No. _________ 

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

In The 

Supreme Court of the United States ---------------------------------  --------------------------------- 

FREE SPEECH, 

Petitioner, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

---------------------------------  --------------------------------- 

On Petition For A Writ Of Certiorari 

To The United States Court Of Appeals 

For The Tenth Circuit 

---------------------------------  --------------------------------- 

PETITION FOR A WRIT OF CERTIORARI 

---------------------------------  --------------------------------- 

BENJAMIN BARR

Counsel of Record 

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Cheyenne, Wyoming 82001 

Telephone: 202-595-4671 

Benjamin.barr@gmail.com 

STEPHEN R. KLEIN

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Cheyenne, Wyoming 82001 

Telephone: 307-632-7020 

Stephen.klein@wyliberty.org 

JACK R. SPEIGHT

4021 Snyder Avenue 

Cheyenne, Wyoming 82001 

Telephone: 307-635-1239 

jbspeight@gmail.com 

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 

WWW.COCKLELEGALBRIEFS.COM 
i 

QUESTIONS PRESENTED

1. Did the Tenth Circuit err in upholding the Federal Election Commission’s Vague and Overbroad 

Political Committee Requirements? 

2. Did the Tenth Circuit err in failing to apply the 

Major Purpose Test? 
ii 

PARTIES TO THE PROCEEDING

 Petitioner, Appellant below, is a Wyoming unincorporated nonprofit association made up of three 

Wyoming residents, Max Douglas Watford, Robert 

Brinkmann, and Charles Curley. 

 Respondent, Appellee below, is the Federal 

Election Commission (“FEC”). 
iii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED ................................ i 

PARTIES TO THE PROCEEDING ..................... ii 

TABLE OF CONTENTS ...................................... iii 

TABLE OF AUTHORITIES ................................. vi 

JURISDICTION ................................................... 1 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...................................... 1 

OPINIONS BELOW ............................................. 1 

STATEMENT OF THE CASE ............................. 2 

PROCEEDINGS BELOW .................................... 7 

REASONS FOR GRANTING THE PETITION .... 8 

 I. The Tenth Circuit’s Failure to Protect 

Grassroots Groups from Onerous Political Committee Burdens is in Conflict 

with the Eighth Circuit ............................. 10 

A. Contradictory Approaches for Analyzing Political Speech and Associational 

Rights Cannot Stand ........................... 11 

B. Exacting Scrutiny Must be Exacting .... 14 

 II. All Must Register and Report: Courts 

Routinely Misapply Citizens United ......... 18 

A. Discernible Boundaries Protect the 

First Amendment ................................ 18 
iv 

TABLE OF CONTENTS – Continued 

Page 

B. A Nation Confused: Courts and Election Agencies Impose Political Committee Requirements on All Speakers 

Big and Small ...................................... 24 

1. The Record Below Amply Demonstrated the Constitutional Flaws of 

the FEC’s Regulatory Leviathan .... 25 

2. Unless Review is Granted, Forcing 

Speakers to Retain Campaign Finance Attorneys and Electoral Experts will be the Norm .................... 29 

 III. Absent this Court’s review, the Major 

Purpose Test is a Dead Letter ................... 32 

A. The Major Purpose Test Should Protect Issue Advocacy Organizations ...... 33 

B. Following Citizens United Courts 

Regularly Avoid Addressing the Major 

Purpose Test, and the FEC Could not 

Apply it to Free Speech ....................... 36 

CONCLUSION ..................................................... 41 

APPENDIX 

Opinion and Order of the United States Court 

of Appeals for the Tenth Circuit, No. 13-8033 

(June 25, 2013) ................................................. App. 1 

Judgment of the United States Court of Appeals for the Tenth Circuit, No. 13-8033 

(June 25, 2013) ................................................. App. 4 
v 

TABLE OF CONTENTS – Continued 

Page 

Order of the United States District Court for 

the District of Wyoming, No. 12-CV-127-S 

(March 19, 2013) .............................................. App. 5 

Advisory Opinion of the Federal Election 

Commission (May 8, 2012) ............................ App. 24 

Order denying petition for rehearing by the 

United States Court of Appeals for the Tenth 

Circuit, No. 13-8033 (September 30, 2013) .... App. 43 
vi 

TABLE OF AUTHORITIES 

Page 

CASES

Arizona Free Enterprise Club’s Freedom Club 

PAC v. Bennett, 131 S.Ct. 2806 (2011) .................... 39 

Ashcroft v. Free Speech Coalition, 535 U.S. 234 

(2002) ....................................................................... 18 

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

Canyon Ferry Road Baptist Church of East 

Helena, Inc. v. Unsworth, 556 F.3d 1021 (9th 

Cir. 2009) ................................................................. 30 

Carey v. FEC, 791 F.Supp.2d 121 (D.D.C. 2011) ....... 31 

Center for Individual Freedom v. Madigan, 697 

F.3d 464 (7th Cir. 2012) .......................................... 37 

Citizens United v. Federal Election Comm’n, 

558 U.S. 310 (2010) ......................................... passim

Davis v. FEC, 544 U.S. 724 (2008) ............................. 15 

FEC v. Christian Coalition, 52 F.Supp.2d 45 

(D.D.C. 1999) ........................................................... 23 

FEC v. GOPAC, 917 F.Supp. 851 (D.D.C. 1996) ........ 23 

FEC v. Massachusetts Citizens for Life, 479 

U.S. 238 (1986) ................................................ passim

Federal Communications Comm’n v. Fox Television Stations, Inc., 132 S.Ct. 2307 (2012) ..... 25, 29 

Federal Election Comm’n v. Akins, 524 U.S. 11 

(1998) ....................................................................... 33 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

Federal Election Comm’n v. Machinists NonPartisan Political League, 655 F.2d 380 (D.C. 

Cir. 1981) ................................................................. 37 

Federal Election Comm’n v. Wisconsin Right to 

Life (“WRTL”), 551 U.S. 449 (2007) ................ passim

Freedman v. Maryland, 380 U.S. 51 (1965) ........... 9, 22 

Human Life of Washington, Inc. v. Brumsickle, 

624 F.3d 990 (9th Cir. 2010) ............................. 30, 37 

Interstate Circuit, Inc. v. City of Dallas, 390 

U.S. 676 (1968) ........................................................ 20 

Justice v. Hosemann, 829 F.Supp.2d 504 (N.D. 

Miss. 2011) .............................................................. 30 

Marcus v. Search Warrant, 367 U.S. 717 (1961) ....... 13 

Massachusetts Bd. of Retirement v. Murgia, 427 

U.S. 307 (1976) ........................................................ 14 

McConnell v. FEC, 540 U.S. 93 (2003) ........... 19, 33, 36 

Minnesota Concerned Citizens for Life, Inc. v. 

Swanson, 640 F.3d 304 (8th Cir. 2011) ................... 17 

Minnesota Concerned Citizens for Life, Inc. v. 

Swanson, 692 F.3d 864 (8th Cir. 2012) (en 

banc) ................................................................ passim

Nat’l Organization for Marriage v. McKee, 649 

F.3d 34 (1st Cir. 2011) ............................................. 37 

New York Times Co. v. Sullivan, 376 U.S. 254 

(1964) ....................................................................... 19 

Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986) ......................................... 18 
viii 

TABLE OF AUTHORITIES – Continued 

Page 

Real Truth About Abortion v. Federal Election 

Comm’n, 681 F.3d 544 (4th Cir. 2012) .............. 14, 37 

Real Truth About Abortion v. Federal Election 

Comm’n, 133 S.Ct. 841 (2013) ................................ 10 

Riley v. National Federation of the Blind, 487 

U.S. 781 (1988) .................................................. 17, 20 

SpeechNow v. FEC, 599 F.3d 686 (D.C. Cir. 

2010) ........................................................................ 31 

Speiser v. Randall, 357 U.S. 513 (1958) ................ 9, 22 

United States v. Alvarez, 132 S.Ct. 2537 

(2012) ................................................................. 15, 16 

United States v. Nat’l Cmte. for Impeachment, 

469 F.2d 1135 (2d Cir. 1972) ................................... 24 

Unity08 v. Federal Election Comm’n, 596 F.3d 

861 (D.C. Cir. 2010) ................................................. 37 

Virginia v. Hicks, 539 U.S. 113 (2003) ......................... 9 

Worley v. Detzner, 134 S.Ct. 529 (2013) ............... 10, 14 

CONSTITUTIONAL PROVISIONS

First Amendment ................................................ passim

Fourteenth Amendment ............................................... 1 

STATUTES

2 U.S.C. § 431(4)(A) .................................................... 26 

2 U.S.C. § 434 ............................................................. 33 
ix 

TABLE OF AUTHORITIES – Continued 

Page 

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

2 U.S.C. § 437g(d)(1)(A)(i) ............................................ 8 

2 U.S.C. § 437g(d)(1)(A)(ii) ........................................... 8 

2 U.S.C. § 441d ........................................................... 17 

2 U.S.C. § 441e(a) ....................................................... 11 

28 U.S.C. § 1254(1) ....................................................... 1 

28 U.S.C. § 1331 ........................................................... 7 

28 U.S.C. §§ 2201-02 .................................................... 7 

RULES AND REGULATIONS

11 C.F.R. § 100 ............................................................ 26 

11 C.F.R. § 100.22 ....................................................... 26 

11 C.F.R. § 100.22(b) ............................... 1, 4, 26, 27, 28 

11 C.F.R. § 102.1(d) ..................................................... 22 

OTHER AUTHORITIES

Advisory Opinion 2012-11 (Free Speech), Draft 

B (FEC 2012), available at http://saos.fec. 

gov/aodocs/1206386.pdf ................................... passim

AO 2012-11, Advisory Opinion Request at 3 

(FEC 2012), available at http://saos.fec.gov/ 

aodocs/1204965.pdf ................................................. 28 
x 

TABLE OF AUTHORITIES – Continued 

Page 

AO 2012-11, Concurring Opinion of Vice Chair 

Ellen L. Weintraub and Commissioners 

Cynthia L. Bauerly and Steven T. Walther, 

available at http://saos.fec.gov/aodocs/1209340. 

pdf ........................................................................ 3, 27 

AO 2012-11, Draft A, available at http://saos. 

fec.gov/aodocs/1206385.pdf ....................................... 3 

AO 2012-11, Draft C, available at http://saos. 

fec.gov/aodocs/1207876.pdf ............................. passim

AO 2012-11, Statement of Chairman Caroline 

C. Hunter, Commissioners Donald F. McGahn 

and Matthew S. Petersen, available at http:// 

saos.fec.gov/aodocs/1209339.pdf ....... 3, 22, 26, 27, 38 

“Express Advocacy, Independent Expenditures, 

Corporate and Labor Organization Expenditures,” 60 Fed. Reg. 35291, 35293 (July 6, 

1995) .................................................................. 21, 27 

Matter Under Review 5487 (Progress for American Voter Fund) Conciliation Agreement at 

14 (FEC 2007), available at http://eqs.fec.gov/ 

eqsdocsMUR/00005AA7.pdf...................................... 8 

MUR 5541 (November Fund) First General 

Counsel’s Report (“FGCR”) at 10-11 (FEC 

2005), available at http://eqs.nictusa.com/ 

eqsdocsMUR/10044273275.pdf ......................... 38, 39 

MUR 5831 (Softer Voices) Certification (FEC 

2010), available at http://eqs.nictusa.com/ 

eqsdocsMUR/10044282476.pdf ........................... 8, 21 
xi 

TABLE OF AUTHORITIES – Continued 

Page 

MUR 5831 (Softer Voices), Statement of Reasons 

of Commissioner Donald F. McGahn (FEC 

2011), available at http://eqs.nictusa.com/ 

eqsdocsMUR/11044284676.pdf ......................... 21, 38 

MUR 5842 (Economic Freedom Fund) Certification (FEC 2009), available at http://eqs. 

nictusa.com/eqsdocsMUR/10044282476.pdf ...... 8, 39 

MURs 5910 & 5694 (Americans for Job Security), Statement of Reasons of Chairman Steven 

T. Walther and Commissioners Cynthia L. 

Bauerly and Ellen L. Weintraub (FEC 2009), 

available at http://eqs.fec.gov/eqsdocsMUR/ 

29044232739.pdf ..................................................... 21 

MUR 5977 (American Leadership Project) FGCR 

at 11-12 (FEC 2008), available at http://eqs. 

nictusa.com/eqsdocsMUR/10044264601.pdf .......... 39 

MUR 5988 (American Future Fund), Statement 

of Reasons of Chairman Steven T. Walther 

and Commissioners Cynthia L. Bauerly and 

Ellen L. Weintraub (FEC 2009), available at

http://eqs.fec.gov/eqsdocsMUR/29044234217. 

pdf ............................................................................ 21 

MUR 6073 (Patriot Majority 527s), First General Counsel’s Report at 9 (FEC 2009) 

available at http://eqs.fec.gov/eqsdocsMUR/ 

10044264544.pdf ..................................................... 21 

“Political Committee Status, Definition of 

Contribution, and Allocation for Separate 

Segregated Funds and Nonconnected Committees,” 69 Fed. Reg. 68056 (Nov. 23, 2004) ........... 4 
xii 

TABLE OF AUTHORITIES – Continued 

Page 

“Political Committee Status,” 72 Fed. Reg. 

5595 (Feb. 7, 2007) .................................. 4, 21, 25, 39 

“Statement of Policy; Safe Harbor for Misreporting Due to Embezzlement,” 72 Fed. Reg. 

16695 (Apr. 5, 2007) ................................................ 11 

Steve M. Simpson, Judicial Abdication and the 

Rise of Special Interests, 6 CHAP. L.REV. 173 

(2003) ....................................................................... 14 

Two New Commissioners Assume Office; Will 

Hold Meeting on October 31, Federal Election 

Comm’n, Oct. 28, 2013 http://www.fec.gov/ 

press/press2013/news_releases/20131028release. 

shtml ........................................................................ 38 
1 

JURISDICTION

 The Tenth Circuit rendered its decision on June 

25, 2013, and denied Petitioner’s petition for rehearing en banc on September 30, 2013. This Court has 

jurisdiction under 28 U.S.C. § 1254(1). 

---------------------------------  ---------------------------------

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED

 The First Amendment to the U.S. Constitution 

made applicable to the states through the Fourteenth 

Amendment, provides, in relevant part, that government “shall make no law . . . abridging the freedom of 

speech.” 

 The relevant provision of federal election regulations, 11 C.F.R. § 100.22(b) is reproduced in the 

appendix. (Pet’r’s App. 44-45). 

---------------------------------  ---------------------------------

OPINIONS BELOW

 The opinion of the United States Court of Appeals for the Tenth Circuit is reprinted in the Appendix at App. 1 and is reported at 720 F.3d 788 (10th Cir 

2013). The opinion of the United States District Court 

for the District of Wyoming is reprinted in the Appendix at App. 5 and is unreported. The Federal Election 

Commission’s advisory opinion is reprinted in the 

Appendix at App. 24 and is unreported. 

---------------------------------  ---------------------------------
2 

STATEMENT OF THE CASE

 Complicated regulatory programs promoting disclosure of electoral spending encumber basic civic engagement by speakers. The members of Free Speech 

are three men from Wyoming who aspire to share 

their views about ranching, President Obama, and 

other topics with the public on a shoestring budget. 

Federal election law made this task impossible by 

requiring compliance with regulatory standards that 

even the FEC could not articulate and, when applied, 

impose a regulatory regime far too burdensome for 

most citizens. 

