No. 09-724

In the Supreme Court of the United States

THE REAL TRUTH ABOUT OBAMA, INC., PETITIONER

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

HARRY J. SUMMERS

Assistant General Counsel

ADAV NOTI

Attorney

Federal Election Commission

Washington, D.C. 20463

ELENA KAGAN

Solicitor General

Counsel of Record Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I)

QUESTION PRESENTED

Whether the district court abused its discretion by

declining to preliminarily enjoin the Federal Election

Commission (FEC) and the Department of Justice from

enforcing, both facially and as applied:

(a) an FEC regulation defining the term “expressly advocating,” 11 C.F.R. 100.22(b); 

(b) an FEC regulation regarding contributions

received in response to solicitations, 11 C.F.R.

100.57; 

(c) the FEC’s approach to determining political

committee status, as explained in Federal Register

notices; and 

(d) an FEC regulation regarding corporationfunded “electioneering communications,” 11 C.F.R.

114.15.
(III)

TABLE OF CONTENTS

 Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

TABLE OF AUTHORITIES

Cases:

ACLU v. Heller, 378 F.3d 979 (9th Cir. 2004) . . . . . . . . . . 18

Alvarez v. Smith, 130 S. Ct. 576 (2009) . . . . . . . . . . . . . . . . 24

Anderson v. Spear, 356 F.3d 651 (6th Cir.),

cert. denied, 543 U.S. 956 (2004) . . . . . . . . . . . . . . . . . . . 19

Ashcroft v. ACLU, 542 U.S. 656 (2004) . . . . . . . . . . . . . . . . 12

Bennett v. Spear, 520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . 19

Blackwelder Furniture Co. of Statesville v. Seilig

Mfg. Co., 550 F.2d 189 (4th Cir. 1977) ............... 9

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . 3, 4, 20

Center for Individual Freedom v. Carmouche,

449 F.3d 655 (5th Cir. 2006), cert. denied,

549 U.S. 1112 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Citizens United v. FEC, 130 S. Ct. 876 (2010) . . . 2, 7, 16, 23

Colorado Right to Life Comm., Inc. v. Coffman,

498 F.3d 1137 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . 20, 21

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) . . . . . . . . . 11

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ....... 5

FEC v. Christian Action Network, Inc., 110 F.3d 1049

(4th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 18
IV

Cases—Continued: Page

FEC v. Furgatch, 807 F.2d 857 (9th Cir.),

cert. denied, 484 U.S. 850 (1987) . . . . . . . . . . . . . . . . . . . 18

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) . . . 21

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) . . . . 21

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

FEC v. National Conservative Political Action

Comm., 470 U.S. 480 (1985) . . . . . . . . . . . . . . . . . . . . . . . 22

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449

(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 13, 15, 16, 17

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006) . . . . . . . . . . . . . . . . . . . . . . . 12

McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . . . . 4, 6, 17, 18

North Carolina Right to Life, Inc. v. Leake, 525 F.3d

274 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 16

Purcell v. Gonzalez, 549 U.S. 1 (2006) . . . . . . . . . . . . . . . . . 24

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) . . . . . . . . 21

Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d

379 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Winter v. NRDC, 129 S. Ct. 365 (2008) . . . . . . . . 9, 11, 12, 22

Constitution, statutes and regulations:

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . 11, 12, 14, 15, 17

Administrative Procedure Act, 5 U.S.C. 704 . . . . . . . . . . . 19

Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, 116 Stat. 81 .......................... 6

Federal Election Campaign Act Amendments of 1976,

Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 479

(2 U.S.C. 431(17)) ................................ 3
V

Statutes and regulations—Continued: Page

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq............................................ 2

2 U.S.C. 431(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14

2 U.S.C. 431(4)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2 U.S.C. 431(8)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

2 U.S.C. 431(9)(A)(i) ............................ 2

2 U.S.C. 431(17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 14

2 U.S.C. 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2 U.S.C. 434(a) ................................ 4

2 U.S.C. 434(b) ................................ 4

2 U.S.C. 434(f)(3)(A)(i) .......................... 6

2 U.S.C. 434(f)(3)(A)(ii) . . . . . . . . . . . . . . . . . . . . . . . . 17

2 U.S.C. 437c(b)(1) ............................. 2

2 U.S.C. 437d(a)(7) ............................. 2

2 U.S.C. 437d(a)(8) ............................. 2

2 U.S.C. 437f .................................. 2

2 U.S.C. 437g .................................. 2

2 U.S.C. 437g(d) ............................... 2

2 U.S.C. 438(a)(8) .............................. 2

2 U.S.C. 438(d) ................................ 2

2 U.S.C. 441a(a)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . 4, 23

2 U.S.C. 441b(a) ............................... 2

2 U.S.C. 441b(b)(2) ............................. 6

26 U.S.C. 527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

26 U.S.C. 527(a) .................................... 5

26 U.S.C. 527(e)(1) .................................. 5
VI

Regulations—Continued: Page

11 C.F.R.:

Section 100.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17

Section 100.22(a) ................................. 3

Section 100.22(b) ........................... passim

Section 100.22(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Section 100.57 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 24, 25

Section 100.57(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 24

Section 114.12(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 23

Section 114.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 24, 25

Miscellaneous:

Express Advocacy; Independent Expenditures;

Corporate and Labor Organization Expenditures,

60 Fed. Reg. (1995):

p. 35,295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

pp. 35,292-35,295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

FEC Statement on the D.C. Circuit Court of Appeals

Decision in EMILY’s List v. Federal Election

Commission (Jan. 12, 2010), http://www.fec.gov/

press/press2010/20100112EmilyList.shtml ........... 6

FEC Statement on the Supreme Court’s Decision in

Citizens United v. FEC (Feb. 5, 2010),

http://www.fec.gov/press/press2010/

20100205CitizensUnited.shtml ..................... 7

Funds Received in Response to Solicitations;

Allocation of Expenses by Separate Segregated

Funds and Nonconnected Committees, 75 Fed.

