra Hale-Maddox (Va. Bar No. 46929) 

 ahale-maddox@fec.gov 

Kevin P. Hancock* 

 Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

August 15, 2012 (202) 694-1650 

 * Motion for admission pro hac vice pending 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 15, 2012, I electronically filed the foregoing 

Memorandum in Opposition to Plaintiff’s Motion for Preliminary Injunction with the Clerk of 

Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the 

following: 

Shawn Toomey Sheehy 

ssheehy@hvjlaw.com 

Holtzman Vogel Josefiak PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

 /s/ Audra Hale-Maddox 

Audra Hale-Maddox (Va. Bar No. 46929) 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

ahale-maddox@fec.gov 

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