UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

Stop the Insanity, Inc. ) 

EMPLOYEE LEADERSHIP FUND, et. al. ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. 12-1140 (BAH) 

) 

FEDERAL ELECTION COMMISSION ) 

999 E Street, NW ) 

Washington, DC 20463, ) 

 ) 

 Defendant. ) 

____________________________________) 

_____________________________________________________ 

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S 

MOTION TO DISMISS 

______________________________________________________ 

Stephen M. Hoersting* 

 Dan Backer (D.C. Bar No. 996641) 

DB CAPITOL STRATEGIES, PLLC 

P.O. Box 75021 

 Washington, DC 20013 

 202.210.5431 

 937.623.6102 

shoersting@dbcapitolstrategies.com 

dbacker@dbcapitolstrategies.com

 

Attorneys for Plaintiffs 

 *Admitted Pro Hac Vice 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 1 of 17
i 

TABLE OF CONTENTS 

INTRODUCTION 1

 

ARGUMENT 3 

A. The FEC Has No Authority to Order That Other Associations

Exercise ELF’s Speech Rights 3 

B. The FEC’S Order That Plaintiffs Operate A Second Political 

Committee To Speak, When A Separate Carey Account Will Do, 

Is Unconstitutional 6

 

C. The FEC’S Concerns for Coercion Lack a Factual Predicate 10

D. Plaintiffs Do Not Deserve Dismissal; They Are Entitled to

 Immediate Injunctive Relief so They May Speak 11 

CONCLUSION 13 

 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 2 of 17
ii 

TABLE OF AUTHORITIES 

Cases Page(s) 

American Tradition Partnership, Inc. v. Bullock, 

11-1179, slip op., (June 25, 2012) 6

Austin v. Michigan Chamber of Commerce, 

 494 U.S. 652, 698-99 (1990) 1, 6

Buckley v. Valeo, 

 424 U.S. 1 (1976) 6,7

Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011) passim

Carey v. FEC, 2012 U.S. Dist. LEXIS 70783 

2012 WL 1853869 (D.D.C. May 22, 2012) 2 

Citizens United v. FEC, 

130 S. Ct. 876 (2010) passim

EMILY’S List v. FEC, 

581 F.3d 1 (D.C. Cir. 2011) 1, 5, 9 

First National Bank of Boston v. Belloti, 

435 U.S. 765 (1978) 1 

FEC v. Massachusetts Citizens for Life, Inc., 

 479 U.S. 238 (1986) 7 

FEC v. National Right to Work Committee, 

 459 U.S. 197 (1982) 8 

Freedman v. Maryland, 

 380 U.S. 51 (1965) 12 

Kusper v. Pontikes, 

 414 U.S. 51 (1973) 7 

NAACP v. State of Alabama, ex. rel. Patterson, 

 357 U.S. 449 (1958) 7 

Pickering v. Board of Education Township High School Dist. No. 205, Will County, 

 391 U.S. 563 (1968) 10 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 3 of 17
iii 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) 1,6, 9 

Speiser v. Randall, 

357 U.S. 513 (1958) 10 

Codes, Regulations and Rules 

2 U.S.C. § 437f 12 

2 U.S.C. § 441a(a)(1)(C) 4, 13 

2 U.S.C. § 441a(a)(3) 4, 13 

2 U.S.C. § 441b(a) 13 

2 U.S.C. § 441b(b)(2) 9 

2 U.S.C. § 441b(b)(3)(A) 13 

2 U.S.C. § 441b(b)(3)(B) 11, 13 

2 U.S.C. § 441b(b)(3)(C) 11, 13 

2 U.S.C. § 441b(b)(4)(A)(i) 4, 13 

2 U.S.C. § 441b(b)(4)(B) 11, 13 

Other Authorities 

Statement of Rep. Thompson 

122 CONG. REC. H2612 (daily ed. March 31, 1976) 11 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 4 of 17
1 

INTRODUCTION 

The FEC’s gambit to dismiss Stop this Insanity, Inc. Employee Leadership Fund’s 

(ELF’s) claim on the eve of November’s election, rather than allow this Court adjudicate 

it, is both insolent and outrageous. 

