United States District Court

Eastern District of Virginia

Richmond Division

The Real Truth About Obama, Inc.

Plaintiff,

v.

Federal Election Commission and

United States Department of Justice,

Defendants.

Case No. 3:08-cv-00483-JRS

Reply in Support of

Second Preliminary Injunction Motion

James Bopp, Jr.,*

 jboppjr@aol.com

Richard E. Coleson*

 rcoleson@bopplaw.com

Barry A. Bostrom*

bbostrom@bopplaw.com

Clayton J. Callen*

ccallen@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *pro hac vice motion granted

Lead Counsel for Plaintiff

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Local Counsel for Plaintiff

Second Preliminary Injunction Reply

Case 3:08-cv-00483-JRS Document 59 Filed 09/08/2008 Page 1 of 17
ARGUMENT

I. Introduction

RTAO has developed another issue-advocacy ad, Survivors, that it intends to broadcast if it

obtains the judicial relief sought in this case, so that it can raise the necessary money and publicize its ad without the chill of legal risk. Doc. 53. As with the Change ad and the other communications that RTAO has stated its intent to do, Survivors focuses on a prolife issue, in this case

infanticide, i.e., whether infants targeted for abortion who are born alive are entitled to the full

legal protections that born-alive infants normally enjoy. Congress enacted the Born Alive Infant

Protection Act to assure protection where federal law governs. Senator Obama had the opportunity to vote for a similarly-protective bill when he was an Illinois State Senator, but he voted

against it thrice.

Survivors focuses on a controversy that has swirled in the national news media between Senator Obama and the National Right to Life Committee over that issue, and it attempts to set the

record straight in public debate. NRLC says that Senator Obama has lied about his voting record,

and Senator Obama has said that NRLC is lying. See Douglas Johnson and Susan T. Muskett,

National Right to Life White Paper: Barack Obama’s Actions and Shifting Claims on the Protection of Born-Alive Aborted Infants—and What They Tell Us About His Thinking on Abortion

(Aug. 28, 2008) (available at http://www.nrlc.org/ObamaBAIPA/

WhitePaperAugust282008.html) (“On August 25, 2008, the independent group FactCheck.org

(www.factcheck.org) issued a review of this question that concluded, ‘Obama’s claim is wrong.

In fact, by the time the HHS Committee voted on the bill, it did contain language identical to the

federal act. . . . The documents from the NRLC support the group’s claims that Obama is misrepresenting the contents of SB 1082.’”). 

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Survivors is plainly the sort of “discussion of issues and candidates” for which the Supreme

Court said that the First Amendment mandates protection when it identified the dissolving-distinction problem that requires the bright, speech-protective, express-advocacy line:

[T]he distinction between discussion of issues and candidates and advocacyof election or defeat

of candidates may often dissolve in practical application. Candidates, especially incumbents,

are intimately tied to public issues involving legislative proposals and governmental actions.

Not only do candidates campaign on the basis of their positions on various public issues, but

campaigns themselves generate issues of public interest.

Buckley, 424 U.S. at 42.

Survivors demonstrates exactly how issue advocacy works. Issue-advocacy groups respond

with public advocacy to current developments on their issues. They don’t have time to await an

uncertain license to speak from the FEC, even if the FEC occasionally does a hurry-up advisory

opinion. They don’t want to announce to the world in advance what they plan to say, by putting

their intended speech up for public comment in the advisory opinion process, giving their issueadvocacy opponents an opportunity to plan a response. And they don’t have to seek prior consent

or publicly expose their ads in advance because this issue advocacy is precisely the speech that

the Supreme Court declared most strongly protected by the First Amendment in Buckley, 424

U.S. 1, and FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (“WRTL II”), and off limits to gov- 1

ernment regulation.

But the FEC refuses to limit itself to its permitted authority. Although Survivors contains

none of the “magic words” that are required for express advocacy by the U.S. Supreme Court and

the Fourth Circuit, see Doc. 4 at 11-14 (RTAO’s Preliminary Injunction Brief), the FEC declares

This principal opinion (“WRTL II”) is by Chief Justice Roberts (Justice Alito joining). This 1

opinion states the holding. Marks v. United States, 430 U.S. 188, 193 (1977) (Absent majority

opinion, holding is position taken by those concurring on narrowest grounds.)