Reg. 13,223 (2010) ................................ 6
VII

Miscellaneous—Continued: Page

Political Committee Status, 72 Fed. Reg. (2007):

p. 5595 .......................................... 5

pp. 5596-5597 ................................ 5

p. 5604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

pp. 5605-5606 .................................... 5
(1)

In the Supreme Court of the United States

No. 09-724

THE REAL TRUTH ABOUT OBAMA, INC., PETITIONER

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-17a)

is reported at 575 F.3d 342. The opinion of the district

court (Pet. App. 19a-53a) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 18a)

was entered on August 5, 2009. A petition for rehearing

was denied on October 6, 2009 (Pet. App. 56a). The petition for a writ of certiorari was filed on December 16,

2009. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Petitioner sought a preliminary injunction against (1)

enforcement of three regulations promulgated by the

Federal Election Commission (FEC or Commission),
2

and (2) the Commission’s approach to determining

whether particular entities are “political committees”

for purposes of federal campaign-finance laws. The district court denied preliminary injunctive relief, Pet. App.

19a-53a, and the court of appeals affirmed, id. at 1a-17a.

1. The FEC is vested with statutory authority over

the administration, interpretation, and civil enforcement

of the Federal Election Campaign Act of 1971 (FECA),

2 U.S.C. 431 et seq., and other federal campaign-finance

statutes. The Commission is empowered to “formulate

policy” with respect to FECA, 2 U.S.C. 437c(b)(1); “to

make, amend, and repeal such rules * * * as are necessary to carry out the provisions of [FECA],” 2 U.S.C.

437d(a)(8); see 2 U.S.C. 438(a)(8) and (d); to issue written advisory opinions concerning the application of

FECA and Commission regulations to any specific proposed transaction or activity, 2 U.S.C. 437d(a)(7), 437f;

and to civilly enforce FECA, 2 U.S.C. 437g. The Department of Justice prosecutes criminal violations of the

Act. See 2 U.S.C. 437g(d).

2. a. FECA defines the term “contribution” to include anything of value given “for the purpose of influencing any election for Federal office.” 2 U.S.C.

431(8)(A)(i). Similarly, FECA defines the term “expenditure” to include any payment of money made “for the

purpose of influencing any election for Federal office.”

2 U.S.C. 431(9)(A)(i). Although FECA generally prohibits corporations from making any such expenditures, 2

U.S.C. 441b(a), this Court recently held that provision’s

restrictions on corporate independent expenditures to

be unconstitutional, see Citizens United v. FEC, 130

S. Ct. 876, 913 (2010), and even before that decision the

expenditure ban did not apply to corporations that qualified as “political committees,” see 11 C.F.R. 114.12(a).
3

In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam),

this Court reviewed FECA’s original prohibition on expenditures of more than $1000 “relative to” a federal

candidate. Id. at 39-44. To avoid vagueness concerns,

the Court construed that provision “to apply only to expenditures for communications that in express terms

advocate the election or defeat of a clearly identified

candidate for federal office.” Id. at 44. Shortly thereafter, Congress codified that holding by defining the term

“independent expenditure” as a communication “expressly advocating the election or defeat of a clearly

identified candidate.” Federal Election Campaign Act

Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90

Stat. 479 (2 U.S.C. 431(17)).

The Commission subsequently promulgated a regulatory definition of the statutory term “expressly advocating.” 11 C.F.R. 100.22. Subsection (a) of the definition

encompasses communications that use phrases or campaign slogans such as “‘re-elect your Congressman’” or

“‘support the Democratic nominee,’ * * * which in

context can have no other reasonable meaning than to

urge the election or defeat” of a candidate. 11 C.F.R.

100.22(a). Subsection (b) includes any communication

that has an “electoral portion” that is “unmistakable

[and] unambiguous” and cannot reasonably be construed

to convey any meaning except to encourage a candidate’s election or defeat. 11 C.F.R. 100.22(b). 

Citing this Court’s limiting construction of FECA’s

“expenditure” definition in Buckley, a number of lower

courts held that Congress’s constitutional authority to

regulate campaign expenditures is limited to communications containing “magic words” of advocacy, such as

“vote for” or “vote against.” See, e.g., FEC v. Christian

Action Network, Inc., 110 F.3d 1049, 1052-1055 (4th Cir.
4

1997). In McConnell v. FEC, 540 U.S. 93 (2003), however, this Court rejected the argument that the government’s regulatory power is constitutionally limited to

“magic words” of advocacy. Id. at 190-193. The Court

explained that Buckley’s “express advocacy limitation

* * * was the product of statutory interpretation

rather than a constitutional command.” Id. at 191-192.

b. Under FECA, any “committee, club, association,

or other group of persons” that receives over $1000 in

contributions or makes over $1000 in expenditures in a

calendar year is a “political committee.” 2 U.S.C.

431(4)(A). A political committee must register with the

Commission and file periodic reports for disclosure to

the public of all receipts and disbursements, with exceptions for most transactions under $200. See 2 U.S.C.

433, 434(a)-(b). No person may contribute more than

$5000 per calendar year to any one political committee,

other than a political party committee. 2 U.S.C.

441a(a)(1)(C).