The FEC states that “STIELF is prohibited from opening a second federal 

account, a ‘non-contribution account,’ into which it would solicit unlimited individual 

and corporate contributions, and from which it would finance independent expenditures.” 

Motion to Dismiss (“MtD”) at 1 (emphasis added). This stance is outrageous because this 

case is not about bank administration or how best to handle financial transactions. When 

the FEC says it can prohibit ELF from “opening... ‘a non-traditional account’” it means 

the FEC deigns to prohibit an association of citizens, a group of employees, a distinct 

legal entity, from engaging in unlimited independent expenditures despite a wall of 

precedent to the contrary. See Citizens United v. FEC, 130 S. Ct. 876 (2010); 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc); EMILY’s List v. FEC,

581 F.3d 1 (D.C. Cir. 2011); Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011). The FEC 

seems not to have learned that “[i]n the realm of protected speech, the legislature is 

constitutionally disqualified from dictating ... the speakers who may address a public 

issue.” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 698-99 (1990) 

(Kennedy, J., dissenting), rev’d on other grounds, Citizens United v. FEC, 130 S. Ct 878 

(2010); First National Bank of Boston v. Bellotti, 435 U.S. 765, 784-785 (1978). 

The FEC’s attempt to dismiss this case is insolent because it is a doubling down 

on the arguments Judge Collyer rejected just sixteen months ago in Carey v. FEC, 791 F. 

Supp. 2d 121 (D. D.C. 2011); arguments so lacking in justification that the FEC was 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 5 of 17
2 

ordered to pay attorneys’ fees to plaintiffs in the Carey case.1

 ELF comes to this court 

seeking to raise the funds necessary to make independent expenditures, an approach three 

commissioners opined must, of constitutional force, be permitted2 but three other 

commissioners would not allow. In defending the opinion of its latter three 

commissioners, the FEC acknowledges that ELF, itself, wants to speak: “[S]TIELF seeks 

to open such an account.” But the FEC dismisses, and would have this Court dismiss, 

ELF’s desire to speak on the refuted argument that there are plenty of other legal entities 

who can speak in the coming election: “STI itself can already...solicit and spend such 

funds—either directly or through the creation of a PAC.” MtD at 1-2. 

The FEC makes literally the same argument today that was flatly rejected in 

Carey: 

The Commission responds that Plaintiffs’ alleged injuries are neither 

actual nor certain because [plaintiffs] could fund the planned $6,300 

expenditure in at least ‘four obvious ways:’ 

 Combine a $5,000 contribution from [one plaintiff] with 

$1,300 [in] existing funds; 

 Accept $5,000 from [one plaintiff] and combine it with $1,300 

from another donor or combination of donors; 

 Set up a separate entity that accepts contributions of unlimited 

amounts [an independent-expenditure-only-political-actioncommittee]; 

 Have [one plaintiff] simply pay for the planned ad [it]self. 

Carey, 791 F. Supp. 2d at 134 (emphasis added). Judge Collyer was neither impressed 

with these FEC proposals nor fooled. She understood instantly that “[e]ach of these 

proposals ... would require Plaintiffs to forego their First Amendment rights that are 

guaranteed by the Constitution and recognized by this Circuit.” Id. 

 

1 Carey v. FEC, 2012 U.S. Dist. LEXIS 70783, 2012 WL 1853869 (D.D.C. May 22, 2012). 2 See Draft A at 5-7 in Advisory Op. 2012-01, Employee Leadership Fund. 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 6 of 17
3 

A. The FEC Has No Authority to Order That Other Associations Exercise 

ELF’s Speech Rights 

It is axiomatic that in the First Amendment context, a “Court does not assess the 

credibility of Plaintiffs’ sworn allegations.” Carey, 791 F. Supp 2d at 134. But as the 