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that Survivors may be prohibited as express advocacy. Doc. 56 at 4-6. Although Survivors does 2

not contain a clear call to action that can only be interpreted as an appeal to vote for or against a

candidate as is required for electioneering communications to be regulated, WRTL II, 127 S. Ct.

at 2667, see also Doc. 4 at 24 n.8, the FEC declares that it may be prohibited as an electioneering

communication. Doc. 56 at 7-8.

The FEC’s interesting analysis of Survivors (discussed infra) demonstrates that its regulations at 11 C.F.R. §§ 100.22(b) (“expressly advocating”) and 114.15 (WRTL II’s appeal-to-vote

test) are unconstitutionally vague and overbroad, in addition to being beyond permissible authority. Here, as in all four of the challenged provisions, the FEC is engaging in a forbidden “‘we’ll

know it when we see it approach.’” North Carolina Right to Life v. Leake, 525 F.3d 274, 290

(4th Cir. 2008) (citation omitted). Such an approach, “simply does not provide sufficient direction to either regulators or potentially regulated entities. Unguided regulatory discretion and the

potential for regulatory abuse are the very burdens to which political speech must never be subject.” Id. The FEC must not be allowed to continue “handing out speeding tickets without ‘telling

anyone . . . the speed limit.’” Id. (citation omitted).

II. RTAO Meets Its Preliminary-Injunction Burden.

A. RTAO Has Irreparable Harm.

The FEC declares its belief that Survivors may be prohibited for RTAO as both express advocacy and a regulable electioneering communication, Doc. 56 at 2, 3-8, but the FEC still wants

to contest RTAO’s irreparable harm. Id. at 2-3. RTAO has briefed this issue, see Doc. 4 at 27 and

Doc. 50 at 19-20, so only three brief comments are made here.

The Department of Justice joins the FEC’s arguments, Doc. 57, so when this brief refers to 2

“FEC” arguments, the DOJ’s arguments are included.

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First, the FEC relies on the notion that RTAO won’t be a political committee unless it meets

the major-purpose test. Doc. 56 at 1. This ignores the fact that corporate express advocacy and

electioneering communications are illegal for RTAO in and of themselves, so RTAO certainly is

harmed if it may not do those as a result of constitutionally-flawed tests. And the FEC’s interpretation and enforcement of the major-purpose test is itself at issue here, so the FEC’s attempt to

hide behind it is ineffective. RTAO is harmed because it is chilled from its activity for fear of

being deemed a political committee based on vague, overbroad, and ultra vires regulations and

enforcement policies.

Second, the FEC argues that, “even if RTAO were a political committee,” it would be free to

do express advocacy and restricted electioneering communications. Doc. 56 at 2. But imposed

PAC status is precisely a harm that RTAO seeks to avoid, and it is a constitutionally-cognizable

harm as a matter of law. See Doc. 50 at 19-20. It is irreperable because there is no opportunity for

RTAO later to receive compensation from the FEC and the DOJ for lost speech opportunities,

even if lost speech could be compensated, which it cannot. So RTAO does not need to prove that

all of the pieces of harm that constitute PAC status are individual harms because PAC status is

itself a well-recognized harm.

Third, RTAO alleges a reasonable fear of chill as to fundraising, due to the vague,

overbroad, and ultra vires regulation at 11 C.F.R. § 100.57, that is keeping RTAO from raising

funds to do its activities, including publicizing Survivors. This is a clear, present, irreparable

harm that the FEC fails to address.

B. The Balance of Harms and Public Interest Favor RTAO.

The FEC attempted no new arguments as to the balance of harms, so no response is needed.

See Doc. 56 at 3.

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C. RTAO Has Likely Success on the Merits.

