UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

_________________________________________

)

FREE SPEECH, )

)

Plaintiff, )

) Case No. 12-CV-127-S

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

_________________________________________ )

UNOPPOSED MOTION OF THE CAMPAIGN LEGAL CENTER AND

DEMOCRACY 21 TO PARTICIPATE AS AMICI CURIAE

WITH SUPPORTING MEMORANDUM OF LAW

The Campaign Legal Center (the “CLC”) and Democracy 21 respectfully move

this Court for leave to participate in this case as amici curiae in support of Defendant

Federal Election Commission (the “FEC”) in the above-captioned matter and to file the

attached Memorandum in Opposition to Plaintiff’s Motion for Preliminary Injunction. 

Counsel for Plaintiff and Defendant have consented to this motion; this motion is

unopposed. The CLC and Democracy 21 submit this motion without request for oral

argument.

As grounds for this motion, amici would show unto the Court that:

1. Plaintiff filed suit to challenge, both facially and as-applied, the FEC’s

definition of “expressly advocacating,”see 11 C.F.R. 100.22(b), the FEC’s policy for

determining a political committee status, and a draft advisory opinion pertaining to when

donations given in response to solicitations will be deemed “contributions”under the

Federal Election Campaign Act (FECA), see Advisory Opinion 2012-11 Draft B.

Case 2:12-cv-00127-SWS Document 27 Filed 08/10/12 Page 1 of 7
2. The CLC is a nonpartisan, nonprofit organization that works in the area of

campaign finance law, and participates in state and federal court litigation throughout the

nation regarding contribution limits, disclosure, political advertising, enforcement issues,

and other campaign finance matters. It also participates in rulemaking and advisory

opinion proceedings at the FEC to ensure that the agency is properly enforcing federal

election laws and files complaints with the FEC requesting that enforcement actions be

taken against individuals or organizations that violate the law.

3. Democracy 21 is a nonprofit, nonpartisan organization dedicated to

making democracy work for all Americans through support of campaign finance and

other political reforms. To accomplish these goals, it conducts public education efforts,

participates in litigation involving the constitutionality and interpretation of campaign

finance laws, and engages in efforts to help ensure that campaign finance laws are

properly enforced and implemented. It also participates in rulemakings and advisory

opinion proceedings, and other administrative matters, at the FEC.

4. The amici have substantial experience and expertise with regard to the

issues raised in this case.

5. The CLC and Democracy 21 have provided legal counsel to parties and

amici in numerous campaign finance cases in federal and state court, including

representing intervening defendants in McConnell v. FEC, 540 U.S. 93 (2003). More

recently, the CLC and Democracy 21 have participated as amici curiae in a number of

Supreme Court cases, including American Tradition Partnership v. Bullock, No. 11–

1179, 567 U.S. ____ (2012), Citizens United v. FEC, 130 S. Ct. 876 (2010) and FEC v.

Wisconsin Right to Life, 551 U.S. 449 (2007). 

Case 2:12-cv-00127-SWS Document 27 Filed 08/10/12 Page 2 of 7
6. The CLC and Democracy 21 also participated as amici curiae in Real

Truth About Abortion (RTAA) v. FEC, 681 F.3d 544 (4th Cir. 2012), a case concerning

the same rules and policies and virtually identical legal arguments as at issue here. The

CLC and Democracy 21 filed a total of four amici briefs in the course of the RTAA

litigation. 

7. Both the CLC and Democracy 21 were also active in the administrative

proceedings that gave rise to this case. In response to Free Speech’s request for an

advisory opinion, see AOR 2012-11 (Mar. 9, 2012), the CLC and Democracy 21 filed

comments with the FEC on March 22, 2012, arguing that most of Free Speech’s proposed

advertisements constituted “express advocacy,” and that Free Speech would likely

qualify as a “political committee”under FECA upon receiving contributions or making

expenditures in excess of $1,000.1

 

8. The CLC and Democracy 21 wish to continue their participation in this

matter by filing the attached memorandum. Amici believe that this brief will assist the

Court’s understanding of the statutes, FEC regulations and case law relating to the

challenged rule and policies. This filing is timely because this motion and the attached

memorandum are being filed on the date that defendant FEC’s response to plaintiff’s

motion for preliminary injunction is due.