In Buckley, this Court concluded that if politicalcommittee status were defined “only in terms of amount

of annual ‘contributions’ and ‘expenditures,’” FECA’s

political-committee provisions might be applied overbroadly to reach “groups engaged purely in issue discussion.” 424 U.S. at 79. The Court therefore concluded

that the Act’s political-committee provisions “need only

encompass organizations that are under the control of a

candidate or the major purpose of which is the nomination or election of a candidate.” Ibid. Under that limiting construction, an entity that is not controlled by a

candidate need not register as a political committee—

and may therefore receive contributions of more than

$5000 per year from each donor—unless its “major purpose” is the nomination or election of federal candidates.
5

In February 2007, the Commission published in the

Federal Register an Explanation & Justification explaining the Commission’s decision not to promulgate a revised definition of “political committee” that would encompass all “527” groups, i.e., “political organizations”

holding tax-exempt status under Section 527 of the Internal Revenue Code. Political Committee Status, 72

Fed. Reg. 5595; 26 U.S.C. 527(a) and (e)(1). The notice

stated that the Commission, rather than promulgating

a new regulation, would continue its longstanding practice of determining each organization’s major purpose

on a case-by-case basis. See 72 Fed. Reg. at 5596-5597.

The notice then discussed a number of prior administrative and civil matters in which the Commission or a court

had analyzed a group’s major purpose, and it explained

that those descriptions cumulatively “provid[ed] considerable guidance to all organizations” regarding the criteria that are used to apply the “major purpose” test.

See id. at 5595, 5605-5606.

c. FECA does not provide specific criteria for determining whether a particular donation is made “for the

purpose of influencing any election” and therefore constitutes a “contribution.” 2 U.S.C. 431(8)(A)(i). By regulation, the Commission has defined the term “contribution” to include a “deposit of money * * * made by any

person in response to any communication * * * if the

communication indicates that any portion of the funds

received will be used to support or oppose the election of

a clearly identified Federal candidate.” 11 C.F.R.

100.57(a). 

On September 18, 2009, the D.C. Circuit declared

that regulation unlawful. EMILY’s List v. FEC, 581

F.3d 1, 17-18 (D.C. Cir. 2009). The Commission has accordingly announced that the regulation “will not be en-
6

forced.” FEC Statement on the D.C. Circuit Court of

Appeals Decision in EMILY’s List v. Federal Election

Commission (Jan. 12, 2010), http://www.fec.gov/press/

press2010/20100112EmilyList.shtml. On March 11,

2010, the Commission approved the repeal of Section

100.57 in its entirety, effective April 18, 2010 (the required 30 days after publication in the Federal Register). See Funds Received in Response to Solicitations;

Allocation of Expenses by Separate Segregated Funds

and Nonconnected Committees, 75 Fed. Reg. 13,223

(2010).

d. The Bipartisan Campaign Reform Act of 2002

(BCRA), Pub. L. No. 107-155, 116 Stat. 81, defines the

term “electioneering communication,” in the context of

a presidential election, as a “broadcast, cable, or satellite communication” that (a) refers to a clearly identified

presidential candidate, and (b) is made within sixty days

before the general election or thirty days before a primary election or convention. 2 U.S.C. 434(f)(3)(A)(i).

BCRA prohibited corporations (other than incorporated

political committees) and unions from making any “direct or indirect payment * * * for any applicable electioneering communication.” 2 U.S.C. 441b(b)(2).

This Court initially upheld the constitutionality of

this financing restriction for electioneering communications “to the extent that the issue ads * * * are the

functional equivalent of express advocacy.” McConnell,

540 U.S. at 206; see id. at 189-194, 203-208; FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 465 (2007)

(WRTL). The Chief Justice’s controlling opinion in

WRTL explained that a communication is “the functional

equivalent of express advocacy” if it is “susceptible of no

reasonable interpretation other than as an appeal to

vote for or against a specific candidate.” WRTL, 551
7

U.S. at 469-470. The Commission then codified that

standard in a regulation. 11 C.F.R. 114.15. Subsequently, however, this Court held the financing restriction

unconstitutional in its entirety. See Citizens United,

130 S. Ct. at 913. The Commission has accordingly announced that it will no longer enforce either the regulation or the statutory restriction on the financing

of electioneering communications. FEC Statement

on the Supreme Court’s Decision in Citizens United v.

FEC (Feb. 5, 2010), http://www.fec.gov/press/press2010/

20100205CitizensUnited.shtml.

3. Petitioner The Real Truth About Obama, Inc., is

a nonprofit Virginia corporation. Petitioner incorporated on July 24, 2008, and it filed its complaint in this

case six days later. Pet. App. 2a.

In its complaint, petitioner alleged that it had developed two radio advertisements, entitled Change and

Survivors. Pet. App. 20a-22a. Change purported to provide “the real truth about Democrat Barack Obama’s

position on abortion,” using an “Obama-like voice.” Id.

at 20a-21a. That voice stated, in a first-person declaration, that then-Senator Obama wished to provide federal

funds for every abortion performed in the United States,

legalize partial-birth abortion, and “[g]ive Planned Parenthood lots more money.” Id. at 20a. Near the end of

the advertisement, a woman’s voice asked: “Now you

know the real truth about Obama’s position on abortion.

Is this the change you can believe in?” Id. at 21a. Survivors stated that Senator Obama “has been lying” about

his voting history regarding abortion, thereby demonstrating “callousness” and “a lack of character and compassion that should give everyone pause.” Id. at 21a22a. 
8

Petitioner alleged that it intended to broadcast these

advertisements during the 60-day period preceding the

2008 general election. See Pet. App. 21a. Petitioner

further alleged that it had developed a fundraising solicitation. Id. at 22a-24a. Petitioner did not allege that it

had raised, attempted to raise, or spent any funds toward the production or distribution of the ads, or for any

other purpose. 