FEC keeps insisting that ELF’s speech is STI’s and STI’s speech is ELF’s, Plaintiffs have 

no choice but to explain its operation beyond its verified complaint to discredit the FEC’s 

assertion. As of October 8, 2012, the most recent date counsel has at hand there were 

seven employees of STI who qualified as members of its restricted class. See Affidavit of 

Dan Backer, attached as Exhibit A. All others at the administrative or executive level, 

who might qualify as members of the restricted class, are disqualified because they are 

independent contractors of STI, not employees. Id. STI has sworn by verified complaint it 

has no interest in making independent expenditures in the 2012 campaign. VC ¶ 5. STI 

recognizes that engaging in independent expenditures may jeopardize its status a 

501(c)(4) social welfare organization, now pending with the Internal Revenue Service. Id.

The FEC warns STI of this jeopardy as well. See FEC Opp’n Memo to Plaintiffs’ Motion 

for Prelimin Inj. at 17, n.11 (“Alternatively, STI can solicit unlimited contributions 

directly and deposit them into its own treasury [not ELF’s]. This might result in STI 

meeting the criteria to become a PAC [and a 527 organization, not a 501(c)(4), by 

operation of law]”). No employee of STI has the option of harnessing STI to make 

independent expenditures in the 2012 election; this is against STI policy. So who will 

speak for the employees but the employees themselves? And how can seven individuals 

gather the funds necessary to affect the 2012 elections through independent expenditure 

speech if they cannot associate with other people through ELF, or solicit the general 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 7 of 17
4 

public and non-line-level employees and Independent Contractors of STI to contribute 

the necessary funds? 

The Employee Leadership Fund, “ELF,” has sworn by verified complaint that it 

has plans to distribute banner advertisements over various websites during the 2012 

election cycle. VC ¶¶ 38-40. Plaintiffs have prepared scripts for such ads and are 

prepared to raise funds to support their distribution. VC ¶¶ 27, 38, 55. At least two 

Plaintiffs are each willing and able to contribute $10,000 this year to the independent 

expenditure advertising campaign. VC ¶ 39. Contribution limits at §§ 441a(a)(1)(C) and 

441a(a)(3), however, and specifically their incorrect interpretation by the FEC after 

EMILY’s List and Carey, prevent ELF from accepting the individual Plaintiffs’ 

contributions and frustrate Plaintiffs’ rights to speech and association. One of these 

potential contributors is outside ELF’s restricted class, making ELF unable to solicit him 

for a $1,500 contribution. See 2 U.S.C. § 441b(b)(4)(A)(i). 

The FEC continues to mischaracterize the issue in this case by pretending the 

question is one of disclosure, not the right to speak, and pretending that plaintiffs sue 

chiefly to vindicate STI’s speech rights, not ELF’s. MtD. at 1-2. But plaintiffs do not sue 

to vindicate the corporation STI’s right to engage in independent campaign activity, they 

sue to vindicate the separate segregated fund ELF’s right to engage in independent 

campaign activity. This suit must go forward. 

It is well established that the “[SSF] is a separate association from the 

corporation.” Citizens United v. FEC, 130 S. Ct. 876, 897 (2010). And the fact that the 

plaintiffs may form “a separate committee or PAC, as suggested by the Commission in its 

[motion to dismiss], does not answer this constitutional challenge. While the Commission 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 8 of 17
5 

might expound on such alternatives, they do nothing to cure the constitutional maladies 

of its heavy-handed approach.” Carey v. FEC, 791 F. Supp. 2d 121, 132 (D.D.C. 2011) 

(emphasis added). 