1. The Unambiguously-Campaign-Related Requirement Analysis Controls.

The FEC completely ignores the analysis that controls this case. The Fourth Circuit has recognized that (a) Buckley’s unambiguously-campaign-related requirement controls, Leake, 525

F.3d at 283; (b) express-advocacy requires the so-called “magic words,” id.; (c) government may

only regulate magic-words express advocacy or electioneering communications under WRTL II’s

appeal-to-vote test and nothing in between, id.; and determining “the major purpose,” id. at 287,

requires an “empirical judgment as to whether an organization primarily engages in regulable,

election-related speech.” Id. (emphasis added). See also Doc. 4 at 8-12. Under this governing

analysis and these holdings, RTAO must prevail on the merits here.

2. 11 C.F.R. § 100.22(b) (“Expressly Advocating” Definition) Is Void.

As just noted, the Fourth Circuit follows the Supreme Court in requiring that express advocacy be limited to magic words, so the FEC’s effort to defend its alternative “expressly advocating” definition at 11 C.F.R. § 100.22(b) is an exercise in futility before this Court. Survivors contains no true express advocacy, i.e., magic words. Furthermore, the FEC’s forbidden analysis

demonstrates the unconstitutional vagueness and overbreadth of its approach, as shown next.

First, the FEC says that Survivors attacks Senator Obama’s character, citing WRTL II for the

proposition that to do so is an “indicia of express advocacy.” Doc. 56 at 4-5 (citation omitted).

This argument is flawed. First, any language from the appeal-to-vote test or its application in

WRTL II applies only in the context of communications that meet the statutory electioneeringcommunication definition. The Fourth Circuit has made it clear that WRTL II’s appeal-to-vote

test is not a free-floating test that can be used anywhere else. Leake, 525 F.3d at 282. No court

has ever held that actual express advocacy can be determined by whether a communication critiSecond Preliminary Injunction Reply 5

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cizes a public official or his character. There is nothing inherent in criticism of a candidate that

establishes that a communication clearly calls for a vote for or against a public official. One

could criticize the actions of an incumbent who happens to be a candidate, including actions that

go to his or her character, and still support the election of that candidate, as witnessed by numerous statements made by former primary election foes who now support either Senator Obama or

Senator McCain for President. 

In the related electioneering communication context, two post-WRTL II decisions show that

criticizing a candidate cannot create an “appeal to vote” under WRTL II’s test for regulable electioneering communications, so a fortiori it cannot establish actual express advocacy. In both of

these cases, the FEC and the intervenors (BCRA prime sponsors Sen. McCain et al.) agreed to a

stipulated judgment conceding that the ads at issue were protected political speech under WRTL

II’s test. WRTL III held the electioneering communication Prohibition unconstitutional as applied

to WRTL’s 2006 Child Custody Protection Act (“CCPA”) advertisement. Wisconsin Right to

Life v. FEC, No. 04-1260, slip op. at 1 (D.D.C. July 23, 2007) (“WRTL III”). The CCPA ad 3

stated the positions of Senators Feingold and Kohl (the candidate), based on their prior votes, and

characterized their positions. The other case involved an ad that the Christian Civic League of

The ad stated: 3

Listen up, parents. Wisconsin requires parental consent before your minor daughter can

have an abortion. But, she can be taken to Illinois for an abortion that is kept secret from

you. Imagine, your daughter can be taken across state lines for a major surgical procedure

without your knowledge or consent. The U.S. Senate recently passed a bill to protect

parents from secret abortions. Fortunately, Senator Kohl voted for the rights of parents. But,

sadly, Senator Feingold did not. Your help is urgently needed because some Senators are

holding up further action on the bill. Please call Senators Kohl and Feingold at 202-224-

3121 and urge them to stop efforts by the Senate Democratic leadership to hold up a bill

which will prevent secret abortions. That’s 202-224-3121.

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Maine sought to run. This ad also stated the candidates’ position on the issue and characterized 4

that position. The district court held the electioneering communications prohibition unconstitutional as applied to the ad. Christian Civic League of Maine v. FEC, No. 06-614, slip op. at 1-2

(D.D.C. Aug. 21, 2007) (“CCLM”). Consequently, there is now no question that ads stating a candidate’s position and criticizing or praising that position may be fully protected political speech.