4. Petitioner moved for a preliminary injunction to

preclude implementation of the FEC regulations described above and the approach used by the Commission

to determine whether particular entities are “political

committees.” Petitioner contended that those aspects of

the FEC’s regulatory regime are unconstitutional, both

on their face and as applied to Change and to petitioner’s planned solicitation. Petitioner later filed a second motion for a preliminary injunction, which sought to

enjoin the Commission’s enforcement of its regulations

against Survivors. 

In an order dated September 11, 2008, the district

court denied the motions for preliminary injunctions.

Pet. App. 54a-55a. On September 24, 2008, the district

court issued a memorandum opinion holding that petitioner did not satisfy any of the requirements for preliminary injunctive relief. Id. at 19a-53a. Petitioner

appealed the denial of its preliminary injunction motions

and sought an injunction pending appeal, which both the

district court and the court of appeals denied. Civ. No.

3:08-483 Docket entry No. 81 (E.D. Va. Sept. 30, 2008);

08-1977 Docket entry No. 35 (4th Cir. Oct. 1, 2008).

5. The court of appeals affirmed the denial of petitioner’s preliminary-injunction motions. Pet. App. 1a17a.
9

The court of appeals held that the case was governed

by the test set forth in Winter v. NRDC, 129 S. Ct. 365

(2008), which requires a plaintiff seeking a preliminary

injunction to “establish ‘[1] that he is likely to succeed

on the merits, [2] that he is likely to suffer irreparable

harm in the absence of preliminary relief, [3] that the

balance of equities tips in his favor, and [4] that an injunction is in the public interest.’” Pet. App. 4a (brackets in original) (quoting Winter, 129 S. Ct. at 374). The

court held that Winter had effectively overruled its earlier precedent, Blackwelder Furniture Co. of Statesville

v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977), under

which the court had applied a “balance-of-hardship test”

to preliminary-injunction motions. Pet. App. 4a-7a. Applying the Winter test, the court of appeals held that the

district court had not abused its discretion in denying

petitioners’ motions.

The court of appeals first held that petitioner had not

shown a likelihood of success on the merits of any of its

claims. The court concluded that 11 C.F.R. 100.22(b) is

“facially consistent with,” and 11 C.F.R. 114.15 “mirrors,” the test (i.e., whether an advertisement “‘is susceptible of no reasonable interpretation other than as an

appeal to vote for or against a specific candidate,’”

WRTL, 551 U.S. at 470 (opinion of Roberts, C.J.)) set

forth in the controlling opinion in WRTL. Pet. App. 11a,

13a. Regarding 11 C.F.R. 100.57, the court noted that

petitioner was unlikely to prevail on its claim that the

language was unconstitutionally vague because the

Fourth Circuit had “expressly sanctioned” the “support

or oppose” standard in a prior case. Pet. App. 12a-13a

(citing North Carolina Right to Life, Inc. v. Leake, 525

F.3d 274, 301 (4th Cir. 2008)). The court also held that

petitioner had failed to demonstrate a likelihood of suc-
10

cess on the merits as to the Commission’s case-by-case

approach to determining political-committee status, because of “the similarity [between] the [Commission’s]

approach * * * and the positions taken by the courts,”

including this Court, in applying the major-purpose test.

Id. at 14a-15a. The court made clear that its likelihoodof-success analysis did not definitively resolve the merits of petitioner’s constitutional challenges, which remain pending in the district court. Id. at 10a.

The court of appeals then considered the other

preliminary-injunction factors. The court noted the district court’s finding that petitioner faced no irreparable

injury from the enforcement of the regulations because

none of the challenged provisions imposed any limits on

petitioner’s spending and petitioner thus “was free to

disseminate its message and make expenditures as it

wished.” Pet. App. 16a; see id. at 51a. The court of appeals did not decide “whether the district court was correct in this regard.” Id. at 16a. Instead, the court held

that the district court had reasonably concluded that the

public-interest factor of the analysis favored continued

enforcement of the regulations while this litigation is

pending and outweighed any harm that petitioner might

anticipate during that period. Id. at 16a-17a.

DISCUSSION

The Fourth Circuit correctly stated and applied the

preliminary-injunction standards established by this

Court. As a result of intervening decisions of this Court

and the D.C. Circuit, however, the FEC has since determined that it will no longer enforce two of the regulatory

provisions at issue in this case. With respect to those

regulations, the Court should grant the petition, vacate

the judgment below, and remand with instructions to
11

1 Petitioner also asserts (Pet. 11-14) that this Court’s review is warranted to decide whether “speech-protective standards” should replace

the ordinary preliminary-injunction factors in First Amendment cases.

A similar contention is raised in the petition for a writ of certiorari in

Doe v. Reed, No. 09-559 (to be argued Apr. 28, 2010), which also involves

review of a preliminary injunction in a First Amendment case. See Pet.

at i, 29-31, Doe, supra (No. 09-559). There is no need to hold the petition in this case pending the disposition of Doe, however. The petitioners in that case have not addressed the issue any further in their merits

brief, see Pet. Br. at 54, Doe, supra (No. 09-559) (stating that “further

development of this argument is precluded by space limitations”),

dismiss petitioner’s claims as moot. In all other respects, the petition should be denied.

1. The Fourth Circuit correctly stated and applied

Winter’s preliminary injunction standard. See Pet. App.