 Free Speech aimed to speak to the public at a 

time when people care about political issues the 

most – around the time of an election. To do so, it 

assembled basic scripts for use in newspaper, local 

television, magazine, and Internet media. It did not 

have funds to hire election law experts, media consultants, or accountants. It hoped to use its small 

budget to simply deliver its message to the public. 

Faced with a daunting set of regulations, policies 

interpreting those regulations, and enforcement 

actions and advisory opinions expanding their meaning even further, Free Speech filed an advisory 

opinion with the FEC. Its goal was simple: clarify 

the reach and operation of the law so it could comply 

with provisions of the Federal Election Campaign 

Act (“FECA”). 

 Free Speech drafted an advisory opinion request 

asking two questions: (1) would any of its speech 
3 

consisting of fundraising appeals or public advertising 

constitute regulated speech and (2) would it be required to formally register and report as a political 

committee (“PAC”)? By asking these questions, it 

sought to understand the boundaries of regulation so 

it could run its organization without the burdens of 

being a PAC, such as hiring a treasurer, adopting 

specific accounting methods, and filing numerous reports even when silent. It simply wished to speak as 

three men from Wyoming with a message about limited government, agricultural policy, and President 

Obama without being confused by regulatory red 

tape. 

 Given the opportunity to define basic elements of 

the law, the FEC rendered an advisory opinion without advice. Three Commissioners issued one draft 

advisory opinion signaling strict compliance requirements. Advisory Opinion (“AO”) 2012-11 (Free Speech), 

Draft B (FEC 2012), available at http://saos.fec.gov/ 

aodocs/1206386.pdf (hereinafter “Draft B”). Another 

three issued two draft advisory opinions signaling no 

compliance requirements. AO 2012-11, Draft A, 

available at http://saos.fec.gov/aodocs/1206385.pdf; 

AO 2012-11, Draft C, available at http://saos.fec.gov/ 

aodocs/1207876.pdf (hereinafter “Draft C”). In similar 

fashion, each group of Commissioners produced competing Statements of Reason (“SOR”) that contradicted one another. AO 2012-11, Statement of Chairman 

Caroline C. Hunter, Commissioners Donald F. McGahn 

and Matthew S. Petersen, available at http://saos.fec. 

gov/aodocs/1209339.pdf (hereinafter “Hunter SOR”); 
4 

AO 2012-11, Concurring Opinion of Vice Chair Ellen 

L. Weintraub and Commissioners Cynthia L. Bauerly 

and Steven T. Walther, available at http://saos.fec.gov/ 

aodocs/1209340.pdf (hereinafter “Weintraub SOR”). 

The end result was a non-advisory advisory opinion 

from the FEC indicating it could neither interpret nor 

apply the law entrusted to it. (Pet’r’s App. 24-42). 

Still, citizens are expected to act in full compliance 

with federal election law under threat of penalties. 

 Without sensible guidance about how the law 

operates and whether it applied to Free Speech, these 

ordinary speakers were left in legal limbo. On the one 

hand, they could speak out about gun control, for 

example, and risk investigation, fines, or even imprisonment. On the other hand, they could submit to 

the onerous burdens connected to PAC status or 

remain silent. Ultimately, Free Speech challenged the 

regulations and policies but because, as the repeated 

refrain goes, these provisions implement only disclosure, summary dismissal was ordered and then 

affirmed by the Tenth Circuit. 

 Merely by invoking the term “disclosure,” the FEC 

muted Free Speech during the 2012 electoral cycle. 

No one, not even the FEC, knows what the blurred 

regulatory standards found in 11 C.F.R. § 100.22(b) 

and lengthy PAC policies mean. “Political Committee 

Status, Definition of Contribution, and Allocation for 

Separate Segregated Funds and Nonconnected Committees,” 69 Fed. Reg. 68056 (Nov. 23, 2004) (hereinafter “PAC Status 1”); “Political Committee Status,” 

72 Fed. Reg. 5595 (Feb. 7, 2007) (hereinafter “PAC 
5 

Status 2”). As demonstrated by the record below, no 

coherent regulatory guidance could be found to clarify 

the boundaries between regulated and unregulated 

conduct. Without the help of a small army of election law experts, average speakers must simply 

self-censor. 

 This Court has routinely reaffirmed that no 

matter how benign the government’s interest may be 

in a given area of regulation, the method selected to 

carry it out must have some sense of tailoring. This is 

especially so when important First Amendment 

interests are at stake. That is why this Court developed the doctrinal protections of Buckley v. Valeo, 424 

U.S. 1 (1976), and FEC. v. Massachusetts Citizens for 

Life (“MCFL”), 479 U.S. 238 (1986), to protect ordinary speakers from the heavy-handed application of 

PAC rules. These protections do not exempt speakers 

from disclosure, but rather ensure that a minimally 

intrusive reporting scheme operates to further the 

government’s interest in disclosure. 

Buckley ensured that the FECA would not be 

applied in too vague or indiscriminate a fashion by 

developing the express advocacy test. It also ensured 

that the heavy burdens of complying with PAC status 

would only be applied to groups whose major purpose 

was the nomination or election of candidates for 

office. MCFL then further realized the burdens of 

PAC status and protected small groups from having 

to register and report in this manner. 479 U.S. 238, 

252 (1986) (Brennan, J.) (plurality opinion). Both 

lines of reasoning ensure that by carefully limiting 
6 

the application of burdensome political speech regulations, First Amendment interests are preserved. But 

without this protection, the continued operation of 

the FEC’s massive PAC program ensures that only 

those who can afford the best regulatory experts will 

be able to exercise their First Amendment rights to 

political speech. 

 Throughout this litigation, none of these constitutional protections were realized. By merely labeling 

a gargantuan regulatory system as “disclosure,” 

courts and agencies turn a blind eye to traditional 

concerns about government overreach in campaign 

finance regimes. This is not unique to Free Speech. 

Speakers nationwide are caught in a tangle of puzzling and contradictory standards that prevent them 

from engaging the public. As for federal appellate 

courts, contradictory approaches concerning political 

committee requirements are the norm for standards 

of judicial review, with splits occurring between the 

Eighth Circuit and the Fourth and Tenth Circuits. As 

to the relevancy of the major purpose test, a stark 

split divides the Eighth Circuit and First, Fourth, 

Seventh and Tenth Circuits. Free Speech seeks 

review of these issues now before more confusion and 

contradiction stifle speakers nationwide. 

---------------------------------  ---------------------------------
7 

PROCEEDINGS BELOW

 On June 14, 2012, Petitioner Free Speech filed a 

verified complaint in the District Court for the District of Wyoming under 28 U.S.C. § 1331 as a challenge arising under the First Amendment to the U.S. 

Constitution, the Federal Election Campaign Act 

(“FECA”), and the Declaratory Judgment Act, 28 

U.S.C. §§ 2201-02. Petitioner filed a Motion for Preliminary Injunction on July 13, 2012. Following 

oral arguments regarding preliminary injunction on 

September 12, 2012, respondent Federal Election 

Commission filed a motion to dismiss on September 

24. Petitioner responded on October 2. 

 District Judge Scott W. Skavdahl entered his 

Telephonic Oral Ruling on October 3, 2012, denying 

preliminary injunction. Free Speech timely appealed 

this ruling to the United States Court of Appeals for 

the Tenth Circuit on October 19, 2012. Following 

briefing of the appeal of denial of preliminary injunction at the Tenth Circuit, the district court dismissed 

the case with prejudice on March 21, 2013. The Tenth 

Circuit agreed to substitute briefing and hear appeal 

of dismissal. The appeals court heard oral arguments 

on May 7, 2013, and affirmed dismissal on June 25, 

2013, adopting the district court’s ruling. 

 Petitioner filed a petition for rehearing en banc 

on August 9, 2013. On September 30, 2013, the Tenth 

Circuit denied this petition. 

---------------------------------  --------------------------------- 
8 

REASONS FOR GRANTING THE PETITION

 Speakers ensnared in federal campaign finance 

law must guess whether and how to comply with 

PAC standards that are the legal equivalent of 

Rube Goldberg machines. Those who hazard an incorrect guess may be subject to fines and criminal 

penalties, a risk that chills the exercise of protected 

First Amendment freedoms. See, e.g., 2 U.S.C. 

§ 437g(d)(1)(A)(ii) (up to one year imprisonment);

2 U.S.C. § 437g(d)(1)(A)(i) (up to five years imprisonment); Matter Under Review (“MUR”) 5487 (Progress 

for American Voter Fund) Conciliation Agreement at 

14 (FEC 2007), available at http://eqs.fec.gov/ 

eqsdocsMUR/00005AA7.pdf ($750,000 civil penalty 

based on alleged failures to register and report as a 

PAC). Even those who escape formal punishment may 

endure years of investigations, making the process 

punishment enough. See, e.g., MUR 5831 (Softer 

Voices) Certification (FEC 2010), available at http:// 

eqs.nictusa.com/eqsdocsMUR/10044282476.pdf (four 

year enforcement process with no violation); MUR 

5842 (Economic Freedom Fund) Certification (FEC 

2009), available at http://eqs.nictusa.com/eqsdocs 

MUR/10044282476.pdf (two year enforcement process 

leading to no violation). 

 The indiscriminate imposition of PAC status 

suffers from two constitutional infirmities. First, FEC 

standards governing PAC status are indefinable and 

prolix; these invariably “chill a substantial amount of 

speech.” Federal Election Comm’n v. Wisconsin Right 

to Life (“WRTL”), 551 U.S. 449, 469 (2007). Second, 
9 

even if individuals were able to determine that they 

are regulated, PAC status imposes “well-documented 

and onerous burdens” when exercising First Amendment rights. Id. at 477 n.9. It is the combination of 

these harms that “function as the equivalent of a 

prior restraint.” Citizens United v. Federal Election 

Comm’n, 558 U.S. 310, 335 (2010). 

 It has long been recognized that these sorts of 

complicated and burdensome regulatory programs 

infringe speech as effectively as a ban. See, e.g., 

Freedman v. Maryland, 380 U.S. 51 (1965); Speiser 

v. Randall, 357 U.S. 513 (1958). Where procedural 

safeguards prove lacking, many people “rather than 

undertake the considerable burden (and sometimes 

risk) of vindicating their rights through case-by-case 

litigation, will choose simply to abstain from protected speech – harming not only themselves but society 

as a whole, which is deprived of an uninhibited 

marketplace of ideas.” Citizens United, 558 U.S. at 

335-36 (quoting Virginia v. Hicks, 539 U.S. 113, 119 

(2003)). To protect against these chills, this Court has 

insisted on: (1) coherent regulatory requirements 

individuals may use to comply with the law, (2) 

meaningful exacting scrutiny to prevent against 

overbroad and arbitrary application of regulatory 

schemes, and (3) the application of the major purpose 

test. Free Speech asks for a simple re-affirmation of 

these doctrinal protections when speech-suppressing 

programs hide under the moniker of disclosure. 
10 

I. The Tenth Circuit’s Failure to Protect 

Grassroots Groups from Onerous Political 

Committee Burdens is in Conflict with the 

Eighth Circuit 

 Many proclaim, loudly, that after Citizens United, 

pervasive, around-the-clock, difficult-to-comply-with 

PAC regulations are nothing more than disclosure, 

which leads to the adoption of lax judicial review. But 

however loudly one proclaims it, demanding that 

ordinary citizens register as official PACs is different 

in kind from the less restrictive disclosure this Court 

has routinely upheld. Only the Eighth Circuit has 

recognized this difference, leading to the conflict 

before this Court.1

 Being forced to register, report, and identify as 

a PAC carries consequences. PAC status requires 

registering with the government to speak, appointing 

a treasurer who is personally liable for reporting 

violations, maintaining a separate bank account with 

specific accounting requirements, filing disclosure 

reports even when silent, and seeking government 

permission to dissolve. Citizens United, 558 U.S. at 

337-38; Minnesota Concerned Citizens for Life v. 

1

Real Truth About Abortion, Inc. v. FEC (“RTAA”) and 

Worley v. Detzner sought certiorari because those petitioners 

believed strict, rather than exacting, scrutiny should be applied 

to systems imposing PAC status. See 133 S.Ct. 841 (2013); 134 

S.Ct. 529 (2013) (denying certiorari). Free Speech asks that 

courts below perform what this Court has required, exacting 

scrutiny, and that the doctrinal protections of Buckley and 

MCFL be recognized. 
11 

Swanson, 692 F.3d 864, 877 (8th Cir. 2012) (en banc) 

(detailing the known burdens of ongoing reporting for 

political speech for organizations); cf. Free Speech

(Pet’r’s App. 2-3) (where the Tenth Circuit did not find 

that identical PAC burdens articulated in MCFL and 

Citizens United were analogous to this case). Once 

labeled a PAC, other legal duties attach. See, e.g., 2 

U.S.C. § 441e(a); “Statement of Policy; Safe Harbor 

for Misreporting Due to Embezzlement,” 72 Fed. Reg. 

16695 (Apr. 5, 2007). 

 PAC status is the same regulatory regime criticized by the MCFL Court because it “may create a 

disincentive for such organizations to engage in 

political speech. Detailed record keeping 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. Furthermore, such duties require a far 

more complex and formalized organization than many 

small groups could manage.” MCFL, 479 U.S. at 254-

55. But in a post-Citizens United world, many courts 

simply conflate more burdensome PAC requirements 

with less restrictive disclosure, eliminating important 

constitutional safeguards. 

A. Contradictory Approaches for Analyzing Political Speech and Associational 

Rights Cannot Stand 

 On September 5, 2012, the Eighth Circuit Court 

of Appeals, sitting en banc, held that Minnesota’s 
12 

ongoing reporting requirements for political speech 

(as a “political fund”) were constitutionally invalid. 

Swanson, 692 F.3d at 876-77. These reporting requirements involved similar requirements as the 

federal system under review here. Under exacting 

scrutiny, the Eighth Circuit asked whether Minnesota 

could achieve its interest in disclosure through “less 

problematic measures.” Id. at 876 (quoting Buckley v. 

American Constitutional Law Foundation, 525 U.S. 

182, 204-05 (1999)). Because Minnesota imposed a set 

of overbroad, continuing reporting obligations on 

groups whose major purpose was not the election or 

defeat of candidates, its system was not constitutionally permissible. 

 On June 25, 2013, the Tenth Circuit Court of 

Appeals held that the FEC’s similar ongoing reporting requirements for political speech (as a PAC) 

were constitutionally valid. (Pet’r’s App. 9-10). Even 

though Free Speech’s major purpose was not the 

election or defeat of clearly identified candidates, the 

Tenth Circuit breezed over this concern. Unlike the 

Eighth Circuit, the Tenth Circuit never inquired 

about the fit between the federal government’s interest in disclosure and its corresponding regulatory 

implements – or whether there was a “substantial 

relation” between the government’s interest in 

disclosure and the imposition of PAC status. See

Swanson, 692 F.3d at 875. But this is the stuff real 

constitutional analysis is made of. Reasoned by the 

Tenth Circuit, because “the challenged policies 
13 

implement only disclosure requirements,” less serious 

review was triggered. (Pet’r’s App. at 9-10). 

 A secondary cause of doctrinal schism about PAC 

status centers on the continuing relevance of the 

major purpose test. The major purpose test serves to 

protect small groups from the known burdens accompanying PAC status. Buckley, 424 U.S. at 79. In 

Swanson, Minnesota’s system evaded this requirement, leading it to be constitutionally invalid. But the 

Tenth Circuit, rather than demanding some clear 

articulation of the major purpose test by the FEC, 

simply rubberstamped the Commission’s approach, 

assuming that no “particular methodology” is required for the major purpose test to be valid. (Pet’r’s 

App. 21). Of course, some “particular methodology” is 

required or the major purpose test would not act as a 

significant constitutional safeguard. See, e.g., Marcus 

v. Search Warrant, 367 U.S. 717, 731 (1961) (the 

government is “not free to adopt whatever procedures 

it pleases . . . without regard to the possible consequences for constitutionally protected speech”). 