In fact, WRTL II rejected the FEC’s argument that criticism establishes the functional equivalent of express advocacy. WRTL II was decided in response to the FEC’s and Intervenors’ argument that criticism was the real indicator of the wrong intent that made an electioneering communication subject to prohibition and to WRTL’s extended argumentation that criticism of public

officials is at the core, not the periphery, of First Amendment protection, see Brief for Appellee at

1-5, WRTL II, 127 S. Ct. 2652, which included the following quote about criticism:

This struggle of the government to silence the people continues here as BCRA sponsors,

Intervenors herein, defend the “electioneering communication” prohibition by declaring

that quashing criticism is the true intent behind the provision and thus argue that broadcast

ads are sham, not genuine, if the ads (a) “took a criticalstance regarding a candidate’s position on an issue” and (b) “referred to the candidate by name.” Intervenors’ Br. at 22 (emphasis added). Intervenors’ Brief is replete with complaints about Senators being criticized

for their positions on a current legislative matter. See id. at 3, 10, 11, 15, 16, 22, 23 n.11,

24, 25 n.14, 27, 28, 36. So is the FEC’s Brief. See FEC Br. at 10, 11, 19, 20, 33, 44, 48.

Brief for Appellee at 5, WRTL II, 127 S. Ct. 2652. WRTL II clearly rejected the FEC’s notion

then, as this Court must do now, that if citizens criticize public officials then the government may

The ad stated: 4

Our country stands at the crossroads—at the intersection of how marriage will be defined

for future generations. Marriage between a man and a woman has been challenged across

this country and could be declared unconstitutional at any time by rogue judges. We must

safeguard the traditional definition of marriage by putting it beyond the reach of all

judges—bywriting it into the U.S. Constitution. Unfortunately, your senators voted against

the Marriage Protection Amendment two years ago. Please call Sens. Snowe and Collins

immediately and urge them to support the Marriage Protection Amendment when it comes

to a vote in early June. Call the Capitol switchboard at 202-224-3121 and ask for your

senators. Again, that’s 202-224-3121. Thank you for making your voice heard.

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restrict their speech. Such pre-Revolutionary British and European thought was rejected in this

Republic with the First Amendment.

Second, the FEC represents that “Survivors says that Senator Obama has ‘been lying’ for

years,” which it says is a character attack. Doc. 56 at 5. The ad more specifically said that Senator

Obama has been lying for four years about three votes. Doc. 53 at 2. The notion that the People

can’t say that an incumbent politician is not telling the truth would astound the Framers. The regulation at issue says nothing about whether a communication may say that a politician is being

untruthful. Buckley’s express-advocacy test turned on no such question, nor does Leake’s. The

FEC continues to make up the tests as it goes along, but it still gives no guidance. Will it find

there is no express advocacy if instead the speaker says the politician was “mistaken,” “in error,”

“wrong,” or “untruthful,” or that he “told a lie”? Or is there something unique about saying a politician is “lying”? Can the People never say that a politician has misrepresented his record, or are

candidates free to tell lies without challenge, except by PACs?

Fourth, the FEC says that “Survivors does not implore listeners to take action relative to any

public policy on abortion, nor does it refer them to a source of additional information on such policies.” Doc. 56 at 5. The FEC misstates the nature of issue advocacy. “Issue advocacy conveys

information and educates.” WRTL II, 127 S. Ct. at 2667. It need not do more to qualify as issue

advocacy. Indeed, issue advocacy is fairly understood as the absence of express advocacy, rather

than the presence of some issue (let alone the need to implore listeners to take some action) because WRTL II said that “[i]ssue advocacy conveys information and educates,” id., and equated it

with “political speech.” Id. at 2659. As to the second part of this argument, is the FEC saying that

Survivors would not be express advocacy if RTAO had referred hearers to its website, as it did in

Change? The FEC leaned on that referral heavily in declaring that Change was not express advoSecond Preliminary Injunction Reply 8

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cacy, even interpreting it as a call to action. Doc. 31 at 12 & n.5. But again, there is no precision.

No predictability. No guidance. Only vagueness.

Finally, and most interestingly, the FEC tries to convert a familiar expression, giving one

pause, into a clear call to action that can only be interpreted as a call to vote for or against a candidate. Before proceeding, it should be noted that the FEC seems to be conceding that there must

be some such clear plea for action, a position that RTAO has argued with respect to electioneering communications and WRTL II’s appeal-to-vote test. See Doc. 4 at 24 & n.8. This is reasonable because the FEC expressly says that it “derived” 11 C.F.R. § 100.22(b) from Furgatch, Doc.