4a, 5a-7a, 10a, 15a-16a. Focusing on a snippet of the

court of appeals’ discussion, in which the court characterized the preliminary-injunction standard as “stringent” and the movant’s burden as “heavy,” id. at 10a,

petitioner argues (Pet. 8-10) that the court of appeals

erroneously “substituted” a “heightened version” of this

standard. That argument lacks merit. The court below

set forth the Winter test verbatim (Pet. App. 4a; see id.

at 7a, 15a-16a) and faithfully applied it to the facts

of this case. This Court has long described the

preliminary-injunction standard as “stringent.” E.g.,

Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975). And

the court of appeals characterized the movant’s burden

as a “heavy” one in explaining Winter’s holding that a

mere possibility of success is not enough, see Pet. App.

10a (citing Winter, 129 S. Ct. at 375-376), and that more

permissive standards—including the court of appeals’

own former standard—conflict with Winter, id. at 5a7a.1
12

making it unlikely that the holding in Doe will meaningfully affect this

case.

2 There is no need for plenary review simply to reaffirm the importance of preliminary injunctions in time-sensitive election cases, which

petitioner emphasizes at length (Pet. 11-12, 14, 34). The courts below

recognized the time-sensitivity of this case: petitioner was denied preliminary relief in the district court and court of appeals four times in the

64-day period between petitioner’s filing of its complaint on July 30,

There is also no merit to petitioner’s contention (Pet.

10-11) that the court of appeals’ references to petitioner’s burden conflict with Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418

(2006). Petitioner suggests that, because it has asserted

First Amendment claims as to which the government

bears a heightened burden of justifying the challenged

regulations, petitioner cannot be required to demonstrate that the criteria for a preliminary injunction have

been satisfied. The decision in O Centro, however, did

not alter the settled principle that a plaintiff who seeks

a preliminary injunction must show that it is likely to

suffer irreparable injury, that the balance of equities

tips in its favor, and that an injunction is in the public

interest. That principle applies regardless of the nature

and source of the plaintiff’s substantive claims. See, e.g.,

Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (even when

the plaintiff’s claim on the merits triggers strict scrutiny, the court “considers whether the plaintiff has

shown irreparable injury” in considering preliminary

injunctive relief); see generally Winter, 129 S. Ct. at 374.

In any event, petitioner is incorrect in asserting that all

of its claims trigger strict scrutiny. See, e.g., Pet. App.

12a, 13a, 43a, 48a (discussing petitioner’s vagueness

challenges); id. at 46a (discussing petitioner’s challenge

to the FEC’s statutory authority).2
13

2008, and the Fourth Circuit’s denial of an injunction pending appeal

on October 1, 2008. See p. 8, supra.

2. The court of appeals correctly held that the district court did not abuse its discretion in declining to

preliminarily enjoin the enforcement of 11 C.F.R.

100.22(b) or the FEC’s approach to determining

political-committee status. Further review is not warranted.

a. As an initial matter, the current posture of the

case weighs heavily against this Court’s review. The

court of appeals made clear that it was not ruling definitively on the merits of petitioner’s claims, but rather

holding only that petitioner had not shown a sufficient

likelihood of success to be eligible for preliminary injunctive relief. Pet. App. 10a. In addition, the candidate

against whom petitioner sought to advertise—then-Senator Obama—is not currently on the ballot anywhere.

Although petitioner may well be able to show that its

claims remain justiciable if petitioner plans to run the

same or similar advertisements in future elections, see

WRTL, 551 U.S. at 461-464; id. at 504 n.1 (Souter, J.,

dissenting), petitioner appears to have no present need

for the extraordinary remedy of a preliminary injunction. Proceedings in the district court are stayed and

will be free to resume once the court of appeals’ mandate issues.

b. The court of appeals correctly concluded that petitioner was not likely to prevail in its challenge to 11

C.F.R. 100.22(b). Petitioner contends that it is at risk of

being deemed a political committee by virtue of spending at least $1000 on communications that “expressly

advocat[ed],” within the meaning of Section 100.22(b),

against then-Senator Obama, a federal candidate. See
14

2 U.S.C. 431(4)(A) and (17). Section 100.22(b) covers

any communication that

[w]hen taken as a whole * * * could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly

identified candidate(s) because—(1) The electoral

portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and (2)

Reasonable minds could not differ as to whether it

encourages actions to elect or defeat one or more

clearly identified candidate(s) or encourages some

other kind of action.

Petitioner contends that the First Amendment does not

permit communications meeting that definition to

be regulated, and that petitioner was therefore likely to

succeed on the merits in its challenge to Section

100.22(b). Petitioner asserts that the regulation is invalid because it (a) allegedly encompasses communications that are not “unambiguously campaign related”

(Pet. 30-33), and (b) is not limited to electoral advocacy

that contains “magic words” (Pet. 14-18). Both contentions lack merit.

i. As the court of appeals suggested (Pet. App. 12a),

Section 100.22(b) comports with petitioner’s proffered

“unambiguously campaign related” test. On its face, the

regulation requires that “[t]he electoral portion of the

communication [be] unmistakable, unambiguous, and

suggestive of only one meaning,” i.e., “advocacy of the

election or defeat of one or more clearly identified candidate(s).” 11 C.F.R. 100.22(b). Any communication that

unambiguously encourages the defeat of a specific candidate is, by definition, unambiguously campaign-related.

Thus, even if the Constitution prohibits regulation of
15

3 Both tests avoid vagueness by refusing to consider the subjective

intent of the speaker. Compare Express Advocacy; Independent Expenditures; Corporate and Labor Organization Expenditures, 60 Fed.