 These contradictory interpretations ensure that 

confusion, not clarity, is the norm among federal 

courts when PAC status is implicated. This confusion 

exists among courts considering which standards to 

employ governing exacting scrutiny analysis, Swanson, 692 F.3d at 875 (applying a thorough analysis to 

decide whether there was a substantial relation between government interests in disclosure and chosen 

regulatory provisions); Free Speech (Pet’r’s App. 9-10) 

(because the “challenged policies implement only 
14 

disclosure,” no examination of a substantial relation 

provided); RTAA, 681 F.3d 544, 556-57 (4th Cir. 2012) 

(failing to examine the “substantial relation” prong); 

Worley, 717 F.3d at 1251-52 (mixing exacting and 

rational basis review by offering “judicial deference”). 

Lost in this confusion are the voices of average Americans who require bright line safeguards to protect 

against the suppression of speech not properly subject 

to regulation under PAC rules. 

B. Exacting Scrutiny Must be Exacting 

 Courts considering the constitutional validity of 

campaign finance provisions have routinely evaded 

an important inquiry under the exacting scrutiny 

analysis – whether there is a proper fit between the 

challenged regulation and the interest promoted by 

the government. When courts fail to ask this question 

– and this is by far the current trend – exacting 

scrutiny operates more like rational basis review. See 

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 

307, 315-16 (1976). Rational basis review only asks 

for a loose fit, e.g., whether the challenged law might 

be rationally related to the government’s interest. 

This is not difficult to do. Steve M. Simpson, Judicial 

Abdication and the Rise of Special Interests, 6 CHAP. 

L.REV. 173, 191 (2003) (“reciting a tautology is not 

the same thing as examining whether a particular 

legislative choice is within the bounds of [the government’s] constitutional authority”). Exacting scrutiny 

asks that there be a relevant correlation between a 

government interest and how it is carried out. See 
15 

United States v. Alvarez, 132 S.Ct. 2537, 2555 (2012) 

(Breyer, J., concurring) (inquiry for exacting scrutiny 

is “whether it is possible substantially to achieve the 

Government’s objective in less burdensome ways”). 

Because most courts, except for the Eighth Circuit, 

routinely fail to perform this second step in the 

exacting scrutiny analysis in campaign finance cases, 

constitutional safeguards protecting against burdensome PAC regulations have been eliminated. 

 When examining registration and reporting requirements substantially similar to those at issue in 

this case, the Eighth Circuit applied a meaningful 

version of exacting scrutiny, asking whether there 

was a sufficiently important government interest and 

whether the state’s regulatory program bore a substantial relationship to that interest. Swanson, 692 

F.3d at 875-77. This approach follows what this Court 

has defined in deciding what constitutes a substantial 

relationship – “there must be a relevant correlation 

. . . between the governmental interest and the information required to be disclosed and the governmental interest must survive exacting scrutiny.” 

Davis v. FEC, 544 U.S. 724, 744 (2008). Minnesota’s 

ongoing, intrusive reporting requirements did not 

survive this substantial relationship analysis. Swanson, 692 F.3d at 876-77 (“Minnesota has not stated 

any plausible reason why continued reporting from 

nearly all associations, regardless of the association’s 

major purpose, is necessary to accomplish these 

interests”). By conducting a genuine exacting scrutiny 

analysis, the Eighth Circuit found that imposing 
16 

cumbersome PAC requirements bore a poor fit to the 

state’s interest in disclosure. 

 Rather than engaging in exacting scrutiny, the 

Tenth Circuit rubberstamped the FEC’s declared need 

to impose the full panoply of PAC regulations upon 

Free Speech. The court did not analyze the relevant 

correlation between PAC status and the government’s 

interest in disclosure. The Tenth Circuit did not consider whether existing, less burdensome and unchallenged disclosure requirements found in federal law 

were sufficient to meet the government’s interest in 

disclosure. But courts must make this inquiry for 

exacting scrutiny to adequately protect constitutional 

interests. That the Eighth Circuit stands in contradiction with the Tenth Circuit and other courts on 

this standard necessitates review here. 

 It is only by requiring a substantial relationship 

that Buckley’s major purpose test and MCFL’s protection against overbroad political speech regulations 

take hold. Ensuring that meaningful judicial review 

is in place effectuates the doctrinal protections against 

cumbersome speech regulations. In other areas of 

First Amendment concern, this Court has required 

that the government actually demonstrate “a direct 

causal link between the restriction imposed and the 

injury to be prevented.” Alvarez, 132 S.Ct. at 2549. 

Here, the link between the government’s interest in 

providing disclosure and the FEC’s decision to impose 

ongoing, complicated reporting and registration 

requirements has not been established. The FEC has 

not shown why imposing the full panoply of PAC 
17 

requirements is necessary to achieve its interest in 

disclosure, especially when less cumbersome alternatives exist in the law. To date, except for the Eighth 

Circuit, no court seems particularly concerned about 

this constitutional inquiry. 

 Nothing in this petition challenges less restrictive reporting requirements that adequately promote 

the government’s interest in disclosure. One-time, 

event driven reporting is already part of federal law. 

See 2 U.S.C. § 434(c) (reporting requirements for nonPACs that make independent expenditures); § 441d 

(disclaimer requirements). These provisions ensure 

that the government interest in disclosure is met in a 

manner sensitive to weighty First Amendment interests. Where around-the-clock, invasive regulatory 

schemes attempt to effectuate disclosure, more serious review should be had, but to date has not been 

afforded. 

 Since Citizens United, many courts have decided 

that once government alleges that challenged laws 

“implement only disclosure,” lax judicial review is 

warranted. (Pet’r’s App. 2-3). But doing so transforms 

“First Amendment jurisprudence into a legislative 

labeling exercise.” Minnesota Concerned Citizens for 

Life v. Swanson, 640 F.3d 304, 322 (8th Cir. 2011) 

(Chief Judge Riley, dissenting) (opinion vacated en 

banc 692 F.3d 864 (8th Cir. 2012)). Without constitutional safeguards in place, the FEC remains free 

to impose a prophylactic, imprecise, and unduly 

burdensome set of regulations when more benign 

and less restrictive options exist in the law. See Riley 
18 

v. National Federation of the Blind, 487 U.S. 781, 798 

(1988). Free Speech asks this Court to grant certiorari so that exacting scrutiny will be truly exacting and 

the doctrinal protections of Buckley and MCFL will 

safeguard important First Amendment interests. 

II. All Must Register and Report: Courts 

Routinely Misapply Citizens United

 This Court could not have been clearer in Citizens United when it explained “disclosure is a less 

restrictive alternative to more comprehensive regulations of speech.” Citizens United, 558 U.S. at 369. First 

Amendment claims must be resolved not through the 

“label we give the event,” Press-Enterprise Co. v. 

Superior Court of California, 478 U.S. 1, 7 (1986), but 

with attention to the substantive interests involved. 

Here, this Court must pierce the superficial label of 

disclosure to distinguish the true nature of PAC rules 

imposed by the FEC. 

A. Discernible Boundaries Protect the First 

Amendment 

 Throughout the many election law cases brought 

before this Court, one trend remains familiar. While 

government may provide for basic campaign finance 

provisions to protect against corruption or better 

inform the electorate, it may not do so in a way that 

unduly burdens First Amendment interests. Just as 

government may protect against obscenity, Ashcroft v. 

 
19 

Free Speech Coalition, 535 U.S. 234 (2002), or defamatory statements, New York Times Co. v. Sullivan, 

376 U.S. 254 (1964), it must also give protection to 

the exercise of constitutionally protected liberties lest 

they be crushed under the weight of these government interests. The same has remained true concerning laws regulating electoral speech. Citizens United, 

558 U.S. at 336 (expansive electoral regulatory programs represent an “unprecedented intervention into 

the realm of speech”). When these safeguards disintegrate, constitutional liberties suffer and speakers are 

silenced. Today, this is done when the government 

invokes but one term, disclosure. 

 In WRTL, this Court expounded on the development of electoral speech standards found in 

McConnell v. FEC. See 540 U.S. 93, 206-07 (2003). 

Specifically, Chief Justice Roberts explained that while 

the functional equivalent of express advocacy could be 

regulated, the standards for determining this sort of 

speech needed to be objective, non-burdensome, and 

easily understood. WRTL, 551 U.S. at 474 n.7. Were it 

otherwise, government agencies could expand and 

contract relevant standards on the fly based on 

“burdensome, expert-driven inquir[ies].” Id. at 469. 

Average groups of citizens could never be expected to 

comply with such cumbersome regulatory programs 

due to their burdensome nature. Id.

 Faced with the curtailment of its regulatory 

authority, the FEC reshaped its standards governing 

the regulation of electioneering communications after 

WRTL. While the Court instructed the FEC to create 
20 

objective and easily understood standards after its 

loss, it invented a “two-part, 11-factor balancing test 

to implement WRTL’s ruling.” Citizens United, 558 

U.S. at 335. The Court found these standards to be 

the functional equivalent of a prior restraint, because 

most people will simply self-censor rather than challenge the FEC. Id. at 335-36. 

 Some attempt to distinguish the principles of 

Citizens United from this challenge because Citizens 

United involved an outright ban on speech while, we 

are told, the FEC’s regulations and policies implement 

only disclosure. Even where government programs 

lack any “direct regulatory or suppressing functions,” 

constitutional safeguards are still required. See

Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 

676, 689 n.19 (1968); see also Riley, 487 U.S. at 800-

01. Additionally, this Court was insistent that the 

FEC’s regulatory program in Citizens United was 

constitutionally infirm because individuals attempting to comply could not be reasonably expected to 

master its voluminous and indefinable requirements. 558 U.S. at 335. “If parties want to avoid 

litigation and the possibility of civil and criminal 

penalties, they must either refrain from speaking or 

ask the FEC to issue an advisory opinion approving 

of the political speech in question. Government 

officials pore over each word of a text to see if, in 

their judgment, it accords with the 11-factor test 

they have promulgated.” Id. at 336. 

 At least the FEC could articulate its “two-part, 

11-factor balancing test” in Citizens United. Id. at 
21 

335. Here, the FEC’s guidance must be found in the 

loose regulatory language it employs, lengthy Explanation and Justification (“E&J”) statements further 

expanding that language, and scores of enforcement 

actions and advisory opinions that mutate this meaning. See “Express Advocacy; Independent Expenditures . . . ,” 60 Fed. Reg. 35291, 35293 (July 6, 1995) 

(hereinafter “Express Advocacy”); “PAC Status 2,” 72 

Fed. Reg. at 5597; MUR 5988 (American Future 

Fund), Statement of Reasons of Chairman Steven T. 

Walther and Commissioners Cynthia L. Bauerly and 

Ellen L. Weintraub (FEC 2009), available at http:// 

eqs.fec.gov/eqsdocsMUR/29044234217.pdf; MURs 5910 

& 5694 (Americans for Job Security), Statement of 

Reasons of Chairman Steven T. Walther and Commissioners Cynthia L. Bauerly and Ellen L. Weintraub 

(FEC 2009), available at http://eqs.fec.gov/eqsdocs 

MUR/29044232739.pdf; MUR 5831 (Softer Voices), 

Statement of Reasons of Commissioner Donald F. 

McGahn (FEC 2011), available at http://eqs.nictusa. 

com/eqsdocsMUR/11044284676.pdf.2

 Some standards certain FEC Commissioners 

have found to trigger regulation or penalties border 

on the comical, including whether an advertisement 

2

 Governing regulations and policies triggering compliance 

obligations expand and contract on a “case-by-case” basis, 

“Express Advocacy,” 60 Fed. Reg. at 35294-35296, and regulatory 

meanings may be distilled through “the enforcement process.” 

MUR 6073 (Patriot Majority 527s), First General Counsel’s 

Report at 9 (FEC 2009) available at http://eqs.fec.gov/eqsdocs 

MUR/10044264544.pdf. 
22 

“lacks a specific legislative focus,” or if it discusses 

leadership since leadership emphasizes character, or 

asking a candidate about “his plans to bring our 

children back to [the state,]” or if it uses the phrase 

“wake up.” See Hunter SOR at 26. Some Commissioners simply inquire what the “reader is to understand.” 

Id. at 29.

 Without constitutional safeguards in place, it 

becomes too burdensome for most to comply with the 

law or seek review of the FEC’s operations. We should 

not expect grassroots groups to conduct a linguistic 

marathon to determine if phrases like “wake up” or 

“talk about ranching” trigger regulation. Nor should 

we expect everyday citizens to hire election law 

experts to avoid these traps. Standards that confuse 

ordinary speakers, that demand enlisting regulatory 

experts to exercise constitutional liberties, or that 

empower agencies to act arbitrarily are common evils 

stricken by this Court time and time again. See, e.g., 

Speiser, 357 U.S. 513; Freedman, 380 U.S. 51. This 

trend remains true, powerfully so, when it comes to 

the FEC’s litigation track record. See, e.g., WRTL, 551 

U.S. at 468 (vague, complicated political speech 

regulations constitutionally infirm); Citizens United, 

558 U.S. at 335. 

 Providing practical guidance about how to comply with the regulatory enigma known as PAC status 

is especially important. Under the law, if a group is 

deemed to be a PAC it must file its statement of 

organization within ten days. 11 C.F.R. § 102.1(d). 

Before filing, it must secure a treasurer, set up a 
23 

separate bank account, and fulfill all the other burdensome requirements of PAC status. See Citizens 

United, 558 U.S. at 337-38. Since much of the FEC’s 

regulatory guesswork is done on a case-by-case basis, 

there is no way to know in advance when the ten day 

period begins to run or when its first reporting filing 

is due. This leaves speakers subject to after-the-fact, 

case-by-case determinations and investigations by the 

FEC. See, e.g., FEC v. Christian Coalition, 52 

F.Supp.2d 45, 51 (D.D.C. 1999) (observing that the 

FEC’s “administrative investigative stage can be 

quite lengthy in its own right” with a seven year 

resolution in that matter); FEC v. GOPAC, 917 

F.Supp. 851, 852-83 (D.D.C. 1996) (“Over three years 

later, after the Commission concluded its investigation . . . it notified GOPAC that there was probable 

cause to believe it was a ‘political committee’ ”). Like 

Minnesota’s system deemed problematic by the 

Eighth Circuit in Swanson, federal PAC status imposes ongoing, unnecessary organizational and reporting obligations even when the group is silent. 

 The Tenth Circuit found none of these regulatory 

hurdles sufficiently problematic to warrant more 

serious review. Indeed, the district court expressly 

held that the PAC regulations deemed so burdensome 

in Citizens United were not analogous here. (Pet’r’s 

App. 10). The Tenth Circuit, in adopting the lower 

court’s opinion, reasoned that the FEC’s host of 

subjective and changing regulatory standards for 

determining major purpose and speech requirements 

posed no particular constitutional problems. (Pet’r’s 
24 

App. 2-3). It also concluded that Free Speech’s 

lengthy and detailed record below illustrating the 

inconsistent standards applied to itself and in prior 

administrative operations were but conclusory in 

nature. (Pet’r’s App. 3). In doing so, Free Speech was 

denied the doctrinal protections of Buckley and MCFL

in attempting to secure relief for its political speech. 