31 at 15, and FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), expressly required that there be a

clear plea for action that can only be interpreted as a call to vote for or against a candidate. Id. at

864. The Furgatch test also required “some explicit words of advocacy,” California Pro-Life 5

Council v. Getman, 328 F.3d 1088, 1098 (9th Cir. 2003) (emphasis in original), which are ab- 6

Furgatch stated its now-moribund test as follows: 5

We conclude that speech need not include any of the words listed in Buckley to be express

advocacy under the Act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to

vote for or against a specific candidate. This standard can be broken into three main components. First, even if it is not presented in the clearest, most explicit language, speech is “express” for present purposes if its message is ummistakable and unambiguous, suggestive of

only one plausible meaning. Second, speech may only be termed “advocacy” if it presents a

clear plea for action, and thus speech that is merely informative is not covered by the Act.

Finally, it must be clear what action is advocated. Speech cannot be “express advocacy of

the election or defeat of a clearly identified candidate” when reasonable minds could differ

as to whether it encourages a vote for or against a candidate or encourages the reader to take

some other kind of action.

Id. (emphasis added).

In the cited passage, CPLC I restricted Furgatch as follows: 6

But a close reading of Furgatch indicates that we presumed express advocacy must contain

some explicit words of advocacy. See id. at 864 (noting that “context cannot supply a meaning that is incompatible with, or simply unrelated to, the clear import of the words”). “Context,” we emphasized, “remains a consideration, but an ancillary one, peripheral to the words

themselves.” Id. at 863.

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sent from Survivors, so the FEC is not being faithful to the one authority it claims to justify

§ 100.22(b) in that respect. Survivors lacks both a clear call to action that can only be interpreted

as a call to vote for or against a candidate and any explicit words of advocacy. It cannot be express advocacy even under the now-moribund Furgatch test. There is nothing even close to

Furgatch’s imperative “Don’t let him do it!” 807 F.2d at 864.

What Survivors actually says is that “Obama’s callousness in denying lifesaving treatment to

tiny babies who survive abortions reveals a lack of character and compassion that should give

everyone pause.” Doc. 53 at 2. There is no clear call to action of any sort because there are no

words in the imperative (“Pause!”) or cohortative mood (“Let’s pause.”), which are required in

English grammar for there to be a call to action. In fact “pause” is used in Survivors as something

to be given by words and ideas that proceed it, not something the hearer is actively called to do.

But even if Survivors did say “Pause!” or “Let’s pause,” that would still not be a clear call to action that can only be interpreted as a call for a vote for or against a candidate. It might be a little

closer, although still not express advocacy, if the ad said “Stop!” or “Let’s all stop!” But “pause”

is not even “stop.” Note that “pause” is used here is intransitive, with no indication of what one

is to pause as there would be if it were transitive. So “pause” means: “1. To cease or suspend an

action temporarily. 2. To linger; tarry: paused for a while under the huge oak tree. 3. To hesitate:

He paused before replying. to cease what one is doing for a period.” The American Heritage Dictionary of the English Language (4th ed. 2000). So even if a speaker asserts that something

“should give everyone pause,” that is not a call to stop doing something. Even if Survivors spoke

of voting in an election, which it does not, the invitation at most would be to pause that activity,

not to stop it. And this purported “call to action” gives no indication of which direction the hearer

should go after the pause, as “Don’t let him do it!” attempted to do.

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But to give pause has a long and common literary usage that indicates that it has nothing to

do with elections and cannot be a clear plea for action that can only be understood as a call to

vote for or against a candidate. Perhaps the most famous use of the phrase is by William

Shakespear in Hamlet:

To be, or not to be: that is the question:

Whether ’t is nobler in the mind to suffer

The slings and arrows of outrageous fortune,

Or to take arms against a sea of troubles,

And by opposing end them? To die: to sleep:

No more; and by a sleep to say we end

The heartache and the thousand natural shocks

That flesh is heir to,—’t is a consummation

Devoutly to be wish’d. To die, to sleep;

To sleep: perchance to dream: ay, there ’s the rub:

For in that sleep of death what dreams may come,

When we have shuffled off this mortal coil,

Must give us pause: . . . .