FEC still takes the position, contra Carey and EMILY’s List, that ELF may not 

establish a Carey account to make independent expenditures. MtD at 1. (“Under FECA 

and Commission regulations, STIELF is prohibited from opening ... a ‘non-contribution 

account’). But the D.C. Circuit Court of Appeals has held, as a matter of constitutional 

law3

, that “non-profit entities are entitled to make their expenditures—such as 

advertisements, get-out-the-vote efforts, and voter registration drives—out of a softmoney or general treasury account that is not subject to source and amount limits” of the 

Act. EMILY’s List, 581 F.3d at 12. The Court made clear that these rights are inviolable 

by Congress or the FEC: “A non-profit that makes expenditures to support federal 

candidates does not suddenly forfeit its First Amendment rights when it decides also to 

make direct contributions to parties or candidates. Rather, it simply must ensure, to avoid 

circumvention of individual contribution limits by its donors, that its contributions to 

parties or candidates come from a hard-money account.” Id. The District Court of the 

District Columbia made the same finding on constitutional grounds in Carey v FEC, 791 

F. Supp. 2d 121, 132 (D.D.C. 2011). 

The FEC believes that those who would associate through ELF must disband and 

form a new association or forego the right to solicit the general public for the unlimited 

 

3

 The EMILY’s List court affirmatively stated that its decision adjudicated the constitutional rights of the 

plaintiffs. “We thus must consider how the constitutional principles outlined above apply to non-profits -- 

and in particular to three different kinds of non-profits: (i) those that only make expenditures; (ii) those that 

only make contributions to candidates or parties; and (iii) those [like ELF] that do both.” 581 F.3d at 8. See 

also Carey v. FEC, 791 F. Supp. 2d 121, 129 (D.D.C. 2011) (“Commission attempts to limit the scope of 

the Circuit’s recent decision in EMILY’s List without success. The Circuit’s ruling...included binding 

precedent on the constitutional rights of non-connected political committees, which the Commission 

unpersuasively argues is dicta). 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 9 of 17
6 

and unrestricted contributions ELF will need to fund its independent expenditures. MtD 

at 2. But it is not the FEC’s place to tell ELF to disband. “The categorical suspension of 

the right of any person, or of any association of persons, to speak out on political matters 

must be justified by a compelling state need.” Austin v. Michigan Chamber of Commerce,

494 U.S. 652, 679 (1990) (Scalia, J., dissenting) (emphasis added), rev’d on other 

grounds, Citizens United v. FEC, 130 S. Ct. 876 (2010); Buckley v. Valeo, 424 U.S. 1, 

44-45 (1976) (per curiam). That compelling state need is quid pro quo corruption or the 

appearance of corruption. Buckley, 424 U.S. at 18. And the Supreme Court has decided, 

twice in two years, that “independent expenditures, including those made by 

corporations, do not give rise to corruption or the appearance of corruption.” Citizens 

United, 130 S. Ct. at 909; see also, American Tradition Partnership, Inc. v. Bullock, 11-

1179, slip op., (June 25, 2012) (per curiam). The D.C. Circuit Court of Appeals has also 

made clear its understanding that Citizens United “held that the government has no anticorruption interest in limiting independent expenditures.” SpeechNow.org v. FEC, 599 

F.3d 686, 693 (D.C. Cir. (en banc) (emphasis in original). 

B. The FEC’s Order That Plaintiffs Operate A Second Political Committee To 

Speak, When A Separate Carey Account Will Do, Is Unconstitutional 

The FEC cannot require ELF to clone itself to make independent expenditures. 

EMILY’s List and Carey make clear that the proper remedy is to allow ELF to use a 

traditional “contribution account” to make contributions to candidates from amount and 

source restricted funds and a Carey account to make its independent expenditures, not 

force Plaintiffs to create and administer another political committee. “That the avenue left 

open is more burdensome than the one foreclosed is ‘sufficient to characterize [a 

regulatory interpretation] as an infringement on First Amendment activities.’” Austin, 494 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 10 of 17
7 

U.S. at 708 (Kennedy, J., dissenting); quoting FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238, 255 (1986) (“MCFL”). The additional requirements “may create a 

disincentive for [plaintiffs] 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. See also Citizens United,

130 S. Ct. at 897 (establishing a PAC is burdensome); MCFL, 479 U.S. at 263 (“While 

the burden on MCFL's speech [establishing a political committee] is not insurmountable, 

we cannot permit it to be imposed without a constitutionally adequate justification”). 