B. A Nation Confused: Courts and Election Agencies Impose Political Committee Requirements on All Speakers 

Big and Small 

 As to the record below and national treatment of 

PAC status, the situation may be aptly described as 

utter confusion. Not content with less restrictive 

disclosure, the FEC’s PAC program delivers what the 

Second Circuit promised it would 41 years ago, 

namely, that “every position on any issue, major or 

minor, taken by anyone would be a campaign issue 

and any comment upon it in, say, a newspaper 

editorial or an advertisement would be subject to 

proscription unless the registration and disclosure 

regulations of the Act in question were complied 

with.” United States v. Nat’l Cmte. for Impeachment, 

469 F.2d 1135, 1142 (2d Cir. 1972). Absent meaningful standards in this area, it is only natural to expect 

the overinclusive and inconsistent application of 

burdensome political committee rules to all speakers, big and small. 
25 

1. The Record Below Amply Demonstrated the Constitutional Flaws of 

the FEC’s Regulatory Leviathan 

 Two problems evident in the record below demonstrate the inherent instability and vagueness found 

in the FEC’s approach to PAC status. First, relevant 

standards guiding what speech triggers PAC regulation are haphazard at best. Second, the Commission 

has not defined or clarified the major purpose test but 

instead formulates it on a case-by-case basis, usually 

through the enforcement process. See “PAC Status 2,” 

72 Fed. Reg. at 5596. Combined, this leaves speakers 

without sufficient notice to know what sort of conduct 

triggers regulatory compliance (with corresponding 

severe penalties for non-compliance) and what conduct does not. Facing the possibility of lengthy investigations, fines, or even imprisonment, speakers may 

only exercise their First Amendment rights at the 

mercy of noblesse oblige. See Federal Communications 

Comm’n v. Fox Television Stations, Inc., 132 S.Ct. 

2307, 2318 (2012). 

 As Free Speech pled below, all sorts of speech 

common for nonprofits and advocacy organizations 

could trigger PAC status and require a substantial 

degree of compliance efforts. Free Speech First Am’d 

Ver. Compl. at ¶¶47-49; ¶50; ¶61; ¶¶71-79; ¶¶97-106, 

available at http://www.fec.gov/law/litigation/freespeech_ 

fs_amend_complaint.pdf. From sending out fundraising appeals to broadcasting its message, the regulations and policies governing this conduct remain 

bizarrely opaque making compliance impossible for 
26 

those of average means.3 To comply with the law, one 

could reference the text of the regulation itself (one 

page), the two operative FEC E&J statements concerning express advocacy and PAC status expanding 

that regulatory meaning (25 pages), and a small 

handful of pertinent enforcement actions detailing 

what may trigger regulation (635 pages). This would 

leave speakers digesting more than 660 pages of 

nuance upon nuance to determine how the system 

works.4 However the FEC may characterize it, this is 

not less restrictive disclosure. 

 The FEC’s operative regulation that dictates 

which speech is express advocacy is found at 11 

C.F.R. § 100.22. Spending above $1,000 on speech the 

Commission deems to be express advocacy invokes 

the need to register and report as a PAC. See 2 U.S.C. 

§ 431(4)(A); 11 C.F.R. § 100. 11 C.F.R. § 100.22(b) 

attempts to define express advocacy by offering a 

smorgasbord of imprecise hints that could trigger 

such a finding. (Pet’r’s App. 44-45). Speakers are left 

3

 Free Speech maintains its challenge to the indecipherable 

regulatory standards governing which speech constitutes 

express advocacy (Pet’r’s App. 10-17), and which speech constitutes solicitations. (Pet’r’s App. 17-19). 

4

 Free Speech references the nine enforcement actions 

included in the Hunter SOR Appendix as illustrative in defining 

the meaning of the law. Tallying the First General Counsel 

Reports, probable cause hearings, and SORs in these matters 

renders 635 pages of instruction for would-be speakers. These 

constitute but a small subsection of the universe of regulatory 

guidance from the FEC. 
27 

to guess how close is too close in deciding the “proximity to the election.” Likewise, deciding whether a 

message’s “electoral portion,” whatever that may be, 

triggers regulatory compliance is unknowable. The 

Express Advocacy E&J gives further meaning about 

how 100.22(b) operates. It explains that the Commission may reference “contextual considerations” on a 

“case-by-case” basis to decide if speech is regulated. 

Further, like the standards invalidated by this Court 

in WRTL, speech may be regulated in accord with the 

E&J if it weighs upon “a candidate’s character, qualifications, or accomplishments.” 

 Because of the confusion and complexity of 

100.22(b) and its interpretative E&J, Free Speech 

asked the FEC whether any of its proposed advertisements would constitute express advocacy, likely 

triggering the need to register as a PAC. The best the 

FEC could offer in return was an administrative 

shrug. 

 The record below includes full examples of each 

proposed advertisement and the FEC schism that 

resulted. Compare Draft B with Draft C; Hunter SOR 

with Weintraub SOR. One proposed advertisement 

sought to engage the people of Wyoming about an 

important issue in that state, ranching. It read: 

President Obama opposes the Government 

Litigation Savings Act. This is a tragedy for 

Wyoming ranchers and a boon to Obama’s 

environmentalist cronies. Obama cannot be 

counted on to represent Wyoming values and 

voices as President. This November, call your 
28 

neighbors. Call your friends. Talk about 

ranching. 

AO 2012-11, Advisory Opinion Request at 3 (FEC 

2012), available at http://saos.fec.gov/aodocs/1204965. 

pdf. Though the proposed advertisement in question 

did not include express words advocating the election 

or defeat of President Obama, half the Commissioners found the script to be subject to regulation under 

Section 100.22(b). Draft B at 10-11. This is telling 

because the proposed ad: (a) discusses a matter of 

legislative importance in Wyoming, (b) explains its 

relevance to local ranchers, (c) critiques the President’s 

character, and (d) asks for civic engagement among 

community members to discuss the importance of 

ranching. Even with this focus, half the FEC Commissioners believed they could decipher the true 

meaning of this language as asking Wyoming citizens 

to vote against President Obama. The other half of 

Commissioners simply read the text, understood it 

was capable of many different reasonable interpretations, and deemed it unregulated. Draft C at 26. 

 Thankfully, the FEC never investigated Free 

Speech, fined it, or sent its members to prison. Of 

course, it never spoke. But, when posed with basic 

questions about federal election law, it offered two 

sets of contradictory interpretations to follow. The 

First Amendment demands, at a minimum, that the 

FEC be able to articulate its regulatory boundaries 

with sensible clarity so speakers may abide by its 

rules. 
29 

 Just as the FCC cannot constitutionally regulate 

indecent communications through inconsistent, contradictory standards affording no notice to regulated 

parties, the FEC may not embrace this approach in 

an area of high-value speech. See Fox Television 

Stations, 132 S.Ct. 2307. Much like the FCC, the FEC 

argues in need of a flexible, case-by-case standard to 

regulate political speech and PAC status. But this 

flexibility comes with a price. The constitutional 

injuries inflicted by this approach are described in 

this petition and more thoroughly in the record below. 

But for the Tenth Circuit, unlike the Eighth, none of 

this mattered. Either the constitutional safeguards of 

exacting scrutiny, meaningful speech standards, and 

the major purpose test still protect speakers today or 

they do not. It is this confusion and infringement of 

sensitive First Amendment rights Free Speech asks 

this Court to settle. And it may do so through a 

simple affirmation of the doctrinal safeguards found 

in Buckley and MCFL.

2. Unless Review is Granted, Forcing 

Speakers to Retain Campaign Finance Attorneys and Electoral Experts will be the Norm 

 What Justice Kennedy warned against in Citizens United is before this Court today. Unless a given 

group is sufficiently funded and equipped with a band 

of election law experts, determining if one must 

comply with burdensome PAC rules proves unlikely. 

For those of modest means but deep convictions, 
30 

exercising one’s right to participate in public debates 

is overshadowed by a mountain of PAC regulations 

never intended to be applied to average speakers. 

This problem is not unique to this case. 

 An informal discussion group that gathered in 

friends’ homes was trapped as a PAC under Mississippi law if it spent more than $200 supporting an 

eminent domain initiative. Justice v. Hosemann, 829 

F.Supp.2d 504 (N.D. Miss. 2011). There, while the 

court claimed to apply exacting scrutiny, it mixed this 

with rational basis review upholding the requirement. Id. at 516-17. Unlike the informal group in 

Mississippi, a church in Montana whose members 

occasionally weighed in on state initiatives could not 

be required to register and report as a PAC. Canyon 

Ferry Road Baptist Church of East Helena, Inc. v. 

Unsworth, 556 F.3d 1021 (9th Cir. 2009). There, 

expending “a few moments of a pastor’s time, or a 

marginal additional space in the Church for petitions, 

is so lacking in economic substance that we have 

already held that requiring their reporting creates 

fatal problems of unconstitutional vagueness.” Id. at 

1034. Still, a pro-life advocacy group in Washington 

had to register as a PAC under state law if it harbored an expectation to receive funds or make expenditures about initiative issues. Human Life of 

Washington, Inc. v. Brumsickle, 624 F.3d 990 (9th 

Cir. 2010) (declining to apply the major purpose test 

and conducting a summary substantial relationship 

analysis). Absent clear standards, confusion and conflict will continue to impede basic civic engagement. 
31 

 In SpeechNow v. FEC, 599 F.3d 686 (D.C. Cir. 

2010), the D.C. Circuit declined to find PAC status as 

particularly burdensome applied to one group. However, SpeechNow admitted in oral argument that the 

applicable PAC requirements did not impose much of 

a burden to itself in particular. Id. at 697. This was, 

in part, because it already had some $121,700 in 

planned contributions and could not compare itself to 

“ad hoc groups that want to create themselves on the 

spur of the moment.” Id. SpeechNow left open the 

question about just how burdensome PAC requirements were for groups who operated on shoestring 

budgets, were informal, and politically unsophisticated. Interestingly enough, in Carey v. FEC, the Commission sought to demand that a small, barebones 

veterans group register twice as separate PACs. 791 

F.Supp.2d 121 (D.D.C. 2011). The D.C. District Court 

ruled against the FEC’s position due to the burden 

that would be suffered by a small, grassroots entity. 

 Today, Free Speech asks that this Court grant 

certiorari to ensure that the usual constitutional 

safeguards against burdensome political speech regulation continue to apply – even when the term disclosure is invoked. Where more cumbersome regulatory 

programs inhibit citizens from engaging in the democratic process, this Court’s doctrinal protections found 

in Buckley and MCFL must be reaffirmed. This requires that: (a) courts below engage in a meaningful 

version of the exacting scrutiny analysis, (b) comprehensible speech standards govern the operation of 
32 

any campaign finance program, and (c) the major 

purpose test is recognized and applied. 

III. Absent this Court’s review, the Major 

Purpose Test is a Dead Letter 

 The major purpose test urgently requires review. 

The test is based on two foundational campaign 

finance decisions, Buckley and MCFL. This Court 

ruled in Buckley that “[t]o fulfill the purposes of the 

[FECA] [PAC requirements] need only encompass 

organizations that are under the control of a candidate or the major purpose of which is the nomination 

or election of a candidate.” Buckley, 424 U.S. at 79. 

The major purpose test serves one important constitutional consideration – that government may not 

impose burdensome PAC regulations in an overbroad 

manner. In MCFL this Court affirmed the major 

purpose consideration, noting that MCFL’s “central 

organizational purpose is issue advocacy” and that 

“should MCFL’s independent spending become so 

extensive that the major purpose may be regarded as 

campaign activity, the corporation would be classified 

as a political committee.” 479 U.S. at 252 n.6, 262. 

These became the two prongs of the major purpose 

test – central organizational purpose and the comparison of expenditures to non-expenditure spending and 

activities. But the FEC routinely applies an evolving 

and malleable version of this test. See Draft B at 22-

26, 28; Draft C at 43-55. 
33 

 A limited question about the major purpose test 

reached this Court once since MCFL, but the Court 

declined to address it. See Federal Election Comm’n v. 

Akins, 524 U.S. 11, 26-29 (1998). The test has thus 

risen and, as this case demonstrates, fallen in the 

midst of transformational campaign finance decisions. 

See, e.g., McConnell, 540 U.S. 93; Citizens United, 558 

U.S. 310. This Court should grant review to affirm 

the importance of the major purpose test in protecting 

issue advocacy organizations and reinforce its boundaries. 

A. The Major Purpose Test Should Protect 

Issue Advocacy Organizations 

 Both Buckley and MCFL ruled that issue advocacy groups – particularly smaller grassroots groups – 

must be able to avoid complex registration and reporting regimes such as those required of PACs. 424 

U.S. at 79; 479 U.S. at 254 (“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”). Groups who do not have the 

major purpose of electoral advocacy are not exempt 

from disclosure, but are instead subject to less burdensome reporting requirements. MCFL, 479 U.S. at 

252-53; see, e.g., 2 U.S.C. § 434. This distinction has 

become lost in the law today. 

 Today, Massachusetts Citizens for Life – like Free 

Speech – would receive only half the protection 
34 

recognized in its 1986 decision from this Court. A 

small grassroots group, MCFL informed Massachusetts residents about life issues in an irregular newsletter over a number of years. MCFL, 479 U.S. at 242-

43. In one instance, MCFL spent nearly $10,000 

publishing and circulating a special edition that contained express advocacy on behalf of pro-life federal 

candidates, constituting an expenditure. Id. at 243-

45. In addition to ruling in favor of MCFL in an asapplied challenge to the law’s proscription of corporate expenditures, the Court ruled against requiring 

MCFL to register and report as a PAC simply to 

speak. Id. at 251-56. Relying on MCFL’s satisfaction 

of the major purpose test, the Court concluded that 

the disclosure requirements for individual independent expenditures satisfied the government’s interests 

in disclosure. Id. at 262. Concurring with Justice 

Brennan’s opinion, Justice O’Connor distinguished 

disclosure from PAC status unequivocally: “the significant burden on MCFL . . . comes not from the disclosure requirements that it must satisfy, but from the 

additional restraints imposed upon it by the Act.” Id.

at 266 (O’Connor, J., concurring). This restraint is the 

“more formalized organizational form” of PAC status. 

Id. Today, while free from any corporate ban following 

Citizens United, the other half of MCFL’s case would 

be dismissed, just like Free Speech’s challenge. Decades later, the FEC’s “minimize[ation of ] the impact 

of the legislation upon . . . First Amendment rights” 

has succeeded in eliminating the distinction between 

disclosure and the “sophisticated organizational form” 
35 

required by PAC status, making the major purpose 

test superfluous. Id. at 252, 255. 

 Perhaps the most troublesome – certainly baffling 

– portion of the ruling below is its disregard of the 

purpose of the major purpose test. Although acknowledging that the major purpose test exists to avoid the 

application of PAC status to issue organizations 

(Pet’r’s App. 20), the courts overlooked how the FEC 

applied the test to Free Speech. Of particular note, 

when considering Free Speech’s advisory opinion request, half of the FEC’s commissioners cited issue 

advocacy as evidence that Free Speech’s major purpose was within PAC purview. Draft B at 24 (“The 

conclusion that Free Speech has as its major purpose 

federal campaign activity is further supported by the 

fact that even its non-express advocacy spending will 

attack or oppose a clearly identified Federal candidate”). This “ ‘heads I win, tails you lose’ approach 

cannot be correct.” WRTL, 551 U.S. at 471. 

 The FEC attorneys’ arguments in this case went 

further still, asserting that PAC requirements are not 

“unduly” burdensome upon any groups, but are instead, per Citizens United, only burdensome as an 

alternative outlet when a group is banned from 

speaking entirely. FEC 10th Cir. Brief for Appellee 

at 43, available at http://www.fec.gov/law/litigation/ 

freespeech_fec_brief.pdf; FEC 10th Cir. Supplemental 

brief at 6, available at http://www.fec.gov/law/ 

litigation/freespeech_fec_suppl_brief.pdf. The courts 

below affirmed the unspoken argument of FEC counsel: because PAC status is “only disclosure,” the 
36 

factors and scope of the major purpose test are of no 

concern. (Pet’r’s App. 2-3, 20-22). 