Hamlet, Act iii, Scene 1 (emphasis added). Shakespeare was not commanding anyone to pause,

nor encouraging them to do so, but rather he was saying that certain things make us pause and

reflect on them by their very nature.

So Survivors readily may be interpreted as stating that the actions of Senator Obama with

respect to infanticide are of such a profound nature as to cause everyone to pause and reflect. 

What they think about in the predicted pause is up to them. Some will doubtless applaud, while

others will not. How they proceed after the predicted pause, is also up to them. They have, as

WRTL II said of issue advocacy, been given information and educated, and whether they take

cognizance of the information, including in their voting, is up to them, for they have not been

invited to vote one way or the other. 127 S. Ct. at 2667.

Part of “everyone” who should be given pause by the actions described in Survivors is Senator Obama himself. It may be sincerely hoped by RTAO that by calling attention to Senator

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Obama’s actions he will do better next time, in whatever capacity that might be. Such a use of

the phrase is employed in the following quote from a book on child discipline, which speaks of

the fact that disapproval gives one pause and motivation to do better next time:

When we approach discipline as learning, this ability to internalize moral behavior will occur

in the natural course of growth. Children will make mistakes, but, given half a chance, they will

learn from them. Our disappointment and displeasure give them pause—and a strong desire to

do better the next time around. However, when parents are too quick to punish (or when they

assume that children will not really learn from their mistakes without paying a penalty), these

lessons may be lost.

Cathy Rindner Tempelsman, Child-Wise at ch. 7 (1994) (emphasis added). Any time an incumbent politician’s record is criticized, the speaker is likely hoping for a change in the candidate’s

attitude toward the issue itself, which is another alternate understanding of the give pause in Survivors. The statement that “everyone” will be given pause by the actions merely broadens the

scope of the disappointment and disapproval, which in turn should heighten the pressure on the

incumbent politician to alter his attitudes to move more into the mainstream.

So the FEC is incorrect that “give . . . pause” is any sort of clear call to action, let alone one

that can only be interpreted as a call to vote for or against a candidate. And the FEC is simply

wrong in asserting that “[t]o ask listeners to defer action or hesitate before supporting a candidate

is to expressly advocate against that candidate,” Doc. 56 at 5, for that is not what give pause does

or means in Survivors. No one is actually asked to do anything; there are no words about supporting or opposing any candidate; there is nothing about candidacy or election; the words have another reasonable meaning; there is no express advocacy under Furgatch’s clear-plea-for-action

test; and there is no express advocacy even under the FEC’s flawed regulation because reasonable minds could differ as to the meaning of Survivors. The FEC’s effort to show that Survivors

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contains express advocacy simply shows that its alternative test is doomed for vagueness and

overbreadth. And it is plainly beyond the FEC’s authority.

3. The FEC’s Enforcement Policy on PAC Status, Including Its Major-Purpose Test

Policy, Is Void.

The FEC acknowledges that funds spent on Survivors would trigger statutory PAC status,

calling into direct question the “major purpose” of RTAO for determining whether PAC burdens

may be imposed under Buckley, 424 U.S at 79. That issue has been thoroughly briefed, and the

briefing need not be repeated beyond the brief discussion of this issue in the Introduction (supra).

4. 11 C.F.R. § 114.15 (WRTL II’s Appeal-to-Vote Test) Is Void.

The FEC says the Survivors is “the functional equivalent of express advocacy under 11

C.F.R. § 114.15” “for substantially the same reasons that [it] is express advocacy.” Doc. 56 at 7.