The FEC argues that Congress has foreclosed the possibility of SSFs engaging in 

full-throated independent expenditures because Congress has allowed corporations to 

pay administration and solicitations costs on behalf of SSFs without reporting the costs as 

contributions or expenditures. ELF has a right to solicit funds for independent 

expenditures because soliciting those funds furthers speech that cannot be dampened 

without furthering a compelling state interest, and because engaging in those solicitations 

is a form of political association. “The First and Fourteenth Amendments guarantee 

‘freedom to associate with others for the common advancement of political beliefs and 

ideas.'" Buckley v. Valeo, 424 U.S. 1, 15 (1976), quoting Kusper v. Pontikes, 414 U.S. 51, 

56-57 (1973) (additional citation omitted). Governmental “action which may have the 

effect of curtailing the freedom to associate is subject to the closest scrutiny.’" NAACP v. 

State of Alabama, ex. rel. Patterson, 357 U.S. 449, 460-461 (1958). 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 11 of 17
8 

The FEC continues to rely on two arguments that must fail. First, FEC argues 

that, even after Citizens United, SpeechNow.org, EMILY’s List and Carey, corporations 

may only solicit their restricted class to fund independent expenditures “because those are 

the only kind of solicitations that SSFs can engage in” under the statute. FEC’s Memo in 

Opp’n to Prelim. Inj. at 21. Second, the FEC argues “there is no statutory basis for 

concluding that spending for solicitations to the general public should be exempt from 

disclosure.” Id. What the FEC misses is the operation of the Courts’ constitutional 

holdings. The solicitation restrictions (that do not further the limited purpose of 

preventing the coercion of employees) are now unconstitutional as applied to fundraising 

for independent expenditures because they pose a burden that cannot meet “the closest 

scrutiny” in light of Citizens United, SpeechNow.org and related cases. The disclosure 

exemptions passed in 1976, however, are not unconstitutional—Congress may exempt 

groups from disclosure without constitutional consequence at any time. This is a tough 

pill for the FEC to swallow, but the facts are immutable. After Citizens United and 

related cases, all associations have a fundamental right to associate by soliciting 

contributions to fund independent expenditures.4

 Therefore, both of the FEC’s 

arguments—that solicitations to the restricted class “are the only kind of solicitations that 

SSFs can engage in” and that “there is no statutory basis for concluding that spending for 

solicitations to the general public should be exempt from disclosure”—are wrong. The 

Constitution commands that all associations be allowed to solicit the general public to 

fund independent expenditures (with the exception of employees who may only be 

 

4

 The FEC still fails to acknowledge that any solicitation restriction to members of the restricted class 

upheld by the Supreme Court in FEC v. National Right to Work Committee, 459 U.S. 197 (1982) 

(“NRWC”), was based upon an anti-distortion rationale thoroughly rejected by the Supreme Court in 

Citizens United v. FEC, 130 S. Ct. 876, 913 (2010). (rejecting the antidistortion rationale). See Plaintiffs’ 

Memorandum of Law in Support of Preliminary Injunction at 34. 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 12 of 17
9 

solicited twice annually under certain conditions to prevent coercion). That those 

associations’ spending for solicitations to the general public should be exempt from 

disclosure is Congress’ doing. 2 U.S.C. § 441b(b)(2). Congress must correct it in a 

manner that respects the right of SSFs to engage in unlimited independent expenditures. 

The FEC keeps reminding this Court that the “relief that plaintiffs seek ... would 

permit STI to solicit funds from the general public to finance candidate advocacy without 

disclosing that STI was paying for the solicitations.” MtD at 3. This is because of an 

exemption Congress gave corporations in 1976. There is no reason Congress cannot 

remove the exemption now that corporations are again allowed to participate in the 

making of and soliciting funds for independent expenditures. But neither Congress nor 

the FEC may deploy the exemption as an excuse to keep ELF from exercising its right to 

make independent expenditures. The FEC also keeps reminding this Court that the 

Supreme Court has upheld disclosure. MtD at 2. But this is not in dispute; unless the FEC 

is arguing that SpeechNow.org would be prevented today from accepting funds above the 

contribution limits if Congress had exempted independent groups from the Act’s 

disclosure requirements before the D.C. Circuit unanimously issued its opinion in 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc)? Does the FEC believe 

the speech rights of EMILY’s List would be dramatically different today had Congress 

exempted non-connected committees from the Act’s disclosure provisions at any time 

before the D.C. Circuit issued its opinion? See EMILY’s List, 581 F.3d at 12 (D.C. Cir. 