 Given the confusion over the objective and 

boundaries of the major purpose test, this Court 

should examine and re-affirm Citizens United’s 

affirmation of the test from Buckley and MCFL. PAC 

status is unduly burdensome for groups seeking to 

speak out about political issues. Citizens United, 558 

U.S. 310, 337-38 (quoting McConnell, 540 U.S. at 330-

32 (quoting MCFL, 479 U.S. at 253-54)) (“PACs are 

. . . expensive to administer and subject to extensive 

regulations”). Groups of all stripes are subject to 

simple disclosure for independent expenditures or 

electioneering communications, but groups who do 

not make such activity their major purpose must not 

be subject to PAC status. Citizens United, 558 U.S. at 

369 (quoting MCFL, 479 U.S. at 262 (“The Court has 

explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech” like 

PAC status. (emphasis added)). In order for the major 

purpose test to protect issue-oriented groups like Free 

Speech, its standards must be objective and its continuing necessity validated. 

B. Following Citizens United Courts Regularly Avoid Addressing the Major 

Purpose Test, and the FEC Could not 

Apply it to Free Speech

 In recent years, numerous circuit courts of appeals have diminished the major purpose test into a 
37 

rubber stamp for PAC status. One circuit maintains 

that the objective of the major purpose test is to 

identify groups that have the objective of supporting 

or opposing clearly identified candidates. See Unity08 

v. Federal Election Comm’n, 596 F.3d 861, 867 (D.C. 

Cir. 2010) (citing Federal Election Comm’n v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. 

Cir. 1981)). Other circuits, including the court below, 

maintain that the FEC has full power to formulate 

the test, with “no particular methodology,” and refuse 

to scrutinize either the test’s objectives or factors. See

Real Truth About Abortion v. Federal Election 

Comm’n, 681 F.3d 544, 557 (4th Cir. 2012); (Pet’r’s 

App. 21). Other circuits, when reviewing state laws 

that place PAC burdens on issue groups, have refused 

to require even a nominal major purpose test. See

Nat’l Organization for Marriage v. McKee, 649 F.3d 

34, 58-59 (1st Cir. 2011); Center for Individual Freedom v. Madigan, 697 F.3d 464, 486-91 (7th Cir. 2012); 

Human Life of Washington v. Brumsickle, 624 F.3d 

990, 1008-12 (9th Cir. 2010). One notable exception 

recently re-affirmed the importance of the major 

purpose test and MCFL. See Swanson, 692 F.3d at 

870-77. In order for the major purpose test to actually 

protect issue advocacy organizations, it must have 

clear objectives and factors, and current FEC policy 

and practice provide neither. 

 Free Speech brought both a facial and as-applied 

challenge to the major purpose test. The courts below 

dismissed both challenges, but did not address the 

numerous problems with the FEC’s formulation of its 
38 

“case-by-case” major purpose test, most starkly illustrated by the agency’s application of the test to Free 

Speech. Ultimately, the FEC could not answer Free 

Speech’s question of whether or not its major purpose 

required it to register as a PAC. (Pet’r’s App. 41). At 

the time of Free Speech’s advisory opinion request, 

half of the commissioners believed petitioner had the 

major purpose of campaign activity, while the other 

half did not. Compare Draft B at 21-25 with Draft C 

at 43-55.5 Although comparing Free Speech’s expenditures to non-expenditure activity is a sound consideration – hindered only by the FEC’s vague and 

overbroad definition of express advocacy – the determination of a group’s central organizational purpose 

amounts to a game of darts without a dartboard. 

Wherever the FEC chooses to throw darts, it might 

hit a bulls eye for PAC status.6

 Sometimes it may look 

at the timing of an organization’s formation. See, e.g., 

MUR 5541 (November Fund) First General Counsel’s 

Report (“FGCR”) at 10-11 (FEC 2005), available at

http://eqs.nictusa.com/eqsdocsMUR/10044273275.pdf. 

5

 During this litigation, two commissioners at the FEC 

replaced two who considered Free Speech’s advisory opinion 

request. See Two New Commissioners Assume Office; Will Hold 

Meeting on October 31, Federal Election Comm’n, Oct. 28, 2013 

http://www.fec.gov/press/press2013/news_releases/20131028release. 

shtml. It is now far beyond the Free Speech’s best guess as to 

how the FEC will apply the major purpose test. 

6

 Former and present FEC commissioners have expressed 

these and numerous other concerns with the major purpose test. 

See, e.g., MUR 5831, Statement of Reasons of Commissioner 

Donald F. McGahn at 36-45; Hunter SOR at 20-23. 
39 

Other times it will consider in what states a group 

runs ads and whether those states are battleground 

states. See, e.g., MUR 5977 (American Leadership 

Project) FGCR at 11-12 (FEC 2008), available at

http://eqs.nictusa.com/eqsdocsMUR/10044264601.pdf. 

Occasionally, the FEC also considers the timing of 

messages and other activities, without articulating 

what constitutes too close of proximity to an election 

cycle. See, e.g., MUR 5842 (Economic Freedom 

Fund) FGCR at 13-14 (FEC 2007), available at

http://eqs.nictusa.com/eqsdocsMUR/10044264354.pdf. 

Far too rarely, the FEC may look to a group’s actual 

stated purpose in its own organizational or other 

public documents. See Draft C at 49. The results 

speak for themselves: with opposing interpretations 

of major purpose from the FEC, and affirmation from 

an appellate court that this places no undue burden 

upon Free Speech, the lower courts’ justification of 

the major purpose test is bitterly ironic: “ ‘[T]he major 

purpose test serves as an additional hurdle to establishing political committee status.’ ” (Pet’r’s App. 20-

21 (quoting “PAC Status 2,” 72 Fed. Reg. at 5601) 

(emphasis added)). The major purpose test has been 

worn away due to administrative overreach and 

lackluster oversight from lower courts. If this Court 

does not intervene, the test will become entirely 

subjective, nominal, or nonexistent. 

 “ ‘[T]here is practically universal agreement that 

a major purpose of ’ the First Amendment ‘was to 

protect the free discussion of governmental affairs,’ 

‘includ[ing] discussions of candidates.’ ” Arizona Free 
40 

Enterprise Club’s Freedom Club PAC v. Bennett, 131 

S.Ct. 2806, 2828 (2011) (quoting Buckley, 424 U.S. at 

14). To ensure federal campaign finance law respects 

the First Amendment, the major purpose test was 

meant to hinder the overbroad application of burdensome PAC requirements to issue groups. Without a 

re-examination and affirmation of the major purpose 

test’s requirements, Free Speech and similarly 

situated groups will remain without guidance and 

ultimately without protection from the arbitrary 

application of PAC status. Absent review here, basic 

civic engagement and the exercise of political speech 

rights will be a luxury left to political professionals. 

---------------------------------  ---------------------------------

 
41 

CONCLUSION

 For the foregoing reasons, petitioner respectfully 

requests this Court grant this petition for certiorari. 

Respectfully submitted, 

BENJAMIN BARR

Counsel of Record 

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Cheyenne, Wyoming 82001 

Telephone: 202-595-4671 

Benjamin.barr@gmail.com 

STEPHEN R. KLEIN

WYOMING LIBERTY GROUP

1902 Thomes Avenue 

Cheyenne, Wyoming 82001 

Telephone: 307-632-7020 

Stephen.klein@wyliberty.org 

JACK R. SPEIGHT

4021 Snyder Avenue 

Cheyenne, Wyoming 82001 

Telephone: 307-635-1239 

jbspeight@gmail.com 
App. 1 

PUBLISH

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

----------------------------------------------------------------------------------------------------

FREE SPEECH, 

 Plaintiff-Appellant, 

v. 

FEDERAL ELECTION 

COMMISSION, 

 Defendant-Appellee. 

No. 13-8033

----------------------------------------------------------------------------------------------------

APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE 

DISTRICT OF WYOMING 

(D.C. NO. 2:12-CV-00127-SWS) 

----------------------------------------------------------------------------------------------------

(Filed Jun. 25, 2013) 

Benjamin T. Barr, Rockville, Maryland (Stephen 

Klein, Wyoming Liberty Group, Cheyenne, Wyoming 

and Jack Speight, Cheyenne, Wyoming, with him on 

the briefs), for Plaintiff-Appellant.. 

Kevin Deeley, Acting Associate General Counsel 

(Anthony Herman, General Counsel, Lisa J. Stevenson, Deputy General Counsel-Law, Erin Chlopak, 

Acting Assistant General Counsel, David Kolker, 

Associate General Counsel and Adav Noti, Acting 
App. 2 

Assistant General Counsel, with him on the briefs), 

Federal Election Commission, Washington, D.C., for 

Defendant-Appellee. 

Fred Wertheimer, Democracy 21, Washington, D.C.; 

Donald J. Simon, Sonosky, Chambers, Sachse, 

Endreson & Perry, LLP, Washington, D.C.; J. Gerald 

Hebert, Tara Malloy and Paul S. Ryan, The Campaign Legal Center, Washington, D.C.; and Larry B. 

Jones, Simpson, Kepler & Edwards, LLC, The Cody, 

Wyoming Division of Burg Simpson Eldredge Hersh 

& Jardine, P.C., Cody, Wyoming, on the Briefs for 

Amici Curiae. 

----------------------------------------------------------------------------------------------------

Before BRISCOE, Chief Judge, BRORBY, and 

MURPHY, Circuit Judges. 

----------------------------------------------------------------------------------------------------

MURPHY, Circuit Judge. 

----------------------------------------------------------------------------------------------------

Plaintiff-Appellant, Free Speech, appeals the 

district court’s dismissal of the complaint it filed in 

July 2012, alleging certain regulations and practices 

of Defendant-Appellee, the Federal Election Commission (“FEC”), violate its rights under the First 

Amendment. After careful review of the appellate 

filings, the district court’s order, and the entire record, we affirm the dismissal for substantially the 

reasons stated by the district court. 

 The district court correctly concluded Free 

Speech’s claims implicate only disclosure requirements 
App. 3 

which are subject to exacting scrutiny, requiring “a 

substantial relation between the disclosure requirement and a sufficiently important governmental 

interest.” Citizens United v. Fed. Election Comm’n, 

558 U.S. 310, 366-67 (2010) (quotations omitted). 

Further, the district court comprehensively analyzed 

and correctly resolved Free Speech’s constitutional 

challenges to the FEC’s definition of express advocacy, codified at 11 C.F.R. § 100.22(b); the standard used 

by the FEC to determine whether a request for funds 

is a solicitation of contributions under 2 U.S.C. 

§ 441d(a); and the FEC’s policy of determining political committee status on a case-by-case basis.1

 Accordingly, this court adopts the district court’s analysis 

as the opinion of this court and orders the district 

court’s memorandum decision and order granting the 

FEC’s Motion to Dismiss to be published. 

1

 The district court relied, inter alia, on the Fourth Circuit’s 

decision in Real Truth About Abortion, Inc. v. Federal Election 

Commission, 681 F.3d 544 (4th Cir. 2010). Free Speech argues 

that dismissal of its complaint for failure to state a claim was 

improper because the record in this matter is more fully developed than the record analyzed by the Fourth Circuit, thereby 

providing factual support for its assertions the FEC’s regulations and policies are either onerous and burdensome, inconsistent and contradictory, or somehow different from the ones it 

publically adopts or articulates. We have reviewed the record 

and conclude nothing therein provides any factual support for 

these conclusory assertions. 
App. 4 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

----------------------------------------------------------------------------------------------------

FREE SPEECH, 

 Plaintiff-Appellant, 

v. 

FEDERAL ELECTION 

COMMISSION, 

 Defendant-Appellee. 

No. 13-8033 

(D.C. No. 2:12-CV00127-SWS) 

----------------------------------------------------------------------------------------------------

JUDGMENT 

----------------------------------------------------------------------------------------------------

(Filed Jun. 25, 2013) 

Before BRISCOE, Chief Judge, BRORBY, and 

MURPHY, Circuit Judges. 

----------------------------------------------------------------------------------------------------

 This case originated in the District of Wyoming 

and was argued by counsel. 

 The judgment of that court is affirmed. 

Entered for the Court 

/s/ Elisabeth A. Shumaker 

ELISABETH A. SHUMAKER, Clerk 
App. 5 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

----------------------------------------------------------------------------------------------------

FREE SPEECH, 

 Plaintiff, 

vs. 

FEDERAL ELECTION 

COMMISSION, 

 Defendant. 

Case No. 12-CV-127-S 

----------------------------------------------------------------------------------------------------

ORDER GRANTING FEDERAL ELECTION 

COMMISSION’S MOTION TO DISMISS 

----------------------------------------------------------------------------------------------------

This matter comes before the Court on Defendant 

Federal Election Commission’s (“FEC” or “the Commission”) Motion to Dismiss [Doc. 33]. The Court, 

having reviewed the parties’ written submissions, 

being familiar with the case file by virtue of having 

previously heard argument and having addressed the 

likelihood of success on the merits of Plaintiff ’s 

claims in conjunction with Plaintiff ’s Motion for 

Preliminary Injunction (Doc. 19) and this Court’s oral 

ruling denying same (Docs. 41, 42 and 54), and considering itself otherwise fully advised in the premises 

of the motion, hereby FINDS and ORDERS as follows: 
App. 6 

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Free Speech is an unincorporated nonprofit association formed on February 21, 2012 and is 

comprised of three Wyoming residents. Free Speech’s 

stated mission is to promote and protect free speech, 

limited government, and constitutional accountability, and to advocate positions on various political 

issues including free speech, sensible environmental 

policy, gun rights, land rights, and control over personal health care. Its bylaws require that it operate 

independently of political candidates, committees, 

and political parties. (Am. Compl. ¶¶ 1 & 10; Am. 

Compl. Ex. A at Ex. 1.) On July 26, 2012, Plaintiff 

filed this lawsuit challenging certain FEC regulations 

that Plaintiff alleges abridge its First Amendment 

freedoms. Specifically, Plaintiff brings facial and as 

applied challenges against 11 C.F.R. § 100.22(b), 

alleging its definition of “express advocacy” is unconstitutionally vague and overbroad and triggers burdensome registration and reporting requirements 

which act as the functional equivalent of a prior 

restraint on political speech. Plaintiff further challenges the constitutionality of the FEC’s interpretation and enforcement process regarding political 

committee status, solicitation tests, the “major purpose” test, and express advocacy determinations. 

(Am. Compl. ¶ 2.) 

 On July 13, 2012, Free Speech filed a Motion for 

Preliminary Injunction (Doc. 19) seeking to enjoin the 

FEC from enforcing any of the challenged regulations 

or policies. This matter was fully briefed by the 
App. 7 

parties and amicus curiae and the Court heard oral 

argument on the motion on September 12, 2012. On 

October 3, 2012, this Court issued an oral ruling 

denying Plaintiff ’s motion for preliminary injunction. 

(Docs. 41, 42, and 54.) Plaintiff timely appealed on 

October 19, 2012, and Plaintiff ’s interlocutory appeal 

is currently pending before the Tenth Circuit Court of 

Appeals. Prior to the Court’s oral ruling on Plaintiff ’s 

Motion for Preliminary Injunction, the FEC filed a 

motion to dismiss Plaintiff ’s claims pursuant to Fed. 

R. Civ. P. 12(b)(6). This motion has been fully briefed 

and is ripe for a decision on the merits. 

