1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

)

THE HISPANIC LEADERSHIP )

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

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, ) SUPPLEMENTAL BRIEF

)

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S SUPPLEMENTAL BRIEF

Pursuant to the Court’s Order of August 31, 2012 (Docket No. 31), defendant Federal 

Election Commission respectfully submits this supplemental brief addressing the questions

specified in the Court’s Order and responding to the Additional Brief of Hispanic Leadership 

Fund in Support of Its Motion for Preliminary Injunction (Docket No. 32) (“Pl.’s Add’l Br.”).

I. THE COMMISSION DOES NOT CONTEST PLAINTIFF’S STANDING, THE 

COURT’S EXERCISE OF DISCRETION TO HEAR THIS CASE UNDER THE 

DECLARATORY JUDGMENT ACT, OR PLAINTIFF’S DECISION NOT TO 

REQUEST A THREE-JUDGE COURT

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

overruled on other grounds, Real Truth About Abortion v. FEC, 681 F.3d 544, 550 n.2 (2012), 

and other cases, the Commission does not dispute that HLF has alleged sufficiently concrete 

facts to demonstrate Article III standing in this pre-enforcement challenge.1

 1 We note, however, certain inaccuracies in the standing section of HLF’s additional brief. 

First, HLF asserts that it has standing, in part, because “First Amendment speech is [being] 

chilled prior to enforcement,” but there is no speech restriction at issue in this case. See Citizens 

United v. FEC, 130 S. Ct. 876, 914 (2010) (“Disclaimer and disclosure requirements may burden 

the ability to speak, but they . . . ‘do not prevent anyone from speaking.’”) (quoting McConnell v. 

FEC, 540 U.S. 93, 201 (2003)). Second, contrary to HLF’s broad statement (Pl.’s Add’l Br. at 4) 

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The Commission also does not dispute that, if HLF were entitled to any relief (which it is 

not), the Court would have the discretion to issue a judgment under the Declaratory Judgment 

Act. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937) (“Where there is . . . a 

concrete case admitting of an immediate and definitive determination of the legal rights of the 

parties in an adversary proceeding upon the facts alleged, the judicial function may be 

appropriately exercised [under the Declaratory Judgment Act].”).

Finally, the Commission agrees with HLF that as of January 1, 2007, constitutional 

challenges to provisions of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 

116 Stat. 81 (“BCRA”), are no longer required to be heard by a three-judge district court in the 

District of Columbia. BCRA § 403(d)(2), 116 Stat. 114. A plaintiff may instead choose to file 

such a challenge before any federal district court that has jurisdiction and where venue is 

appropriate.

II. PLAINTIFF’S STATUTORY CLAIM FAILS BECAUSE THE CONTROLLING 

GROUP OF FEC COMMISSIONERS REASONABLY DETERMINED THAT 

PLAINTIFF’S ADVERTISEMENTS REFER TO PRESIDENT OBAMA

The Commission’s response to plaintiff’s statutory argument that none of its 

advertisements refers to a “clearly identified federal candidate” is set forth in full at pages 9-25

of the Commission’s Opposition to Plaintiff’s Motion for Preliminary Injunction (Docket No. 

14) (“FEC Inj. Br.”). As the Commission previously noted, the statutory interpretation of the 

 

that a “private right of action exists pursuant to” 2 U.S.C. § 437g, a private right of action can 

accrue only if the Commission dismisses an administrative complaint, and the complainant then 

convinces a court to declare that the Commission’s dismissal was “contrary to law,” and the 

Commission then fails to conform to the court’s declaration. 2 U.S.C. § 437g(a)(8). To our 

knowledge, this exceptional set of circumstances has occurred no more than twice in the almost 

40-year history of the Commission; it certainly is not open to all “individuals dissatisfied with 

the FEC’s inaction.” (Pl.’s Add’l Br. at 4.) Third, there is no merit to HLF’s suggestion (id. at 4 

n.4) that the position advocated by the Commission before this Court is inconsistent with that 

taken in prior cases. See infra p. 11.