2009). Is the FEC arguing that the Supreme Court’s ruling in Citizens United on 

unrestricted independent corporate (and union) spending would have been opposite had 

Congress only had the foresight to exempt, not include, electioneering communications 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 13 of 17
10 

within the Act’s reporting regime? 130 S. Ct. 878 (2010). No. Congressional enactments 

and agency interpretations must bend to Court interpretations and First Amendment 

rights. 

For this Court to adopt the FEC’s rickety arguments would ignore the fact that 

STI and ELF are separate legal entities each possessing a right to speak under the 

constitutional doctrine found in Citizens United, SpeechNow.org, EMILY’s List and 

Carey. And, that while ELF wishes to speak, STI does not, and should not be forced to 

speak by the FEC. It would ignore the bedrock principle that Congress’ granting 

corporations and unions the ability to pay an SSF’s administrative expenses and 

solicitation costs exempt from disclosure in 1976 is a benefit Congress has the power to 

remove, and perhaps should remove, but its continued existence cannot be conditioned on 

the renunciation of ELF’s right to speak. See Pickering v. Board of Education Township 

High School Dist. No. 205, Will County, 391 U.S. 563 (1968); Speiser v. Randall, 357 

U.S. 513 (1958). 

To adopt the FEC’s arguments would ignore the doctrine that Congress may not 

do indirectly what it is prohibited from doing directly. Congress could not put in place an 

exemption whose enforcement directs the FEC to nullify ELF’s right to engage in, and 

solicit funds for, independent speech. Speiser, 357 U.S. 513, 526 (1958) (“this device 

must necessarily produce a result which the State could not command directly [and] can 

only result in a deterrence of speech which the Constitution makes free”). 

C. The FEC’s Concerns for Coercion Lack a Factual Predicate

Contrary to the FEC’s assertion, Plaintiffs will not solicit employees more than 

twice per year for either its contribution account or its Carey account. Cf. MtD at 3-4. 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 14 of 17
11 

And the FEC’s argument that the ability to solicit unlimited amounts for independent 

expenditures twice yearly will “coerce” employees is nonsense. 

Neither ELF nor STI will solicit employees not included in STI’s restricted class 

outside the scope of 2 U.S.C. § 441b(b)(4)(B) and Commission regulations.5

 VC ¶ 9. 

This means ELF will solicit non-executive employees twice per year, not four times per 

year. Cf. MtD at 3-4. Despite the FEC’s unwarranted suggestion, STI will not be 

“coerc[ing] employees.” Id. STI and ELF will follow all other applicable laws, whether 

or not they are specifically referred to in this case, including the requirement to “inform 

each employee it solicits ‘of the political purposes of [the SSF]” and “of his right to 

refuse to contribute without any reprisal.” 2 U.S.C. § 441b(b)(3)(B)-(C). 

D. Plaintiffs Do Not Deserve Dismissal; They Are Entitled To Immediate 

Injunctive Relief so They May Speak 

“Plaintiffs’ probability of success on the merits is the most critical of the criteria 

when considering a motion for preliminary injunction,” Carey, 791 F. Supp. 2d at 128. 