 “Ordinarily an interlocutory injunction appeal 

under 1292(a)(1) does not defeat the power of the trial 

court to proceed further with the case.” 16 C. Wright, 

A. Miller, E. Cooper, Federal Practice and Procedure 

§ 3921.2 (hereinafter “Wright & Miller”). “Although 

the filing of a notice of appeal ordinarily divests the 

district court of jurisdiction, in an appeal from an 

order granting or denying a preliminary injunction, a 

district court may nevertheless proceed to determine 

the action on the merits.” U.S. v. Price, 688 F.2d 204, 

215 (3d Cir. 1982) (internal citation omitted). “The 

desirability of prompt trial-court action in injunction 

cases justifies trial-court consideration of issues that 

may be open in the court of appeals. A good illustration is provided by a motion to dismiss for failure to 

state a claim.” Wright & Miller § 3921.2. Although a 

court of appeals may determine whether a claim has 

been stated as part of the interlocutory appeal, a 

district court nonetheless retains jurisdiction to 
App. 8 

dismiss for failure to state a claim pending appeal. Id. 

This power is desirable “both in the interest of expeditious disposition and in the face of uncertainty as to 

the extent to which the court of appeals will exercise 

its power.” Id.

 In addressing this matter now, this Court is 

mindful of the issues that have been presented on 

appeal as well as the current stage of the appellate 

litigation. This case presents purely legal questions 

that have been fully briefed and argued to this Court. 

Because this Court’s substantive analysis of the 

constitutional issues addressed in the pending motion 

to dismiss is identical to that set forth in the Court’s 

ruling denying Plaintiff ’s preliminary injunction 

motion, the Court deems it appropriate to address 

Plaintiff ’s claims on the merits. Therefore, for the 

reasons set forth on the record during the Court’s oral 

ruling, and for the reasons set forth more fully below, 

the Court will grant Defendant’s motion to dismiss for 

failure to state a claim. 

STANDARD OF REVIEW

 “To survive a motion to dismiss, a complaint 

must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its 

face’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court 

to draw the reasonable inference that the defendant 
App. 9 

is liable for the misconduct alleged.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “In evaluating a Rule 

12(b)(6) motion to dismiss, courts may consider not 

only the complaint itself, but also attached exhibits, 

and documents incorporated into the complaint by 

reference.” Smith v. United States, 561 F.3d 1090, 

1098 (10th Cir. 2009). 

DISCUSSION

A. Standard of Review – Exacting Scrutiny 

At the outset, this Court addresses Plaintiff ’s 

contention that this Court should apply strict scrutiny to the regulations and policies at issue. Plaintiff 

challenges, on an as-applied and facial basis, the 

FEC’s definition of “express advocating,” see 101 

C.F.R. § 100.22(b), the FEC’s policy for determining 

political committee status, and the FEC’s policy for 

determining when donations given in response to 

solicitations will be deemed “contributions.” At their 

core, however, these challenged rules and policies 

implement only disclosure requirements. See 2 U.S.C. 

§ 434(c) (reporting requirements for “independent 

expenditures”); 2 U.S.C. § 432, 433, 434(a)(4) (political reporting and organization requirements). The 

question before this Court, therefore, is not whether 

Plaintiff can make expenditures for the speech it 

proposes or raise money without limitation, but 

simply whether it must provide disclosure of its 

electoral advocacy. 
App. 10 

 “Disclaimer and disclosure requirements may 

burden the ability to speak, but they impose no 

ceiling on campaign-related activities, and do not 

prevent anyone from speaking.” Citizens United v. 

FEC, 558 U.S. 310, 130 S.Ct. 876, 914 (2010) (internal citations and quotation marks omitted). Accordingly, the Supreme Court has subjected those 

requirements to “exacting scrutiny” which requires “a 

substantial relation between the disclosure requirement and a sufficiently important governmental 

interest.” Id.; see also Real Truth About Abortion 

(RTAA) v. FEC, 681 F.3d 544, 549 (4th Cir. 2010) 

(“[A]n intermediate level of scrutiny known as ‘exacting scrutiny’ is the appropriate standard to apply in 

reviewing provisions that impose disclosure requirements, such as the regulation and policy.”); New 

Mexico Youth Organized v. Herrera, 611 F.3d 669, 676 

(10th Cir. 2010) (“The regulations at issue here 

require disclosure, thus distinguishing them from 

regulations that limit the amount of speech a group 

may undertake. . . . As such, the regulations must 

pass ‘exacting scrutiny.’ ”). Accordingly, the Court 

applies exacting scruting to determine whether the 

regulations and policies at issue are constitutional. 

B. Express Advocacy – 11 C.F.R. § 100.22(b) 

Plaintiff ’s first challenge involves the FEC’s 

definition of express advocacy codified at 11 C.F.R. 

§ 100.22. This regulation is used to define what 

constitutes an “independent expenditure” under 2 

U.S.C. § 431(17), which in turn, determines whether 
App. 11 

disclosures are required under 2 U.S.C. § 434(c).1 See 

RTAA, 681 F.3d at 548. 

 Regulation 100.22 sets forth a two-part definition 

of the term “expressly advocating.” Subsection (a) of 

the regulation defines “expressly advocating” consistent with the Supreme Court’s decision in Buckley 

v. Valeo, 424 U.S. 1, 44, 96 S.Ct. 612 (1976), and 

includes communications using words or phrases 

“which in context can have no other reasonable 

meaning than to urge the election or defeat of one or 

more clearly identified candidate(s)”. 11 C.F.R. 

§ 100.22(a). In Buckley, the Supreme Court addressed 

the constitutionality of an expenditure limit which 

provided that “[n]o person may make any expenditure 

. . . relative to a clearly identified candidate during a 

calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds 

$1000.” Buckley, 424 U.S. at 39. Troubled by the 

vagueness of the phrase “relative to a clearly identified candidate,” the Supreme Court construed the 

1

 An “independent expenditure” is defined as “an expenditure . . . expressly advocating the election or defeat of a clearly 

identified candidate” and not made by or in coordination with a 

candidate or political party or committee. 2 U.S.C. § 431(17) 

(emphasis added). A person or organization – other than a 

political committee – that finances independent expenditures 

aggregating more than $250 during a calendar year must file 

with the FEC a disclosure report that identifies, inter alia, the 

date and amount of each expenditure and anyone who contributed over $200 to further it. See 2 U.S.C. § 434(c); 11 C.F.R. 

§ 109.10(e) (emphasis added). 
App. 12 

phrase “relative to” to “apply only to expenditures for 

communications that in express terms advocate the 

election or defeat of a clearly identified candidate for 

federal office.” Id. at 44 (emphasis added). The Court 

explained in a footnote that “[t]his construction would 

restrict the application of [the spending limit] to 

communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote 

against,’ ‘defeat,’ ‘reject.’ ” Id. at 44 n.52. Consistent 

with this guidance, subsection (a) of the FEC’s definition of “expressly advocating” later codified these 

types of “magic words” to signal express advocacy.2

 Subsection (b) of the regulation, on the other 

hand, “defines ‘expressly advocating’ more contextually, without using the ‘magic words.’ ” RTAA, 681 F.3d 

at 550. This subsection, which is the subject of 

2

See 11 C.F.R. § 100.22(a) (defining “expressly advocating” 

to mean any communication that “[u]ses phrases such as ‘vote 

for the President,’ ‘re-elect your Congressman,’ ‘support the 

Democratic nominee,’ ‘cast your ballot for the Republican 

challenger for U.S. Senate in Georgia,’ ‘Smith for Congress,’ ‘Bill 

McKay in 94,’ ‘vote Pro-Life’ or ‘vote Pro-Choice’ accompanied by 

a listing of clearly identified candidates described as Pro-Life or 

Pro-Choice, ‘vote against Old Hickory,’ ‘defeat’ accompanied by a 

picture of one or more candidate(s), ‘reject the incumbent,’ or 

communications of campaign slogan(s) or individual word(s), 

which in context can have no other reasonable meaning than to 

urge the election or defeat of one or more clearly identified 

candidate(s), such as posters, bumper stickers, advertisements, 

etc. which say ‘Nixon’s the One,’ ‘Carter ’76,’ ‘Reagan/Bush’ or 

‘Mondale! ’ ”). 
App. 13 

Plaintiff ’s constitutional challenge, defines “expressly 

advocating” to include any communication that: 

When taken as a whole and with limited reference to external events, such as the proximity to the election, could only be 

interpreted by a reasonable person as containing advocacy of the election or defeat of 

one or more clearly identified candidate(s) 

because – 

(1) The electoral portion of the communication is unmistakable, unambiguous, and 

suggestive of only one meaning; and 

(2) Reasonable minds could not differ as to 

whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of 

action. 

11 C.F.R. § 100.22(b). 

 Plaintiff argues that part (b) of the FEC’s definition of expressly advocating “goes beyond any proper 

construction of express advocacy and offers no clear 

guidelines for speakers to tailor their constitutionally 

protected conduct and speech,” and “fail[s] to limit its 

application to expenditures for communications that 

in ‘express terms’ advocate the election or defeat of a 

clearly identified candidate for federal office.” (Am. 

Compl. ¶¶ 74-75.) In this regard, Plaintiff appears to 

suggest that “express advocacy” cannot permissibly 

extend beyond the “magic words” acknowledged in 

Buckley and codified in subsection (a). However, this 

position is foreclosed by several recent Supreme 
App. 14 

Court decisions which have upheld the FEC’s approach to defining express advocacy not only in terms 

of Buckley’s “magic words” as recognized in subsection 

(a), but also their “functional equivalent,” as provided 

in subsection (b). RTAA, 681 F.3d at 550. 

 In McConnell v. FEC, 540 U.S. 93 (2003), the 

Supreme Court considered a facial overbreadth 

challenge to Title II of the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”) which included a provision defining express advocacy for purposes of electioneering communications. In rejecting the facial 

challenge, the Supreme Court noted “that Buckley’s 

narrow construction of the FECA to require express 

advocacy was a function of the vagueness of the 

statutory definition of “expenditure,’ not an absolute 

First Amendment imperative.” RTAA, 681 F.3d at 550 

(citing McConnell, 540 U.S. at 191-92). Accordingly, 

the Supreme Court in McConnell held that “Congress 

could permissibly regulate not only communications 

containing the ‘magic words’ of Buckley, but also 

communications that were ‘the functional equivalent’ 

of express advocacy.” Id. (citing McConnell, 540 U.S. 

at 193). 

 In FEC v. Wisconsin Right to Life, Inc. (WRTL), 

551 U.S. 449 (2007), the Supreme Court adopted a 

test for the “functional equivalent of express advocacy” which is consistent with the language set forth in 

section 110.22(b). See WRTL, 551 U.S. at 474 n.7; 

RTAA, 681 F.3d at 552. The controlling opinion in 

WRTL clarified that “a court should find that an ad is 

the functional equivalent of express advocacy only if 
App. 15 

the ad is susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a specific candidate.” WRTL, 551 U.S. at 460-470 (emphasis 

added). This functional equivalent test closely correlates to the test set forth in subsection (b), which 

provides that a communication is express advocacy if 

it “could only be interpreted by a reasonable person 

as containing advocacy of the election or defeat of one 

or more clearly identified candidate(s).” 11 C.F.R. 

§ 100.22(b). Indeed, as the Fourth Circuit has noted, 

although the language of Section 110.22(b) does not 

exactly mirror WRTL’s functional equivalent test, the 

test set forth in Section 110.22(b) is “likely narrower 

. . . since it requires a communication to have an 

‘electoral portion’ that is ‘unmistakeable’ and ‘unambiguous.’ ” RTAA, 681 F.3d at 552. 

 Finally, the Supreme Court’s recent decision in 

Citizens United reaffirmed the constitutionality of the 

WRTL test and provided further support for the 

FEC’s use of the functional equivalent test to define 

express advocacy. In Citizens United, the Court 

applied the WRTL functional equivalent test to 

determine whether the communication at issue would 

be prohibited by the corporate funding restrictions set 

forth in Title II of the BCRA, ultimately concluding 

that “[u]nder the standard stated in McConnell and 

further elaborated in WRTL, the film qualifies as the 

functional equivalent of express advocacy.” Citizens 

United, 130 S.Ct. at 890. In that opinion, the 

Supreme Court upheld federal disclaimer and disclosure requirements applicable to all “electioneering 
App. 16 

communications.” Id. at 914. In so holding, the Court 

“reject[ed] Citizens United’s contention that the 

disclosure requirements must be limited to speech 

that is the functional equivalent of express advocacy.” 

Id. at 915. In other words, in addressing the permissible scope of disclosure requirements, the Supreme 

Court not only rejected the “magic words” standard 

urged by Plaintiff but also found that disclosure 

requirements could extend beyond speech that is the 

“functional equivalent of express advocacy” to address 

even ads that “only pertain to a commercial transaction.” Id. at 916. Thus, “Citizens United . . . supports 

the [FEC’s] use of a functional equivalent test in 

defining ‘express advocacy.’ . . . If mandatory disclosure requirements are permissible when applied to 

ads that merely mention a federal candidate, then 

applying the same burden to ads that go further and 

are the functional equivalent of express advocacy 

cannot automatically be impermissible.” RTAA, 681 

F.3d at 551-52 (emphasis original). As a result, Citizens United directly contradicts Plaintiff ’s argument 

that the definition of express advocacy set forth in 

subsection (b) is overly broad with respect to disclosure requirements. 

In addition to its overbreadth argument, Plaintiff 

urges that section 100.22(b) is impermissibly vague 

based on the fact that the FEC did not “issue a conclusive opinion” as to whether some of Plaintiff ’s 

proposed ads constituted express advocacy in the 

advisory opinion process. However, as the Fourth 

Circuit has noted, “cases that fall close to the line will 
App. 17 

inevitably arise when applying § 100.22(b).” RTAA, 

681 F.3d at 554. “This kind of difficulty is simply 

inherent in any kind of standards-based test.” Id.; see 

also National Organization for Marriage, Inc. v. Sec. 

of State of Fla., 753 F.Supp.2d 1217, 1221 (N.D. Fla. 

2010) (“The fact that ‘it may be difficult in some cases 

to determine whether these clear requirements have 

been met’ does not mean that the statute is void for 

vagueness.”) (quoting United States v. Williams, 553 

U.S. 285, 306, 128 S.Ct. 1830 (2008)). 

C. The “Solicitation” Standard 

Plaintiff also challenges the constitutionality of 

the “solicitation” standard used by the FEC as vague 

and overbroad, arguing that it lacks clarity and 

guidance sufficient to enable interested persons to 

tailor their activities in compliance with the law. The 

FECA defines “contribution” to include “any gift, 

subscription, loan, advance, or deposit of money or 

anything of value made by any person for the purpose 

of influencing any election for Federal office.” 2 

U.S.C. § 431(8)(A)(i). It further requires “any person” 

who “solicits any contribution through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any other type of general 

public political advertising” to include a specified 

disclaimer in the solicitation. Id. § 441d(a); see 11 

C.F.R. § 110.11(a)(3). Thus, the FECA requires disclaimers for communications that “solicit[ ] any 

contribution,” 2 U.S.C. § 441d(a), but it does not 
App. 18 

define when a request for donations constitutes a 

“solicitation.” 

 The standard applied by the FEC for determining 

whether a request for funds “solicits” a “contribution” 

under the FECA was set forth by the Second Circuit 

in FEC v. Survival Education Fund, Inc., 65 F.3d 285, 

295 (2d Cir. 1995) (“SEF”). Under that standard, 

disclosure is required “if [a communication] contains 

solicitations clearly indicating that the contributions 

will be targeted to the election or defeat of a clearly 

identified candidate for federal office.” Id. This solicitation standard does not interfere with Plaintiff ’s 

ability to raise funds to support its advocacy. Plaintiff 

is free to spend unlimited funds on its solicitations 

and to solicit unlimited funds for its express advocacy. 