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three controlling FEC Commissioners is entitled to Chevron deference. See FEC v. Nat’l 

Republican Senatorial Comm., 966 F.2d 1471, 1476-77 (D.C. Cir. 1992) (deferring to 

interpretation of controlling group of Commissioners when Commission votes 3-3 on a matter); 

In re Sealed Case, 223 F.3d 775, 779-81 (D.C. Cir. 2000) (same). As summarized below, those

Commissioners reasonably determined that each of the ads HLF wishes to finance refers to a 

clearly identified federal candidate and therefore qualifies as an electioneering communication 

under the Federal Election Campaign Act (“FECA”). 

Advertisement 1 (FEC Inj. Br. at 15-17) begins by referring to “this Administration,” 

which is the administration of President Barack Obama. Although that phrase by itself is not 

specific to any one Administration official, the ad then narrows its reference by showing an

image of the White House and discussing what “[t]he White House says” on the topic being 

discussed. Because the building at 1600 Pennsylvania Avenue does not speak, the ad can only 

be referring to a person at the White House. The ad then focuses even more narrowly by 

discussing certain “White House” and “Administration” decisions regarding energy production; 

by doing so, the ad clarifies that it is talking about a person in the Obama Administration at the 

White House who has control over energy decisions. Finally, the ad concludes by telling 

viewers to call the White House and demand a change to the “American energy plan.” The

person at the White House who decides nationwide policies and has the power to order them 

changed is the President of the United States. See U.S. Const. Art. 2 § 1 (“The executive Power 

shall be vested in a President of the United States of America.”). 

HLF asserts that this ad “refer[s] simply to the institutions at issue,” not to the President 

because “[t]here are dozens or hundreds, if not more, persons within the Executive Branch that 

have control over, or the ability to impact, U.S. energy policy.” (Pl.’s Add’l Br. at 24.) But the 

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ad does not refer to the “Executive Branch,” or the Secretary of Energy, or any of these unnamed 

“dozens or hundreds of people”; it tells people to call the White House — at a phone number that 

the White House’s website lists under the heading “Call the President”2 — and demand a new 

policy for the country. The only elected official at the White House, and so the only person for 

whom constituent phone calls could ultimately make any difference, is the President.3

Advertisement 2 (FEC Inj. Br. at 17-18) contains an audio recording of President 

Obama’s voice.

4

 That recording is an unambiguous reference to President Obama because it is, 

in fact, President Obama. Thus, the audio clip makes “the identity of the candidate . . . apparent 

by unambiguous reference,” 2 U.S.C. § 431(18)(C), just as a photograph would, see 2 U.S.C. 

§ 431(18)(B).

Advertisement 3 (FEC Inj. Br. at 18-19) tells the viewer to “Call the White House” and 

demand a new American energy plan. Just like in Advertisement 1, this reference to the White 

House has no reasonable meaning other than telling people to call and communicate their views 

to the President. The fact that a viewer will not actually speak with the President himself (Pl.’s 

Add’l Br. at 28) is meaningless. The same could be said for any political ad imploring a viewer 

to “Call your Congressman”: The fact that the Congressman is not personally going to answer 

the phone introduces no ambiguity as to whom the ad refers. Plaintiff’s suggestion that its ad 

 2 See http://www.whitehouse.gov/contact/write-or-call (last visited Sept. 12, 2012).

3 For a similar reason, HLF’s discussion of a 1985 Commission finding that an ad did not 

clearly identify a candidate by referring to the “House” (Pl.’s Add’l Br. at 14-15) supports the 

Commission’s position: There are 435 congressional candidates in the House of 

Representatives; there is only one presidential candidate at the White House.

