United States District Court

Eastern District of North Carolina

Northern Division

Holly Lynn Koerber and

Committee for Truth in Politics, Inc.,

Plaintiffs,

v.

Federal Election Commission,

Defendant.

Case No.

Motion to Consolidate

Plaintiffs, Holly Lynn Koerber and Committee for Truth in Politics, Inc. (“CTP”), move to

consolidate the hearing on its preliminary-injunction motion with a trial on the merits pursuant to

Federal Rule of Civil Procedure 65(a)(2) (2008).

I. Questions of Law

This action presents legal questions of whether certain sections of federal law violate the

First Amendment and whether the Federal Election Commission should be preliminarily and permanently enjoined from enforcing this law.

This action does not require any factual inquiry regarding the intent, effect, or context of the

communications at issue. On the contrary, this court should look only to the “objective . . . substance of the communication[s].” FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 2666

(2007) (“WRTL II”). In WRTL II, the Supreme Court explained:

The freedom of speech . . . guaranteed by the Constitution embraces at the

least the liberty to discuss publicly and truthfully all matters of public concern

without previous restraint or fear of subsequent punishment. To safeguard this

liberty, the proper standard . . . must be objective, focusing on the substance of the

communication rather than amorphous considerations of intent and effect. It must

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entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation. . . . In short, it

must give the benefit of any doubt to protecting rather than stifling speech.

Id. at 2666-67 (internal citations and quotation marks omitted). Unnecessary discovery places “a

severe burden” on First Amendment freedoms that must be avoided. See id at 2666 & n.5. The

Supreme Court has thus recognized the need for rapid resolution of the litigation in a First

Amendment issue advocacy context, see id, which this action presents.

Plaintiffs’ communications should be judged solely on their objective content, rather than on

the totality of the circumstances or on extrinsic evidence. To do otherwise would place the

speaker at the mercy of the listeners, however “reasonable” they might be, to determine whether

a communcation is express advocacy. In such a situation, it would be impossible for a speaker to

know whether his speech will be regulable until after he speaks. This cannot be permitted under

the First Amendment. Focusing instead on the objective content eliminates the usual time-consuming process of formal discovery that typifies civil litigation.

Therefore, Plaintiffs submit that the facts necessary to decide the foregoing questions are in

their verified complaint. Plaintiffs also submit their other contentions require no factual inquiry

beyond what is in Plaintiffs’ verified complaint.

II. Conservation of Judicial Resources and Facilitation of Expedition

Consolidating the hearings will allow this Court to avoid repetitive presentations of

evidence. The drafters of Rule 65(a)(2) noted that consolidation “can be exercised with particular

profit when it appears that a substantial part of the evidence offered on the application [for a

preliminary injunction] will be relevant to the merits . . . .” Fed. R. Civ. P. 65(a)(2) (1966

advisory committee’s note). In such actions, a “routine” accelerated trial “preserve[s] judicial

resources and save[s] the parties from wasteful duplication of effort.” See NOW v. Operation

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Rescue, 747 F. Supp 760, 768 (D.D.C. 1990). Many courts have recognized the utility of Rule

6(a)(2) consolidation. See, e.g., West Publ’g Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1229

(8th Cir. 1986) (“This procedure is a good one, and we wish to encourage it.”); Bright v. Nunn,

448 F.2d 245, 247 n.1 (6th Cir. 1971) (consolidation is appropriate when material facts are

uncontested); United States ex. rel Goldman v. Meredith, 596 F.2d 1353, 1358 (8th Cir. 1979)

(trial on the merits was not justified and consolidation was proper because the only disputed

question was one of law); Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 464 F.2d 1055,

1057 (7th Cir. 1972) (when discovery is concluded or unnecessary, “consolidation may serve the

interests of justice”).

Here, Plaintiffs will present the same facts at any hearing on the merits as they will at a

preliminary-injunction hearing. And, as set out above, this action turns on legal issues. Thus, in

ruling on the preliminary-injunction motion, the court will have the same facts, contentions, and

analysis as it would for a trial on the merits. Consolidation will therefore preserve judicial time

and effort by avoiding duplicative hearings.

Consolidating the hearings will also help ensure an expeditious resolution to Plaintiffs’

claims. This is necessary to have the dispute resolved quickly “without chilling speech through

the threat of burdensome litigation.” WRTL II, 127 S. Ct. at 2666 n.5. Consolidation will permit

the parties a full opportunity to be heard on the merits in an expedited manner and will not

deprive Defendant of its right to notice and a full and fair opportunity to be heard.

Conclusion

For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion to

consolidate the preliminary-injunction hearing with a trial on the merits.

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Proposed Order

A proposed order is attached.

Dated: October 2, 2008

/s/ Paul Stam 

Paul Stam, paulstam@bellsouth.net

State Bar No. 6865

STAM FORDHAM & DANCHI, P.A.

P.O. Box 1600

510 W. Williams Street

Apex, NC 27502

919/362-8873 telephone

919/387-7329 facsimile

Local Counsel for Plaintiffs

Respectfully submitted,

/s/ James Bopp, Jr. 

James Bopp, Jr., jboppjr@aol.com

 Ind. Bar No. 2838-84

Richard E. Coleson, rcoleson@bopplaw.com

 Ind. Bar No. 11527-70

Clayton J. Callen, ccallen@bopplaw.com

 Mo. Bar No. 59885

Sarah Troupis, stroupis@bopplaw.com

 Wis. Bar No. 1061515

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for Plaintiffs

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Certificate of Service

The undersigned hereby certifies that a true and accurate copy of the foregoing Motion to

Consolidate was served by certified mail on the persons identified below on October 3, 2008. In

addition, a courtesy copy was sent by email to the FEC at tduncan@fec.gov, dkolker@fec.gov,

and kdeeley@fec.gov, and a courtesy copy was sent by FedEx overnight service to General

Mukasey.

Thomasenia P. Duncan, General Counsel

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20436

Civil Process Clerk

UNITED STATES ATTORNEY’S OFFICE

310 New Bern Avenue, Suite 800

Terry Sanford Federal Building & U.S.

Courthouse

Raleigh, NC 27601-1461

Attorney General Michael B. Mukasey

U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Ave. NW

Washington, DC 20530

/s/ Paul Stam

Paul Stam

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