Any “solicitations” of “contributions” simply trigger 

disclosure requirements, and those disclosure requirements are substantially related to the government’s interest in requiring disclosure. As the Second 

Circuit recognized in SEF, disclosure requirements 

for solicitations “serve[ ] important First Amendment 

values.” Id. at 296. “Potential contributors are entitled to know that they are supporting independent 

critics of a candidate and not a group that may be in 

league with that candidate’s opponent.” Id. The 

disclosure requirement is thus “a reasonable and 

minimally restrictive method of ensuring open electoral competition that does not unduly trench upon 

defendants’ First Amendment rights.” Id. (internal 

quotation marks and citation omitted). As the Supreme Court explained in Citizens United, disclosures 
App. 19 

serve important interests even in the context of 

electioneering communications that need not be 

targeted to the election or defeat of a federal candidate. Such disclaimers “insure that the voters are 

fully informed about the person or group who is 

speaking.” Citizens United, 130 S.Ct. 915 (citations 

omitted). “At the very least, the disclaimers avoid 

confusion by making clear that the ads are not funded 

by a candidate or political party.” Id.

 Plaintiff ’s vagueness argument appears to be 

premised upon the fact that the advisory opinion 

issued to Plaintiff by the FEC concluded that two of 

Plaintiff ’s donation requests would not be solicitations under the Act, while the Commission could not 

approve a response regarding the remaining two 

donation requests. (Am. Compl., Ex. G.) However, as 

noted above, “[t]he fact that ‘it may be difficult in 

some cases to determine whether these clear requirements have been met’ does not mean that the 

statute is void for vagueness.” National Organization 

for Marriage, Inc., 753 F.Supp.2d at 1221 (quoting 

Williams, 553 U.S. at 306); see also RTAA, 681 F.3d at 

554. 

 Plaintiff fails to establish any constitutional 

deficiency in the FEC’s approach to determining 

whether a communication is a “solicitation” for “contributions.” Plaintiff ’s claim relating to the solicitation standard is insufficient as a matter of law and 

must be dismissed. 
App. 20 

C [sic]. Political Committee Status – The “Major Purpose” Test 

Finally, Plaintiff challenges the FEC’s policy of 

determining political committee status on a case-bycase basis. Under the FEC’s approach, “the Commission first considers a group’s political activities, such 

as spending on a particular electoral or issueadvocacy campaign, and then it evaluates an organization’s ‘major purpose,’ as revealed by that group’s 

public statements, fundraising appeals, government 

filings, and organizational documents.” RTAA, 681 

F.3d at 555 (internal citations omitted). 

 A “political committee” is defined by the FECA as 

any “committee, club, association or other group of 

persons” that makes more than $1,000 in political 

expenditures or receives more than $1,000 in contributions during a calendar year. 2 U.S.C. § 431(4)(A). 

“Expenditures” and “contributions” are defined to 

encompass any spending or fundraising “for the 

purpose of influencing any election for Federal office.” 

2 U.S.C. §§ 431(8)(A)(i), 431(9)(A)(i). However, in 

Buckley v. Valeo, the Supreme Court concluded that 

defining political committees only in terms of expenditures and contributions “could be interpreted to 

reach groups engaged purely in issue discussion.” 

Buckley, 424 U.S. at 79. “Accordingly, the Court 

limited the applicability of FECA’s PAC requirements 

to organizations controlled by a candidate or whose 

‘major purpose’ is the nomination or election of candidates.” RTAA, 681 F.3d at 555 (citing Buckley, 424 

U.S. at 79). “Thus the major purpose test serves as an 
App. 21 

additional hurdle to establishing political committee 

status. Not only must the organization have raised or 

spent $1,000 in contributions or expenditures, but it 

must additionally have the major purpose of engaging 

in Federal campaign activity.” See Political Committee Status, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007). 

 As the Fourth Circuit has observed, “[a]lthough 

Buckley did create the major purpose test, it did not 

mandate a particular methodology for determining an 

organization’s major purpose. And thus the Commission was free to administer FECA political committee 

regulations either through categorical rules or 

through individualized adjudications.” RTAA, 681 

F.3d at 556. The FEC opted for the latter approach, 

explaining that “[a]pplying the major purpose doctrine . . . requires the flexibility of a case-by-case 

analysis of an organization’s conduct that is incompatible with a one-size-fits-all rule.” 72 Fed. Reg. at 

5601. “The determination of whether the election or 

defeat of federal candidates for office is the major 

purpose of an organization, and not simply a major 

purpose, is inherently a comparative task, and in 

most instances it will require weighing the importance of some of a group’s activities against others.” See RTAA, 681 F.3d at 556 (emphasis original). 

 “The necessity of a contextual inquiry is supported by judicial decisions applying the major purpose 

test, which have used the same fact-intensive analysis that the Commission has adopted.” Id. at 556-57. 

This Court agrees with the assessment of the Fourth 

Circuit in RTAA:
App. 22 

[T]he Commission, in its policy, adopted a 

sensible approach to determining whether an 

organization qualifies for PAC status. And 

more importantly, the Commission’s multifactor major-purpose test is consistent with 

Supreme Court precedent and does not unlawfully deter protected speech. 

Id. at 558. Plaintiff ’s constitutional challenge to that 

policy is therefore unavailing. 

CONCLUSION

The FEC disclaimer requirements at issue are 

necessary to provide the electorate with information 

and to insure that the voters are fully informed about 

the person or group who is speaking. Citizens United, 

130 S. Ct. at 915. Moreover, the disclosure requirements provide the transparency that “enables the 

electorate to make informed decisions and give proper 

weight to different speakers and messages.” Id. at 

917. The FEC’s functional equivalent and major 

purpose tests are essential components to narrowly, 

but effectively identifying those entities, ads and 

solicitations that fall within the FEC’s reporting, 

disclaimer, and disclosure requirements. These 

disclaimer and disclosure requirements become even 

more essential and necessary to enable informed 

choice in the political marketplace following Citizen 

United’s change to the political campaign landscape 

with the removal of the limit on corporate expenditures. For all of the reasons set forth above, and as 

previously set forth in this Court’s oral ruling denying 
App. 23 

Plaintiff ’s Motion for Preliminary Injunction, Plaintiff ’s Complaint fails to state a claim upon which 

relief may be granted. It is therefore ORDERED that 

Defendant Federal Election Commission’s Motion to 

Dismiss [Doc. 33] is GRANTED. Plaintiff ’s Complaint is DISMISSED WITH PREJUDICE. No 

costs and fees are awarded. 

 Dated this 19th day of March, 2013. 

/s/ Scott W. Skavdahl

 Scott W. Skavdahl

United States District Judge 
App. 24 

[LOGO] FEDERAL ELECTION COMMISSION 

 Washington, DC 20463 

 May 8, 2012 

CERTIFIED MAIL

RETURN RECEIPT REQUESTED 

ADVISORY OPINION 2012-11 

Benjamin T. Barr Esq. 

Stephen R. Klein, Esq. 

Wyoming Liberty Group 

1740 H Dell Range Blvd. #459 

Cheyenne, WY 82009 

Dear Messrs. Barr and Klein: 

 We are responding to your advisory opinion 

request on behalf of Free Speech, concerning the 

application of the Federal Election Campaign Act, as 

amended (the “Act”), and Commission regulations to 

Free Speech’s proposed plan to finance certain advertisements and ask for donations to fund its activities. 

 The Commission concludes that: two of Free 

Speech’s 11 proposed advertisements would expressly 

advocate the election or defeat of a clearly identified 

Federal candidate; four of the proposed advertisements would not expressly advocate the election or 

defeat of a clearly identified Federal candidate; and 

two of the four proposed donation requests would not 

be solicitations under the Act. The Commission could 

not approve a response by the required four affirmative votes about the remaining advertisements and 

donation requests, or about Free Speech’s status as a 
App. 25 

political committee. See 2 U.S.C. 437c(c); 11 CFR 

112.4(a). 

Background 

 The facts presented in this advisory opinion are 

based on your letter received on February 29, 2012, 

and your email received on March 9, 2012. 

 Free Speech describes itself as “an independent 

group of individuals which promotes and protects 

free speech, limited government, and constitutional 

accountability.” Bylaws, Art. II. It is an unincorporated nonprofit association formed under the Wyoming Unincorporated Nonprofit Association Act, WYO. 

STAT. ANN. 17-22-101 to 115 (2012), and a “political 

organization” under 26 U.S.C. 527 of the Internal 

Revenue Code.1

 It currently has three individual 

members. 

 Free Speech will not make any contributions 

to Federal candidates, political parties, or political 

committees that make contributions to Federal 

1

 The Internal Revenue Code defines a political organization as “a party, committee, association, fund, or other organization (whether or not incorporated) organized and operated 

primarily for the purpose of directly or indirectly accepting 

contributions or making expenditures, or both, for [the tax-

]exempt function” of “influencing or attempting to influence the 

selection, nomination, election, or appointment of any individual 

to any Federal, State, or local public office or office in a political 

organization,” or the election or selection of presidential or vice 

presidential electors. 26 U.S.C. 527(e). 
App. 26 

candidates or political parties. Nor is Free Speech 

affiliated with any group that makes contributions. 

Free Speech also will not make any coordinated 

expenditures.2

 Free Speech plans to run 11 advertisements, 

which it describes as “discuss[ing] issues concerning 

limited government, public policy, the dangers of the 

current administration, and their connection with 

candidates for federal office.” Free Speech will run 

these advertisements in various media, including 

radio, television, the Internet, and newspapers. Free 

Speech currently plans to run the following ads, 

which are described more fully in response to question 1 below. 

 Radio Advertisements 

 Free Speech plans to spend $1,000 on three 

advertisements to be aired on local radio station 

KGAB AM in Cheyenne, Wyoming. These advertisements, which Free Speech calls “Environmental 

Policy,” “Financial Reform,” and “Health Care Crisis,” 

will be aired 60 times between April 1 and November 

3, 2012. Free Speech currently plans to allocate its 

2

 Free Speech’s bylaws prohibit its members, officers, 

employees, and agents from engaging in activities that could 

result in coordination with a Federal candidate or political 

party. Bylaws, Art. VI. And members, officers, employees and 

agents have a duty to “ensure the independence of all speech by 

the Association about any candidate or political party . . . in 

order to avoid coordination.” Bylaws, Art. VI, Sec. 3. 
App. 27 

budget evenly among the three advertisements, 

spending $333.33 for each. 

 Newspaper Advertisements 

 Free Speech plans to spend $500 on two advertisements that will appear in the Wyoming Tribune 

Eagle on May 12 and May 27, 2012. Free Speech 

plans to spend $250 on each advertisement. The 

advertisements – “Financial Reform” and “Health 

Care Crisis” – will include pictures as well as text. 

 Internet Advertisements 

 Free Speech plans to spend $500 on two advertisements that will appear on Facebook. The advertisements will appear for a total of “200,000 

impressions on Facebook within Wyoming network” 

between April 1 and April 30, 2012. Free Speech 

plans to spend $250 on each advertisement. The two 

advertisements, entitled “Gun Control” and “Environmental Policy,” will include pictures as well as 

text. 

 Television Advertisements 

 Free Speech plans to spend $8,000 on four advertisements that will appear on the local television 

network KCWY in Cheyenne, Wyoming. The advertisements will appear approximately 30 times between 

May 1 and November 3, 2012. Free Speech plans to 

spend $2,000 on each of the four advertisements. The 
App. 28 

advertisements are entitled “Gun Control,” “Ethics,” 

“Budget Reform,” and “An Educated Voter Votes on 

Principle.” 

 In total, Free Speech plans to spend $10,000 to 

run the advertisements described above. Free Speech 

“would like to speak out in similar ways in the future.” 

 Free Speech has identified one individual donor 

willing to give it $2,000 or more, and would like to 

ask other individuals to donate more than $1,000 “to 

help support its speech.” Free Speech would also 

draw upon funds from its three members to pay for 

advertisements costing more than $2,000. Free 

Speech, however, will not accept donations from 

individuals who are foreign nationals or Federal 

contractors. Free Speech plans to ask for donations 

from individuals through four separate donation 

requests, which are described in response to question 

2 below. 

Questions Presented 

 1. Will Free Speech’s proposed advertisements be 

“express advocacy”?

 2. Will Free Speech’s proposed donation requests 

be solicitations under the Act?

 3. Will the activities described in this advisory 

opinion request require Free Speech to register and 

report to the Commission as a political committee?
App. 29 

Legal Analysis and Conclusions 

Question 1. Will Free Speech’s proposed advertisements be “express advocacy”? 

 Under the Commission’s regulations, a communication expressly advocates the election or defeat of a 

clearly identified Federal candidate if it “[u]ses 

phrases such as ‘vote for the President,’ re-elect your 

Congressman,’ ‘support the Democratic nominee,’ ‘cast 

your ballot for the Republican challenger for U.S. 

Senate in Georgia, ‘Smith for Congress,’ Bill McKay 

in ’94,’ ‘vote Pro-Life’ or ‘vote Pro-Choice’ accompanied 

by a listing of clearly identified candidates described 

as Pro-Life or Pro-Choice, ‘vote against Old Hickory,’ 

‘defeat’ accompanied by a picture of one or more 

candidate(s), ‘reject the incumbent,’ or communications of campaign slogan(s) or individual word(s), 

which in context, can have no other reasonable meaning than to urge the election or defeat of one or more 

clearly identified candidate(s), such as posters, 

bumper stickers, advertisements, etc. which say 

‘Nixon’s the One,’ Carter ’76,’ ‘Reagan/Bush’ or ‘Mondale!’.” 11 CFR 100.22(a). 

 Under the Commission’s regulations, a communication also constitutes express advocacy if “[w]hen 

taken as a whole and with limited reference to external events, such as the proximity to the election, 

could only be interpreted by a reasonable person as 

containing advocacy of the election or defeat of one or 

more clearly identified candidate(s) because – (1) 

[t]he electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one 
App. 30 

meaning; and (2) [r]easonable minds could not differ 

as to whether it encourages actions to elect or defeat 

one or more clearly identified candidate(s) or encourages some other kind of action.” 11 CFR 100.22(b). 

 The Commission concludes that Free Speech’s 

two “Financial Reform” advertisements are express 

advocacy under 11 CFR 100.22(a). The Commission 

further concludes that Free Speech’s two “Health 

Care Crisis” advertisements, the “Gun Control” 

Facebook advertisement, and the “Ethics” advertisement are not express advocacy under 11 CFR 100.22. 

A. The “Financial Reform” Radio and Newspaper Advertisements 

President Obama supported the financial 

bailout of Fannie Mae and Freddie Mac, 

permitting himself to become a puppet of the 

banking and bailout industries. What kind of 

person supports bailouts at the expense of 

average Americans? Not any kind we would 

vote for and neither should you. Call President Obama and put his antics to an end.3

 The “Financial Reform” advertisements, which 

Free Speech proposes to air on the radio and run in 

newspapers, contain express advocacy under 11 CFR 

3

 The script for the radio version of the Financial Reform 

advertisement is the same as the text of the print version. The 

only difference between the two, besides the format, is the 

newspaper advertisement’s inclusion of a full-page picture of 

President Obama. 
App. 31 

100.22(a). This conclusion is supported by the Supreme Court’s decision in FEC v. Massachusetts 

Citizens For Life (“MCFL”), 479 U.S. 238 (1986), 

which involved a flyer that included the phrase 

“EVERYTHING YOU NEED TO KNOW TO VOTE 

PRO-LIFE” and contained an exhortation to “VOTE 

PRO-LIFE” after identifying candidates who were 

pro-life. The Court held the flyer was express advocacy. Here, the “Financial Reform” advertisements state 

that “President Obama supported the financial 

bailout of Fannie Mae and Freddie Mac,” and then 

ask “What kind of person supports bailouts at the 

expense of average Americans?” They answer the 

questions with “[n]ot any kind of person that we 

would vote for and neither should you.” Thus, the 

advertisements are express advocacy: they identify a 

candidate (President Obama) with a position on an 

issue (bailouts) and then state that the viewers 

should vote against those who take that issue position (“What kind of person supports bailouts . . . ? Not 

any kind we would vote for and neither should you.”). 