Reg. 35,295 (1995) (explaining that “the subjective intent of the speaker

is not a relevant consideration”), with WRTL, 551 U.S. at 472 (opinion

of Roberts, C.J.) (“To the extent th[e] evidence goes to WRTL’s subjective intent, it is again irrelevant.”).

communications that are not unambiguously campaignrelated, Section 100.22(b) would not extend beyond that

limit.

The correctness of the court of appeals’ conclusion is

confirmed by the lead opinion in WRTL. That opinion

reiterated McConnell’s holding that Congress may regulate the funding of certain communications that are “the

functional equivalent of express advocacy,” i.e., that are

“susceptible of no reasonable interpretation other than

as an appeal to vote for or against a specific candidate.”

551 U.S. at 469-470. Petitioner acknowledges (Pet. 32-

33) that the First Amendment permits regulation of

communications that meet the standard set out in

WRTL (which petitioner calls the “appeal-to-vote test”).

See WRTL, 551 U.S. at 474 n.7 (opinion of Roberts, C.J.)

(rejecting vagueness concern). But the WRTL standard

is nearly identical to the test in Section 100.22(b): Each

inquires whether a particular communication can reasonably be interpreted as something other than candidate advocacy. Pet. App. 11a-12a.3

 To the extent the

standards differ, Section 100.22(b) is narrower than the

WRTL test, as the regulation requires an “unambiguous” electoral portion, 11 C.F.R. 100.22(b)(1), while the

lead opinion in WRTL looks to the “mention” of an elec-
16

4 Petitioner asserts that the lead opinion in WRTL “specifically

acknowledged that the [WRTL] test is impermissibly vague” as applied

to any speech other than electioneering communications. Pet. 17 (citing

WRTL, 551 U.S. at 474 n.7). The lead opinion in WRTL says no such

thing, and indeed dedicates the entire cited footnote to rebutting the

argument that the only sufficiently clear constitutional standard would

be a magic words test. The lead opinion did not hold that its own test

would be impermissibly vague if not tethered to BCRA’s statutory

criteria for electioneering communications. And although, as petitioner

asserts (Pet. 33), language in North Carolina Right to Life, Inc. v.

Leake, 525 F.3d 274 (4th Cir. 2008), might be read to suggest that the

statutory definition of an electioneering communication also has

constitutional significance, see id. at 297-299, the court of appeals here

saw no conflict with its own precedent. See Pet. App. 12a (distinguishing Leake). Even if the court of appeals’ discussion of petitioner’s likelihood of success could be said to conflict with the holding of Leake, an

intracircuit conflict would not warrant this Court’s review. Petitioner’s

other attempts to establish a conflict with Fourth Circuit decisions (Pet.

15, 23, 24) similarly would not justify review.

tion and similar “indicia of express advocacy.” See

WRTL, 551 U.S. at 470.4

This Court’s recent decision in Citizens United does

not change the analysis. Although the Court held that

corporations cannot be prohibited from financing express advocacy or its functional equivalent, 130 S. Ct. at

913, it did not redefine the types of election-related communications that may be subject to other forms of regulation. To the contrary, the Court confirmed that even

communications that are not “the functional equivalent

of express advocacy” under the WRTL test—and are not

unambiguously campaign-related—can constitutionally

be subject to other forms of regulation, such as disclosure requirements. Id. at 915.

ii. Petitioner also argues (Pet. 15-18) that the regulation of express advocacy is constitutionally limited to
17

5 Petitioner asserts as well (Pet. 18) that “Section 100.22(b) is also

beyond statutory authority.” The thrust of petitioner’s argument in the

court of appeals, however, was that Section 100.22(b) is an impermissible exercise of the Commission’s statutory authority because it transgresses constitutional limits on the regulation of campaign-related

speech. See Pet. C.A. Br. 20-29. The Fourth Circuit so understood petitioner’s argument: the court explained that petitioner had failed to

show a likelihood of success on the merits of its challenge to Section

100.22(b) because the court “cannot conclude that [the regulation] is

likely unconstitutional.” Pet. App. 11a; see id. at 10a-12a.

6 Congress expressly provided in BCRA that amending FECA to

reach electioneering communications had no effect on the Commission’s

regulatory definition of express advocacy. 2 U.S.C. 434(f)(3)(A)(ii)

“magic words” of advocacy.5 But as the foregoing discussion demonstrates, the regulation of election-related

communication is not so confined. Six Members of the

Court in WRTL rejected the proposition, raised in Justice Scalia’s separate opinion, that the only permissible

constitutional standard is a magic-words test. 551 U.S.

at 474 n.7 (opinion of Roberts, C.J.); id. at 513-520

(Souter, J., dissenting). Petitioner is therefore wrong to

attach controlling significance to the fact that Section

100.22 defines the statutory term “expressly advocating,” rather than “electioneering communication” or

“functional equivalent of express advocacy.” See Pet.

17, 33. That fact lacks significance in the First Amendment analysis: what matters, as the court of appeals recognized, is that the functional equivalent of express advocacy may constitutionally be regulated.

In McConnell, this Court squarely held that Congress’s authority to regulate election-related communications extends beyond communications that contain

“magic words.” See McConnell, 540 U.S. at 190-194.6
18

(“Nothing in this subparagraph shall be construed to affect the interpretation or application of section 100.22(b) of title 11, Code of Federal

Regulations.”).

As Justice Thomas noted in dissent, that holding “overturned” the court of appeals decisions that had read

Buckley as limiting regulation to magic words. McConnell, 540 U.S. at 278 n.11 (Thomas, J., concurring in the

judgment in part and dissenting in part). Those decisions included Christian Action Network, supra; Virginia Society for Human Life, Inc. v. FEC, 263 F.3d

379, 392 (4th Cir. 2001) (relying on Christian Action

Network); and the other pre-McConnell cases that petitioner cites (Pet. 15-16 & nn.8 & 10) for the purported

disagreement among the courts of appeals on this issue.