9. Counsel for amici consulted with counsel for the parties on this motion. 

Counsel for Plaintiff Free Speech (Benjamin Barr) and counsel for Defendant FEC (Erin

Chlopak) have been contacted about their consent to the amici participation of the CLC

and Democracy 21 in this case. Both consented to the participation.

 1 See Comments of Campaign Legal Center and Democracy 21 on AOR 2012-11 (Free Speech)

(Mar. 22, 2012), which can be found using the search function at http://saos.nictusa.com/saos/searchao.

Case 2:12-cv-00127-SWS Document 27 Filed 08/10/12 Page 3 of 7
WHEREFORE, premises considered, the CLC and Democracy 21 respectfully

pray that this Court will grant this motion and permit their participation in this case as

amici curiae. 

Respectfully submitted,

 /s/ Larry B. Jones

Larry B. Jones*

(WSB # 5-1847)

SIMPSON, KEPLER &

EDWARDS, LLC

The Cody, Wyoming Division of

BURG SIMPSON ELDREDGE

HERSH & JARDINE, P.C.

1135 14th Street

P.O. Box 490

Cody, WY 82414

ljones@skelaw.com

Tel.: (307) 527-7891

Fax: (307) 527-7897

*Counsel of Record

J. Gerald Hebert

(VA Bar No. 38432)

Tara Malloy

(DC Bar No. 988280)

Paul S. Ryan

(DC Bar No. 502514)

THE CAMPAIGN LEGAL

CENTER

215 E Street, NE

Washington, DC 20002

Tel.: (202) 736-2200

Fax: (202) 236-2222

Donald J. Simon

(DC Bar No. 256388)

SONOSKY, CHAMBERS,

SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, DC 20005

Case 2:12-cv-00127-SWS Document 27 Filed 08/10/12 Page 4 of 7
Tel.: (202) 682-0240

Fax: (202) 682-0249

Fred Wertheimer,

(DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036

Tel.: (202) 429-2008

Fax: (202) 355-9606

Counsel for Amici Curiae

Dated: August 10, 2012

Case 2:12-cv-00127-SWS Document 27 Filed 08/10/12 Page 5 of 7
CERTIFICATE OF SERVICE

I certify that on August 10, 2012, I electronically filed a copy of the foregoing

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

following counsel of record at the listed e-mail addresses:

John B. Speight,

 jbspeight@gmail.com

4021 Snyder

Cheyenne, WY 82001

Stephen R. Klein,

 stephen.klein@wyliberty.org

WYOMING LIBERTY GROUP

1902 Thomes Avenue, Suite 201

Cheyenne, WY 82001

Benjamin T. Barr,

 benjamin.barr@gmail.com

10737 Hunting Lane

Rockville, MD 20850

Counsel for Plaintiff

Anthony Herman,

 aherman@fec.gov

David B Kolker,

 dkolker@fec.gov

Erin R Chlopak,

 echlopak@fec.gov

Lisa J Stevenson,

 lstevenson@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463-0000

Nicholas Vassallo,

 nick.vassallo@usdoj.gov

US ATTORNEY'S OFFICE

P.O. Box 668

Cheyenne, WY 82003-0668

Counsel for Defendant

Case 2:12-cv-00127-SWS Document 27 Filed 08/10/12 Page 6 of 7
I further certify that courtesy copies of the brief were sent to the above counsel on

August 10, 2012 via email (where email addresses were available and known).

 /s/ Larry B. Jones

Larry B. Jones

(WSB # 5-1847)

SIMPSON, KEPLER & EDWARDS,

LLC,

The Cody, Wyoming Division of

BURG SIMPSON ELDREDGE

HERSH & JARDINE, P.C.

1135 14th Street

P.O. Box 490

Cody, WY 82414

Dated: August 10, 2012

Case 2:12-cv-00127-SWS Document 27 Filed 08/10/12 Page 7 of 7