Such a formulation “provides in effect an explicit 

directive: vote for these (named) candidates. The fact 

that this message is marginally less direct than ‘Vote 

for Smith’ does not change its essential nature.” 

MCFL, 479 U.S. at 249. 

 Moreover, this conclusion is not altered by the 

final sentence: “Call President Obama and put his 

antics to an end.” The advertisements contain two 

different statements directed at the viewer: (1) “Not 

any kind we would vote for and neither should you;” 
App. 32 

and (2) “Call President Obama and put his antics to 

an end.” These are two different statements that 

make two different points; however, the addition of 

the statement, “Call President Obama and put his 

antics to an end,” does not negate the fact that the 

advertisements contain express advocacy under 11 

CFR 100.22(a). This is similar to MCFL, where the 

Court held that a “disclaimer” stating “[t]his special 

election edition does not represent an endorsement of 

any particular candidate” did not “negate [the] fact” 

that the flyer contained express advocacy. MCFL, 470 

U.S. at 249. 

B. The “Health Care Crisis” Radio and Newspaper Advertisements 

President Obama supports socialized medicine, but socialized medicine kills millions of 

people worldwide. Even as Americans disapproved of ObamaCare, he pushed ahead to 

make socialized medicine a reality. Put an 

end to the brutality and say no to socialized 

medicine in the United States.4

 

4

 Like the script for the radio and print versions of the 

“Financial Reform” advertisements, the script for the two 

versions of the “Health Care Crisis” advertisements is the same. 

The only difference between the two advertisements, besides the 

format, is the newspaper advertisement’s inclusion of a “[f]ull 

picture of a family picture torn in half.” 
App. 33 

 The “Health Care Crisis” advertisements, which 

Free Speech proposes to air on the radio and run in 

newspapers, are not express advocacy under 11 CFR 

100.22. These advertisements criticize President 

Obama’s health care policy and provide Free Speech’s 

views on the issue (“socialized medicine kills millions 

of people worldwide”). The advertisements have no 

electoral references. 

C. The “Gun Control” Facebook Advertisement 

(Picture of handgun, 110 pixels wide by 80 

pixels tall) 

(Title: Stand Against Gun Control) 

Obama supports gun control. Don’t trust 

him. Support Wyoming state candidates who 

will protect your gun rights. 

 The “Gun Control” Facebook advertisement is not 

express advocacy under 11 CFR 100.22. The advertisement criticizes President Obama’s support of gun 

control and exhorts viewers to “[s]upport Wyoming 

state candidates.” The advertisement has no Federal 

electoral references. 

 
App. 34 

D. The “Ethics” Television Advertisement 

Audio: 

Who is President Obama? 

Video: 

Picture of President 

Obama shaking hands 

with Hugo Chavez. 

He preaches the importance of high taxes to 

balance the budget, but 

nominates 

political elites who haven’t 

paid theirs. 

Fade to another picture 

of Obama giving State of 

the Union, superimposed

“Obama Aims $1.4 

Trillion Tax Increase at 

Highest Earners (San 

Francisco Chronicle, 

Feb. 14, 2011)” 

He talks about budget and 

tax priorities, but passes a 

blind eye to nominees who 

don’t contribute their fair 

share. 

Cut to picture on left 

side of screen of Secretary of Treasury Timothy 

Geithner giving testimony, superimposed 

“Geithner apologizes for 

not paying taxes (CBS 

News, Feb. 18, 2009)” 

Call President Obama and 

tell him you don’t approve 

of his taxing behavior. 

Picture fades in on right 

side of screen of Tom 

Daschle, superimposed 

“Tax Woes Derail 

Daschle’s Bid for Health 

Chief (NPR, Feb. 3, 

2009)” 

 Fade to picture of President Obama and 

Michelle Obama enjoying themselves in 

Hawaii. 
App. 35 

 The “Ethics” television advertisement is not 

express advocacy under 11 CFR 100.22. The advertisement criticizes President Obama based on statements about his “budget and tax priorities” and his 

nominees’ asserted lack of compliance with their tax 

obligations. The advertisement exhorts viewers to 

“[c]all President Obama and tell him you don’t approve of his taxing behavior.” The advertisement 

contains no electoral references. 

 The Commission could not approve a response 

regarding the following advertisements by the required four affirmative votes: 

E. The “Environmental Policy” Radio Advertisement 

President Obama opposes the Government 

Litigation Savings Act. This is a tragedy for 

Wyoming ranchers and a boon to Obama’s environmentalist cronies. Obama cannot be counted on to represent Wyoming values and voices 

as President. This November, call your neighbors. Call your friends. Talk about ranching. 

F. The “Environmental Policy” Facebook Advertisement 

(Picture of a Wyoming ranch, 110 pixels wide 

by 80 pixels tall) 

(Title: Learn About Ranching) 

Obama’s policies are a tragedy for Wyoming 

ranchers, and he does not represent our values. This November, learn about ranching. 
App. 36 

G. The Gun Control Television Advertisement 

Audio: 

Guns save lives. 

Video: 

Newspaper clippings 

with headlines describing self-defense with 

firearms fade in, piling 

up one atop another. 

That’s why all Americans 

should seriously doubt the 

qualifications of Obama, an 

ardent supporter of gun 

control. 

Clippings dissolve to a 

picture of President 

Obama, and one newspaper headline below 

him: “President Obama 

defends attorney general 

regarding ATF tactics 

(LA Times, Oct. 6, 2011)”

This fall, get enraged, get 

engaged, and get educated. 

And support Wyoming 

state candidates who will 

protect your gun rights. 

Dissolves to a picture of 

the Wyoming state flag, 

panning down to the 

Wyoming Capitol Building. 

H. The Budget Reform Television Advertisement 

AUDIO: 

Congresswoman Lummis 

supported the Repeal 

Amendment, which would 

have restored fiscal sanity 

to our federal debt. 

Video: 

Picture of Representative Lummis, superimposed “Tea Party Pushes 

Amendment to Veto 

Congress (AOL News, 

Dec. 1, 2010)” 
App. 37 

Congresswoman Lummis 

is brave in standing 

against the political elite 

and deserves your support. 

Make your voice heard. 

Small videos of Representative Lummis fade 

in, speaking on news 

programs, meeting with 

people, etc. 

Do everything you can to 

support Congresswoman 

Lummis this fall and work 

toward fiscal sanity. 

Wyoming flag fades in 

the background, returning to original picture of 

Rep. Lummis. 

I. The Educated Voter Votes on Principle Television Advertisement 

Audio: 

Across America, millions 

of citizens remain uninformed about the truth 

of President Obama. 

Video: 

Picture of President 

Obama shaking hands 

with Hugo Chavez. 

Obama, a President who 

palled around with 

Bill Ayers. 

Picture of Bill Ayers in

Weather Underground 

days, superimposed 

“Bill Ayers Dishes on 

Hosting a Fundraiser 

for Barack Obama (Big 

Government, Nov. 29, 

2011).” 

Obama, a President who 

was cozy with ACORN. 

“House votes to Strip 

Funding for ACORN (Fox 

News, Sept. 17, 2009)” 

Obama, a President destructive of our natural 

rights. 

Video of an ATF raid, 

fade to a video of TSA 

scanning individuals in 

line for airport. 
App. 38 

Real voters vote on principle. Remember this nation’s principles. Fades to still shot of the 

Bill of Rights, superimposed “Remember this 

nation’s principles.” 

Question 2. Will Free Speech’s proposed donation 

requests be solicitations under the Act? 

 Two of Free Speech’s proposed donation requests 

– entitled “Strategic Speech” and “Checking Boxes” – 

will not be solicitations under the Act. The Commission could not approve a response regarding the 

remaining two proposed donation requests – entitled 

“War Chest” and “Make Them Listen” – by the required four affirmative votes. See 2 U.S.C. 437c(c); 11 

CFR 112.4(a). 

 The Act defines the term “contribution” to include 

“any gift, subscription, loan, advance, or deposit of 

money or anything of value made by any person for 

the purpose of influencing any election for Federal 

office.” 2 U.S.C. 431(8)(A)(i); see also 11 CFR 

100.52(a). The Act requires “any person” who “solicits 

any contribution through any broadcasting station, 

newspaper, magazine, outdoor advertising facility, 

mailing, or any other type of general public political 

advertising” to include a specified disclaimer in the 

solicitation. 2 U.S.C. 441d(a); see also 11 CFR 

110.11(a)(3). Requests for funds that “clearly indicate[ ] that the contributions will be targeted to the 

election or defeat of a clearly identified candidate for 

federal office” are solicitations under the Act. FEC v. 

Survival Education Fund, 65 F.3d 285, 295 (2d Cir. 
App. 39 

1995) (analyzing communications for purposes of 2 

U.S.C. 441d(a)). 

A. The “Strategic Speech” Donation Request 

This fall, 23 Democrat incumbents are up for 

election in the U.S. Senate. Seven have already decided to retire, but some, like John 

Tester of Montana, haven’t gotten the message. With your donation, we’ll strategically 

speak out against the expansion of government-run healthcare and so-called ‘clean energy’ boondoggles like Solyndra, which 

Senators like Tester fully support. It’s time to 

retire failed socialist policies. 

 The donation request clearly indicates how the 

funds requested will be spent: by “strategically 

speak[ing] out against the expansion of governmentrun healthcare and so-called ‘clean energy’ boondoggles like Solyndra.” Although the donation request 

identifies Senator Tester as supporting these initiatives and as an incumbent Senator up for re-election 

who has not “gotten the message” that he should 

retire, it lacks language “clearly indicating that the 

contributions will be targeted to the election or 

defeat of a clearly identified candidate for federal 

office.” Survival Education Fund, 65 F.3d at 295. 

Accordingly, this donation request is not a solicitation under the Act. Survival Education Fund, 65 

F.3d at 294-95. 

 
App. 40 

B. The “Checking Boxes” Donation Request 

‘Leading from behind,’ President Obama 

takes advice from socialist staffers, usually 

choosing from a checklist of oppressive, debtdriven policies without even considering 

freedom-based and fiscally-conscious alternatives. Checking the right box on the November ballot is important, but like Obama’s 

memos it’s just not enough. Take the lead in 

making the message of Free Speech heard: 

your donation will inform real American 

leadership. 

 The donation request clearly indicates how the 

funds requested will be spent: “making the message 

of Free Speech heard” by “inform[ing] real American 

leadership.” Although the request clearly identifies 

President Obama and refers to the November ballot, 

it lacks language “clearly indicating that the contributions will be targeted to the election or defeat of a 

clearly identified candidate for federal office.” Survival Education Fund, 65 F.3d at 294-95. Accordingly, 

this donation request is not a solicitation under the 

Act. 

 The Commission could not approve a response 

regarding the following proposed donation request by 

the required four affirmative votes: 

C. The “Make Them Listen” Donation Request 

In 2010, the Tea Party movement ushered in 

an historic number of liberty-friendly legislators. But President Obama and his pals in 
App. 41 

Congress didn’t get the message: Stop the 

bailouts. No socialized healthcare. End oppressive taxes. But we won’t be silenced. 

Let’s win big this fall. Donate to Free Speech 

today. 

D. The “War Chest” Donation Request 

Friends of freedom celebrated when the Supreme Court decided Citizens United. Now, 

more than ever, we can make the most effective use of your donations this coming fall. 

Donations given to Free Speech are funds 

spent on beating back the Obama agenda. 

Beating back Obama in the newspapers, on 

the airways, and against his $1 billion war 

chest. 

Question 3. Will the activities described in this 

advisory opinion request require Free Speech to 

register and report to the Commission as a political 

committee? 

 The Commission could not approve a response to 

Question 3 by the required four affirmative votes. See 

2 U.S.C. 437c(c); 11 CFR 112.4(a). 

 This response constitutes an advisory opinion 

concerning the application of the Act and Commission 

regulations to the specific transaction or activity set 

forth in your request. See 2 U.S.C. 437f. The Commission emphasizes that, if there is a change in any of 

the facts or assumptions presented, and such facts or 

assumptions are material to a conclusion presented in 
App. 42 

this advisory opinion, then the requestors may not 

rely on that conclusion as support for its proposed 

activity. Any person involved in any specific transaction or activity which is indistinguishable in all its 

material aspects from the transaction or activity with 

respect to which this advisory opinion is rendered 

may rely on this advisory opinion. See 2 U.S.C. 

437f(c)(1)(B). Please note the analysis or conclusions 

in this advisory opinion may be affected by subsequent developments in the law including, but not 

limited to, statutes, regulations, advisory opinions, 

and case law. 

 On behalf of the Commission,

 (signed) 

 Caroline C. Hunter

Chair 

 
App. 43 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

-----------------------------------------------------------------------

FREE SPEECH, 

 Plaintiff-Appellant, 

v. 

FEDERAL ELECTION 

COMMISSION, 

 Defendant-Appellee. 

No. 13-8033 

-----------------------------------------------------------------------

ORDER 

-----------------------------------------------------------------------

(Filed Sep. 30, 2013) 

-----------------------------------------------------------------------

Before BRISCOE, Chief Judge, BRORBY, and 

MURPHY, Circuit Judges. 

-----------------------------------------------------------------------

 Appellant’s petition for rehearing is denied. 

 The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular 

active service. As no member of the panel and no 

judge in regular active service on the court requested 

that the court be polled, that petition is also denied. 

Entered for the Court 

/s/ Elisabeth A. Shumaker 

 ELISABETH A. SHUMAKER, Clerk 

 
App. 44 

11 CFR 100.22 – Expressly advocating (2 U.S.C. 

431(17)). 

Expressly advocating means any communication 

that – (a) Uses phrases such as “vote for the President,” “re-elect your Congressman,” “support the 

Democratic nominee,” “cast your ballot for the Republican challenger for U.S. Senate in Georgia,” 

“Smith for Congress,” “Bill McKay in ’94,” “vote ProLife” or “vote Pro-Choice” accompanied by a listing of 

clearly identified candidates described as Pro-Life or 

Pro-Choice, “vote against Old Hickory,” “defeat” 

accompanied by a picture of one or more candidate(s), “reject the incumbent,” or communications 

of campaign slogan(s) or individual word(s), which 

in context can have no other reasonable meaning 

than to urge the election or defeat of one or more 

clearly identified candidate(s), such as posters, 

bumper stickers, advertisements, etc. which say 

“Nixon’s the One,” “Carter ’76,” “Reagan/Bush” or 

“Mondale!”; or 

(b) When taken as a whole and with limited reference to external events, such as the proximity to the 

election, could only be interpreted by a reasonable 

person as containing advocacy of the election or 

defeat of one or more clearly identified candidate(s) 

because – 

(1) The electoral portion of the communication 

is unmistakable, unambiguous, and suggestive of 

only one meaning; and 
App. 45 

(2) Reasonable minds could not differ as to 

whether it encourages actions to elect or defeat 

one or more clearly identified candidate(s) or encourages some other kind of action.