As Justice Thomas further noted, the only express-advocacy decision that McConnell did not cast into doubt was

FEC v. Furgatch, 807 F.2d 857 (9th Cir.), cert. denied,

484 U.S. 850 (1987)—the case from which the Commission derived the test codified at Section 100.22(b), see

Express Advocacy; Independent Expenditures; Corporate and Labor Organization Expenditures, 60 Fed.

Reg. 35,292-35,295 (1995).

The three post-McConnell court of appeals cases

(none of which involved preliminary injunctions or

FECA) on which petitioner relies (Pet. 16 & n.9) do not

support the proposition that express advocacy “is a

magic-words test.” In one of those decisions, the court

of appeals recognized in dicta that the court in Furgatch

had construed express advocacy under FECA in a manner identical to Section 100.22(b). See ACLU v. Heller,

378 F.3d 979, 985 (9th Cir. 2004). In the other two cases,

the courts of appeals applied a magic-words interpretation of express advocacy to cure vagueness problems in

a state statute, while recognizing that such an interpre-
19

7 Although the final-agency-action point was raised in the courts

below, see, e.g., Gov’t C.A. Br. 37-39, neither court addressed the point.

tation “is not constitutionally mandated.” Center for

Individual Freedom v. Carmouche, 449 F.3d 655, 665-

666 & n.7 (5th Cir. 2006), cert. denied, 549 U.S. 1112

(2007); accord Anderson v. Spear, 356 F.3d 651, 664-665

(6th Cir.), cert. denied, 543 U.S. 956 (2004).

c. The court of appeals also correctly held that petitioner was not likely to prevail in its challenge to the

Commission’s explanation of how it applies the majorpurpose test for political-committee status.

i. Under the Administrative Procedure Act (APA),

courts may hear challenges only to “final agency action.”

5 U.S.C. 704. Final agency action consummates the

agency’s decision-making process and determines the

rights and obligations of parties. Bennett v. Spear, 520

U.S. 154, 177-178 (1997). But the primary purpose of the

Commission’s notice was to explain why a broad regulation was not created; the notice does not purport either

to establish a binding norm or to decide any entity’s legal status. Rather, the notice simply provides guidance

about political-committee status and the major-purpose

test, based on specific administrative and civil enforcement actions. 72 Fed. Reg. at 5604; see p. 5, supra. Petitioner thus has not identified any final agency action

subject to APA review.7

ii. Even if the Commission’s notice regarding

political-committee status were subject to an APA challenge, the court of appeals did not err in concluding that

such a challenge is unlikely to succeed.

Under the major-purpose test, an organization will

not be regulated as a political committee unless its “major purpose * * * is the nomination or election of a can-
20

8 Petitioner states (Pet. 27) that such an “express intention” would

be shown if an organization’s internal documents designated the organization as a “separate segregated fund.” But that purported illustration

is meaningless, for a “separate segregated fund” has already, by definition, designated itself as a political committee. See 2 U.S.C. 431(4)(B).

The major-purpose test is therefore irrelevant to such entities.

didate.” Buckley, 424 U.S. at 79. Petitioner contends

that this test can be satisfied only if an entity spends

more than half of its funds on magic-words express advocacy (see Pet. 24-28) or if its “organic documents” reveal an “express intention to operate as a political committee” (Pet. 27).8

 

In support of this argument, petitioner cites FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238

(1986) (MCFL), and Colorado Right to Life Committee,

Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007). Pet. 24-

25. But the major-purpose test was not at issue in

MCFL, where it was “undisputed” that the plaintiff’s

“central organizational purpose” was not candidate-related. 479 U.S. at 252 n.6. In suggesting that MCFL’s

“independent spending” could theoretically “become so

extensive that the organization’s major purpose may be

regarded as campaign activity,” id. at 262, this Court

neither stated nor implied that express-advocacy communications are the only kind of “campaign activity”

that can satisfy the major-purpose test. Nor did the

Court establish a rigid rule that an organization must

devote more than 50% of its funds to campaign-related

spending in order for such spending to be deemed “extensive.”

The Tenth Circuit in Coffman invalidated a state

statute that did not use the major-purpose test at all,

but rather based political-committee status only on annual expenditures. See 498 F.3d at 1153-1154. To the
21

extent that the court discussed the major-purpose test,

it emphasized that this Court in MCFL had “suggested

two methods to determine an organization’s ‘major purpose’: (1) examination of the organization’s central organizational purpose; or (2) comparison of the organization’s independent spending with overall spending.” Id.

at 1152; see Shays v. FEC, 511 F. Supp. 2d 19, 26-31

(D.D.C. 2007) (upholding Commission’s approach to

major-purpose test); FEC v. Malenick, 310 F. Supp. 2d

230, 234-237 (D.D.C. 2004) (basing major-purpose determination on, inter alia, organization’s statements in brochures, fax alerts sent to potential and actual contributors, and spending to influence federal elections); FEC

v. GOPAC, Inc., 917 F. Supp. 851, 859, 864-866 (D.D.C.