4 As it has done repeatedly in this case, HLF attacks a straw man by arguing that references 

in this ad and others to “the government” do not clearly identify a federal candidate. (Pl.’s Add’l 

Br. at 26-27.) The Commission notes yet again that “none of [its] analyses hinged on the 

advertisements’ use of the word ‘government.’” (FEC Inj. Br. at 12-13; see also id. at 17 n.5, 19 

n.6, 21 n.8.)

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refers only to “someone” who happens to be on phone duty at the White House switchboard 

borders on comical.

Advertisement 4 (FEC Inj. Br. at 19-20) shows a picture of the White House while 

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

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

Advertisement 1, the combination of references to (1) “the Administration” (2) the White House

(here, depicted visually but not mentioned audibly), and (3) changes in nationwide policy 

unambiguously refer to the White House official who has the power to set such policies — the

President. HLF presents no specific opposition to the Commission’s analysis regarding this ad, 

instead noting the obvious and uncontroverted point that “the Administration” could be

ambiguous in other contexts. (See Pl.’s Add’l Br. at 28-29.) But that is irrelevant: In this

context, the Commission reasonably determined that there is no ambiguity in the combination of

these three simultaneous references.

Advertisement 5 (FEC Inj. Br. at 20-21) refers to the “White House” as the “parents” 

and “family” of “government run healthcare.” HLF does not appear to dispute the Commission’s 

determination that the “parent” of that legislation at the “White House” — legislation that HLF 

calls “Obamacare” (Compl. ¶ 36) — is President Obama. Instead, HLF’s only response to this 

uncontroverted fact is to accuse the Commission of trying “to stretch and twist the law in 

whatever way was necessary to ensure regulation of the proposed communications.” (Pl.’s Add’l 

Br. at 29.) That ad hominem attack demonstrates no flaw in the Commission’s reasoning, much 

less any deficiency sufficient to overturn the Commission’s determination under the deferential

Chevron standard.

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III. CITIZENS UNITED FORECLOSES PLAINTIFF’S CONSTITUTIONAL CLAIM

If the Court finds that the Commission was reasonable in its statutory interpretation that 

HLF’s ads would be electioneering communications, plaintiff’s constitutional challenge to that 

interpretation must fail. The only consequence of the ads being deemed electioneering 

communications is that they will trigger disclosure requirements if aired — and not that HLF 

will be prohibited from airing such advertisements. The plain holding of Citizens United v. FEC, 

130 S. Ct. 876 (2010), is that Congress can constitutionally mandate disclosure for electioneering 

communications to further the important governmental interest in providing information to the 

public regarding who is financing candidate speech shortly before an election.

The question presented in Citizens United regarding disclosure was whether the 

government can constitutionally mandate disclaimers and financial reporting for electioneering 

communications that do not expressly advocate for or against candidates. The plaintiff in that 

case argued that the First Amendment limited the application of BCRA’s disclosure requirements 

for electioneering communications to ads that are “the functional equivalent of express 

advocacy.” Id. at 915. The Court flatly “reject[ed] this contention,” id., and upheld the 

disclosure requirements as applied to electioneering communications that do not expressly 

advocate for or against a candidate. Id. at 915-16. Eight Justices applied intermediate scrutiny 

and agreed that disclosure is a constitutionally permissible method of furthering the public’s 

important interest in knowing who is responsible for pre-election communications that speak 

about candidates. See id. As the Court explained, “[t]he First Amendment protects political 

speech; and disclosure permits citizens and shareholders to react to the speech . . . in a proper 

way. This transparency enables the electorate to make informed decisions and give proper 

weight to different speakers and messages.” Id. at 916; see also Doe v. Reed, 130 S. Ct. 2811, 

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2837 (2010) (Scalia, J., concurring) (“Requiring people to stand up in public for their political 

acts fosters civic courage, without which democracy is doomed.”). 