As shown above, however, Survivors is not express advocacy. The FEC continues to use characteristics discussed in WRTL II’s application of the appeal-to-vote test that are not in the test itself, were unique to the grassroots lobbying context at issue, and addressed arguments made by

the parties without incorporating those into the test itself. The FEC continues the flawed argument that issue advocacy must do something other than what WRTL II said that it does, i.e, “convey[] information and educate[].” 127 S. Ct. at 2667. The FEC continues to ignore the lack of

any clear plea for action. The FEC is apparently engaging in contextual evaluation, forbidden by

WRTL II, id. at 2666, because there is no mention of any election or candidacy in Survivors that

would lead a hearer to connect it with an election. It has another interpretation than as any invitation to vote for or against Senator Obama because it is an effort to set the record straight on a

public-policy issue currently in public debate. It is simply another communication on the prolife

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issue, just as Change was. And the FEC clearly has not given the benefit of the doubt to Survivors as it was required to do. Id. at 2666.

Finally, the FEC attempts to recruit WRTL II’s discussion of “the hypothetical Jane Doe ad”

to its analysis. Doc. 56 at 7. In dictum, WRTL II distinguished that ad from the ads at issue in

WRTL II on a ready point of contrast, i.e., “that ad condemned Jane Doe’s record on a particular

issue,’” while WRTL’s ads did no such thing. WRTL II, 127 S. Ct. at 2667 n.6 (citation omitted).

But WRTL II did not establish criticism of a voting record as part of the appeal-to-vote test, id. at

2667, that governs whether statutory electioneering communications may be regulated. And it

would not have made criticism of a public official the test because it rejected precisely such arguments made to it WRTL II. See supra at 7.

In sum, under the only test that controls, WRTL II’s appeal-to-vote test, Survivors may not be

regulated. There is no clear plea for action that can only be interpreted as an appeal to vote. But

the FEC’s arguments do show why RTAO requires the requested judicial relief. The FEC is simply making up its tests as it goes along, rather than employing the bright lines that the First

Amendment mandates.

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CONCLUSION

For the foregoing reasons a preliminary injunction should issue as to the challenged provisions as applied to the Survivors ad. The FEC must not be allowed to continue “handing out

speeding tickets without ‘telling anyone . . . the speed limit.’” Leake, 525 F.3d at 290 (citation

omitted).

James Bopp, Jr.,* jboppjr@aol.com

Richard E. Coleson,* rcoleson@bopplaw.com

Barry A. Bostrom,* bbostrom@bopplaw.com

Clayton J. Callen,* ccallen@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *pro hac vice motion granted

Lead Counsel for Plaintiff

Respectfully submitted,

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Local Counsel for Plaintiff

Second Preliminary Injunction Reply 15

Case 3:08-cv-00483-JRS Document 59 Filed 09/08/2008 Page 16 of 17
Certificate of Service

I hereby certify that on September 8, 2008, I served upon the below listed persons copies of

this document by electronically filing this document for electronic transmission.

John Richard Griffiths

U.S. Department of Justice

Civil Division, Federal Programs Branch

P.O. Box 883

Washington, DC 20044

john.griffiths@usdoj.gov

Debra Jean Prillaman

Office of U.S. Attorney

600 East Main Street, Suite 1800

Richmond, VA 23219

debra.prillaman@usdoj.gov

J. Gerald Hebert 

J. Gerald Hebert, P.C. 

5019 Waple Ln 

Alexandria, VA 22304 

ghebert@campaignlegalcenter.org

Audra Anne Hale-Maddox

ahale-maddox@fec.gov

Thomasenia P. Duncan

tduncan@fec.gov

David Kolkler. dkokler@fec.gov

Kevin Deeley, kdeeley@fec.gov

Holly Baker, hbaker@fec.gov

Vivien Clair, vclair@fec.gov

Seth Nesin, snesin@fec.gov

Adav Noti, anoti@fec.gov

Claire Rajan, crajan@fec.gov

Federal Election Commission

999 E Street NW

Washington, DC 20463

And I hereby certify that I will mail the document by U.S. mail to the following non-filing users:

Daniel R. Ortiz 

John Allan Love Professor of Law 

University of Virginia School of Law 

580 Massie Road 

Charlottesville, VA 22903-1738 

Richard Briffault 

Joseph P. Chamberlain Professor of

 Legislation 

Columbia University School of Law 

435 West 116th Street 

New York, NY 10027 

/s/ 

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Second Preliminary Injunction Reply

Case 3:08-cv-00483-JRS Document 59 Filed 09/08/2008 Page 17 of 17