1996) (“The organization’s purpose may be evidenced by

its public statements of its purpose or by other means,

such as its expenditures in cash or in kind to or for the

benefit of a particular candidate or candidates.”). The

court of appeals in this case was thus correct in stating

that the case-by-case analysis described in the Commission’s notice was properly “adopted from Supreme Court

jurisprudence that takes a fact-intensive approach to

determining the major purpose” of an organization, and

that the agency’s approach is consistent with “the positions taken by the courts.” Pet. App. 14a-15a.

d. Even if the court of appeals’ conclusions about

petitioner’s likelihood of success implicated a circuit

conflict or were otherwise suitable for this Court’s review, reversing those conclusions ultimately would make

no difference in this preliminary-injunction appeal. The

district court correctly held that petitioner had failed to

demonstrate a likelihood of irreparable harm because all

of petitioner’s planned activities would have been legal

even if petitioner had actually been deemed a political
22

9 Petitioner had the burden of showing both a likelihood of irreparable injury and that the public interest favors an injunction. See p. 12,

supra.

committee under the FEC’s enforcement approach. See

Pet. App. 51a. The Fourth Circuit noted the district

court’s holding on this issue but did not rule directly on

it. Rather, the court of appeals explained that any harm

created by petitioner’s doubt about the legality of its

intended activities was outweighed by the public interest

in enforcement of the restrictions at issue. Id. at 16a.

On either the district court’s reasoning or the court of

appeals’, petitioner was not entitled to a preliminary

injunction.9

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 129 S. Ct. at

376. Petitioner alleges that it will suffer irreparable

harm in the form of an unspecified “loss of First Amendment rights to engage in core political speech in the

form of highly-protected issue advocacy at the most opportune time.” Pet. 34; see Pet. 13, 33. But even if the

FEC’s approach to political-committee status had

caused petitioner to be designated as a political committee, that designation would not have prohibited petitioner from making and paying for any “political speech”

it desired. As a political committee, petitioner could

have engaged in unlimited independent campaign advocacy, including any communications constituting express-advocacy independent expenditures under

11 C.F.R. 100.22(b). See FEC v. National Conservative

Political Action Comm., 470 U.S. 480, 490-501 (1985)

(striking down spending limits on independent expendi-
23

10 Indeed, under the legal regime in effect at the time of the rulings

below, petitioner’s designation as a political committee would have

increased its ability to engage in independent electoral advocacy, since

political committees are exempt from FECA’s generally applicable restrictions on independent electioneering by corporations. See 11 C.F.R.

114.12(a). Because the Court in Citizens United struck down those

statutory restrictions on independent corporate electioneering, see 130

S. Ct. at 913, that exemption for political committees no longer confers

any practical advantage. As before, however, designation as a political

committee does not preclude an organization from engaging in any form

of electoral advocacy.

11 Petitioner cannot demonstrate any irreparable harm arising from

the $5000 limit on contributions to political committees, see 2 U.S.C.

441a(a)(1)(C), since petitioner did not allege (much less demonstrate)

that its fundraising would have been significantly impaired by enforcement of that limit.

tures by political committees).10 Thus, as the district

court held, petitioner would remain “free to disseminate

[its] message and make any expenditures [it] wish[ed].”

Pet. App. 51a.11 

As the district court explained (Pet. App. 52a), entry

of a preliminary injunction during the period immediately before the 2008 general election would have impeded the Commission’s performance of its governmental functions and disserved the public interest. The regulations governing political committees ensure that such

entities abide by contribution limits and disclose their

receipts and disbursements to the public. Those limits

and disclosure requirements serve compelling interests

in preventing actual and apparent corruption, informing

the public, and facilitating the Commission’s enforcement of the law.

Enjoining application of the Commission’s approach

to determining political-committee status could have

confused political actors, facilitated excessive contribu-
24

12 Indeed, petitioner’s challenge to Section 100.57 was never justiciable, since petitioner’s proposed solicitation (Pet. App. 22a-24a) did not

“indicate[] that any portion of the funds received [in response] will be

used to support or oppose the election of a clearly identified Federal

candidate.” 11 C.F.R. 100.57(a); see Gov’t C.A. Br. 31.

tions, deprived the public of important information, and

undermined the public’s confidence in the federal campaign finance system. “Court orders affecting elections

* * * can themselves result in voter confusion,” and

“[a]s an election draws closer, that risk will increase.”

Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam)

(vacating pre-election preliminary injunction and noting

that “the Court of Appeals was required to weigh, in

addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases”). As the court of appeals recognized (Pet.

App. 16a-17a), the district court did not abuse its discretion in recognizing and according weight to these harms

to the Commission and the public.

3. Petitioner’s remaining challenges, to 11 C.F.R.

100.57 and 114.15, are moot. In light of the decisions in

Citizens United and EMILY’s List, the Commission has

announced that it will no longer enforce those regulations. See pp. 6, 7, supra. Because petitioner cannot

show that it currently faces “any concrete actual or

threatened harm” from Sections 100.57 and 114.15, its

challenge to those provisions is no longer justiciable.

Alvarez v. Smith, 130 S. Ct. 576, 581 (2009).12

Because these claims were mooted by the outcome of

separate litigation to which petitioner was not a party,

it would be appropriate for this Court to vacate the

judgment below to the extent it addressed the merits of

petitioner’s challenges to Sections 100.57 or 114.15. See

Alvarez, 130 S. Ct. at 582-583. Accordingly, with respect
25

to those claims, the Court should grant the petition, vacate the judgment below, and remand with instructions

to dismiss those claims as moot.

CONCLUSION

With respect to petitioner’s challenges to 11 C.F.R.

100.57 and 114.15, the petition for a writ of certiorari

should be granted, the judgment of the court of appeals

should be vacated, and the case should be remanded

with instructions to dismiss those claims as moot. In all

other respects, the petition for a writ of certiorari

should be denied.

Respectfully submitted.

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

HARRY J. SUMMERS

Assistant General Counsel

ADAV NOTI

Attorney

Federal Election Commission

ELENA KAGAN

Solicitor General

MARCH 2010