Indeed, the Court not only rejected the contention that ads must be express advocacy or 

its equivalent to be subject to disclosure requirements, but also held that the Constitution permits 

Congress to require disclosure for electioneering communications that merely mention federal 

candidates and contain no words of electoral advocacy. Citizens United, 130 S. Ct. at 915-16

(“Even if the ads only pertain to a commercial transaction, the public has an interest in knowing 

who is speaking about a candidate shortly before an election.”); see also Nat’l Org. for Marriage 

v. McKee, 649 F.3d 34, 54-55 (1st Cir. 2011), cert. denied, 132 S. Ct. 1635 (2012) (“[I]t [is] 

reasonably clear, in light of Citizens United, that the distinction between issue discussion and 

express advocacy has no place in First Amendment review of these sorts of disclosure-oriented 

laws.”); Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) (“Given 

the Court’s analysis in Citizens United, and its holding that the government may impose 

disclosure requirements on speech, the position that disclosure requirements cannot 

constitutionally reach issue advocacy is unsupportable.”).

5

Even though Citizens United is dispositive here, HLF simply ignores the Supreme 

Court’s holding that the government can lawfully mandate disclosure for non-campaign-

 5 The Eighth Circuit recently held unconstitutional a Minnesota statute requiring certain 

financial disclosure in connection with candidate advocacy, but the court noted that the 

requirements imposed by that statute “were much different” (and far more onerous) than the 

federal statute that was upheld in Citizens United and is at issue here. Minn. Concerned Citizens 

for Life, Inc. v. Swanson, No. 10-3126, slip op. at 16 n.9 (8th Cir. Sept. 5, 2012) (emphasis 

added), http://www.ca8.uscourts.gov/opndir/12/09/103126P.pdf. In contrast, an even more 

recent decision from the Seventh Circuit upheld a state statute that mandated disclosure for a 

category of advertising highly similar to FECA’s definition of “electioneering communications,” 

noting that “Citizens United made clear that the wooden distinction between [candidate] 

advocacy and issue discussion does not apply in the disclosure context.” Ctr. for Individual 

Freedom v. Madigan, No. 11-3693, slip op. at 34 (7th Cir. Sept. 10, 2012), 

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=11-3693_002.pdf.

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advocacy electioneering communications. Instead, HLF raises three meritless constitutional 

arguments. 

First, HLF cites the Supreme Court’s observation in Buckley that FECA’s “clearly 

identified candidate” provision “requires . . . an explicit and unambiguous reference to the 

candidate” and that “[s]uch other unambiguous reference would include use of the candidate’s 

initials . . . , nickname . . . , his office . . . , or his status as a candidate.” Buckley v. Valeo, 424 

U.S. 1, 43 & n.51 (1974) (emphasis added). According to HLF, this footnote was a “limiting 

construction” intended to address “the ‘vagueness concerns’ present in Buckley, with respect to 

the term ‘clearly identified candidate.’” (Pl.’s Add’l Br. at 25.) 

That characterization is totally and unmistakably false. The Court expressed no

vagueness concerns about the “clearly identified federal candidate” statute, which was not even 

at issue in Buckley. Indeed, the entire point of the footnote on which HLF relies was to note this

provision as an example of statutory language that was not vague, and thereby to differentiate it 

from the different FECA provision that the Court did find to be vague in the text accompanying 

that footnote. See 424 U.S. at 39-44 (narrowly construing FECA’s definition of expenditures 

“relative to” candidates).6 In any event, the footnote merely states that unambiguous references 

to candidates “would include” certain types of descriptors, such as the candidate’s office. Id. at 

43 n.51 (emphasis added). That language manifestly does not purport to provide an exhaustive 

list of possible ways to meet the statutory standard. See Jones v. Am. Postal Workers Union, 192 

 6 More generally, Buckley imposed numerous limiting constructions on FECA’s 

provisions, and the Court each time explicitly stated that it was doing so. See, e.g., 424 U.S. 

at 44 (“[T]o preserve the provision against invalidation on vagueness grounds, [it] must be 

construed . . . .”), 77-78 (“Where the constitutional requirement of definiteness is at stake, we 

have the further obligation to construe the statute . . . to avoid the shoals of vagueness.”), 80 (“To

insure that the reach of [the statute] is not impermissibly broad, we construe [it] . . . .”). There is 

no such statement in the Court’s mention of the “clearly identified federal candidate” provision. 

