UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SPEECHNOW.ORG, et al.,

Plaintiff,

v. Civil Action No. 08-248 (JDB)

FEDERAL ELECTION COMMISSION,

 Defendant.

Memorandum Opinion

Following the decision of the en banc D.C. Circuit (SpeechNow.org v. FEC, 599 F.3d

686 (D.C. Cir. 2010)), this Court, at plaintiffs' request, on May 27, 2010 entered an Order

Granting Plaintiffs' Motion for Entry of Judgment [hereinafter "May 27 Judgment"]. Defendant

Federal Election Commission (FEC), now moves to alter or amend that judgment. The FEC

contends primarily that the Court1

 erred by issuing an incomplete judgment, and by doing so

before the FEC was due to respond to plaintiff's motion (and hence without considering the

arguments provided in the FEC's timely partial opposition filed two days later).

This Court concludes that on one issue the FEC satisfies the "clear error" standard

applicable to a motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e). See, e.g.,

Ciralsky v. C.I.A., 355 F.3d 661, 671 (D.C. Cir. 2004); Firestone v. Firestone, 76 F.3d 1205,

1208 (D.C. Cir. 1996). Three issues are presented by the FEC's motion: (1) whether the May 27

Judgment was incomplete; (2) whether injunctive relief was properly entered in addition to

1Upon his retirement on June 1, 2010, the case was reassigned from Judge James

Robertson to the undersigned. 

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declaratory relief; and (3) whether the May 27 Judgment erroneously addressed the FEC's

regulations. The Court takes each issue in turn.

1. The failure to include in the May 27 Judgment a declaration that certain statutory

provisions are constitutional was clear error.2

 The March 26, 2010 Judgment issued by the Court

of Appeals, which then became the mandate when issued on May 3, 2010, included a clear order

that "there is no constitutional infirmity in the application of the organizational, administrative

and reporting requirements set forth in certified questions 4 and 5." Plaintiffs have provided no

satisfactory reason for this Court to deviate from the Court of Appeals' mandate and omit that

same declaration from the May 27 Judgment. The FEC's motion is therefore granted on this

issue, and the May 27 Judgment will be amended to include the language from the D.C. Circuit's

mandate.

2. On the other hand, including injunctive relief in the May 27 Judgment, and

specifically relief with respect to non-plaintiff donors, was not clear error. The FEC concedes

that it cannot and will not enforce the relevant statutory provisions against either plaintiffs or

non-plaintiff donors, and argues that declaratory relief is therefore adequate given the

presumption that the government will comply with the declaratory judgment. In essence, the

FEC argues that an injunction is unnecessary and hence should be avoided. Of course, as

plaintiffs' point out, such injunctive relief often accompanies a declaratory judgment. But even if

the FEC has the marginally better position, there was no "clear error" in including in the May 27

Judgment specific injunctive language that, in its substance, is not really objectionable.

2The failure to consider the FEC's opposition by ruling before it was due is a ground to

now consider the FEC's arguments, but is not itself "clear error" requiring that the May 27

Judgment be altered or amended. 

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3. So, too, and for similar reasons, the inclusion in the May 27 Judgment of relief

addressing the FEC's implementing regulations was not clear error. Indeed, the FEC's statement

that it "will not enforce implementing regulations" against plaintiffs or other donors confirms that

it was not clear error to include that concept in the May 27 Judgment.

The FEC's motion to alter or amend is therefore granted in part. An Amended Judgment

consistent with this Memorandum Opinion will be entered herewith.

 /s/ 

 JOHN D. BATES

 United States District Judge

Dated: October 28, 2010 

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