Plaintiffs have fully demonstrated that probability here. There is simply no justification 

for preventing ELF from using a Carey account to engage in full-throated independent 

expenditures and soliciting others to do the same. “The First Amendment does not permit 

laws that force speakers to retain a campaign finance attorney... or seek declaratory 

rulings before discussing the most salient political issues of our day.” Citizens United,

130 S. Ct. at 889 (2010). But forcing ELF to obtain a declaratory ruling is unfortunately 

what happened here. There is no legitimate reason, particularly after Judge Collyer’s 

opinion in Carey, for the FEC to prevent ELF from opening a Carey account to fund 

 

5

 Congress enacted this restriction to prevent line-level employees outside the restricted class from feeling 

pressured to make contributions on pain of losing their jobs. See 122 CONG. REC. H2612 (daily ed. March 

31, 1976) (statement of Rep. Thompson). Plaintiffs abide by this restriction and do not challenge it here. 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 15 of 17
12 

independent expenditures, and certainly no reason to dismiss this case. “Stifling citizens’ 

speech rights during a Presidential campaign runs contrary to the entire history of First 

Amendment jurisprudence in this country.” 791 F. Supp. 2d at 132-33, citing Citizens 

United, 130 S. Ct. at 892 (“political speech ... is central to the meaning and purpose of 

the First Amendment”). 

As the Supreme Court is well aware, “[b]ecause the FEC’s ‘business is to censor, 

there inheres the danger that [it] may well be less responsive than a court ... to the 

constitutionally protected interests in free expression.’” Citizens United, 130 S. Ct. at 

896, quoting Freedman v. Maryland, 380 U.S. 51, 57-58 (1965). ELF deserves court 

protection now. On the heels of the FEC’s losing a string of cases in Carey, 

SpeechNow.org, Citizens United and EMILY’s List, ELF finds itself caught in the 

crossfire of what appears to be a rear-guard action to protect the FEC’s turf from further 

diminutions. But this is not the FEC’s role, nor ELF’s concern. 

ELF had the presence of mind to ask the FEC if it may speak, before it spoke, and 

the FEC was bound to answer. See Advisory Opinion 2012-01 (Employee Leadership 

Fund); 2 U.S.C. § 437f. “[B]ecause the Commissioners could not agree, the Commission 

staff has been forced into a crabbed reading of EMILY’s List [and Carey] and erroneous 

proposals to avoid recognizing Plaintiffs’ First Amendment rights.” 791 F. Supp. 2d 121, 

132 (D.D.C. 2011). After all, what justification could possibly warrant dismissing ELF’s 

claim or precluding ELF from speaking in the 28 days between now and the November 

6th election? 

What the FEC misses in this challenge is that issuing injunctive relief here 

furthers noble public interests in having citizens being able to associate together and 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 16 of 17
13 

speak out about political issues and candidates of the day. As Judge Collyer wrote on 

June 14 of last year, “The race is on right now. Whichever candidates Plaintiffs wish to 

support and issues they wish to espouse must be freed immediately from the chill of 

possible FEC enforcement.” Carey, 791 F. Supp. 2d 121, 133 (D.D.C. 2011). The 

protection of dissent, free speech, and effective advocacy is of critical public importance, 

outweighing any supposed governmental interest in maintaining the silencing status quo. 

CONCLUSION 

 For the foregoing reasons, the Court should deny FEC’s motion to dismiss, grant 

Plaintiffs’ motion for preliminary injunction and enjoin the contribution limits contained 

in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3), the source prohibitions of 441b(a) as 

applied to the Carey account that will finance ELF’s independent expenditures, and the 

solicitation restrictions at 2 U.S.C. § 441b(b)(4)(A)(i)—but not enjoin the restrictions 

detailed at §§ 441b(b)(3)(A)-(C) and 441b(b)(4)(B). 

 Dated: October 9, 2012 

 Respectfully submitted, 

 

 Stephen M. Hoersting* 

 /s/ 

 Dan Backer (D.C. Bar No. 996641) 

 DB CAPITOL STRATEGIES PLLC 

P.O. Box 75021 

 Washington, DC 20013 

 937.623.6102 

202.210.5431 

 shoersting@dbcapitolstrategies.com 

 dbacker@dbcapitolstrategies.com 

 

 *Admitted Pro Hac Vice 

Case 1:12-cv-01140-BAH Document 9 Filed 10/08/12 Page 17 of 17