See id. at 43 & n.51.

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F.3d 417, 426 (4th Cir. 1999) (collecting cases holding that word “including” in statutory 

definition “merely provides a nonexclusive list” of items that satisfy definition) (emphasis 

added). Thus, plaintiff’s argument (see Pl.’s Add’l Br. at 15) that Buckley’s dicta regarding 

possible ways to satisfy the statute is actually a holding setting forth the exclusive ways to satisfy 

it cannot be reconciled with the plain text of the opinion.

Second, HLF appeals to FEC v. Christian Action Network (“CAN”), which criticized the 

Commission’s application of a statute that is not at issue here. 894 F. Supp. 946 (W.D. Va. 

1995), aff’d, 92 F.3d 1178 (4th Cir. 1996). That case involved a statutory ban on certain express 

candidate advocacy, 2 U.S.C. § 441b, and the court found that the Commission’s implementation 

of that ban was constitutionally impermissible because it conflated issue speech with candidate 

advocacy. See CAN, 894 F. Supp. at 953-55. HLF fails to mention that the Supreme Court in 

McConnell overturned the Fourth Circuit’s holding on this issue. See 540 U.S. at 278 n.11 

(Thomas, J., dissenting) (“The [majority] . . . has, in one blow, overturned every Court of 

Appeals that has addressed this question [including] FEC v. Christian Action Network . . . .”); 

see also Real Truth About Abortion, 681 F.3d at 550 n.2 (noting that McConnell overturned 

Virginia Society for Human Life, which relied on CAN). 

But even if CAN were still good law, it would have no relevance here. Citizens United

put to rest the notion that there is a constitutional distinction for disclosure purposes between 

issue advocacy that mentions candidates and candidate advocacy that mentions issues. See supra

pp. 6-7. Congress can constitutionally mandate disclosure regarding both categories of 

advertising. Regardless, the specific linguistic question here is not remotely like the dispute in 

CAN, where the court declined to credit the testimony of an expert witness who testified that 

certain facially neutral terms in an ad were actually “codewords” conveying a normative 

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connotation about a candidate. 894 F. Supp. at 956 n.14 (noting expert’s opinion that that “quota 

codeword . . . was unfavorable to [presidential candidate] Clinton”). There are no “codewords” 

here: The Commission has never suggested that the term “White House” is a coded message

telling viewers to vote against the President. Rather, the term “White House” is simply a 

common way to denote the President of the United States (see Compl. Exh. 4 at 4 n.1 (noting 

metonymic use of “White House”)), and the Commission reasonably determined that HLF’s ads

employ the term in that common manner. Thus, neither the constitutional analysis nor the 

interpretive methodology of CAN has any bearing on this case.

Third, HLF claims that the Commission has “alter[ed] both the long-established 

understanding of ‘clearly identified’ and the intended scope and operation of the ‘electioneering 

communication’ statute . . . with absolutely no prior notice to would-be speakers” in violation of 

the Due Process Clause of the Fifth Amendment. (Pl.’s Add’l Br. at 22-23 (citing FCC v. Fox 

Television Stations, Inc., 132 S. Ct. 2307 (2012)).)7

 HLF’s complaint states no claim under the 

Due Process Clause, and its argument should be rejected on that basis alone. See Woody v. Bank 

of Am. Corp., 405 F. App’x 798, 799 (4th Cir. 2010) (holding that plaintiffs waived claim that 

they “failed to raise . . . to any legally discernible degree in their complaint” even though “they 

attempted to elaborate on it in subsequent filings”); Nigh v. Koons Buick Pontiac GMC, Inc., 143 

F. Supp. 2d 563, 567 (E.D. Va. 2001) (rejecting plaintiff’s attempt to seek summary judgment on 

claim not included in complaint). 

 7 In the course of making this argument, HLF implies that the division among the FEC’s 

Commissioners on the advisory opinion request related to this matter demonstrates the vagueness 

of the Commission’s approach. (See Pl.’s Add’l Br. at 21.) As the Commission noted in its prior 

brief, however, the Fourth Circuit has rejected precisely this argument and held that the existence 

of close cases as to which reasonable people can disagree is to be expected in a content-based 

standard; such disagreements demonstrate no constitutional infirmity or vagueness. (See FEC 

Inj. Br. at 21-22 (discussing Real Truth About Abortion, 681 F.3d at 554).)

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But even if the Court were to consider this argument on its merits, it would fail because

the Commission has never interpreted the “clearly identified federal candidate” provision in a 

manner inconsistent with its position in this case. Indeed, HLF does not actually identify any 

such inconsistency, pointing instead to (1) statements of elected officials unconnected to the FEC

(Pl.’s Add’l Br. at 18-19); (2) court briefs that take precisely the same position the Commission 

does here, i.e., that there is no infirmity in the provision (Pl.’s Add’l Br. at 20-21);8 and (3) the 

Commission’s regulation noting that the statute encompasses “an unambiguous reference such as

‘the President [and other examples]’” (Pl.’s Add’l Br. at 19-20 (quoting 11 C.F.R. § 100.17)). 

As discussed above in the context of Buckley, a non-exhaustive set of examples does not purport 

to identify every possible way in which an ad might refer to a clearly identified candidate. See 

supra pp. 8-9. Accordingly, HLF’s allegations of inconsistencies in the Commission’s position

are meritless, as is the entirety of its newly found Due Process Clause claim — which fails to 

appear in HLF’s complaint.

CONCLUSION

Congress has charged the Commission with implementing disclosure provisions to ensure 

that the public can learn who pays to broadcast electioneering communications shortly before an 

election. A controlling group of Commissioners reasonably determined that HLF’s proposed 

advertisements would fall within the statutory definition of such communications because the ads 

refer to a candidate for President of the United States. Thus, as Citizens United made clear, HLF 

 8 HLF’s quotation (Pl.’s Add’l Br. at 20-21) of the Solicitor General’s statement at the

McConnell oral argument regarding the use of a candidate’s name is patently disingenuous: The 

statute explicitly provides that a candidate can be clearly identified by means other than his or her 

name. 2 U.S.C. § 431(18)(B)-(C). The Commission accordingly has never taken — and could 

never take — the position that the only way to clearly identify a candidate is by name, and the 

Solicitor General’s response to a question about whether the statute “in effect” provided a “safe 

harbor” for advertisers who omit candidate names cannot reasonably be understood to have 

adopted such an impossible position on behalf of the entire United States government.

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has an undisputed First Amendment right to broadcast those ads — and the public has an equally 

important First Amendment interest in knowing who pays for them. Nothing in the Constitution 

prohibits the Commission from properly implementing its statutory directive to further this 

critical informational interest.

Respectfully submitted,

Anthony Herman 

General Counsel

David Kolker*

Associate General Counsel

Lisa J. Stevenson 

Special Counsel to the General Counsel

Adav Noti*

Acting Assistant General Counsel

/s/ Audra Hale-Maddox

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

ahale-maddox@fec.gov

Kevin P. Hancock*

Attorneys

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463

September 13, 2012 (202) 694-1650

* Admitted pro hac vice 

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CERTIFICATE OF SERVICE

I hereby certify that on September 13, 2012, I will electronically file the foregoing with 

the Clerk of Court using the CM/ECF system, which will then send a notification of such filing

to the following:

Shawn Toomey Sheehy

ssheehy@hvjlaw.com

Holtzman Vogel Josefiak PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

/s/ Audra Hale-Maddox

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

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

Telephone: (202) 694-1650

Fax: (202) 219-0260

ahale-maddox@fec.gov

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